1.3

– Responses to Public Comments on Risk Associated with GS

This file contains responses to public comments on the risk associated with geologic

sequestration (comment codes 1600 to 1680). This section includes comments on risks

to drinking water, induced seismicity, RCRA/CERCLA issues, and health effects.

The table below presents all of the EPA

‐ assigned comment code s that are included in

this section of the comment and response summary. Use the bookmarks in the PDF to

move among the comment codes.

Topics included in this summary and associated comment codes

Topic Code

1.3 Risk Associated with CO2 GS 1600

1.3.1 Risks to USDWs 1610

1.3.1.1 Leaching and mobilization of contaminants; reactions in injection zone 1612

1.3.1.2 Impurities in captured CO2; purity standards for CO2 1614

1.3.1.3 Fluid movement 1616

1.3.1.4 Impacts on drinking water treatment (No comments were submitted for this topic.) 1618

1.3.2 Induced seismicity 1620

1.3.3 RCRA/hazardous waste issues 1630

1.3.4 CERCLA issues 1640

1.3.5 Human health impacts 1650

1.3.5.1 Concerns about Lake Nyos and Mammoth Mountain

‐ type events 1655

1.3.6 Ecosystem impacts (soil, air, surface water) 1660

1.3.7 Other/miscellaneous risks 1670

1.3.8 Don't overstate risk, don't stigmatize CO2 1680

Every comment on these topic areas and the associated response is included in this

summary; there is some repetition where multiple commenters made the same

comment.

Responses to letters from individual commenters or organizations are also available in

the rulemaking docket.Comment Code: 1600 1.3 Risk Associated with CO2 GS



### Individual Comments

Commenter Name: Anonymous Letter ID: 0101

Comment ID: 21937

Comment: i believe this is a dangerous solution to the issue of too much carbon. i believe we need to deal with this issue by making sure we produce less of this toxic substance. this is not the way to go. it is expensive and it is dangerous. we need conservation to step in first as a preventative.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs. EPA acknowledges the comment on reduction of carbon emissions. These comments are outside the scope of the UIC Program’s authority under the GS rulemaking.

EPA has estimated the costs of complying with the GS rule requirements; these are presented in the Cost Analysis, which is available in the rulemaking docket.

Commenter Name: B. Sachau Letter ID: 0105

Comment ID: 21939 Other EPA Comment Codes and Descriptions: 1340 1.1.3.2 Oppose use of GS in general

Comment: i elieve these wells are extremely dangerous. it would be far better to see that less carbon dioxide is formed. i see little to no effort in that regard and ask for more effort on that. these wells are an accident waiting to happen. look at how the army orps of engineers built the leveees in new orleans - that is an indication of the quality of construction that can happen in the usa.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs. EPA acknowledges the comment on reduction of carbon emissions. This comment is outside the scope of the UIC Program’s authority under the GS rulemaking.

Commenter Name: Nancy LaPlaca Letter ID: 0115 Commenter Organization: Bardwell Consulting Comment ID: 22047 Other EPA Comment Codes and Descriptions: 1620 1.3.2 Induced seismicity

Comment: Here are the problems with underground injection of CO2: - it's risky: who will bear the risk of leakage? - CO2 is heavier than air and displaces air - couple incidents in Africa (one in Cameroon) in late 1980's where large "cloud" of CO2was released and suffocated 1800 people and 1100 head of cattle. - liquid CO2 is very corrosive - injecting CO2 can induce seismic activity

Response: The final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Regarding the cost of responding to leaks, the GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. In the event of contamination or other adverse event to a USDW associated with GS, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions.

EPA disagrees that the CO2 releases at Lake Nyos is a valid analogue for GS. GS sites have little in common with the physical setting or mechanism that resulted in the release of naturally-occurring CO2 trapped at the bottom of Lake Nyos, a stratified tropical lake that suddenly overturned through a process known as "limnic eruption." No injection was associated with this event, and this site would not have been considered sufficiently geologically stable to be issued a Class VI permit based on the rigorous site characterization requirements at §146.82 (e.g., including lack of confining units).

GS takes places thousands of feet below the Earth’s surface within porous spaces in deep rock formations. CO2 is injected for GS through technically engineered wells with multiple barriers designed to isolate the injectate in the well and protect formations outside the well materials. The injected CO2 is stored in geologic formations underneath confining layers of rock that act as natural barriers to leakage. It is unlikely that CO2 would escape from a GS site that is properly characterized, operated, monitored, and closed. During the site selection process, operators of Class VI wells identify and evaluate the appropriateness of a site for GS of CO2. The evaluation includes the identification of surface and subsurface features such as deep stratified lakes and other naturally occurring pockets of CO2. Furthermore, during GS operation, injection pressures and formation conditions are monitored to avoid overpressuring the storage formation.

EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirements to address seismic risk. First, as part of the site characterization process, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone.

Commenter Name: John Stormon Letter ID: 0123 Commenter Organization: Washington State Dept. of Ecology Comment ID: 22998Other EPA Comment Codes and Descriptions: 2046 1.5.2.3 Continuing to classify CO2 injection for EOR/EGR as Class II/ dividing line between Class II and Class VI (seeking comment)

Comment: Risk: Geologic Sequestration is not the same as Enhanced Oil Recovery (EOR) and needs to have much high standards than EOR activities have had to date. Protecting USDW is the most important aspect of the UIC program for the geologic sequestration of carbon dioxide. Although limited experience has been gained by the oil and gas industry injecting CO2 into proven structural traps for EOR, this experience has limited carry over to broader strategies for geologic sequestration. Geologic sequestration, unlike EOR, is being considered in basins without proven oil and gas capture and holding reservoirs. Even where exhausted oil and gas reservoirs are being considered for geologic sequestration, the amount of carbon dioxide to be injected is far greater than used for EOR and the goals of the injection are different. There is an unknown, likely large, level of risk associated with large geologic sequestration projects. The regulatory standards for site selection, site characterization and ongoing monitoring should be kept high to help ensure that the worst case scenarios are never

realized.

Response: EPA agrees that the nature and risks of CO2 injection for long-term storage are different from Class II CO2 injection for ER, and that tailored requirements for GS wells are necessary to protect USDWs from endangerment. For this reason, the Agency tailored UIC requirements for Class VI wells that address the general risks deep injection may pose to USDWs and specifically address the unique nature of CO2 GS (i.e., very large volumes, very long time-periods, and reservoir pressure conditions).

EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. Although EPA believes that a lot can be learned from the EOR experience, EPA agrees that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated with long-term injection of CO2. For example, these requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

As part of its adaptive rulemaking approach, the Agency 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.

Commenter Name: Sam Kitto Letter ID: 0126 Commenter Organization: National Tribal Air Association Comment ID: 23048 Other EPA Comment Codes and Descriptions: 1930 1.4.4.2 Consultations with State, Tribal, and local Associations (e.g., GWPC, IOGCC)

Comment: As will be noted further in our comments, the EPA failed to adequately consult with Indian tribes on the GS rule. If the Agency had properly consulted, many tribes might have communicated that the lands on which they live are highly diverse and environmentally sensitive. As such, geologic sequestration conducted on or near these lands requires extra due diligence to ensure the safety of tribes and their environments. Every effort to mitigate the environmental impacts of geologic sequestration, even beyond impacts to USDWs, must be takenby the EPA.

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

Response: EPA clarifies that regulating environmental impacts beyond impacts of endangerment to USDWs is beyond the scope of EPA’s authority under the Safe Drinking Water Act and outside the scope of this rulemaking. However, EPA believes that the GS rule, properly implemented, will protect USDWs and the overlying land from endangerment.

Throughout the GS rulemaking, EPA has promoted a transparent stakeholder process to ensure that all stakeholders understood the rulemaking elements and that viewpoints and suggestions for rule modifications were recorded. EPA, with support from the American Indian Environmental Office (AIEO), engaged and consulted Tribes early in the rulemaking process, and continued to update Tribal representatives as appropriate. Additionally, the Agency provided tribes with the contact information for EPA managers in order to facilitate communication throughout the rulemaking

process.

In April 2008, prior to publication of the proposed GS rule, the Agency sent background information about the proposed rulemaking to all federally recognized American Indian tribes. In addition, EPA communicated with the National Tribal Caucus of the National Operations Committee (NTC) and the National Tribal Water Council (NTWC) to encourage participation in a dedicated consultation on the rulemaking. On April 24, 2008, the Agency held a conference call with all interested tribal representatives; a summary is included in the rulemaking docket. Additionally, an EPA representative presented information on GS and the GS regulatory framework at the National Tribal Council on Environmental Management (NTCEM) Meeting in Billings, Montana, in June 2008. In September 2008, during the proposed rule public comment period, EPA held two public hearings at which tribes were represented.

Throughout 2009 and 2010, more recent updates on the GS rulemaking were presented to tribal representatives through regularly scheduled calls with the NTWC, State and Tribal Climate Change Council (STC3), and the National Tribal Caucus. Representatives had the opportunity to ask EPA managers questions related to the rulemaking elements and finalization schedule. EPA believes that all of the actions undertaken were conducted to support an open and transparent rulemaking process in accordance with Executive Order 13175 and Agency recommendations.

EPA clarifies that following publication of the proposed rule in July 2008, the Fort Peck Assiniboine and Sioux Tribes and the Navajo Nation received UIC Program primacy for the Class II program under §1425 of the SDWA. EPA recognizes those tribes as co-regulators and remains committed to ensuring that co-regulators are informed on and have an opportunity to engage with EPA on the GS rule. To further ensure coordination and communication regarding the GS rule, EPA hosted a conference call specifically for the Fort Peck Assiniboine and Sioux Tribes, as well as the Navajo Nation, UIC Program Directors in February 2010. EPA representatives presented the history of the rulemaking, the current schedule for finalization of the rule, and the statutory differences in applying for primacy for the proposed Class VI program versus applying for primacy for the Class II program. A summary of the call is included in the docket for the GS rulemaking.

The Agency is currently reviewing its tribal consultation policies and procedures in accordance with the President's directive of November 5, 2009. When that review is final, there will be moreclarification from EPA on tribal consultation during program implementation.

In response to the comment that "extra due diligence" should be required on Tribal lands, EPA clarifies that the Class VI GS rule requirements are protective and apply to all USDWs. EPA clarifies that States, Tribes, and Territories that seek primacy for the Class VI program may adopt requirements that are more stringent than the minimum federal requirements in the GS rule.

Commenter Name: Emily Rochon Letter ID: 0129 Commenter Organization: Greenpeace International Comment ID: 23065

Comment: trapping mechanisms depends on the "migration rate of the CO2, which itself is highly dependent on the rock and fluid properties and geological characteristics of each site".[FN8 8 Bradshaw, J et al., 2007. CO2 storage capacity estimation: Issues and development of standards, International Journal of Greenhouse Gas Control 1, 2007, pp. 62-68.] This means that each storage site would need to undergo detailed characterizations both to determine suitability, as well as to assess the likelihood of leakage. As long as CO2 is present in geological formations, there is a risk of leakage -- it can migrate laterally or upwards to the surface. Undetected fractures in cap rocks or those created by injecting CO2 at too high a pressure can provide another avenue for CO2 to escape. Improper design and construction of wells can also create opportunities for leakage.[FN9 9 Massachusetts Institute of Technology (MIT), 2007. The Future of Coal, MIT, Boston 2007, .] The implications for climate mitigation as well as the other environmental and public health risks make leakage a serious concern.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a foundation for protecting USDWs that is based on successful field experience and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well understood. For example, at the Weyburn CO2-ER project in Saskatchewan, the distribution, phase, and interaction of injected fluids with native fluids were modeled and monitored to ensure maximum recovery (of CO2) and target circulation in a thin subsurface formation (Wilson and Monea, 2004).

The Agency clarifies that, under SDWA, EPA does not have the authority to directly regulate air emissions via CO2 leakage to the surface and comments related to such issues are outside the scope of this rulemaking. However, the GS rule requires that CO2 injected for GS remain confined in the injection zone. Leakage outside of the injection zone as defined in a Class VI permit, which may beevidenced by leakage to the surface, would be a permit violation if a USDW is endangered.

Commenter Name: Emily Rochon Letter ID: 0129 Commenter Organization: Greenpeace International Comment ID: 23067

Comment: Either way, even a tiny rate of leakage could undermine any putative climate benefit of CCS. A leakage rate of just 1% on 600 Gt of stored carbon (2160 Gt CO2 or about 100 years’ worth of CO2 emissions from fossil fuels), could release as much as 6Gt of carbon (21.6 Gt CO2) per year back into the atmosphere. This is roughly equivalent to current total global CO2 emissions from fossil fuels.[FN14 14 Azar, C et al, 2006, Carbon Capture and Storage from Fossil Fuels and Biomass--Costs and Potential Role in Stabilizing the Atmosphere, Climactic Change vol. 74, 2006, pp. 47-79.]

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs. The Agency clarifies that, under SDWA, EPA does not have the authority to directly regulate air emissions via CO2 leakage to the surface. However, the GS rule requires that CO2 injected for GS remain confined in the injection zone. Leakage outside of the injection zone as defined in a Class VI permit, which may be evidenced by leakage to the surface, would be a permit violation if a USDW is endangered.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a foundation for protecting USDWs based on success, field experience, and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well understood. At the Weyburn CO2-ER project in Saskatchewan, the distribution, phase, and interaction of injected fluids with native fluids were modeled and monitored to ensure maximum recovery (of CO2) and target circulation in a thin subsurface formation (Wilson and Monea, 2004).

Commenter Name: Dawn A. Thorne Letter ID:

0134 Commenter Organization: University of Utah Energy and Geoscience Institute on behalf of the Southwest Regional Partnership Comment

ID: 21653 Other EPA Comment Codes and Descriptions: 1250 1.1.1.4 Flexibility is needed (performancebased standards)

Comment: 1.) The SWP would like to recommend a risk-based approach to the siting requirements, Area of Review (AoR), monitoring requirements, site-closure requirements, and the grandfather clause. The EPA notes in several places within the proposed rule that each GS site is unique with respect to physical and chemical properties. As such, the SWP recommends that the EPA adopt a risk/performance-based approach for each site. Reasoning for this recommendation as it relates to specific aspects of the proposed rule are outlined by relevantsections:

Response: EPA has taken a regulatory approach that promotes USDW protection, incorporates flexibility or permitting authority discretion when appropriate, seeks to limit burden on owners or operators and permitting agencies, and provides a foundation for national consistency in permitting of GS projects. Under the final rule, many of the permit requirements must be established through site-specific plans (e.g., AoR and corrective action plan, testing and monitoring plan, etc.) developed by the owner or operator and approved by the Director. Consequently EPA expects that owners or operators will consult with the Director as they develop, implement, and update these plans. Additionally, the Director has the discretion to approve alternatives to the requirements in some cases. For example, the Director may in certain situations modify the length of the post-injection site care period or approve an alternative post-injection site care timeframe as part of the permitting process under §146.93, allow the use of alternate methods for mechanical integrity testing (if approved by EPA) under §146.89, and waive the requirement that wells be designed to inject below the lowermost USDW under §146.95.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23380

Comment: 8. "Acts of God" such as CO2 or other substances released from seismic events where seismic events could not have been reasonably anticipated by experts should not have liability attached to the owner/operator or other parties if the parties acted in a responsible way and could not have reasonably anticipated a

fault or seismic risk.

Response: Under the final GS rule, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or athird-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA adds that the GS rule contains several permit requirements (i.e., related to proper siting and operation of the well) to address seismic risk that should mitigate the chances of such events.

Commenter Name: Quinlan J. Shea Letter ID: 0177 Commenter Organization: Edison Electric Institute Comment ID: 23565

Comment: ii. Appropriate characterization of potential risks. Similarly, any regulation should be based upon an accurate characterization of the potential risks posed by GS of CO2 and be tailored accordingly to address those potential risks, not only to ensure appropriate protection of underground sources of drinking water (USDW), but also to avoid unnecessary regulations that may hamper CCS projects from going forward or call into question the general safety of CO2 storage.

Response: EPA agrees that risk is an important aspect of setting requirements for GS, and expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs. EPA does not believe that the GS regulation stigmatizes CO2 injection or that it mischaracterizes any potential risks. EPA believes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the

CO2 stream.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a foundation for protecting USDWs based on successful field experience, and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well understood. At the Weyburn CO2-ER project in Saskatchewan, the distribution, phase, and interaction of injected fluids with native fluids were modeled and monitored to ensure maximum recovery (of CO2) and target circulation in a thin subsurface formation (Wilson and Monea, 2004).

EPA clarifies that the GS rule does not promote GS. The focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that is protective of USDWs.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23809

Comment: C. VIEW OF GS RISKS AND HAZARDS

The CCS Alliance concurs with the Agency's identification of the risks and hazards, to the extent these are understood and can be reasonably predicted, that likely are posed by underground injection. The U.S. oil and gas industry, as EPA has pointed out. has had decades of experience drilling through highly pressurized formations and injecting significant amounts of CO2 for purposes of enhanced recovery. The Agency rightly notes that CO2 has been successfullyinjected on much larger scale at several sites outside the United States. However, broad scale, large CCS injections pose new considerations, and CCS requires site-specific review.

Response: EPA recognizes that industry has decades of experience with well construction and operation. For example, the oil and gas industry has experience drilling and cementing wells in very deep formations, in a variety of environments (e.g., high-pressure and low-pressure formations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class VI wells.

EPA has taken a regulatory approach that promotes USDW protection, incorporates flexibility or the discretion of the permitting authority when appropriate, seeks to limit burden on owners or operators and permitting agencies, and provides a foundation for national consistency in permitting of GS projects. For example, under the final rule, many of the permit requirements must be established through site-specific plans (e.g., AoR and corrective action plan, testing and monitoring plan, etc.) developed by the owner or operator and approved by the Director. Consequently EPA expects that owners or operators will consult with the Director as they develop, implement, and update these plans. Additionally, the Director has the discretion to approve alternatives to the requirements insome cases. For example, the Director may in certain situations modify the length of the postinjection site care period under §146.93, allow the use of alternate methods for mechanical integrity testing (if approved by EPA) under §146.89, and waive the requirement that wells be designed to inject below the lowermost USDW under §146.95.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23817

Comment: D. INSUFFICIENT RECOGNITION OF LIKELIHOOD OF TECHNICAL

ADVANCES

CO2 injection has been successfully utilized in the EOR process for decades. As such, even though CCS technology has not been widely deployed, the technology and industry knowledge are nevertheless presently sufficient to commence CCS activities. However, significant advances in technology and understanding are likely to be made in the future. The Proposed Rule fails to fully recognize or otherwise take into account that technology and the state of knowledge almost certainly will improve and continue to evolve. EPA, therefore, should better reflect that as technology and understanding improves, the risks associated with CCS will be reduced and the ability to mitigate remaining risks will be improved.

Response: EPA recognizes that technologies will evolve and improve over time, and for these reasons, the Agency is using an adaptive approach to regulate GS injection. The Agency 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.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23825Other EPA Comment Codes and Descriptions: 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: C. WHAT MARKET PARTICIPANTS SAY ABOUT RISK

The framework for approaching the commercial risk in the development and deployment of coal-based projects with CCS is demonstrated by the following

chart:

For Development of Coal Based Charts with CCS Approach to Commercial Risk Framework [Please see Comment Pdf for Graphic, pg. 20]

The CCS Alliance has evaluated technical, market, and policy risks associated with CCS deployment. On behalf of the CCS Alliance, Andrew Paterson of Econergy International interviewed dozens of market participants earlier this year, including project developers, utilities, technology vendors, risk managers, and financial providers to assess which risks were considered most likely to occur, and which, if they occurred, would be considered to have the greatest impact to the project.

The results can be viewed graphically in a Cartesian coordinate analysis, as follows:

Which Risks Matter? Which Will the Market Handle? Probability vs. Impact [Please see Comment Pdf for Graphic, pg. 21]

The CCS Alliance analysis confirms that market participants concur with the view of the Intergovernmental Panel on Climate Change ("IPCC") that physical risks such as an operating accident or geologic sequestration site failure are low probability, high impact risks.[FN16] However, they view as higher probability the risk of policy failure.

[FNl6] IPCC, Special Report on Carbon Dioxide Capture and Storage (2005). IPCC report states that there is only a one percent chance that CO2 would escape into the atmosphere in 100 years.

In the CCS Alliance Risk Study, the highest rated risks for companies and investors considering investment in projects with CCS were focused on:

- Higher capital costs for capture, compression, transport, injection and

storage.

- Uncertainty about the extent and timing of legislation and regulations for carbon emission constraints - in other words, a regulatory basis for pursuing

CCS at all.

- Unclear rules at the federal and state level for CCS injection (which the UIC Proposed Rule is seeking to address), creating some uncertainty about specific

liabilities.

- Lack of clarity about long-term ultimate liability for CO2 leakage after injection and storage for some commercially relevant time period (e.g., 10 to 30years). The Proposed Rule also seeks to address this issue.

- Electricity (or fuel) prices - in the regional market or set by state utility

commissions - which are too low to cover costs for CCS.

Some mechanisms, as either subsidies or for risk transfer, exist to address these issues, but as depicted in the table below, they are concentrated in the area of either reducing capital costs and other CCS related expenses, or in dealing with electricity rates and adjusting revenues in some manner. Subsidies to cover higher costs include: federal grants for new facilities, tax credits, and state grants. Other mechanisms, such as a federal loan guarantee (Section 1703 of EPAct 2005) or rate-basing a plant with CCS, remove substantial risk for capital recovery by providing alternative recovery or prevention of default.

Mechanisms (vs. Capital Risks) -- [Please see Comment Pdf for Graphic, pg. 23]

Because substantial exposure to some critical risks remains, additional mechanisms and regulatory clarification are needed to garner the scale of investment and capital recovery needed for commercial entities to deploy major facilities with CCS. As summarized in the table above, clarifying injection and transport rules clearly help, and can be coordinated with private insurance, trust funds or bonding, and state revolving funds. Additionally, some clarity on carbon emission regulations would eventually enhance the value of assets with CCS, and help attract capital for construction in the first place. Without capital investment, no CCS will be implemented because it is an inherently capital-intensive activity primarily involving facilities costing more than $1

billion.

But, there is no private instrument that can bear "indefinite, long-term liability" for leakage from CCS sites because commercial enterprise carries a finite horizon for investment. The EPA UIC program does wield a regulatory incentive, though, in negotiating or retaining some flexibility on the point (e.g., 10 years versus 50 years) at which liability for long-term leakage is assumed by the federal holder after injection.

Results of the CCS Alliance Risk Study are summarized in the following chart. Note that in addition to the concern noted earlier about state CCS regulations and liability policies, one of the issues scoring the highest risk factor is that EPA regulations on underground injection of CO2 and liability fail to offer clarity for financing. Lack of clarity could prove to be a "showstopper." EPA should do its utmost to use its statutory authority to reduce this risk through this rulemaking.

Far Deployment of Coal-based Projects with CCS Risk Study: Technical, Policy, Market Risks -- [Please see Comment Pdf for Graphic, pg. 24]

This information is buttressed by the recently published findings of the Government Accountability Office ("GAO") which, in part, concludes that regulatory and legal uncertainties, including questions about liability concerning CO2 leakage and ownership, are primary barriers to CCSdeployment.[FN17]

[FN17] GOVERNMENT ACCOUNTABILITY OFFICE. GAO-OX-1080, CLIMATE CHANGE:

FEDERAL.

ACTIONS WILL GREATLY AFFECT THE VIABILITY OF CARBON CAPTURE AND

STORAGE AS A KEY MITIGATION OPTION (2008).

Response: EPA acknowledges the comment on market risk. This comment is outside the scope of the UIC Program’s authority under the GS rulemaking. However, EPA clarifies that the final rule, at §146.85, provides more detailed requirements on financial responsibility for risks associated with injection.

Commenter Name: Scott Davis Letter ID: 0187 Commenter Organization: Arizona Public Service Company Comment ID: 25222

Comment: - The final rule must ensure protection of underground sources of drinking water, but not be overly burdensome or subject CO2 sequestration operations to unnecessarily more stringent regulation than is warranted based upon the risks.

Response: The GS rule balances the need for site-specific decisions with the need for minimum standards to ensure national consistency and USDW protection from endangerment, while also ensuring that states have the data they need to make permitting decisions.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24317

Comment: Unfortunately, the proposed rule does not seem to reflect an adequate appreciation of the demonstrated strength and experience of the UIC program. Instead the proposal appears to be based on an exaggerated assessment of the risks and challenges involved in CO2 injection; as a result the proposed rule would impose requirements that are substantially more elaborate, burdensome and prescriptive than necessary to protect human health and the environment. Because such requirements would impose regulatory burdens that are disproportionate to any environmental benefits they might provide, they would do more to impede and deter GS than to facilitate its responsible use.

Response: EPA acknowledges that industry has decades of experience with well construction and operation. For example, the oil and gas industry has experience drilling and cementing wells in very deep formations, in a variety of environments (e.g., high-pressure and low-pressure formations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class VI wells.

EPA disagrees that the GS requirements are excessive or are based on an exaggerated assessment of risks and challenges involved in CO2 injection. The Agency believes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA believes that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated with long-term injection of CO2. These requirements include thetailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

As part of its adaptive rulemaking approach, The Agency 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.

EPA clarifies that the GS rule does not promote GS in specific settings, nor does it limit injection activities to any specific type of formation, geographic region, or depth. The focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that is protective of USDWs.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24326 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking

Comment: E. EPA Should Ensure that the Regulations for GS Are Not More Stringent or Prescriptive than Necessary to Protect USDWs.

EPA has recognized that it has two goals for the proposed rules for geologic storage of carbon dioxide: the protection of underground sources of drinking water [FN2/] and the promotion of the development of carbon capture and storage.[FN3/] EPA Administrator Stephen Johnson noted when he announced the proposal that ""[t]oday's proposal paves the way for technologies that would protect public health and help reduce the effects of climate change. With proper site selection and management, geologic sequestration could play a major role in reducing emissions of carbon dioxide into the atmosphere."[FN4/] We urge EPA to keep both of these goals in mind and to work to ensure that the regulatory regime that is ultimately adopted is designed to facilitate - not delay or discourage - the successful commercial-scale development of carbon capture and storage. The potential emissions benefits of commercial-scale carbon storage are too large and too important to ignore in the context of these regulations.

[FN2/: 73 Fed. Reg 43492 (July 25, 2008) ("It proposes a new class of well and minimum technical criteria for the geologic site characterization, fluid movement, area of review (AoR) and corrective action, well construction,operation, mechanical integrity testing, monitoring, well plugging, postinjection site care, and site closure for the purposes of protecting underground sources of drinking water (USDWs).").] [FN3/: EPA Press Release, "EPA Lays Groundwork for Promising Technologies to Help Mitigate Climate Change" (July 15, 2008), http://www.epa.gov/safewater/uic/wells_sequestration.html ("EPA is proposing a rule that supports promising technologies to prevent industrial emissions of carbon dioxide. Secure, long-term underground storage of the greenhouse gas is one way scientific innovation could lessen the effects of climate change. . . . Carbon capture and storage is part of a portfolio of technologies available to reduce greenhouse gas emissions. EPA is coordinating with the Department of Energy on carbon sequestration research and development."); EPA Press Release, "EPA To Develop Regulations for Geologic Sequestration of Carbon Dioxide" (October 7, 2007) Id.][FN4/: EPA Press Release (July 15, 2008).]

Unfortunately, in its effort to ensure protection of USDWs, EPA has exhibited a zeal that could materially impede, overburden, and effectively stigmatize GS. The preamble to the proposed rule repeatedly overstates the risks posed by CO2 injection while systematically understating the extent of knowledge and experience industry and regulators have gained through decades of practical experience with a wide range of injection well operations. As a result, the preamble presents an exhaustive review of every imaginable risk with respect to CO2 injection, but fails to disclose that many of these theoretical risks relate to implausible scenarios or concerns that - based on decades of robust operational and regulatory experience - are well understood and relatively easy to address. The scale of GS operations will certainly be larger than many previous CO2 injection operations, but it is not as though we do not have extensive experience with CO2 injection or that there is any fundamental lack of understanding about what happens when CO2 is injected underground. After all, there are already thousands of existing CO2 injection wells in operation that have injected hundreds of millions of tons of CO2 largely without incident. Rather than provide appropriate context for the development of Class VI regulations, however, the proposed rule gives the impression that GS is an adventure into entirely uncharted seas. The proposed rule - having started by framing the issues in this way - then employs a regulatory approach that errs on the side of including excessively prescriptive, overly-burdensome, and often redundant requirements.

Response: EPA disagrees that the GS requirements are excessive. The Agency believes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA believes that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated with long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

EPA acknowledges that industry has decades of experience with well construction and operation. For example, the oil and gas industry has experience drilling and cementing wells in very deep formations, in a variety of environments (e.g., high-pressure and low-pressure formations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class VI wells.

As part of its adaptive rulemaking approach, the Agency 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.

EPA clarifies that the GS rule does not promote GS in specific settings, nor does it limit injection activities to any specific type of formation, geographic region, or depth. The focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that is protective of USDWs.Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24327 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking

Comment: 1. The Proposed Class VI Requirements Are Far More Burdensome than Necessary to

Protect USDWs.

As the preamble acknowledges, the actual human health and ecological risks associated with GS are relatively remote and can be addressed effectively through measures implemented to protect USDWs. 73 Fed. Reg. at 43497-98. Unfortunately, having started with an exaggerated sense of the risks involved and an inadequate recognition of the value of existing regulatory and operational experience relevant to CO2 injection, the proposed rule seems to proceed from the premise that the most strict UIC regulations in existence - those for hazardous waste injection - should serve as the starting point for the development of the Class VI regulations. This is not a logical or appropriate regulatory approach, because CO2 - which is found in abundance both in ambient air and in the subsurface - is nothing like hazardous waste and plainly does not warrant the same level of regulation. In fact, the principal issues with respect to CO2 injection for GS relate primarily to the mobility of CO2 and the sheer magnitude of the injection operations involved; these are not issues that the requirements for hazardous waste injection are particularly well suited to

address.

The more logical starting point for development of the Class VI regulations is the Class II regulations. As the proposed rule recognizes, CO2 injection operations have been conducted pursuant to the Class II regulations for many years, and experience with thousands of wells injecting hundreds of millions of tons of CO2 demonstrates that the Class II regulations - as applied to CO2 injection - are adequate to protect USDWs. This is certainly true with respect to the basic construction, operating, monitoring, and mechanical integrity testing requirements for injection wells; after all, what "works" in terms of the construction and operation of a CO2 injection well does not depend on the purpose for which CO2 is being injected. Accordingly, there is no reason why the Class VI requirements addressing issues such as well construction and mechanical integrity testing should be any different than the Class II requirements.

Unfortunately, the proposed Class VI requirements are far more stringent than the Class II requirements, a fact that creates a need to "grandfather" Class II CO2 injection wells that remain in service for GS purposes after EOR/EGR operations cease. Rather than resembling the Class II requirements, the proposed Class VI requirements are as stringent as those for hazardous waste injection in most respects. Indeed, many of the construction, mechanical integrity, monitoring and financial assurance requirements proposed for Class VI wells are even more comprehensive and more strict than those for hazardous waste injection wells. While some of these more burdensome requirements are legitimately related to concerns about the mobility of CO2 or the anticipated scale of GS operations, many - as discussed in Part III of these comments - are not.

Response: EPA disagrees that the GS requirements are excessive or are based on exaggerated risks; the Agency believes that injecting large volumes of CO2 for GS poses unique challenges that, if notproperly managed, could endanger drinking water sources or have other adverse impacts. EPA believes that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated with long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

EPA believes that the nature of CO2 injection for long-term storage is different from Class II CO2 injection for ER, and that tailored requirements for Class VI wells are appropriate and necessary to protect USDWs from endangerment. For this reason, the Agency tailored UIC requirements for Class VI wells that address the general risks deep injection may pose to USDWs and specifically address the unique nature of CO2 GS (i.e., very large volumes, very long time-periods, and reservoir pressure conditions).

Commenter Name: Brad Castleberry Letter ID: 0203 Commenter Organization: Water Environment Association of Texas (WEAT) Comment ID: 22178

Comment: These comments are submitted on behalf of the Water Environment Association of Texas ("WEAT"). Specifically, these comments are submitted in response to the above-referenced rulemaking in an effort to urge caution and careful consideration before adoption of the proposed regulations. We urge this caution in the interest of protecting drinking water sources and groundwater quality.

WEAT is a non-profit technical trade organization comprised of a number of utilities, industries, and individuals in the State of Texas. WEAT's members strive to promote sound science, education, and environmental stewardship. There are a number of activities in the proposed regulations that could impact groundwater quality as well as public drinking water sources. Careful

Response: EPA believes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA believes that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated long-term injection of CO2.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22920

Comment: sequestration sites. EPA’s rule and any financial incentives put forth by other branches of government must avoid the manifestation of long-term risks from adverse site selection or design due to moral hazard. Moral hazard is the possibility that a party insulated from risk may behave differently from the way it would behave if it were fully exposed to the risk. A potential owner/operator of a CCS site that has liability immunity for example, may have a tendency to act less carefully than it otherwise would, leaving another party to bear some responsibility for the consequences of those actions.

Response: EPA clarifies that the GS rule does not insulate owners or operators from risk. The GS rule requires that owners or operators demonstrate and maintain financial responsibility for correctiveaction on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites, as specified in §146.85. In the event of contamination or other adverse event that endangers a USDW during the life of the project, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions to remediate the USDW. EPA clarifies that it is the owner or operator of the well who will be required to demonstrate financial responsibility, not the generator of the CO2, consistent with EPA’s authority under SDWA. Furthermore, EPA notes that tort and other remedies will continue to be available after site closure. Other Federal environmental statutes, e.g. Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992, potentially apply as well to the risks created by the long-term storage of CO2.

EPA adds that Class VI well owners and operators must site, construct, operate, monitor, and close their wells in a manner that protects USDWs, and Class VI permits will set forth rigorous technical requirements to ensure careful planning, operation, and closure of GS projects. Failure to meet these requirements would be considered a violation of the permit and would be subject to applicable civil, criminal, or administrative penalties under SDWA §1423. The comment regarding financial incentives put forward by other federal agencies is outside the scope of this rulemaking.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22934 Other EPA Comment Codes and Descriptions: 1510 1.2.2.3 Need for additional study

Comment: o Before any CO2 geosequestration projects are fully deployed, more research is needed to allow EPA and/or DOE to develop a risk assessment for the technology, taking into account risks to USDWs.

o The effectiveness of available risk management methods must be demonstrated. This is also recommended by the IPCC in its Summary for Policymakers.

Response: As described above, EPA agrees that continued research in all GS associated fields will be integral to development of GS technology. EPA is using an adaptive approach to regulating GS under the UIC Program. Even after finalization of the GS regulation, the Agency plans to collect and review data every six years 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.

EPA believes that the GS rule requirements are tailored to address the unique challenges posed by GS and the potential risks associated with the long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

Commenter Name: Kristin Henry Letter ID: 0242 Commenter Organization: Sierra Environmental Law Program, Sierra Club Comment ID: 23318 Other EPA Comment Codes and Descriptions: 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: II. The EPA should create a liability scheme for the CCS program.

There is a long list of potential risks associated with CO2 injection andsequestration. Most prominently for purposes of the proposed rule, injected CO2 could cause groundwater contamination by leaking into potable aquifers or causing saline intrusion.[FN15]

When CO2 is injected underground it will naturally migrate through the pore space. This natural migration could lead CO2 to travel upward throughout the reservoir into undetected or abandoned portions of the reservoir, or into portions of the reservoir not owned by the operator, resulting in potential liability for subsurface trespass.[FN16]

Surface leakage out of the storage formation through faults and fractures may lead to other types of potential liability. It could endanger human health by leaking into indoor air and basements.[FN17] Although unlikely, a large surface release could pose health risks to humans, in the form of asphyxiation or the other effects from prolonged exposure to high concentrations of CO2.[FN18] Such other effects include difficulty breathing, loss of consciousness, and death. In addition, CO2 seepage could harm flora and fauna, and could potentially ruin nearby ecosystems and agriculture.[FN19] CO2 also could make sources of oil and gas unattainable, create pressure changes causing ground heave, and even trigger seismic events.[FN20]

[FN15: Wilson et al., World Resources Institute Issue Brief, Liability and Financial Responsibility Frameworks for Carbon Capture and Sequestration at 3 (Dec. 2007).] [FN16: Id. at 2.] [FN17: Id. at 3; see also IPCC CCS 5.7.7.] [FN18: Id. at 3.] [FN19: Id.] [FN20: Id.]

Given the potential impacts to the environment, public health, and private property, the proposed rule’s approach of ignoring liability issues is improper. Large-scale CO2 sequestration should not begin until liability is definitively determined. EPA should thus revise the regulations and adopt a liability scheme that encompasses the "polluters pay" principle.

The polluters pay principle derives from the fundamental, fair, and logical proposition that the party responsible for producing pollution should also be responsible for paying for any damage to the natural environment. Utilizing the polluters pay principle provides an incentive for owners, operators and CO2 generators to use precaution in their operations. Potentially liable parties have an incentive to avoid risk and damage, which often manifests in parties undertaking additional investment in research and development to improve knowledge and technologies.

The EPA should revise the regulations to impose joint and several liability on Class VI well owners and operators and the generator of the injected CO2 for contamination of underground sources of drinking water, property damage, personal injury or any other injury arising from the injection. In addition, the EPA should require that an operator has complete liability coverage from aprivate insurance company before commencing injection. "Pollution legal liability insurance" coverage protects the insured party from claims arising from unknown conditions or problems, such as property damage or public health impacts from CO2 leakage.

Response: EPA believes that the GS rule requirements appropriately address the risk associated with long-term storage of CO2. EPA agrees that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93. Failure to meet these requirements would be considered a violation of the permit and would be subject to applicable civil, criminal, or administrative penalties under SDWA §1423.

EPA agrees that owners or operators of Class VI wells must ensure that resources are available to prevent endangerment of USDWs from improper plugging, remediation, and management of wells. For this reason, the GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. EPA clarifies that this demonstration must be made before injection can begin. In the event of contamination or other adverse event that endangers a USDW during the life of the project, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions to remediate the USDW. EPA clarifies that it is the owner or operator of the well who will be required to demonstrate financial responsibility, not the generator of the CO2, consistent with EPA’s authority under SDWA. Furthermore, EPA notes that tort and other remedies will continue to be available after site closure. Other Federal environmental statutes, e.g. Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992, potentially apply as well to the risks created by the long-term storage of CO2.

EPA disagrees that the GS rule ignores liability issues but is working within the confines of its statutory authority under the SDWA. EPA notes that comments regarding liability for contamination of the environment outside of endangerment of USDWs (e.g., CO2 leakage into basements, harm to flora and fauna, etc.) are outside of EPA’s authority under the SDWA and are therefore outside the scope of this rulemaking.

Commenter Name: Mary Munn Letter ID: 0273 Commenter Organization: Fond du Lac Reservation Comment ID: 24084

Comment: Even as this proposed rule is being considered, the EPA is soliciting "applications to conduct research to support the development of sound risk management strategies for the underground injection of anthropogenic carbon dioxide (CO2)" (accessed online October 6 2008 http://es.epa.gov/ncer/rfa/2008/2008_star_gsc02.html). The technology for GS of CO2 is not yet available or known to be safe.

Response: EPA believes that sufficient data and experience currently exist to develop regulations for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices regulated by the UIC Program. While developing the GS regulation, EPA has evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory(NETL), and several international projects.

Several large-scale pilot projects are currently underway worldwide to test the appropriateness and efficacy of various technologies to characterize sites, ensure proper well construction and operation, and monitor injection activities and CO2 plume and pressure front distribution. EPA is tracking international GS efforts and is aware of four commercial-scale projects that are currently in operation: the Sleipner Project in the Norwegian North Sea (operating since 1996); the Weyburn ER project in Saskatchewan, Canada (since 2000); the In Salah Gas Project in Algeria (since 2004); and Snohvit, also in offshore Norway in the Barents Sea (since 2008). Other projects EPA is tracking include Gorgon and Otway (in Australia); Ketzin (in Germany); Lacq (in France); and CarbFix (in Iceland).

Activities at Weyburn, In Salah, Sleipner, and the RCSP sites have been supervised by leading industry scientists and practitioners. Activities at Weyburn have also been peer-reviewed by the IEA-GHG Programme, an international collaborative research program that includes the European Commission and OPEC as members. EPA has considered the results of these pilot projects and data from RCSPs in developing the GS rule.

As the commenter notes, EPA continues to research GS and associated technologies. EPA will use any knowledge gained through this research to inform its adaptive rulemaking approach. The Agency 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.

Commenter Name: Becki Clayborn Letter ID: 0509 Commenter Organization: Sierra Club Comment ID: 21203

Comment: So we respectfully urge the U.S. EPA to not look at this in a piecemeal way, but to really look at it in a holistic way. How are we going to keep this out of the atmosphere? How are we going to make sure that companies, the applicants that are getting into this project know that they have to keep it in the ground? How do we mitigate if it doesn't stay in the ground?

Obviously, we brought up some of our concerns on a local level for the Sierra Club, what happens in the local areas if it does contaminate wells, if it does leak out of an old well that's not been properly capped?

Response: EPA acknowledges that GS falls within the broader context of CCS and acknowledges that regulatory clarity is essential for enabling GS to move forward in a manner that protects human health and the environment. The Agency is working to identify areas related to GS that could be addressed under other statutes to ensure that GS is conducted in a manner that is protective of human health and the environment. Additionally, the Agency is and will continue to coordinate internally and with other Federal agencies involved in GS and CCS, including the Minerals Management Service, Bureau of Land Management, and the United States Geological Survey, to promote consistency in existing and future GS initiatives.

EPA acknowledges that there are potential risks associated with GS including the potential that CO2 injection for GS could cause fluid movement, which can endanger USDWs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure.Suitable GS sites must have confining zones that are free of transmissive faults or fractures and are of sufficient areal extent and integrity to contain the injected CO2 stream and displaced formation fluids. The formations must allow injection at proposed maximum pressures and volumes without initiating or propagating fractures in the confining zone(s), as required at §146.83(a)(2).

The GS rule requires owners or operators to submit extensive data about a proposed GS site to identify (and eliminate) sites with a potential for unacceptable fluid movement. Information to be submitted and evaluated at §146.82 includes data on the porosity, permeability, and other information regarding the suitability of the confining zone; the location of any known or suspected faults; subsurface geochemistry; and the location of, depth of, and other information regarding any perforations that may extend into the confining zone. EPA believes that this information, in conjunction with AoR modeling required at §146.84, will help identify the potential for brine migration as a result of pressure displacement. Based on this information, the Director and the owner or operator can identify ways to mitigate this risk prior to injection, or, if necessary, the Director can deny the permit application. During injection operations, operators must extensively monitor ground water quality and pressure changes to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90.

EPA clarifies that owners or operators must also develop and follow an emergency and remedial response plan to address movement of the injection or formation fluids that may cause an endangerment to a USDW during construction, operation, and post-injection site care periods as specified in §146.94 and maintain financial responsibility to address contamination as specified in §146.85.

EPA adds that mitigation of CO2 emissions is outside the scope of the GS rulemaking.

Commenter Name: Leslie Glustrome Letter ID: 0527

Comment ID: 21408

Comment: Secondly, what I would like to do is remind everyone that carbon dioxide is what you might call a rock of a molecule. Once you have carbon and oxidize it fully at four bonds oxygen, you have created the molecule that is the foundation of all life on this planet. It is, in a sense, by nature's design, a molecule that does not go away. Climate scientists tell us that we will be dealing with the climate science, climate change and warming of the planet for thousands of years after we stabilize CO2 levels in the atmosphere. This is not something to play around with. This is not something to take lightly. This is not something to assume that somehow the guys in the suits have it figured out because we had a very clear demonstration that that is not the case very recently.

Carbon dioxide by nature is a gas. It is as the waterworks association person has reminded us, corrosive. It is an acid forming gas, tenth grade chemistry reminds us of that. Carbon dioxide and water forms carbonic acid. When you are creating large amounts of carbon dioxide, you will be getting large amounts of carbonic acid and to state it very scientifically, when you make large amounts of carbonic acid, we can expect it to acidify the crap out of everything that it comes into contact with. That means that you change the carbonate cycle and you start to liberate iron and manganese and arsenic and all, many other metals, so this is not something to somehow think that -- this is just a high level injection experiment. We are talking about massive volumes of something that isvery different than something that we have.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential that CO2 injection for GS may result in leaching of subsurface materials that could mobilize contaminants or compromise pore space, and therefore injectivity. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. To ensure USDW protection and mitigate risks, the GS regulation requires the owner or operator of a Class VI well to submit data about the site (during the site characterization process), including information on the porosity, permeability, mineralogy, and geochemistry of the injection and confining zones, along with information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82. This data will help identify potential geochemical reactions that may occur between the injected CO2 and the host geologic formation. Identification of potential reactions prior to injection would address concerns that formation of carbonic acid could dissolve potential limestone creating karst features.

During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address movement of the injection or formation fluids that may cause an endangerment to a USDW during construction, operation, and post-injection site care periods, including contamination as specified in §146.94, and provide financial responsibility to address contamination as specified in §146.85.

In response to comments regarding the mobilization of constituents, EPA is funding research at the Lawrence Berkeley National Laboratory (LBNL) on potential USDW impacts associated with mobilization of trace elements. In the August 31, 2009, NODA and Request for Comment (74 FR 44802), EPA published the results of the study, which evaluated the potential for GS to cause changes in ground water quality as a result of CO2 leakage and subsequent mobilization of trace elements such as arsenic, barium, cadmium, mercury, lead, antimony, selenium, zinc, and uranium (Birkholzer et al., 2008a). In the study, LBNL estimated the amount of trace elements from native mineral species that could potentially be mobilized by the intrusion of CO2 and the potential ground water concentrations that could result, to determine the potential for drinking water standards to be exceeded. Results from this model simulation suggest that if CO2 were to leak into a shallow aquifer, the potential for mobilization of lead and arsenic could be enhanced, causing increases in the concentration of these trace elements in ground water. The Agency continues to monitor research related to CO2 confinement, potential for CO2 leakage, and mobilization of trace elements. EPA adds that the GS rule focuses on protection of USDWs from endangerment; impacts on the carbon cycle are outside of the scope of the UIC rulemaking.

Commenter Name: Barbara Massoner Letter ID: 0531 Commenter Organization: Legacy Economy Comment ID: 21443

Comment: Coal and gas have powered our economy for the past century. This however is a new century and it requires new regulations and those regulations must include externalities which we have not included in the past. Only by including externalities can regulations provide a level playing field for all involved. And externalities in this case are not CO2's, but they also are as Cynthia Lane pointed out with AWWA, a test that includes CCWs, that is coal combustion wastes. And those externalities are very important as they would include chemicals such as mercury, lead, cadmium, selenium and a list of other toxins.Response: EPA clarifies that the GS rule focuses on protection of USDWs from endangerment;

therefore coal combustion wastes and other externalities the commenter mentions are outside of the scope of the UIC rulemaking.

Comment Code: 1610 1.3.1 Risks to USDWs



### Individual Comments

Commenter Name: Leslie Savage Letter ID: 0122 Commenter Organization: Railroad Commission of Texas (RRC) Comment ID: 24740

Comment: In nearly every instance where EPA indicates that additional safe-guards are necessary, it cites as the reason the chemical characteristics of the CO2 stream to be injected and the interaction of the CO2 stream with formation waters and strata, the buoyant nature of CO2, and the pressure increases caused by injection of very large volumes of CO2. However, buoyancy and chemical characteristics of CO2 have been successfully addressed in enhanced recovery injection projects using CO2 under the Class II UIC program. Pressure increases can be handled by selecting formations that have been depleted and have reduced pressures. In those formations for which the pressure has not been reduced as a result of production or other activity, the issue of the pressure increase resulting from injection of large amounts of CO2 can be addressed by limiting the surface injection pressure and adequate monitoring.

Response: As stated above, EPA acknowledges that industry has decades of experience in addressing many of the issues present in GS operations. However, EPA reasonably believes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA believes that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

Commenter Name: John Hanger Letter ID: 0130 Commenter Organization: Pennsylvania Dept. of Env. Protection Comment ID: 21500

Comment: Both DEP and DCNR are interested in the greenhouse gas reduction opportunities that responsible carbon capture and storage may present. However, these opportunities should be approached with a clear understanding of the potential risks and must only be pursued with the best tools-in-hand to mitigate such risks. The DEP and DCNR believe that EPA’s proposed rule represents a solid effort to categorize and prevent some of the potential risks to underground sources of drinking water (USDW) that are associated with carbon capture and storage. The DEP and DCNR appreciate the opportunity to comment on this proposed rule.

Response: EPA acknowledges the commenter’s support and agrees that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking watersources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Commenter Name: Bonnie Lovelace Letter ID: 0152 Commenter Organization: Montana Department of Environmental Quality (MDEQ) Comment ID:

22106 Other EPA Comment Codes and Descriptions: 3200 2.2 Proposed Area of Review and Corrective Action Requirements (40 CFR 146.84)

Comment: 6. EPA appears to be limiting its protection of waters to only those used/potentially used for public water supplies. It should be made clear that private use or fewer numbers of uses than those qualifying as public water supplies within the aquifer are also to be protected. The requirements to identify all perforations into the USDW should also require identification of all perforations and water uses (springs) within the Area of Review. These sites, then, should be included in all analyses and modeling.

Response: EPA disagrees that only aquifers currently providing public water supplies will be protected by the GS regulation. The UIC regulations, promulgated under Section 1421(d)(2) of the SDWA, including the Class VI regulations, require that injection operations protect against endangerment for drinking water sources if such injection may result in 1) non-compliance with national primary drinking water regulations or 2) may otherwise adversely affect the health of persons in USDWs which supply or can reasonably be expected to supply any public water system. The definition of a USDW is based on the total dissolved solids content, not the users of the supply (i.e., public versus private). The applicable portion of the definition of USDW reads: "...an aquifer or any portion of an aquifer that contains fewer than 10,000 mg/l total dissolved solids and is not an exempted aquifer," as defined at 144.3. Aquifers supplying private wells that may reasonably be expected to supply any public water system and meeting these criteria are considered USDWs that warrant protection from endangerment by GS operations.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23382 Other EPA Comment Codes and Descriptions: 1330 1.1.3.1 Support use of GS in general

Comment: Geologic sequestration into all geologic formations must be considered by electric utilities in their long-term plans for future fossil-fuel electricity generation while also weighing the need to protect public drinking water supplies. Protection of drinking water supplies, for some communities, may mean that inadequate surface water supplies may require that the city (or private utility) may require usage of groundwater in future years which may not appear to be "drinkable" under today’s presumed costs and technological (pump and treat or desalination) limitations. Our colleagues in the municipal drinking water operations remind us that Americans are currently drinking water which, in many locations, was undrinkable only 5-10 years ago. While most American cities in the east provide drinking water made up largely of surface water, more than 90% of all drinking water systems (private and public) use some amount of groundwater to make up for shortages. Acknowledging this does not mean thatgeosequestration should not be allowed. It simply requires common sense decision making at the local and regional level by power plants and the state directors as to the best placement of geosequestration plants or off-site injection

formations.

Response: The Agency acknowledges commenter concerns about water resources and future water resource availability. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment in order to ensure a reliable supply of drinking water for the American public. The GS rule, as part of the UIC program regulations, continues the program’s mandate and mission of ensuring the protection of USDWs. EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23385 Other EPA Comment Codes and Descriptions: 1850 1.4.2 CO2 GS Field Research

Comment: APPA strongly supports private and DOE/NETL geologic sequestration demonstration projects to tell us more about the technical viability of the separation technology and the scaling up of geologic sequestration. Further, these projects must also support any geosequestration or GS research projects that would better enable us to know more about the USDWs and protection of that critical resource. The "location is everything" is a critical presumption for the reader of our comments on the proposed UIC rule. In some locations geosequestration will be an optimal technology that makes sense for those future coal plants. In other locations, the type of rock, the lack of trapping mechanisms or proximity to underground faults, seismic risks or other

Response: As described above, EPA is tracking continuing research on CCS conducted by other federal agencies.

EPA agrees that further research will assist with the transition to commercial-scale GS. As part of its adaptive rulemaking approach, The Agency 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.

While developing the GS regulation, EPA evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects. EPA published a Notice of Data Availability and Request for Comment (NODA) on August 31, 2009 (74 FR 44802), in which the Agency presented the results of research at three DOE partnership sites (in Escatawpa, Mississippi; the Aneth Field in Paradox Basin, southeast Utah; and the Pump Canyon Site, New Mexico).

In the NODA and Request for Comment, EPA described two modeling studies by the Lawrence Berkeley National Laboratory on the potential effects of CO2 injection on ground water and surrounding formations to determine the potential for impacts on USDWs and human health in the event that a GS project is not properly sited, operated, or managed. In one study, LBNL used a comprehensive computational model to evaluate the potential impact of CO2 leaking from deep GSsites on the concentrations of trace elements in USDWs (Birkholzer et al., 2008a). In the other, LBNL studied a hypothetical, future scenario of GS in a sedimentary basin to demonstrate the potential for basin-scale hydrologic impacts of CO2 storage (Birkholzer et al., 2008b). EPA has also examined potential methods for conducting treatment of water affected by a CO2 leak; this study is presented in the final rulemaking docket.

EPA continues to fund research in this area. In December 2009, EPA awarded a STAR grant to Clemson University to investigate the potential for GS to affect USDWs. The research will involve laboratory experiments and modeling simulations to investigate the fate of dissolved CO2 in underground geologic formations and to determine possible risks associated with the dissolution of CO2 in underground aquifers. Other projects funded by the STAR grants include: the University of Illinois-Urbana will conduct research related to reducing hydrologic and geochemical uncertainties associated with CO2 sequestration in deep, saline reservoirs; the University of Texas at Austin will assess appropriate monitoring approaches at geologic sequestration sites; the University of Utah will integrate design, monitoring, and modeling of GS to assist in developing a practical methodology for characterizing risks to USDWs; Columbia University will conduct laboratory experiments on shallow aquifer systems to improve our understanding of geochemical and microbiological reactions under low ph/high CO2 stress; and Princeton University will develop a set of computational tools to model

CO2 and brine movement associated with GS.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23387 Other EPA Comment Codes and Descriptions: 1330 1.1.3.1 Support use of GS in general; 1800 1.4 Scientific Background/Informing the Proposal

Comment: Our comments here should not deny the viability of CCS in some subsurface locations nor be read as APPA’s view that geologic sequestration works in all geologic locations or for all power plants. There is a great deal that we do not yet know about the wide variety of geologic formations to know that there are no risks to USDWs or that we could identify specifically what those risks might be. APPA hopes that on-going private and public research in the United States, Canada, Australia, and Europe will affirm that there are no risks to drinking water supplies or that the risks are so truly negligible that there is no reason to hesitate to use this technology. But we cannot presume that there are no risks simply based upon the commercial and technical success in CO2 recycling in Class II injection locations that are managed as production fields. It has been presumed that because the CO2 injections began in the Permian Basin of West Texas in the late 1970s that the CO2 from those tertiary recovery fields (for oil or gas) is actually still in the formation. In most cases the CO2 was recycled and used in different production operations. Even if the CO2 was injected 25-35 years ago, the CO2 may not still reside or remain in storage there. Because we have not seen large storage fields where the CO2 was stored for 10-30 years on a sustained basis, there is not as much known about the geologic formations, the adequacy of holding capacity and subsurface impacts as we would like to know. Also, in many cases, those oil or gas production fields are regulated differently than a newly established long-term GS formation would be regulated if it were owned/operated by a power company.

Response: EPA agrees with the commenter that the risks involved in GS projects are different than the risks associated with Class II activities. EPA believes that GS is sufficiently distinct from ClassII ER operations to warrant the tailored requirements in the GS regulation. For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressure conditions will be different, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects. Therefore, Class VI GS reservoir pressures will increase more in comparison to Class II ER during the injection phase of the GS project.

EPA continues to research and collect data on CO2 storage and containment. EPA is tracking operations at the DOE GS pilot projects and will review data on all aspects of those operations, from well construction and injection to long-term plume fate and transport and monitoring of containment, as the data become available. In addition to the information cited in the preamble to the proposed rule, EPA published a Notice of Data Availability and Request for Comment on August 31, 2009 (74 FR 44802), in which the Agency described the results of research at three DOE partnership sites: the Escatawpa, Mississippi project; the Aneth Field project in Paradox Basin, Southeast Utah; and the Pump Canyon Site, New Mexico. Please also see the research described in the above response.

As part of its adaptive rulemaking approach, the Agency 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.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23397

Comment: We agree with EPA that the appropriate standard underlying technical requirements for CO2 GS wells should be the protection of underground sources of drinking water ("USDWs"). Even though it is difficult to know at this point what methods or technology will be developed for injection and long-term storage of CO2 in a manner that is protective of USDWs –we know intuitively that sole source aquifers and some high risks seismic locations should be ineligible. Proximity to Class IV wells might also be inappropriate (although those wells are very rare) because of their contents. In areas where there has been a history of Class I or Class II leakage or USDW contamination problems the state

directors should have full discretion to take those locations off the table for injection for long-term storage. APPA assumes that state directors will know best which geologic locations should be unsuitable or ineligible. But, we acknowledge that there are some risks not worth taking. Sole source aquifers are just not worth the risk for CO2 injection no matter how noble the goal of CO2 reductions might be. There are perhaps 10-15 sole source aquifers in the United States so APPA does not believe that removing these locations restricts the available geology storage in any significant way on a national basis.

In some cases, those power plants might need to be coal or gas with other carbon dioxide mitigation strategies such as the purchase of renewable credits or other measures that are outside the scope of this rule. APPA does not suggest that coal plants cannot be built near sole source aquifers since sequestration could be conducted off-site if the infrastructure for moving the CO2 is in place or would be in place within a reasonable date after start up of the new power plant.Response: EPA agrees that certain aspects of a site (e.g., the presence of seismic sources or solesource aquifers) may make it unsuitable for GS. For this reason, owners and operators must submit extensive information about the proposed site in their permit applications, which the UIC Director must consider under §146.82 before issuing a Class VI permit. For example, the GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs (which would include sole source aquifers) within the AoR. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that this determination will include consideration of potential impacts of the GS project on any sole source aquifers.

In many cases, UIC Directors have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

EPA is developing guidance for permitting authorities. This guidance will be available on EPA’s website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23662 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions; 4400 2.4.4.3 Allowing injection above or between USDWs (seeking comment)

Comment: USDW Endangerment: AWWA recommends revision to the definition of "endangerment" in the proposed rule. The current definition of endangerment is limited to SDWAUIC definition of 10,000 TDS and to primary MCL contamination. Certain healtheffects can be related to concentrations in water of compounds that do not exceed the primary MCL. However, under the current language, these potential contaminants would not be covered with the protections afforded by the SDWA.

Response: The Agency acknowledges commenter concerns about water resources and future water resource availability. However, modifying the definition of a USDW or “endangerment” is outside the scope of the GS rulemaking. USDWs are defined as aquifers currently being used as sources of drinking water or those capable of supplying a public water system and they have a total dissolved solids (TDS) content of 10,000 milligrams per liter or less as specified in §144.3. EPA adds that

concerns about contaminants with health effects even at concentrations below the maximum contaminant level should be addressed as part of the review process for the national primary drinking water regulations; such concerns are outside the scope of this rulemaking. Please note that the definition of “endangerment” has been defined by Congress at SDWA §1421(d)(1)(2).

The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment in order to ensure a reliable supply of drinking water for the American public. The GS rule, as part of the UIC program regulations, continues the program’s mandate of ensuring the protection ofUSDWs. EPA expects the tailored permitting, siting, construction, operation, monitoring, and postinjection site care requirements in the GS rule to prevent leakage from injection formations andprotect USDWs.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23663 Other EPA Comment Codes and Descriptions: 1650 1.3.5 Human health impacts

Comment: EPA should also consider the risk associated with the potential exposure of any contaminants that are released to the surface. While we recognize that a gradual leak may have little impact, the potential of a catastrophic leak is always present. EPA should be mindful during the rulemaking process of not only the risk to drinking water, but also of other potential risks from exposure to other constituents such as pH, lead and copper, iron, hardness, silica and boron. These are compound for which no MCLs have been developed but still impact drinking water quality and increase the necessary treatment costs. There could be potential health impacts due to long-term exposure to contaminant levels below the established MCLs. Also, beneficial uses of groundwater could also be impacted by increases of these compounds in the aquifers. Owners/operators could be in compliance with the regulation, but could be degrading an aquifer by contaminating it with compounds for which MCLs do not exist.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential for leakage of CO2 into USDWs, which could result in the mobilization of substances that could pose threats to USDWs or human health or could increase treatment costs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. The mandate of the UIC Program, and the GS rule, is to protect USDWs from endangerment that may be caused by underground injection. The GS rule accomplishes this through requirements tailored to address the unique nature of GS, including the large volumes of CO2 injected, its buoyancy and potential corrosivity in the presence of water, and impurities in the CO2 stream. Many of these requirements specifically address the potential for mobilized substances to affect USDWs. The GS rule is concerned with the migration of CO2 and displacement of native fluids that may result in endangerment of USDWs.

For example, the owner or operator must submit data about the site, including information on the porosity, permeability, mineralogy, and geochemistry of the targeted injection and confining zones. Operators must also present information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82(c)(3). The data will help identify potential geochemical reactions between the injected CO2 and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals. During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94 and provide financial responsibility to address contamination as specified in §146.85.

Recent research has focused on addressing this concern. EPA is funding research at the Lawrence Berkeley National Laboratory (LBNL) on potential USDW impacts associated with mobilization of trace elements. In the August 31, 2009, Notice of Data Availability and Request for Comment (74 FR 44802), EPA published the results of the study, which evaluated the potential for GS to causechanges in ground water quality as a result of CO2 leakage and subsequent mobilization of trace elements such as arsenic, barium, cadmium, mercury, lead, antimony, selenium, zinc, and uranium (Birkholzer et al., 2008a). In the study, LBNL estimated the amount of trace elements from native mineral species that could potentially be mobilized by the intrusion of CO2 and the potential ground water concentrations that could result, to determine the potential for drinking water standards to be exceeded. Results from this model simulation suggest that if CO2 were to leak into a shallow aquifer, the potential for mobilization of lead and arsenic could be enhanced, causing increases in the concentration of these trace elements in ground water. The Agency continues to monitor research related to CO2 confinement, potential for CO2 leakage, and mobilization of trace elements.

EPA adds that concerns about contaminants that cause health effects but do not have maximum contaminant levels should be addressed as part of the review process for the national primary drinking water regulations; such concerns are outside the scope of this rulemaking. EPA has also examined potential methods for conducting treatment of water affected by a CO2 leak; this study is presented in the final rulemaking docket.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23664 Other EPA Comment Codes and Descriptions: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space ownership

Comment: Assignment of Liability: Most importantly, the regulation does not seem to address the liability that would be realized by owners/operators of the geologic sequestration projects if water quality of USDWs is degraded by the operation of their project (even if the impacts are limited to MCLs). AWWA recommends that this issue be addressed in the final regulation, as drinking water utilities may have little financial recourse if the water quality one of their aquifers is degraded due to the operation of a geologic sequestration process. Provisions need to be included in the final rule that would allow the drinking water utility to recoup any costs that are realized due to increased treatment requirements for contaminated ground water or to replace lost capacity. In some cases, utilities may need to install different types of treatment to remove compounds that might not have been present in the water prior to the geologic sequestration project. In other instances, treatment may consist of the addition of more chemicals to facilitate precipitation of the inorganic compounds or the utility may have to backwash membranes more often, resulting in higher energy and other operation and maintenance costs. In any of these cases, the owner/operator of the geologic sequestration project should be required to reimburse the drinking water utility for these incurred costs, and they should also be required to continue such payments for as long as the ground water source remains degraded.

Water utilities should not be penalized for having to develop local sites contaminated by sequestration activities for water supply. In fact they should be encouraged to do so, under the appropriate conditions, as there is no more critical public health issue than the need to provide potable water. In order to meet increasing demands imposed on them by a growing service population, water utilities will need to develop marginal water supplies. However, increased treatment costs due to contamination resulting from sequestration activities should not be borne by the local utility or their customers when nationalenvironmental objectives have been met without significant benefit to the local

economy.

Should a water utility "lose" an existing or future source of supply due to contamination or inaccessibility resulting from a sequestration project, there will be the issue of financial compensation (for treatment or development of an alternative source). As water resources become scarce, financial compensation for a lost source of supply may not suffice, as local alternatives may not be available. Hence, it will be critical that contingency planning to identify alternatives to the current groundwater supply be a part of the planning activities for the sequestration project, along with a commitment to provide an alternative source of water, should the need arise.

Response: EPA agrees that owners or operators of Class VI wells must ensure that resources are available to prevent endangerment of USDWs from improper plugging, remediation, and management of wells. For this reason, the GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. In the event of contamination or other adverse event to the USDW during the life of the project, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions. EPA clarifies that it is the owner or operator of the well who will be required to demonstrate financial responsibility, not the generator of the CO2, consistent with EPA’s authority under SDWA. Furthermore, EPA notes that tort and other remedies will continue to be available after site closure. Other Federal environmental statutes, e.g. Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992, potentially apply as well to the risks created by the long-term storage of CO2. EPA has also examined potential methods for conducting treatment of water affected by a CO2 leak; this study is presented in the final rulemaking docket.

EPA clarifies that long-term liability beyond the life of the project (after site closure) is beyond the scope of the GS rulemaking. Please see the final rule and the discussion of financial responsibility and long-term liability in the preamble for additional information.

EPA adds that Class VI well owners and operators must site, construct, operate, monitor, and close their wells in a manner that protects USDWs, and Class VI permits will set forth rigorous technical requirements to ensure careful planning, operation, and closure of GS projects. Failure to meet these requirements would be considered a violation of the permit and would be subject to applicable civil, criminal, or administrative penalties under SDWA §1423.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23666 Other EPA Comment Codes and Descriptions: 1616 1.3.1.3 Fluid movement

Comment: Trespass and Aquifer Displacement: AWWA recommends that the potential for trespass be addressed in the final rule. Carbon dioxide plumes may migrate into a location that a drinking water utility was planning to utilize, possibly for aquifer storage and recovery. What recourse is provided by the proposed regulation in the event that trespass occurs, and damages are realized by the drinking water utility? Also, movement of the pressure front associated with a carbon dioxide plume may cause aquifers to shift in location, potentially movingthem out of the jurisdiction of their original utility "owner." This can be a serious problem in certain portions of the country where ground water resources are limited or conflict, and utilities face intense competition for water rights. AWWA questions if an appropriate recourse will be provided by the sequestration project owner/operator in the event that these water rights issues become a reality for the drinking water utility.

Response: EPA clarifies that owners and operators must perform extensive site characterization and modeling of the AoR to determine the extent of the CO2 plume prior to approving a GS project. The financial responsibility requirements at§146.84 require owners and operators to demonstrate and maintain resources to address emergency and remedial response to adverse events that may occur associated with GS. This would include impacts to drinking water utilities associated with fluid displacement.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23669

Comment: Sole Source Aquifers: Several areas of the country rely on sole source aquifers as their drinking water resource. Given the special protective measures already afforded to these aquifers by EPA, AWWA strongly recommends that the final geologic sequestration regulation should restrict project activities in thevicinity of these aquifers. Table 1-2 below presents a list of some of the solesource aquifers that are located in potential geologic sequestration areas. (Note that this is not meant to be a comprehensive list of all of the sole source aquifers in the United States.)

Table 1-2: Sole-Source Aquifers in Potential Geologic Sequestration Areas

[The information below was originally presented as a table. See Docket PDF EPAHQ-OW-2008-0390-0181 to see a copy of the original table.]

Aquifer Name: Upper Santa Cruz & Avra Basin Aquifer

Location: Arizona Potentially Impacted: Tucson, Green Valley, Catalina Characteristics: Discharges 376,000 acre-feet per year

Aquifer Name: Fresno County Aquifer

Location: California Potentially Impacted: Fresno, Clovis

Characteristics: Contains 5.8 million acre feet of water

Aquifer Name: Volusia Sole Source Aquifer

Location: Florida Potentially Impacted: Ormond Beach, Daytona Beach, New Smyrna Beach and Deland Characteristics: Covers 1,450 sq. mi.

Aquifer Name: Biscayne Sole Source Aquifer

Location: Florida Potentially Impacted: All of Dade County; parts of Broward, Monroe and Palm

Beach CountiesCharacteristics: Covers 4,000 sq. mi.

Aquifer Name: Eastern Snake River Plain Aquifer

Location: Idaho Potentially Impacted: 300,000 residents of Eastern Idaho

Characteristics: Contains 200 to 300 million acre-feet

Aquifer Name: Spokane Valley-Rathdrum Prairie Aquifer Location: Idaho, Washington Potentially Impacted: 700,000 residents of Idaho and Washington Characteristics: Covers 325 sq. mi.

Aquifer Name: Chicot Aquifer System

Location: Louisiana Potentially Impacted: Lafayette, Lake Charles, Crowley Characteristics: Supplies 800 mgd, most for irrigation

Aquifer Name: Southern Hills Aquifer System Location: Louisiana, Mississippi Potentially Impacted: Baton Rouge, Natchez, McComb Characteristics: Supplies 290 million gallons per day

Aquifer Name: New Jersey Coastal Plain Aquifer System Location: New Jersey Potentially Impacted: Over 3,000,000 residents Characteristics: Over 350 million gal. withdrawn per day

Aquifer Name: Northwest New Jersey Fifteen Basin Aquifer Location: New Jersey, New York Potentially Impacted: Over 500,000 residents Characteristics: Covers 1,735 square mile area

Aquifer Name: Espanola Basin Aquifer System

Location: New Mexico Potentially Impacted: Sante Fe, Los Alamos, and Española Characteristics: Covers 3,000 sq. mi.

Aquifer Name: Clinton Street Ballpark Aquifer System

Location: New York Potentially Impacted: Broome and Tioga Counties Characteristics: 16.25 mgd withdrawn for drinking water

Aquifer Name: Miami Valley Buried Aquifer

Location: Ohio Potentially Impacted: Serves over 1,600,000 residents Characteristics: Provides 200 mgd for drinking water

Aquifer Name: Edwards Aquifer

Location: Texas Potentially Impacted: San Antonia, San Marcos, New BranfelsCharacteristics: Discharges 900,000 acre-feet per year

Aquifer Name: Columbia and Yorktown- Eastover Multiaquifer Location: Virginia Potentially Impacted: Exmore, Olney, Chincoteague Characteristics: Covers 695 sq. mi.

Response: The GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs (which would include sole source aquifers) within the AoR. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that this determination will include consideration of potential impacts of the GS project on any sole source aquifers.

EPA agrees that, in many cases, UIC Directors will have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23670 Other EPA Comment Codes and Descriptions: 1810 1.4.1 Research on identifying risks to

USDWs

Comment: AWWA recommends that EPA prohibit owner/operators from constructing carbon dioxide injection wells in sole source aquifers. Owner/operators should also be prohibited from ever injecting carbon dioxide into a formation that would result in the migration of the carbon dioxide to a point that is under a sole source aquifer. EPA should establish a minimum distance that needs to be provided between the closest geologic sequestration project and the location of any sole source aquifers. AWWA would recommend a 50 mile minimum; however, not being experts on the details of plume migration, AWWA recommends that EPA and DOE perform research on this topic to better assess what the regulatory requirement should be. Including these restrictions in the final geologic sequestration regulation would allow for the protection of drinking water aquifers that, if contaminated by carbon dioxide, could result in very significant and expensive issues for the drinking water utilities.

Response: EPA believes that the extensive site characterization requirements for GS projects in the final rule are protective of USDWs, including sole source aquifers. The GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs, which would include sole source aquifers within the AoR. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information and the potential impact of the GS project on any sole source aquifers when determining whether GS is acceptable at a given site.

EPA agrees that, in many cases, UIC Directors will have extensive knowledge of which areas aresuitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

EPA is tracking other recent research on GS and USDW protection including the following studies (which are available in the docket for the rulemaking):

• Smyth et al. (2008) reviewed modeling and laboratory experiments and field results from groundwater studies conducted at SACROC, an ER site in west Texas where tens of millions of tons of CO2 have been injected for over 30 years. • Zheng et al. (2008) used more than 38,000 groundwater quality analyses from aquifers throughout the US to perform reactive transport modeling of groundwater quality after the intrusion of CO2. The model simulations indicate that aquifers containing more carbonate and clay minerals are less vulnerable to CO2 intrusion, and that, while under certain conditions CO2 can potentially mobilize metals present in the aquifer, mobilized amounts of the metals are always below health-based limits. • Kharaka et al. (2009) conducted CO2 injection field tests in Montana and reported that shallowly injected CO2 can affect the chemistry of shallow groundwater by decreasing pH and mobilizing rock

and soil ions. • Nicot (2008) modeled an injection roughly equivalent to 50 Mt CO2/year for 50 years in an area that is hydrologically similar to the Gulf Coast Basin. Model results indicate an average water table rise of approximately 1 meter with a minor increase in stream baseflow and a larger increase in ground water evapotranspiration.

ORD's National Center for Environmental Research awarded six Science To Achieve Results (STAR) grants in the Fall of 2009 to recipients from major universities and institutions within the scope of the "Integrated Design, Modeling and Monitoring of Geologic Sequestration of Anthropogenic Carbon Dioxide to Safeguard Sources of Drinking Water" research area. These projects, which started in late 2009, include these lead institutions with specific topics of investigation: Clemson University will study potential impacts to drinking water aquifers of CO2- rich dissolved brines; the University of Illinois-Urbana will conduct research related to reducing hydrologic and geochemical uncertainties associated with CO2 sequestration in deep, saline reservoirs; the University of Texas at Austin will assess appropriate monitoring approaches at geologic sequestration sites; the University of Utah will integrate design, monitoring, and modeling of GS to assist in developing a practical methodology for characterizing risks to USDWs; Columbia University will conduct laboratory experiments on shallow aquifer systems to improve understanding of geochemical and microbiological reactions under low pH/high CO2 stress; and Princeton University will develop a set of computational tools to model CO2 and brine movement associated

with GS.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23671

Comment: Water versus Energy: AWWA questions how will geologic sequestration projects will be permitted if there is potential competition for a specific geologic basin between an energy company and a drinking water utility. Water should trump everything. The water sector should be given priority, especially if a drinking water utility has limited or no other options, as they have very limited water and storage resources. It may also be possible that there may not be a single federal and/or state oversight agency that could provide guidance in this arenaas the agency would need to have oversight for air, water, environmental, energy, and other sectors. The NEPA process and the state equivalent, such as CEQA in California, will need to be well fleshed out at the outset of the permitting process.

Response: The Agency agrees that drinking water is an important resource that needs protection. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. It is outside the scope of this rulemaking or EPA’s authority to provide the water sector any type of priority over storage areas. Consistent with SDWA §1422, the UIC program provides that no underground injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

EPA has added a requirement at 40 CFR 124.10(c)(1)(xi) that state and local oil and gas regulatory agencies and state agencies regulating mineral exploration and recovery, the PWSS program director, and all agencies that oversee injection wells in the state must be notified as part of the public notice process for a Class VI permit.

Commenter Name: Daniel Plath Letter ID: 0188 Commenter Organization: NiSource, Inc. Comment ID: 25229 Other EPA Comment Codes and Descriptions: 3400 2.2.2 Corrective Action; 3800 2.3 Proposed Injection Well Construction Requirements (40 CFR 146.86); 5100 2.8.1 Injection well plugging activities (seeking comment) (40 CFR 146.92)

Comment: aspects. The following points summarize four primary lessons learned through operation of natural gas storage that would be applicable to GS:

1. History has shown that the one component in the system that has caused the most safety issues is the wells; specifically the operator's wells, plugged and abandoned (P&A) wells and third party operating wells (e.g. oil and gas production wells). The casing and cement in the storage well is the "first line of defense" in the containment of high pressure gas and a properly designed,

constructed and maintained well is critical. Even after several decades of operations over a four State area, NiSource subsidiaries have never experienced loss of containment from cap rock leakage, migration up faults, re-activation of faults, earthquakes, or the other potential leakage pathways that EPA discusses in the Proposed Rule. While history will ultimately reveal the root causes of future problems, if any, with GS, NiSource submits that the predominant cause will likely be identified as being related to an active well, abandoned well or third party well if not properly addressed in the Final Rule. This is based on the belief that the rigorous site selection process will preclude the other sites that would have had other issues, e.g. cap rock leakage, from even being activated in the first place.

Response: EPA agrees that proper site characterization should minimize leakage through faults, breaks in the seal of the confining layer, and other geologic pathways. EPA believes that the construction, operating, and monitoring requirements in the GS rule will prevent leakage from occurring through active wells. Appropriately designed and constructed wells are necessary to prevent endangerment to USDWs and maintain integrity of the well throughout the lifetime of a GS project. This is the foundation of the requirements for construction and pre-operational testing ofClass VI wells at §§146.86 and 146.87.

EPA also agrees that the AoR and corrective action process should identify both abandoned wells and third party wells that could serve as leakage pathways. The UIC Program's long-standing approach to corrective action, tailored to the potential corrosivity of and impurities in the CO2 stream, can address the potential risk associated with improperly plugged wells in the AoR.

EPA notes that the final rule, at 40 CFR §124.10(c)(1)(xi), requires the notification of state oil and gas agencies, state mineral exploration agencies, and state public water supply supervision directors about the availability of the draft permit . EPA expects that such notification can help with further identifying wells in the area of review.

Commenter Name: John R. Baza Letter ID: 0193 Commenter Organization: Utah Division of Oil, Gas, and Mining Comment ID: 23908

Comment: Protection of Underground Sources of Drinking Water ("USDW")

As with all underground injection, protection of USDWs should be the major focus of the rules. Protection is accomplished through containment of the CO2 stream through proper site selection and characterization of the geologic formation that is to be used for injection, along with sound construction of the injection wells and adequate monitoring practices.

Response: The Agency agrees that drinking water is an important resource that needs protection. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422 the UIC program provides that no underground injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule are intended to prevent leakage from injection formations and protect USDWs.

Commenter Name: Andy Horn Letter ID: 0196 Commenter Organization: Colorado Ground Water Association (CGWA) Comment ID: 23920

Comment: While a promising technology for mitigation of CO2 emissions, geologic storage (GS) of CO2 also has the potential to impact underground Sources drinking waters (USDWs). Even though deep injection of CO2 has been used for over 20 years to enhance oil and gas recovery and provides a foundation for large-scale use of geologic storage (GS), nothing on the scale of the proposed projects has been implemented. Full-scale projects have the potential to impact an area within a 50-mile radius of the injection well site.

Much of Colorado receives approximately 15 to 20 inches of precipitation yearly,water resources are currently stressed, and significant population increases are expected in the coming decades. Large portions of Colorado’s population rely on USDWs and a significant portion of Colorado’s agricultural economy relies on the freshwater aquifers for crop irrigation. The CGWA has concerns about the proposed CO2 GS rule, which will govern not only the injection wells needed for GS but also the siting, operation, monitoring, closure of GS projects and could also govern the post-closure liability of GS project operators. These projects will be implemented on a scale for which there is no analog and will have the potential to impair major water resources in the State of Colorado and elsewhere if the projects are mismanaged.

Response: The Agency agrees that drinking water is an important resource that needs to be protected. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422 the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS regulation builds upon the long-standing protective framework of the UIC Program, which has been regulating the injection of billions of gallons of fluids for decades. The GS regulation enhances this framework with requirements that are tailored to address the unique issues associated with GS, including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations. These additional protective requirements include more extensive geologic testing for site characterization, detailed computational modeling of the AoR and periodic re-evaluations, detailed requirements for monitoring and tracking the CO2 plume and pressure front, and extended post-injection monitoring and site care. EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

Commenter Name: Andy Horn Letter ID: 0196 Commenter Organization: Colorado Ground Water Association (CGWA) Comment ID: 23921 Other EPA Comment Codes and Descriptions: 2100 1.6 Target Geologic Formations for GS

Comment: Issue 1. The proposed regulation has no mechanism for the respective State authority in each state responsible for administration of water resources to remove certain groundwater basins and/or zones with important aquifers from consideration as sequestration repositories.

One of the CGWA’s concerns is the siting of CO2 sequestration projects in major sedimentary rock aquifers, near, or in strata underlying major sedimentary rock aquifers such as those which are the primary source of drinking or irrigation water for large segments of the population or agricultural community. Due to uncertainties in the effectiveness of GS at the project-scales being considered, siting of GS reservoirs in strata underlying "sole-source" or other "important" USDWs, should be avoided, at least until large scale experience validates this methodology. Examples of such aquifers include the Denver Basin Aquifers and the aquifers of the San Luis Valley. Additional examples of aquifers which may be subject to degradation by displaced brines include the alluvial aquifers of the South Platte and Arkansas River Valley where they are in contact with thesubcrops of strata which could be used as GS reservoirs. Colorado’s reliance in many locations on deep bedrock aquifers should remove potential GS reservoirs from consideration due to the potential for degradation either by migration of CO2 or displacement of CO2 reservoir brines into fresh water aquifers.

Response: The Agency agrees that drinking water is an important resource that needs to be protected. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422 the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, at §146.82(a)(5), requires prospective owners or operators to submit information on all USDWs within the AoR. EPA expects that this information will include identification of any sole source aquifers. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that during this evaluation the Director will consider the potential impact of the GS project on any sole source aquifers. Additionally, EPA has added a requirement at 40 CFR 124.10(c)(1)(xi) that requires state and local oil and gas regulatory agencies and state agencies regulating mineral exploration and recovery, the PWSS program director, and all agencies that oversee injection wells in the state be notified as part of the public notice process for a Class VI permit.

EPA anticipates that state permitting authorities are in the best position to make determinations about the appropriateness of a particular site based on all available information, including drinking water supply needs. EPA clarifies that a state’s Class VI primacy program may be more stringent then the federal requirements. For example, a state has the discretion to ban GS projects from taking place in formations or areas that affect sole source aquifers.

EPA agrees that, in many cases, UIC Directors will have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

Commenter Name: Andy Horn Letter ID: 0196 Commenter Organization: Colorado Ground Water Association (CGWA) Comment ID: 23923 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions; 1240 1.1.1.3 Suggested changes/edits to rule language; 4400 2.4.4.3 Allowing injection above or between USDWs (seeking comment)

Comment: Issue 3. The proposed regulation currently defines USDWs as zones that contain groundwater with a total dissolved solids (TDS) concentration of less than 10,000 mg/L. This limit should be revised to consider geologic strata with water containing higher TDS concentrations, because these zones may be economic in the

future.

The technology for treating high TDS water for use in water supply is improving rapidly, and these high TDS aquifer zones may be needed in the future. In areaswith limited water resources water providers are beginning to turn to groundwater sources containing in excess of 10,000 mg/L TDS (Sengebush 2008). It is already conceivable that in the near future sources with up to approximately 20,000 mg/L TDS will be considered viable as water treatment technology advances making such water sources economical. To protect groundwater resources which may be economical in the foreseeable future the rule should evaluate the potential that currently marginal groundwater sources will be usable. The repository zones should be limited to strata containing very high TDS concentrations that siting studies and public input indicate are not likely to be useable in the future, as use of a zone for CO2 sequestration will likely preclude recovery and use of the groundwater resource in the future.

Sengebush, R. M. 2008, INTERA, Inc. Deep Brackish Water Considered for New Mexico Development. Southwest Hydrology, March/April 2008, p. 8. Available from http://www.swhydro.arizona.edu/archive/V7_N2/dept-ontheground.pdf.

Response: The Agency acknowledges the commenter’s concerns about water resources and future water resource availability. However, modifying the definition of a USDW is outside the scope of the GS rulemaking. USDWs are defined as aquifers currently being used as sources of drinking water or those capable of supplying a public water system, with a total dissolved solids (TDS) content of 10,000 milligrams per liter or less, as specified in §144.3.

The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment in order to ensure a reliable supply of drinking water for the American public. The GS rule, as part of the UIC program regulations implementing the SDWA, continues the program’s mandate of ensuring the protection of USDWs. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

EPA recognizes that there is increasing demand for water resources and that technology improvements may make high TDS aquifers viable drinking water sources. EPA believes these potential resources should be considered when injection depth waivers are sought. Therefore, the final GS rule at §146.95(b) requires the Director to consider these issues in determining whether an injection depth waiver is appropriate. Specifically, the Director must consider whether alternative injection sites are available; community needs, demands, and supply from drinking water resources; planned needs, potential and/or future use of USDWs and non-USDWs in the area; and a plan for securing alternative resources or treating USDW formation waters in the event of contamination related to the Class VI injection activity. For additional information on the waiver approach, please see the final rule and preamble, as well as EPA's responses to comments on the Notice of Data Availability and Request for Comment.

Commenter Name: Chris M. Hobson Letter ID: 0201 Commenter Organization: Southern Company Comment ID: 22155 Other EPA Comment Codes and Descriptions: 1250 1.1.1.4 Flexibility is needed (performancebased standards)

Comment: Southern Company agrees that the appropriate standard underlying the technical requirements to be applied to Class VI wells should be the protection of underground sources of drinking water ("USDWs"). See id. at 43497. With this standard in mind, it is imperative that EPA fashion the Final Rule withsufficient flexibility to meet two primary goals: first, adequately addressing the varied geologic conditions of different CO2 GS sites; second, ensuring adaptability as industry and regulators gain experience with and information regarding CO2 GS. It is important that the Final Rule not exclude the existing experience and knowledge gained from current CO2 injection and GS demonstration projects. To encourage use of this information, Southern Company supports facilitated GS in oil and gas reservoirs with the protection of USDWs and the transition of Class II and Class V C02 injection operations to GS. The Final Rule should establish a regulatory framework built around the standard of protecting USDWs while allowing Directors to issue permits with site-specific requirements. An emphasis on site selection, site characterization, and careful permit-writing will further strengthen a regulatory scheme that will provide protection of USDWs while maximizing the beneficial environmental and economic impacts of carbon sequestration.

Response: EPA notes that the final rule does allow owners or operators flexibility. EPA has taken a regulatory approach that promotes USDW protection, incorporates flexibility or the discretion of the permitting authority when appropriate, seeks to limit burden on owners or operators and permitting agencies, and provides a foundation for national consistency in permitting of GS projects. Many Class VI permit requirements must be established through site-specific plans developed by the owner or operator and approved by the Director. Consequently, EPA anticipates that owners or operators will consult with the Director as they develop, implement, and update these plans. In addition, the final rule affords the Director flexibility to approve alternatives to the requirements in some cases. For example, the Director may in certain situations modify the length of the post-injection site care period or approve an alternative post-injection site care timeframe as part of the permitting process under §146.93, allow the use of alternate methods for mechanical integrity testing (if approved by EPA), and waive the requirement that wells be designed to inject below the lowermost USDW.

EPA recognizes that technologies will evolve and improve over time, and for these reasons, the Agency is using an adaptive approach to regulate GS injection. The Agency 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.

EPA is allowing the construction of Class II and V wells to be re-permitted as Class VI wells pursuant to §146.81(c), provided the owner or operator can demonstrate to the Director that the wells were engineered and constructed to meet the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements at §146.86(b) and §146.87(a). EPA believes that allowing for grandfathering of select construction requirements, if approved by the Director, will ease the transition to Class VI from an existing ER project while protecting USDWs from endangerment.

EPA clarifies that the GS rule does not promote GS in specific settings, nor does it limit injection activities to any specific type of formation, geographic region, or depth. The focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that is protective of USDWs.

Commenter Name: Thomas Curtis Letter ID: 0204 Commenter Organization: American Water Works Association (AWWA) Comment ID: 22180

Comment: - Protection of underground sources of drinking water (USDWs) should be the highest priority - "water should trump everything!"Response: The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12. It is outside the scope of this rulemaking or EPA’s authority to provide the water sector any type of priority over storage areas.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

Commenter Name: Thomas Curtis Letter ID: 0204 Commenter Organization: American Water Works Association (AWWA) Comment ID: 22183 Other EPA Comment Codes and Descriptions: 4320 2.4.4.1 Injection beneath the lowermost formation containing a USDW

Comment: - The protection of the lowermost USDWs is of critical importance, and the location of these USDWs should be the primary factor in determining if a geosequestration project can be located in the same area.

Response: The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information and the potential impact of the GS project on any USDWs when determining whether GS is acceptable at a given site.

In many cases, UIC Directors will have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

EPA agrees that protecting USDWs from endangerment must be a top priority. The Agency believes that there are limited circumstances where injection above the lowermost USDW can be performed in a manner that protects USDWs, as long as appropriate protections are in place. The final GS rule at §146.95 establishes a process by which owners or operators can seek a waiver of the Class VI injection depth requirements for injection into non-USDW formations above and/or between USDWs. The waiver approach requires the submission of extensive, site-specific information (inconjunction with the permit application submission) to demonstrate that injection of CO2 into a nonUSDW that is above or between USDWs can be done in a manner that is protective of USDWs. It establishes: 1) requirements specifying information that owners or operators must submit, andDirectors must consider, in consultation with PWSS Directors; 2) procedures for public notice of a waiver application and for Director-Regional Administrator communication; 3) the waiver issuance process; and, 4) additional requirements that apply to owners or operators of Class VI wells granted a waiver of the injection depth requirements to ensure USDW protection above and below the injection zone.

EPA believes that the requirements at §146.95 will ensure USDW protection while providing flexibility to UIC Program Directors and owners or operators who undertake CO2 injection for GS. 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. For additional information on the waiver approach, please see the final rule and preamble, as well as EPA's responses to comments on the Notice of Data Availability and Request for Comment.

Commenter Name: Thomas Curtis Letter ID: 0204 Commenter Organization: American Water Works Association (AWWA) Comment ID: 22187 Other EPA Comment Codes and Descriptions: 1510 1.2.2.3 Need for additional study

Comment: - It is not realistic to presume that we know enough about carbon separation or geosequestration to draw the conclusion that all new power plants with these new technologies would be carbon neutral in the first few decades of operation.

- More research is needed to answer USDW protection and technical questions related to feasibility, infrastructure and reliability. This research includes the work from the U.S. Geological Survey and other agencies.

Response: The effectiveness of various climate change mitigation technologies, including carbon capture, is beyond the scope of this rulemaking. EPA clarifies that the purpose of the GS regulation is to assure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment. As described above, EPA agrees that continued research in all GS associated fields will be integral to development of GS technology.

Commenter Name: Diane VanDe Hei Letter ID: 0206 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22207

Comment: - Protection of drinking water sources and potential future underground sources of drinking water (USDW) is paramount. As a result AMWA and AWWA recommend that:

o The permitting of large-scale geosequestration projects be delayed until information about Department of Energy (DOE) pilot projects and the effects of carbon sequestration on the subsurface and USDW can be collected and analyzed. We are concerned about the potential for carbon capture and storage (CCS) projects to result in unintended, and possibly harmful, consequences to sourcesof drinking water. Much of the work in CCS arena is still in pilot or pre-pilot phase at several magnitudes of scale smaller than the sort of projects envisioned under this proposal.

Response: EPA believes that sufficient data and experience currently exist to develop regulations under the UIC program for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe underground injection practices regulated by the UIC Program. While developing the GS regulations, EPA has evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects.

Several large-scale pilot projects are currently underway worldwide to test the appropriateness and efficacy of various technologies to characterize sites, ensure proper well construction and operation, and monitor injection activities and CO2 plume and pressure front distribution. EPA is tracking international GS efforts and is aware of four commercial-scale projects that are currently in operation: the Sleipner Project in the Norwegian North Sea (operating since 1996); the Weyburn ER project in Saskatchewan, Canada (since 2000); the In Salah Gas Project in Algeria (since 2004); and Snohvit, also in offshore Norway in the Barents Sea (since 2008). Other projects EPA is tracking include Gorgon and Otway (in Australia); Ketzin (in Germany); Lacq (in France); and CarbFix (in Iceland).

Activities at Weyburn, In Salah, Sleipner, and the RCSP sites have been supervised by leading industry scientists and practitioners. Activities at Weyburn have also been peer-reviewed by the IEA-GHG Programme, an international collaborative research program that includes the European Commission and OPEC as members. EPA has considered the results of these pilot projects and data from RCSPs in developing the GS rule.

EPA recognizes that technologies will evolve and improve over time, and for these reasons, the Agency is using an adaptive approach to regulate GS injection. The Agency 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.

Commenter Name: Diane VanDe Hei Letter ID: 0206 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22209 Other EPA Comment Codes and Descriptions: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space ownership; 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83)

Comment: - The USDW classification must be reconsidered when siting Class VI wells. The best sources of drinking water are already being used by utilities. Coupled with challenges resulting from climactic changes, population growth and land development, many utilities are turning to more challenging groundwater sources such as those that are very deep or have high salinity concentrations, also because the pumping costs for these deep wells are no longer prohibitive given

the lack of sufficient water elsewhere. Some of these new sources could fall outside of the current definition of a USDW, in that the aquifer has a TDS concentration higher than 10,000 ppm. EPA’s proposed rule promises protection of USDWs from endangerment yet there are no anti-degradation provisions in theproposed regulation to protect other groundwater supplies, such as those aquifers that are not classified as a USDW but have been, or may be, identified as a future drinking water source. The TDS criterion was written at a time when many advanced water treatment technologies were generally cost prohibitive. In light of the changes in the hydrological and technological landscape, we

recommend that EPA reexamine the classification of USDWs based on TDS when considering the siting of Class VI geosequestration wells. The potential need to use saline aquifers for potable supply, particularly in water-stressed areas, should take precedence over the sequestration of carbon dioxide there.

Response: The Agency acknowledges commenter concerns about water resources and future water resource availability. However, modifying the definition of a USDW is outside the scope of the GS rulemaking. USDWs are defined as aquifers currently being used as sources of drinking water or those capable of supplying a public water system and they have a total dissolved solids (TDS) content of 10,000 milligrams per liter or less (§144.3).

The primary goal of the UIC Program under the SDWA is to protect USDWs in order to ensure a reliable supply of drinking water for the American public. The GS rule, as part of the UIC program regulations, continues the program’s tradition of ensuring the protection of USDWs. The permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule built on a long-standing protective regulatory framework, tailored to the unique characteristics of

CO2 GS.

Commenter Name: Diane VanDe Hei Letter ID: 0206 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22215 Other EPA Comment Codes and Descriptions: 1410 1.2.1 Comments in support of EPA/rulemaking

Comment: AWWA and AMWA appreciate the opportunity to comment on EPA’s proposal. The proposed regulation is a good technical starting point given the need to have a federal standard to guide permit writers. However, the technology is still in its infancy and as a result we urge EPA to exercise caution and to ensure the protection of USDWs and future USDWs from harmful unintended consequences.

Response: As described above, EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA agrees that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated long-term injection of CO2. These requirements include the tailored AoR delineationprocess per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended postinjection site care per §146.93.

As part of its adaptive rulemaking approach, The Agency plans, every six years, to collect and review data on GS projects to determine whether the appropriate amount and types of information and documentation are being collected, and to determine if modifications to the requirements are

necessary.

Also, as EPA noted above the Agency believes that sufficient data and experience currently exist to develop regulations for Class VI wells. EPA has considered the results of past research in developingthe GS rule.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22914

Comment: The Association of Metropolitan Water Agencies (AMWA) appreciates the opportunity to comment on the proposed rule for permitting the geological sequestration of carbon dioxide. AMWA recognizes the importance of reducing carbon dioxide emissions to mitigate climate change impacts. Our member utilities across the country are engaged in efforts to reduce their carbon footprint and greenhouse gas emissions in a myriad of ways -- from increased efficiency to green power projects. However, protecting our nation’s water supply from potential negative impacts of the development of carbon sequestration projects is paramount.

sequestration is currently very limited. Carbon sequestration is still largely untested and prudence is necessary to avoid any unintended consequences that could have long-term effects on underground sources of drinking water (USDWs).

Response: EPA believes that sufficient data and experience currently exist to develop regulations for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices regulated by the UIC Program. While developing the GS regulation, EPA has evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22916

Comment: efficiency to green power projects. However, protecting our nation’s water supply from potential negative impacts of the development of carbon sequestration projects is paramount.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA agrees that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84, monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22918 Other EPA Comment Codes and Descriptions: 1510 1.2.2.3 Need for additional study

Comment: Therefore, AMWA recommends that the final regulation take a phased approach and prohibit the construction of CO2 sequestration wells in the following types of aquifers until more is known about the risks of CO2 sequestration to USDWs as aresult of the effects and dynamics of the fluid in the subsurface:

1. Aquifers currently used for potable water supply today, or

2. Aquifers where it can be demonstrated that the aquifer will be used for potable supply in the future. AMWA is not trying to block carbon sequestration but believes that unintended consequences to the nation's water supply can be avoided by initially prohibiting the construction of CO2 wells in any aquifer for potable supply, and by waiting to construct sequestration wells through any USDW until there is a better understanding of the effects of carbon sequestration on the dynamics of the subsurface geology and geochemistry. EPA should then revisit this exclusion once the potential risk factors and unintended consequences to USDWs are better understood.

Response: EPA clarifies that the final regulation does not allow injection of carbon dioxide into USDWs. USDWs include both currently used sources and sources that may be used in the future. Under §144.3 a USDW is defined as an aquifer or portion of an aquifer that supplies any public water system or that contains a sufficient quantity of ground water to supply a public water system, and currently supplies drinking water for human consumption, or that contains fewer than 10,000 mg/L total dissolved solids and is not an exempted aquifer. The GS rule requires injection below the lowermost USDW, unless the owner or operator obtains a waiver from this requirement, in which case injection may occur into non-USDWs that lie above or between USDWs, provided the requirements at §146.95 are met. The final rule also allows for the expansion of the areal extent of existing aquifer exemptions for Class II EOR/EGR wells transitioning to Class VI injection for GS pursuant to requirements at §§146.4 and 144.7(d). Please see the discussion of "Class VI Injection Depth Waivers and Use of Aquifer Exemptions for GS" in the preamble to the final rule for

additional information.

The Agency acknowledges the commenter’s concerns about water resources and future water resource availability. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22924 Other EPA Comment Codes and Descriptions: 1510 1.2.2.3 Need for additional study

Comment: Protection of drinking water sources is our primary concern. AMWA is concerned about the potential for CCS projects to result in unintended, and possibly harmful, consequences to sources of drinking water. Much of the work in the CCS arena is still in pilot or pre-pilot phase. AMWA cautions against the permitting of large scale CCS projects until protection of potable or potentially potableaquifers can be established as a primary concern, and information about DOE pilot projects and the effects of carbon sequestration on the subsurface and USDW can be collected and analyzed.

Response: As described above, EPA believes that sufficient data and experience currently exist to develop regulations for Class VI wells. While developing the GS regulation, EPA evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects.

EPA agrees that continued research will be integral to development of GS technology, but disagrees that the Agency should wait for all current field research to be complete before finalizing the GS rule. The Agency believes that establishing a regulatory framework for the future development and deployment of CCS technology provides a framework for injecting CO2 so that the activity does not result in endangerment of USDWs.

EPA believes that the UIC Program, under the authority of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the unique issues associated with large-scale GS including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations.

Commenter Name: Diane VanDe Hei Letter ID: 0213 Commenter Organization: Association of Metropolitan Water Agencies (AMWA) Comment ID:

22954

Comment: water, CO2 and bedrock formations. Above all, drinking water needs should be considered paramount and EPA should consider the future drinking water needs of the country in light of climate change. EPA’s final rule should protect current and future USDWs from unintended consequences of CO2 geosequestration and moral

hazard.

Response: As described above, The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

Commenter Name: Randy Joseph Letter ID: 0240 Commenter Organization: Western Organization of Resource Councils Comment ID: 23218

Comment: 1) Water: As you are aware, drinking water supplies are at potential risk of contamination from CO2 and any other hazardous materials that are injected during geologic sequestration. All areas where geologic sequestration will occurat important to the local people and economies as agricultural land, wildlife habitat, residential land, or for countless other reasons - all of which rely on clean water supplies. Thus, we urge EPA to take all steps necessary to protect this irreplaceable resource at all sites where geologic sequestration occurs.

Response: The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Commenter Name: Mic Stewart Letter ID: 0279 Commenter Organization: Metropolitan Water District of Southern California Comment ID: 24093

Comment: 43492). This potential practice to mitigate the effects of greenhouse gas emissions raises the concern of potential contamination to underground sources of drinking water, particularly sole-source aquifers. Other concerns include

Response: The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with SDWA §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

The GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs within the AoR. EPA expects that this information will include identification of any sole source aquifers. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that during this evaluation the Director will consider the potential impact of the GS project on any sole source aquifers.

Commenter Name: Mic Stewart Letter ID: 0279 Commenter Organization: Metropolitan Water District of Southern California Comment ID: 24095

Comment: Project utilizing water from the San Joaquin Sacramento River Bay Delta. While Metropolitan does not own or operate groundwater wells as part of its water supply operation, approximately 37% of the annual retail demands for water in ourservice area depend on local and regional groundwater supplies. Metropolitan and other agencies store surplus water in various groundwater basins throughout California for use during dry years. Metropolitan and the agencies it serves depend heavily on the viability of these important groundwater basins to produce the balance of regional supply needs.

We would specifically ask that EPA not implement any geologic sequestration pilot program in a groundwater basin that is the sole source of supply for an urban area. Unproven commercial-scale geologic carbon sequestration technology may pose unintended impacts on groundwater basins and potentially compromise both water quality and water supply.

The American Water Works Association (AWWA) has provided testimony and extensive written comment of this proposed regulation. The new class of injection well proposed under this rule specifically for injecting CO2 into deep, underground geologic formations is a source of primary concern for AWWA because of the potential contamination of underground sources of drinking water, particularly sole source aquifers, and the unintended, possibly harmful, consequences. Metropolitan shares this concern and joins with AWWA in the call to mitigate these concerns prior to any final rulemaking.

While Metropolitan and the drinking water industry support meaningful efforts to reduce greenhouse gas emissions, it is our hope that any gain in these reductions does not come at the expense of vital drinking water supplies.

Response: The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

The GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs within the AoR. EPA expects that this information will include identification of any sole source aquifers. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that during this evaluation the Director will consider the potential impact of the GS project on any sole source aquifers.

EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges and risks that, if not properly managed, could endanger drinking water sources or have other adverse impacts. EPA agrees that caution is warranted and has, as a result, developed a new well class with requirements tailored to address the unique challenges posed by GS and potential risks associated long-term injection of CO2. These requirements include the tailored AoR delineation process per §146.84,monitoring that is appropriate to GS projects per §146.90, and extended post-injection site care per §146.93.

Commenter Name: Cynthia Lane Letter ID: 0528 Commenter Organization: American Water Works Association (AWWA) Comment ID: 21381

Comment: Our overarching concern regarding geologic carbon sequestration is the potential contamination of underground sources of drinking water from injection activities and the potential for other unintended and potential, possibly harmful

consequences.

AWWA is particularly concerned about the potential for contamination of sole source aquifers and suggests that these aquifers be provided special protective measures in the proposed rule. We also support the portion of the rule that

Response: The Agency agrees that drinking water is an important resource to protect. The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment. Consistent with §1422, the UIC program provides that no injection shall be authorized if it results in the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may adversely affect the health of persons as specified in §144.12.

The GS rule, as part of the UIC program regulations, continues the Program’s mandate under the SDWA of ensuring the protection of USDWs from endangerment. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

The GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs within the AoR. EPA expects that this information will include identification of any sole source aquifers. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that during this evaluation the Director will consider the potential impact of the GS project on any sole source aquifers.

EPA agrees that, in many cases, UIC Directors will have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

Commenter Name: Cynthia Lane Letter ID: 0528 Commenter Organization: American Water Works Association (AWWA) Comment ID: 21383 Other EPA Comment Codes and Descriptions: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost USDW

Comment: As the demand for water increases during the upcoming century and changes in climate impact traditional water supplies, water utilities will look for new sources of drinking water. It is likely that as a result of these changes, there will be a greater reliance on ground water for both new supplies and conjunctiveuse. The possibility exists that utilities might want to use some of these injection site aquifers as new potable sources. In fact, in several communities across the country, brackish waters that are previously considered to be unusable because they are above ten thousand TDS are now being used as drinking

water sources.

As desalination technology advances, the brackish water sources are treated to EPA drinking water standards and provided to water utility customers. As this technology improves, even more saline water may be used in the future therefore AWWA suggest that the selection standards for potential injection aquifers and for USDW's be reviewed and revised to prevent contamination of aquifers that may be considered viable sources of drinking water in the near future.

Response: The Agency acknowledges the commenter’s concerns about water resources and future water resource availability. However, modifying the definition of a USDW is outside the scope of the GS rulemaking. USDWs are defined as aquifers currently being used as sources of drinking water or those capable of supplying a public water system, with a total dissolved solids (TDS) content of 10,000 milligrams per liter or less as specified in §144.3.

The primary goal of the UIC Program under the SDWA is to protect USDWs from endangerment in order to ensure a reliable supply of drinking water for the American public. The GS rule, as part of the UIC program regulations, continues the program’s tradition of ensuring the protection of USDWs. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

As described above, EPA agrees that protecting USDWs from endangerment must be a top priority. The Agency believes that there are limited circumstances where injection above the lowermost USDW can be performed in a manner that protects USDWs, as long as appropriate protections are in place. The final GS rule at §146.95 establishes a process by which owners or operators can seek a waiver of the Class VI injection depth requirements for injection into non-USDW formations above

and/or between USDWs.

Commenter Name: Cynthia Lane Letter ID: 0528 Commenter Organization: American Water Works Association (AWWA) Comment ID: 21384

Comment: Owner/operators should be required to involve local planning departments and water utilities to determine if any of our subsurface aquifers may be used as drinking water source in the future.

Water chemistry in the underground setting is complex and AWWA has several technical concerns regarding the potential for carbon sequestration to contaminate USDWs. Preventing degradation of water should not just be limited to contaminants with established maximum contaminant levels, but should also include other constituents whose presence may either make ground water more difficult to treat or impact the beneficial uses of at ground water.

Several references on geologic carbon sequestration discussed changes in the carbonate cycle resulting in lowered pH conditions and the release of iron, manganese, arsenic and possibly other inorganics into groundwater surroundingthe injection zone.

Response: EPA clarifies that existing regulations under 40 CFR 124.10(c)(1)(x) require the notification of local governments with jurisdiction over the area where the Class VI well is proposed to be located when the draft permit is available for public comment. In addition, EPA has added a requirement at §124.10(c)(1)(xi) that the PWSS program director, among other agencies, must be notified as part of the public notice process for a Class VI permit. EPA expects that the PWSS director will inform PWSs in the area of review about the proposed GS project.

EPA acknowledges that there are potential risks associated with GS, including the potential that CO2 injection for GS may result in leaching of subsurface materials that could mobilize contaminants or compromise pore space, and therefore injectivity. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. To ensure USDW protection and mitigate risks, the GS regulation requires the owner or operator of a Class VI well to submit data about the site (during the site characterization process), including information on the porosity, permeability, mineralogy, and geochemistry of the injection and confining zones, along with information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82. This data will help identify potential geochemical reactions that may occur between the injected CO2 and the host geologic formation. Identification of potential reactions prior to injection would address concerns that formation of carbonic acid could dissolve potential limestone creating karst features.

During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation, including contamination as specified in §146.94, and provide financial responsibility to address contamination as specified in §146.85.

Commenter Name: Dag Nummedal Letter ID: 0533 Commenter Organization: Colorado Energy Resource Institute Comment ID: 21477

Comment: What happens when you put CO2 into the subsurface. One is that when you are pumping the large quantities of CO2 that we will be looking at, there are formations that will be deformed. They are deformed both by hydrological, by thermal and by chemical disturbances from injected CO2. In turn, this for those who are reading, I am reading the second paragraph, in turn this deformation probably will have a profound effect both on the hydro mechanical and the transport response of the injected fluid itself. And of course, fractures are particularly important in the subsurface because they are already are in the conduit, but they are in the pipeline that work, that carry fluids through the rocks. So for that reason we do not have focus a lot of research and very little has been done on this yet, to really get an understanding of the distribution properties and response of both the natural and induced fractures. How do they respond to fluid pressure? To the temperature changes? To the mineralogical changes? We can both dissolve minerals in the fluid in the subsurface and you can re-precipitate others. This will change the injectivity of CO2.

Also many fractures create new fresh surfaces and guess what? When you create a new fresh surface, that surface is typically chemically very reactive, much moreso than an old rock surface that has been weathered on the surface so understanding -- what is called the reactive transport modeling in the technical lingo, is basically understanding how the chemistry over fluid moving past this reactive surfaces. They change the mineral assemblage and in turn start growing crystals or dissolving crystals and changing activity.

To this, of course, then in the long run they change the mobility of fluids at least the mobility of CO2 and where it is trapped and how much we are trapping in the subsurface. We are going about this with a combination of flow modeling laboratory work and we are starting the project building on what we believe are the two most advanced numerical modeling codes in the world today developed by a partner in this, and our partners are the Livermore National Lab in Livermore, California and the Lawrence Berkeley lab on the Berkeley campus. These labs have

Response: EPA acknowledges that injection of large volumes of CO2 into the subsurface poses potential risks associated with fluid movement, deformation in the subsurface, and the potential for leakage of CO2 into USDWs, which could result in the mobilization of substances that could pose threats to human health by endangering USDWs.

The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, computational AoR modeling that accounts for the multiphase flow of CO2 and native fluids, well construction, operation, monitoring, post-injection site care, and site closure. The mandate of the UIC Program under the SDWA, and the GS rule, is to protect public health by ensuring the protection of USDWs from endangerment. The GS rule accomplishes this through requirements tailored to address the unique nature of GS, including the large volumes of CO2 injected, its buoyancy and potential corrosivity in the presence of water, and impurities in the CO2 stream. Many of these requirements specifically address the potential for mobilized substances

to affect USDWs.

For example, the owner or operator must submit data about the site, including information on the porosity, permeability, mineralogy, and geochemistry of the targeted injection and confining zones. Operators must also present information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified at §146.82(c)(3). The data can help identify potential geochemical reactions between the injected CO2 and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals. During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94 and provide financial responsibility to address contamination as specified in §146.85.

Commenter Name: Dag Nummedal Letter ID: 0533 Commenter Organization: Colorado Energy Resource Institute Comment ID: 21480 Other EPA Comment Codes and Descriptions: 1960 1.4.4.5 Consultations with NGOs, e.g., environmental and citizens groups

Comment: But according to your point number seven in the handout for today's meeting, where you talk about EPA has an upstanding history of working with academic community and the national labs to answer basic science questions and I am delighted to see that and I know that in fact. I have been dealing with EPA fora long time too and I am very pleased that in fact, the labs that you are mentioning are mostly the same ones that we believe are the leadership precision

in this research. You do mention the Lawrence lab. You mention the Pacific Northwest labs you are working through, but not formally in this particular proposal and you have mentioned little more, but of course [indecipherable] strength in the carbon sequestration [indecipherable].

Then you mention the regional carbon sequestration partnerships in Colorado is member of the southwest partnership headed up by Brian McPherson. Started out in New Mexico [indecipherable]. Brian is now at the University of Utah and close friend of all of ours. So I have a very close interaction with that partnership and also the Big Sky partnership in Montana, in the Great Plains. Now where our research already is different and will continue to differ from the partnership is that we are not trying to focus on kind of a regional assessment on what particular methodology works where which is very much part of the partnership and of course, we need that. But instead we want to sit back and look at a much more fundamental geomechanical, geomicrobiological and geochemical reactions in the subsurface in any kind of rock and we will limit [indecipherable] submitted if it gets funded. Get samples and data from these three partnerships that I mentioned, so that the research will be tied to the specific environments in the Rocky Mountains very likely to store CO2.

So I think that is -- oh I mentioned the Sleipner project which of course is well known. Because Sleipner I attached some CO2 emissions back in 1995 and 1996. I have mailed it and advantageous for [indecipherable] business perspective start sequestering CO2 and I learned a great deal in the process about it, so becoming a leader provider on the carbon sequestration expertise and technology. The and I have been working with Stockholm for a long time as you can tell from my accent, I did not grow up in Louisiana, some people think.

Response: While developing the GS regulation, EPA evaluated relevant GS research, including projects conducted by the seven regional carbon sequestration partnerships funded by the U.S. Department of Energy (DOE) and coordinated through the National Energy Technology Laboratory (NETL), and several international projects, including Sleipner. A paper summarizing EPA's research on international GS projects and legislation is in the rulemaking docket. Additionally, EPA's Office of Water continues to fund research at the Lawrence Berkeley National Laboratory examining the effects of CO2 interaction on ground water aquifers and any potential mobilization of trace elements that may occur. EPA is communicating with other research organizations and academic institutions including, among others, Princeton University, Massachusetts Institute of Technology, and Montana State University, where specific research on geologic sequestration, injection well materials, and CO2 monitoring techniques is in progress. EPA is also working with DOE, USGS, and others to identify tools and training techniques that will provide GS permitting assistance and technical expertise as appropriate. Additionally, EPA's Office of Research and Development (ORD) is undertaking multiple research efforts on GS. Topics of research include bolstering different default thermodynamic databases to include more comprehensive information on aqueous complexes and solid-phases that contain carbonate/bicarbonate and toxic elements for which EPA has a listed MCL (maximum concentration level) for safe drinking water.

EPA is using an adaptive approach to regulating GS under the UIC Program. Even after finalization of the GS regulation, the Agency will, every six years, collect and review data on GS projects todetermine 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.

EPA agrees that research into GS is important and confirms that, as the commenter notes, the final GS rule was informed by research at LBNL, Pacific Northwest laboratories, the RCSPs, and international GS research. EPA continues to fund research on GS. As part of its adaptive rulemaking approach, EPA will continue to review available research on fluid movement. The Agency 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.

Commenter Name: George Peridas Letter ID: 0534 Commenter Organization: Natural Resources Defense Council (NRDC) Comment ID: 21464

Comment: I would like to mention since there is talk of contamination of groundwater that we need to be careful to distinguish risks from hazards. A hazard is something that can potentially go wrong. A risk involves the probability of it. What we really need to do is take a good look at which of these hazards are linked to what probabilities and to what extent they amount in. I do believe that in the case of sequestration, we can effectively manage a lot of those risks.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulations provides a protective foundation for ensuring protection of USDWs based on successful field experience, and lessons learned about CO2 injection in other applications.

Commenter Name: Talib Syed Letter ID: 0537

Comment ID: 21475

Comment: One other concern that I have is of you know, again the safety of underground water sources. So the design of the well and the operation because when, when you are dealing with CO2, it is very important that you be aware of the phase behavior of CO2. We are all aware that CO2 could be in a liquid phase, in a supercritical gaseous phase, it could be a supercritical gas or a solid, etcetera and that is why the critical temperature, critical pressure comes in. So a requirement that you always operate at a certain depth where you are above the critical temperature, you are above the critical pressure becomes important because otherwise you are going to have unintended consequences. Particularly what you have got to watch out for is a catastrophic release. Small releases, okay you can manage it, but if you have got a catastrophic release, then everything you know, comes to naught.Response: EPA recognizes that all phases of CO2 must be considered in determining the suitability of GS projects. Under §146.84, the owner or operator must delineate the area of review for Class VI wells using computational modeling that accounts for the physical and chemical properties of all phases of the injected CO2 stream. Modeling must be based on available site characterization, monitoring, and operational data. The definition of the AoR in the proposed rule accounted for the varying physical and chemical properties of the CO2 including free-phase and water-dissolved CO2.

GS takes place thousands of feet below the Earth’s surface within porous spaces in deep rock formations. CO2 is injected for GS through technically engineered wells with multiple barriers designed to isolate the injectate in the well and protect formations outside the well materials. The injected CO2 is stored in geologic formations underneath confining layers of rock that act as natural barriers to leakage. It is unlikely that CO2 will escape from a GS site that is properly sited, operated, monitored, and closed. During the site selection process under §146.83, operators of Class VI wells identify and evaluate the appropriateness of a site for GS of CO2. The evaluation includes the identification of surface and subsurface features such as deep stratified lakes and other naturally occurring pockets of CO2. Furthermore, during GS operation, injection pressures and formation conditions are monitored to avoid overpressuring the storage formation.

Comment Code: 1612 1.3.1.1 Leaching and mobilization of contaminants; reactions in injection

zone



### Individual Comments

Commenter Name: Herbert Skolnick, Ph.D. Letter ID: 0110 Commenter Organization: Group Against Smog and Pollution, Inc. (GASP) Comment ID: 22036

Comment: Potential for Adverse Chemical Reactions:

The corrosive nature of carbon dioxide in the presence of water was noted several times during the work sessions conducted during the late-February CO2 sequestration meetings. [FN1: U.S. ENVIRONMENTAL PROTECTION AGENCY, Proposed UIC Regulations for Geologic Sequestration of Carbon Dioxide, Feb. 26-27, 2008.] Chemical reactions between the injected carbon dioxide and the pore water in the host rock should be expected, resulting in solution and redeposition of host mineral material and loss of pore volume.

For thirty years, the reviewer worked as a geologist for Gulf Oil studying and analyzing thousands of surface and subsurface samples of sandstones and quartzite rocks

from different parts of the world. Siliceous overgrowths on the quartz grains making up these rocks were common and in some instances resulted in the total loss of pore volume. The overgrowths ranged from amorphous silica, various cherts, cryptocrystalline quartz to quartz deposited in crystalline continuity with the host grains. [FN 2: Skolnick. H., The Quartzite Problem, JOUR. SED. PET. V.35, p.12-22 (1965), (The most extreme observed example was a core fromPeru in which all of the pore volume was filled with the mineral pyrite)] Thus when the presence of silica is suspected in a CO2 stream,[FN 3: For instance, CO2 derived from the combustion of coal may contain significant levels of silica due to the presence of fly ash in the waste stream.] silica content should be determined prior to sequestration - particularly where storage in sandstone or quartzite formations is contemplated.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential for leakage of CO2 into USDWs, which could result in the mobilization of substances that could pose threats to human health by endangering USDWs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. The mandate of the UIC Program under the SDWA is to protect public health by ensuring the protection of USDWs from endangerment. The GS rule accomplishes this through requirements tailored to address the unique nature of GS, including the large volumes of CO2 injected, its buoyancy and potential corrosivity in the presence of water, and impurities in the CO2 stream. Many of these requirements specifically address the potential for mobilized substances to affect USDWs.

For example, the owner or operator must submit data about the site, including information on the porosity, permeability, mineralogy, and geochemistry of the targeted injection and confining zones. Operators must also present information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified at §146.82(c)(3). The data can help identify potential geochemical reactions between the injected CO2 and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals. During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94 and provide financial responsibility to address contamination as specified in §146.85.

Commenter Name: Emily Rochon Letter ID: 0129 Commenter Organization: Greenpeace International Comment ID: 23063

Comment: Leaking carbon dioxide from underground storage sites could also contaminate fresh water reservoirs rendering them unfit for human consumption, especially if other contaminants -- e.g. mobilized (toxic) metals like sulfates, or chloride -- reach dangerous levels. If options are considered where CO2 is to be stored in saline formations then the consequences of the displacement of in-situ saline waters (brines) must be considered. The displaced brines migrate, possibly

Response: EPA acknowledges that there are potential risks associated with GS including the potential for leakage of CO2 into USDWs which may result in the mobilization of substances that could endanger USDWs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. The rule at §146.82 requires owners or operators to submit extensive data about a proposed GS site to identify (and eliminate) sites with potential for unacceptable fluid movement. EPA believes that this information, in conjunction with AoR modeling required at §146.84, will help identify the potential for brine migration as a result of pressure displacement. Subsequently, the Director and owner or operator can identify ways to mitigate this risk prior to injection or, if necessary, the Director can deny an injection permit. During injection operations, operators must extensively monitor ground water quality and pressure changesto provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must also develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94 and maintain financial responsibility to address contamination as specified in §146.85.

EPA has funded research from the Lawrence Berkeley National Laboratory using models covering a range of USDW fluid and host reservoir properties (based upon 38,000 groundwater samples) indicating that, although leakage of CO2 into a USDW could result in the increase of certain trace element concentrations, including arsenic and lead, rarely exceeding EPA drinking water standards (Birkholzer et al., 2008). EPA has also examined potential methods for conducting treatment of water affected by a CO2 leak; this study is presented in the final rulemaking docket.

Commenter Name: James Dooley Letter ID: 0156 Commenter Organization: Joint Global Change Research Institute, Pacific Northwest National Laboratory Comment ID:

22673

Comment: - Page 43497 under "What are the risks associated with CO2 GS?" I do not see any reason to include the modifier "likely" in the first sentence of "PotentialUSDW Impacts." Under what set of circumstances would CO2 injected into a waterbearing deep geologic formation not come into contact with formation waters? Delete "likely" from this sentence. It does not help readers understand CCS or how EPA will regulate CO2 storage.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential that CO2 injection for GS may result in leaching of subsurface materials that could mobilize contaminants or compromise pore space, and therefore injectivity. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. To ensure USDW protection and mitigate risks, the GS regulation requires the owner or operator of a Class VI well to submit data about the site (during the site characterization process), including information on the porosity, permeability, mineralogy, and geochemistry of the injection and confining zones, along with information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82. This data can help identify potential geochemical reactions that may occur between the injected CO2 and the host geologic formation. Identification of potential reactions prior to injection would address concerns that formation of carbonic acid could dissolve potential limestone creating karst features.

During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation, including contamination as specified in §146.94, and provide financial responsibility to address contamination as specified in §146.85.

Commenter Name: Mark Singer Letter ID: 0504 Commenter Organization: Green America Project, LLC Comment ID: 21248

Comment: Now, it's obvious that bad things can happen if this goes wrong. CO2 can interact chemically with lime right at the injection site even without it, you know, moving around, even without it escaping through the well initially. This could create carbonic acid, reacting CO2 with water. This could dissolvelimestone or other susceptible rock and underground, underground karst region could be created. This could cause a collapsed area due to reduced subjacent

support.

The EPA was handling, was, I'm sorry. The EPA participated in the National Carbon Sequestration Atlas. And according to the National Atlas, there's a section there on engineering aspects of karsts. According to the National Atlas, karst lithology already poses problems in many areas of the United States.

Now, in the EPA's Federal Register publication they call carbonic acid a weak acid. This is a, this is a, when we say, weak acid, it's a technical term, it has to do with the acid's intrinsic reactivity as compared to other types of

acids. But it does not take into the account the issue of concentration of the

carbonic acid.

The carbonic, the weathering that we see in underground caves is the result of atmospheric CO2 dissolving in water and then that attacks the rock and carves out all these wonderful caves and such, and also causes many areas where subsidence occurs because the subjacent support has been undermined.

But the percentage of CO2 in the atmosphere is way below one percent, and here we're talking about 100 percent CO2 and putting that down by the water source. So even though it's in a technical sense a weak acid its concentration will be much higher. This concentrated carbonic acid would chemically attack susceptible rock, much more fiercely than naturally occurring processes, you'd have karsts

on steroids.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential that CO2 injection for GS may result in leaching of subsurface materials that could mobilize contaminants or compromise pore space, and therefore injectivity, which may result in USDW endangerment. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. To ensure USDW protection and mitigate risks, the GS regulation requires the owner or operator of a Class VI well to submit data about the site (during the site characterization process), including information on the porosity, permeability, mineralogy, and geochemistry of the injection and confining zones, along with information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82. This data can help identify potential geochemical reactions that may occur between the injected CO2 and the host geologic formation. Identification of potential reactions prior to injection would address concerns that formation of carbonic acid could dissolve potential limestone creating karst features.

During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation, including contamination as specified in §146.94, and provide financial responsibility to address contamination as specified in §146.85.

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

### Individual Comments

Commenter Name: Michael H. Cochran Letter ID:

0108 Commenter Organization: Bureau of Water, Division of Environment, Kansas Department of Health & Environment (KDHE) Comment

ID: 21960

Comment: 144.81: The quality of the injection stream in regards to a minimum concentration of CO2 should be established to ensure that it is actually a CO2 sequestration project and to limit the injection of other harmful or undesirable

gases.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Elizabeth Lokey Letter ID: 0112 Commenter Organization: Camco International Comment ID: 22046 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Currently, the proposed rule (EPA-HQ-OW-2008-0390) defines CO2 that can be injected under a class VI designation as the following:

"CO2 that has been captured from an emission source (e.g. power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that

meets the definition of a hazardous waste under 40 CFR Part 261."

This definition is vague and needs clarification in terms of the percentage of CO2 in a given volume of gas to allow the CO2 to qualify for this injection permit. Otherwise, entire stack emissions or chemicals used in the separation process could end up being transported and injected. This could have unintended consequences on the reservoirs where the CO2 is stored as minerals could be dissolved and allow plumes to spread.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., apercent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA understands that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies. EPA clarifies that the GS rule does not apply to capture technologies.

Commenter Name: Doug Louis Letter ID: 0121 Commenter Organization: Kansas Corporation Commission Comment ID: 22075

Comment: Rules that apply to impurities of the CO2 injectate should be further discussed, determined and defined for permitting certainty.

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: John Stormon Letter ID: 0123 Commenter Organization: Washington State Dept. of Ecology Comment ID: 23010

Comment: Non-CO2 Contaminants: The proposed standard will allow co-disposal of importednon-CO2 waste streams. One of the most disturbing aspects of the proposed standards would allow non-CO2 contaminants to be injected with the CO2 unless the contaminants would make the CO2 a hazardous waste. Injected gases may not qualify as a hazardous waste under current standards. It appears that the proposed rules would allow a facility to import waste materials to add to the CO2 and be injected as a cheap disposal option; this should be prevented. Washington State prohibits the injection non-CO2 contaminants if technology is available for their removal; Washington also prohibits the use of undergroundinjection for most waste disposal. An alternative option would be to allow nonCO2 contaminants only as specifically addressed in a facility's permit and a statement that the non-CO2 contaminants must be by-products of the CO2 stream and may not be imported for disposal by injection with the CO2.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Sam Kitto Letter ID: 0126 Commenter Organization: National Tribal Air Association Comment ID: 23044 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Hazardous Substances With respect to hazardous substances, the GS rule would prohibit the injection of these substances in Class VI injection wells (e.g., specific to geologic sequestration), but the EPA offers no means for removing hazardous impurities such as hydrogen sulfide and mercury which are often found in CO2 streams, the types that would be sequestered as a result of the rule. In the rule, the Agency instead focuses on what is considered a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as CERCLA or Superfund; and the potential liability to owners and operators of geologic sequestration operations for injection of CO2 and

associated hazardous substances.

Indeed, liability is an important matter that needs to be addressed upfront, particularly since some Indian tribes and their citizens may one day be engaged in geologic sequestration. The EPA must not forget, however, that a primary purpose of the GS rule is to prevent endangerment to underground sources of drinking water (USDWs). As such, every effort should be made by the Agency to ensure that hazardous substances, at any level, do not find their way into USDWs so as to best protect human health and the environment from the harmful impacts

of these substances.

The NTAA therefore recommends that the EPA clearly communicate how it will address hazardous impurities often found in CO2 streams, specifically how suchimpurities will be removed or their impacts mitigated so as not to endanger

USDWs.

Response: EPA agrees that protecting USDWs from endangerment is the primary purpose of the GS rule, and that the purpose of the tailored requirements in the GS rule is to ensure that GS projects are permitted sited, constructed, operated, and closed in a manner that avoids releases of CO2 into

USDWs.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Because the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

EPA supports the use of CO2 capture technologies that minimize impurities in the CO2 stream, but clarifies that the GS rule does not address the development or regulation of capture technologies or technologies for removing impurities from CO2.

EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Emily Rochon Letter ID: 0129 Commenter Organization: Greenpeace International Comment ID: 23071

Comment: Our principle concern with this proposed regulation is a lack of specificity on the required purity of CO2 being injected underground. Sequestering less pure CO2 would be less expensive but could also affect the sealing performance of a caprock, increasing the risk of leakage and environmental.[FN15 15 Abanades, J C et al., 2005. Summary for Policymakers in IPCC Special Report on Carbon Dioxide Capture and Storage, B. Metz et al., Editors. 2005, Cambridge University Press: Cambridge, U.K.] The evaluation of existing literature shows that the main impurity -- sulfur dioxide, SO2 - dissolved in water creates a far stronger acid than does dissolution of CO2. Creation of additional leakage pathways may be induced. Mobilization of metals in minerals or soil of the sub-sea bed may be higher, leading to a greater risk of hazardous levels of trace metals.[FN16 16 Pruess K., Xu T., Apps J., Garcia J. (2003): Numerical modeling of aquifer disposal of CO2. SPE Journal, 49-60] Current research has proven that it is critical that any CO2 stream injected into underground reservoirs is at least at 99% purity to minimize risks of acidification and mobilization of toxic metals into drinking water and the soil.[FN17 17 Knauss K., Johnson J., Steefel C.(2005): Evaluation of the impact of CO2, co-contaminant gas, aqueous fluid and reservoir rock interactions on the geologic sequestration of CO2. Chem.Geol. 217, 339-350]

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: John Hanger Letter ID: 0130 Commenter Organization: Pennsylvania Dept. of Env. Protection Comment ID: 21520

Comment: Definition of Carbon Dioxide Stream

-EPA should specify a CO2 purity requirement to prevent the inclusion of contaminants (example: hydrogen sulfide, sulfurous and nitrous oxides), the inclusion of which would not classify the CO2 stream as a hazardous waste/substance but could potentially endanger USDW and/or enhance corrosiveness. DEP understands that this subpart does not apply to a CO2 stream

that meets the definition of a hazardous waste under 40 CFR Part 261.

Response: EPA understands that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardouswaste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Patrick Nugent Letter ID: 0143 Commenter Organization: Texas Pipeline Association (TPA) Comment ID: 23139 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 6. Incidental waste streams in the carbon dioxide stream should not cause

the stream to be characterized as a hazardous waste or hazardous substance. As EPA has pointed out, the carbon dioxide stream may have pollutants in it that could cause the waste stream to be classified as a hazardous waste. For example. the carbon dioxide stream captured from a power plant may include emissions of mercury, a hazardous substance. A carbon dioxide stream captured from a gas processing plant may have emissions of nitrous oxides or hydrogen sulfides. The incidental presence of these waste streams in a carbon dioxide stream should not

cause the entire carbon dioxide stream to be classified as a hazardous waste or a waste. The proposed regulations do not specify content or constituent concentration requirements. They merely state that "[t]his subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261." Proposed § 146.81(d). TPA urges EPA to establish a content percentage or constituent concentration of a pollutant in the carbon dioxide stream before the stream is declared a hazardous waste, or some other methodology that would promote the goals of this program without compromising environmental protection. The cost of removing the offending constituents or pollutants could defeat the economic viability of the carbon sequestration project, generate additional detrimental air emissions through the removal process and in the end be counter-productive as the best longterm disposal option for the pollutant may be to sequester it in a deep well. In short, such specifications might restrict the amount or kinds of greenhouse gas fluids that could be stored through geologic sequestration technology and may defeat the program in its entirety.

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21766 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: The issue becomes even more acute when you consider that EPA has already declined to address the very basic question of how to classify the CO2 stream if trace amounts of hazardous constituents get in it prior to injection:

Because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA. [FN8 Federal Register, Vol. 73 Fed. Reg. No. 144, pg. 43493 (July 25, 2008)]

Instead, EPA advocates making determinations about the hazardous classification of injected CO2 on a case-by-case basis. In essence, EPA is saying that hazardous constituents could be present in the injected CO2 stream, and if they are, then it will be treated as hazardous. This approach provides little guidance to industry, particularly facility owners and operators who are required to characterize their CO2 stream as part of their initial permit application.

Response: EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations. The existing RCRA hazardous wastecharacterization regulations apply to evaluations of CO2 streams, and those regulations define which RCRA solid wastes are regulated as RCRA hazardous wastes – it is not EPA’s position that the presence of any levels of impurities would necessarily render a CO2 stream a hazardous waste, without reference to those regulations.

Commenter Name: James Dooley Letter ID: 0156 Commenter Organization: Joint Global Change Research Institute, Pacific Northwest National Laboratory Comment ID:

22632 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: The issue of how pure the "CO2 stream" needs to be and whether trace or more significant quantities of other gases or liquids can be injected into a Class VI

well is a critical issue that will influence the overall economics of CCS and could impact the safety and efficacy of GS. Greater clarity on this issue (while still allowing for some site-specific flexibility) would help the business community better understand what the cost of using CCS will be. The USEPA is encouraged to continue trying to narrow the definition of the "CO2 stream" in subsequent versions of the draft rule. While this is a difficult issue and there is no obvious "correct answer", USEPA is encouraged to continue research and dialogues with various stakeholders to see if a narrower definition of what degree of co-injection is allowable for a Class VI well. It is possible that it could take many years maybe even decades to finalize this but it is important to begin pursuing it now.

Response: EPA understands that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Kyle Isakower Letter ID: 0170 Commenter Organization: American Petroleum Institute Comment ID: 24219

Comment: Rule Provisions: 146.81(b), 146.81(d) EPA Preamble Question: 7. By defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)), EPA’s rule, if finalized, assures that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, EPA’s proposed rule would preclude the injection ofhazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of "impurities" in the CO2

stream. EPA Notice 43503.

API Response: API agrees with the concept that Class VI wells should not be injecting hazardous wastes but is proposing some modifications to EPA’s

definition of CO2 stream in the rule. The modifications reflect the fact that the source of CO2 should not be a factor in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. The original text would have precluded injection of CO2 from some sources. The question of how CO2 should be accounted for, and from what sources, in a GHG management and accounting system is beyond the scope of this regulation.

Response: EPA agrees; the GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs. Although the GS regulation does not apply to the source of CO2 streams, the GS rule, at §146.82(a)(7)(iv), requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream because the concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23687

Comment: Category: Injection Stream

EPA Request for Comment: By defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)), EPA’s rule, if finalized, assures that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, EPA’s proposed rule would preclude the injection of hazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of "impurities" in the CO2

stream. EPA Notice 43503.

AWWA Response: AWWA agrees with EPA’s approach in defining the "carbon dioxide stream" to exclude hazardous wastes. However, AWWA recommends that the final regulation include more specifics on the definition of the required quality of the injection stream and establishing a minimum concentration of carbon dioxide present in the injection stream. This requirement for the injection stream will ensure that the injection of other harmful or undesirable gases is limited. Our initial thoughts on this topic would be that 100% of the injectate must come from a carbon dioxide capture process and the injectate must be at least 98% carbon dioxide. Owner/operators must ensure that the remaining 2% of the injectate is not made up of compounds that would result in the injectate being classified as a hazardous waste. Also, 100% of the injection stream should be required to come from the carbon capture process as to preclude the co-minglingof wastes from other industrial processes in the injection stream as this is not an appropriate use of the Class VI injection wells. As AWWA is not a technical expert on this topic, AWWA recommends that EPA pursue research in association with DOE to develop a standard for the minimum concentration of carbon dioxide in the injection stream.

Response: EPA understands that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23721 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: Part 146.81 AWWA recommends defining the quality of the injection stream and establishing a minimum concentration of carbon dioxide. This requirement for the injection stream will ensure that the injection of other harmful or undesirable gases is limited. Our initial thoughts on this topic would be that 100% of the injectate must come from a carbon dioxide capture process and the injectate must be at least 98% carbon dioxide. Owner/operators must ensure that the remaining 2% of the injectate is not made up of compounds that would result in the injectate being classified as a hazardous waste. As AWWA is not an expert on this topic, we would suggest that EPA pursue research in association with DOE to develop a standard for the minimum concentration of carbon dioxide in the injection stream.

Response: As described above, the GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). The final GS rule retains the definition of a CO2 stream as proposed.

Commenter Name: Wendy Jacobs Letter ID: 0183 Commenter Organization: Harvard Law School Environmental Law and Policy

Center Comment ID:

25156 Other EPA Comment Codes and Descriptions: 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: For instance, EPA has recognized that "co-contaminants in the CO2 stream couldendanger a USDW if the injectate migrates into a USDW." 73 Fed. Reg. at 43,497. The "types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies." Id. at 43,503. Yet the proposed regulation’s current standard for stream purity is loosely defined. The proposed regulation allows injection of a stream with "incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process." Id. at 43,535 (proposed 40 CFR § 146.81(d) (definition of "carbon dioxide stream")). By regulating CO2 generators and CO2 stream treatment (purification) facilities directly, EPA could reduce the likelihood that a contaminated CO2 stream would be injected into a GS well and thereby reduce the likelihood that such contaminants would endanger a USDW.[FN12] EPA should therefore consider setting specific requirements for the maximum concentrations of "incidental substances" in injected CO2 streams to reduce the uncertainty about the proper level of treatment required. By imposing financial assurance requirements on those parties, EPA could also reduce the likelihood that costs and damages arising from such contamination would go unpaid, for example, if such costs exceeded the security posted by the owner or operator. Regulatory oversight would make these firms "more likely to undertake operating decisions that consider environmental (and remediation)

costs." WRI ISSUE BRIEF at 6.

Response: EPA clarifies that the financial responsibility requirements in the GS rule apply to owners or operators of Class VI wells, and not to the generator of the CO2. The goal of financial responsibility is to ensure that financial resources are available to prevent endangerment of USDWs from improper plugging, remediation, and management of wells in the event that the owner or operator experiences financial difficulties. See the final rule and preamble for further discussion of EPA's final approach to financial responsibility.

Furthermore, comments related to the need to regulate CO2 generators and CO2 stream treatment facilities are outside the scope of this rulemaking.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24512

Comment: Rule Provisions or Federal Register Cite: 146.81(b), 146.81(d) EPA Preamble Question: 7. By defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)), EPA’s rule, if finalized, assures that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFRPart 261. As a result, EPA’s proposed rule would preclude the injection of hazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of "impurities" in the CO2

stream. EPA Notice 43503.

CSC Response: CSC agrees with the concept that Class VI wells should not be injecting hazardous wastes, but there are believed to be few, if any, circumstances under which RCRA hazardous waste provisions would apply to CO2 streams. Current capture technologies under development are not likely to produce a CO2 stream that would ever meet the definition of hazardous waste under 40 CFR 261. These CO2 capture technologies will yield a relatively pure CO2 stream, one that is unlikely to contain sufficient hazardous constituents to qualify as hazardous under any circumstances. To begin with, those CO2 streams will constitute uncontained gas that is not even a solid waste under RCRA. Moreover, the captured supercritical streams will not be susceptible to normal RCRA testing protocols because of the physical characteristics of supercritical

CO2.

In addition, we are proposing some modifications to EPA’s definition of CO2

stream in the rule. The modifications reflect the fact that the source of CO2 should not be a factor in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. The original text would have precluded injection of CO2 from some sources. The question of how CO2 should be accounted for, and from what sources, in a GHG management and accounting system is beyond the scope of this regulation.

More to the issue of "impurities", CSC objects to any mandated purity standards for CO2. The inclusion of impurities in stored CO2 should not be arbitrarily prohibited; however, it is recognized that the presence of those impurities at sufficient concentrations may trigger the applicability of other statutory limits or requirements. Determining the type and levels of impurities in the CO2 stream is " absent a compelling public or environmental health risk " best left to contractual negotiations between parties in a CCS value chain as opposed to an arbitrary regulatory determination. The contracting parties are best able to evaluate the types of impurities, their compatibility with the reservoir and equipment, and determine the acceptable levels of those impurities in the stored CO2. If there were ever any overriding public interest in limiting either thetype or level of contaminants, principles of cost-effectiveness and riskmanagement should guide the decision making process.

Response: EPA understands that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operatorsto submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Craig R. Walters Letter ID: 0200 Commenter Organization: Anadarko Petroleum Corporation Comment ID: 24574

Comment: Rule Provisions: 146.81(b), 146.81(d) EPA Rule Issue: 7. By defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)), EPA’s rule, if finalized, assures that it would apply only

to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, EPA’s proposed rule would preclude the injection of hazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of "impurities" in the CO2 stream.

EPA Notice 43503.

Anadarko Petroleum Corporation (APC) Response: APC agrees with the concept that Class VI wells should not be injecting hazardous wastes but is proposing some

modifications to EPA’s definition of CO2 stream in the rule. The modifications

reflect the fact that the source of CO2 should not be a factor in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. The original text would have precluded injection of CO2 from some sources. The question of how CO2 should be accounted for in a GHG management and accounting system is beyond the scope of this regulation.

More to the issue of "impurities", APC objects to any mandated purity standards for CO2. The inclusion of impurities in stored CO2 should not be arbitrarily prohibited; however, it is recognized that the presence of those impurities at sufficient concentrations may trigger the applicability of other statutory limits or requirements. Determining the type and levels of impurities in the CO2 stream is " absent a compelling public or environmental health risk " best left to contractual negotiations between partners in a CCS value chain as opposed to an arbitrary regulatory determination. The contracting parties are best able to evaluate the types of impurities, their compatibility with the reservoir and equipment, and determine the acceptable levels of those impurities in the stored CO2. To the extent that there is an overriding public interest in limiting either the type or level of contaminants, principles of cost-effectiveness and risk-management should guide the decision making process.

Response: EPA understands that many CO2 streams may be relatively pure, and research indicatesthat the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Chris M. Hobson Letter ID: 0201 Commenter Organization: Southern Company Comment ID: 22157 Other EPA Comment Codes and Descriptions: 2020 1.5.1 Support Class VI designation

Comment: Classification of CO2 GS Wells and Interaction with Other Regulatory Regimes

Southern Company supports EPA's approach of creating a new category of wells under the UIC program for the long-term sequestration of C02. Id. at 43502. The new Class VI designation is appropriate for the injection of CO2 streams captured from an emission source, including incidental associated substances derived from source materials and the capture process, as well as substances added to the stream to facilitate the injection process. As EPA observes, the addition of such substances may sometimes prove a necessary step in the injection process. See id. at 43493. Accordingly, the removal of these incidental associated substances should only be required as necessary to avoid interference with capture, transportation, injection and containment of CO2

streams.

Response: EPA agrees that tailored requirements for Class VI wells are necessary to address the unique nature of injecting large volumes of CO2 and to ensure that USDWs are protected from endangerment. The GS rule contains tailored requirements for the permitting, geologic site characterization, AoR and corrective action, well construction, operation, mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure of GS wells that directly address issues unique to the nature of large-scale CO2 injection for GS.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22707

Comment: By its inherent nature, gasification will provide a stream of >90% CO2 havingextremely low levels of both organic and inorganic hazardous air pollutants (HAPS). There are several mechanisms that provide this: 1) destruction of organic HAPS within a gasifier due to the extreme (~2,500 oF) gasification temperature, 2) removal of inorganic content in the melting and slagging process, 3) particulate scrubbing or filtration, 4) activated carbon beds to remove mercury and other condensed metals;, and finally 5) cooling followed by acid gas scrubbing. The combination of these HAP reductions is very effective. As a point of reference, the total inorganic HAPS that would be injected with captured CO2 from an IGCC or gasification process over 30 years of CCS operation will be at least an order-of-magnitude lower than the annual limits (both total and individual components) of NSPS.

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Jonathon Palm Letter ID: 0222 Commenter Organization: Nevada Division of Environmental Protection, Bureau

of Water Pollution Control Comment ID:

21641 Other EPA Comment Codes and Descriptions: 1616 1.3.1.3 Fluid movement

Comment: 2. The fluid to be injected into the ground may contain pollutants carried with the CO2 that potentially could enter a drinking water source. This follows from the first bullet above. Gases could be injected into a confined space with insufficient capacity for the volume of gas to be injected. Pressure would build up as more gas is pumped in, forcing a breach in the reservoir. Pollutants could escape and migrate into a source of drinking water.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential that CO2 injection for GS may result in leaching of subsurface materials that could mobilize contaminants or compromise pore space and endanger USDWs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. To ensure USDW protection and mitigate risks, the GS regulation requires the owner or operator of a Class VI well to submit data about the site (during the site characterization process), including information on the porosity, permeability, mineralogy, and geochemistry of the injection andconfining zones, along with information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82. This data can help identify potential geochemical reactions that may occur between the injected CO2 and the host geologic formation, as well as help determine the capacity of the proposed injection formation. EPA adds that computational AoR modeling, required at §146.84, must account for the physical properties of the receiving formation (based on the collected data described above) and the properties of the CO2, e.g., injection volumes and rates. Identification of potential reactions prior to injection would address concerns that formation of carbonic acid could dissolve potential limestone creating karst features.

During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation, including contamination as specified in §146.94, and provide financial responsibility to address contamination as specified in §146.85.

Commenter Name: Ben Yamagata Letter ID: 0227 Commenter Organization: Coal Utilization Research Council Comment ID: 21782

Comment: Other areas of uncertainty in the proposed rule include:

-The unresolved issue of how much non-CO2 material may be present before exceeding the limit for a "Carbon dioxide stream" (§146.81(d)).

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Neeraj Gupta Letter ID: 0229 Commenter Organization: Battelle Energy Technology (BET) Comment ID: 21827 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seekingcomment)

Comment: Page 54 CO2 Composition Requirements and Hazardous Waste under RCRA- While we agree some chemical impurities may cause CO2 to be designated hazardous waste, there must be more clear guidance on this issue. In the MRCSP tests, each regulatory agency had different requirements on this issue injectate composition and analysis, even for commercial CO2. One agency required injection to cease if the injectate was above any maximum contaminant level (MCL) for groundwater, which is a large list of chemicals. Another state agency asked for some technically infeasible analyses on the CO2 stream (pH, Fluouride, Mercury). Some impurities like H2S and hydrocarbons are naturally occurring in most deep saline formations anyway, so we would discourage setting limits on these items. Another significant aspect is the composition of CO2 derived from various industrial, power generation, and capture processes. All of these are likely to result in minor differences in chemical compositions. In most cases the concentration of hazardous impurities is likely to be very low. The incremental environmental impact of these minor or trace impurities in deep formations that already have brine and will have CO2 must be demonstrated before these are excluded from the Class VI injection wells. EPA is encouraged to evaluate the range of potential impurities from various streams, their environmental impact if any, and provide more specific guidance on this topic. The evaluation should also assess how many of the GS projects could become infeasible due to this requirement. Finally, EPA should clarify whether CO2 streams with RCRA level of impurities can be injected under Class I permits.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in theinjection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Philip Papadeas Letter ID: 0238 Commenter Organization: Sandia Technologies, LLC Comment ID: 23344

Comment: A sub-category of wells may be considered for pure long-term disposal, without having to consider recovery of the injectate, and later purification, etc. The direct line from stack gas to geologic reservoir should be considered as the total injectate, and if adequate well and surface materials are present then there should be no problem to dispose of the scrubber effluent, or gases direct into suitable geologic formations.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA clarifies that the GS rule applies only to wells injecting CO2 for the purpose of long-term

storage.

Commenter Name: Mark Bohrer Letter ID: 0241 Commenter Organization: North Dakota Industrial Commission Comment ID: 23228 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 7. By defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)), EPA’s rule, if finalized, assures that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, EPA’s proposed rule would preclude the injection of hazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of "impurities" in the CO2 stream. EPA Notice

43503.

The presence of certain hazardous wastes should not preclude the overall carbon dioxide stream from injection into a sequestration zone. The process of removing the carbon dioxide and making it suitable for transportation and injection should render it relatively pure. The presence of impurities can bedealt with at a specific source and the overall waste stream certified for injection. If the well construction and geologic setting is suitable to confine the carbon dioxide stream and prevent its migration into a USDW, then certain impurities and/or hazardous wastes should be allowed.

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies. For this reason, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces

or the dissolution of formation minerals.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Michel Paque Letter ID: 0259 Commenter Organization: Ground Water Protection Council Comment ID: 24813 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: EPA Notice Questions: 73 FR 43504

EPA Rule Issue: 9. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA. EPA Notice

43504.

GWPC CO2 Committee Response: The only need is to address constituents in a CO2 stream that would defeat capture, compression, transport or GS, and these can be addressed through the use of special materials in many cases. The focus should be on compatibility rather than on any need for purification.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemicalproperties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Greg Shubel Letter ID: 0284 Commenter Organization: Inter-Tribal Council of Michigan, Inc Comment ID: 25300

Comment: The presence of hazardous impurities in the CO2 stream are identified as a risk and ITCMI ESD recommends that the EPA clearly communicate how it will address these impurities often found in the CO2 streams, specifically how such impurities will be removed or their impacts mitigated so as not to endanger

USDWs.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA expects that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

Commenter Name: Bill Hertz Letter ID: 0500 Commenter Organization: Fertilizer Institute Comment ID: 21207

Comment: Within the chemical process of producing nitrogen fertilizer, CO2 is generated as a by-product. This CO2 in many cases is sold into various product streams. All members are keenly interested in the enhanced oil recovery aspect of this. And in fact, the CO2 stream that we produce is among the cleanest that is out there, and is virtually impurity free in many cases.

Response: PA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies. Since the GS rule, at §146.81(d), prohibits CO2streams that meet the definition of a hazardous waste under 40 CFR Part 261, owners or operators will need to characterize their CO2 stream as part of their permit application process to determine whether the injectate is a RCRA hazardous waste. If the CO2 stream is determined to be a hazardous waste, injection may only occur in a Class I hazardous waste injection well. The GS rule also requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA clarifies that the GS rule does not apply to capture technologies.

Commenter Name: Doug Louis Letter ID: 0530 Commenter Organization: Kansas Corporation Commission Comment ID: 21338

Comment: Rules that apply to impurities of the CO2 injectate should be further discussed, determined and defined for regulatory certainty. The rules should be more

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

Commenter Name: Barbara Massoner Letter ID: 0531 Commenter Organization: Legacy Economy Comment ID: 21444 Other EPA Comment Codes and Descriptions: 1260 1.1.1.5 More certainty/stringency is needed

Comment: We do not want to contaminate our groundwater with those carcinogens. The fact is that CCWs, this is a significant issue in that each year our power plants produce enough of this stuff to fill a train of coal cars that stretches from Manhattan to Los Angeles not just once, not just twice, but three and a half times. It is a huge problem and the EPA has pointed out that these toxins are carcinogenic and EPA has also stated that there are no regulations for these toxins. Therefore I urge the EPA when you are considering these regulations on CO2 sequestration that you broaden them to include CCWs. Stricter rules will notset us back economically, but rather it is going to ensure that the next generation has a prosperity to grow like our generation has.

Response: It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream management of coal combustion wastes (CCWs), also known as coal combustion residuals (CCRs). The UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs. EPA is separately considering standards for the management of CCRs under RCRA. See 75 Fed. Reg. 35128 (proposed rule).

Comment Code: 1616 1.3.1.3 Fluid movement



### Individual Comments

Commenter Name: John Hanger Letter ID: 0130 Commenter Organization: Pennsylvania Dept. of Env. Protection Comment ID: 21521

Comment: Additional Issues

-Fluids could be brought to the surface during the drilling, completion and operation of the Class VI well. In the event formational fluids are brought to the surface during the sequestration process, appropriate measures must be taken. The regulation should address the issue of these fluids.

Response: EPA acknowledges that there are potential risks associated with GS including the potential that CO2 injection for GS could cause fluid movement, which can endanger USDWs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. Suitable GS sites must have confining zones that are free of transmissive faults or fractures and are of sufficient areal extent and integrity to contain the injected CO2 stream and displaced formation fluids. The formations must allow injection at proposed maximum pressures and volumes without initiating or propagating fractures in the confining zone(s), as required at §146.83(a)(2).

The GS rule requires owners or operators to submit extensive data about a proposed GS site to identify (and eliminate) sites with a potential for unacceptable fluid movement. Information to be submitted and evaluated at §146.82 includes data on the porosity, permeability, and other information regarding the suitability of the confining zone; the location of any known or suspected faults; subsurface geochemistry; and the location of, depth of, and other information regarding any perforations that may extend into the confining zone. EPA believes that this information, in conjunction with AoR modeling required at §146.84, will help identify the potential for brine migration as a result of pressure displacement. Based on this information, the Director and the owner or operator can identify ways to mitigate this risk prior to injection, or, if necessary, the Director can deny the permit application. During injection operations, operators must extensively monitor ground water quality and pressure changes to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. In the event that fluid movement endangers a USDW, owners or operators must also develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94and maintain financial responsibility to address contamination as specified in §146.85.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23666 Other EPA Comment Codes and Descriptions: 1610 1.3.1 Risks to USDWs

Comment: Trespass and Aquifer Displacement: AWWA recommends that the potential for trespass be addressed in the final rule. Carbon dioxide plumes may migrate into a location that a drinking water utility was planning to utilize, possibly for aquifer storage and recovery. What recourse is provided by the proposed regulation in the event that trespass occurs, and damages are realized by the drinking water utility? Also, movement of the pressure front associated with a carbon dioxide plume may cause aquifers to shift in location, potentially moving them out of the jurisdiction of their original utility "owner." This can be a serious problem in certain portions of the country where ground water resources are limited or conflict, and utilities face intense competition for water rights. AWWA questions if an appropriate recourse will be provided by the sequestration project owner/operator in the event that these water rights issues become a reality for the drinking water utility.

Response: EPA clarifies that owners and operators must perform extensive site characterization and modeling of the AoR to determine the extent of the CO2 plume prior to approving a GS project. The financial responsibility requirements at§146.84 require owners and operators to demonstrate and maintain resources to address emergency and remedial response to adverse events that may occur associated with GS. This would include impacts to drinking water utilities associated with fluid displacement.

Commenter Name: Andy Horn Letter ID: 0196 Commenter Organization: Colorado Ground Water Association (CGWA) Comment ID: 23927

Comment: Issue 7. The fate of displaced brines is not sufficiently addressed.

The regulations need to be more specific on assessing the fate of displaced brines in the repository. Large volumes of CO2 will increase reservoir pressures and will displace brines laterally and potentially vertically. Based on 2005 CO2 production rates for Colorado power plants (CCS, 2007) and adding 30% additional carbon resulting from the parasitic load, power plants in Colorado can be expected to produce an average of 5.5 million metric tons annually. This production rate results in a year-round injection rate of approximately 5,500 gallons per minute of supercritical CO2 for a medium-sized power plant. Assuming a reservoir thickness of 300 feet with 10% porosity available to the supercritical CO2, this quantity would result in displacement of the brine from approximately 0.5 square miles of reservoir annually, or from approximately 25 square miles over an assumed 50-year project lifetime. A large power plant, such as the Craig plant, would displace brine completely from approximately 65 square miles of such a hypothetical reservoir. Additionally, the volume calculations presented here assume the supercritical CO2 will occupy the entire thickness of the reservoir, while in reality, the supercritical CO2 can be expected to float to the top of the reservoir and spread laterally, migrating approximately 8 times the velocity of groundwater flow. In the event CO2 were to migrate into portions of the reservoir where pressure is insufficient tomaintain the supercritical state, substantial volume increases could occur which could drive brines into shallow portions of the reservoir strata used for drinking water sources. The applicants will need to address the fate of these displaced brines.

CCS 2007. October 2007. Final Colorado Greenhouse Gas Inventory and Reference Case Projections 1990-2020. Center for Climate Strategies. Available from: http://www.coloradoclimate.org/ewebeditpro/items/O14F13894.pdf

Response: EPA acknowledges that there are potential risks associated with GS including the potential that CO2 injection for GS could cause fluid movement, which can endanger USDWs. EPA has funded recent research by LBNL on brine displacement affecting USDWs. In the August 31, 2009, NODA and Request for Comment (74 FR 44802), EPA described a hypothetical, future scenario of GS in a sedimentary basin that demonstrated the potential for basin-scale hydrologic impacts of CO2 storage (Birkholzer, et al. 2008). In addition to EPA-funded research, a study by Nicot (2008) modeled the effect of CO2 injection on up-dip aquifers in the Texas Gulf Coast Basin. The study concluded that in the Gulf Coast Basin, water displacement due to down-dip injection of CO2 is not likely to cause significant changes in salinity. EPA expects that, as research on far-field impacts of GS continues, estimates of storage capacity in such systems will improve.

As part of its adaptive rulemaking approach, EPA will continue to review available research on fluid movement. The Agency 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.

The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. Suitable GS sites must have confining zones that are free of transmissive faults or fractures and are of sufficient areal extent and integrity to contain the injected CO2 stream and displaced formation fluids. The formations must allow injection at proposed maximum pressures and volumes without initiating or propagating fractures in the confining zone(s), as required at §146.83(a)(2).

The GS rule requires owners or operators to submit extensive data about a proposed GS site to identify (and eliminate) sites with a potential for unacceptable fluid movement. Information to be submitted and evaluated at §146.82 includes data on the porosity, permeability, and other information regarding the suitability of the confining zone; the location of any known or suspected faults; subsurface geochemistry; and the location of, depth of, and other information regarding any perforations that may extend into the confining zone. EPA expects that this information, in conjunction with AoR modeling required at §146.84, will help identify the potential for brine migration as a result of pressure displacement. Based on this information, the Director and the owner or operator can identify ways to mitigate this risk prior to injection, or, if necessary, the Director can deny the permit application. During injection operations, operators must extensively monitor ground water quality and pressure changes to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must also develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94 and maintain financial responsibility to address contamination as specified in §146.85.Commenter Name: Ronald Evans Letter ID: 0215 Commenter Organization: Denbury Resources, Inc. (DRI) Comment ID: 24274

Comment: commensurate benefits in terms of protecting USDWs. In the case of some requirements, the Proposed Rule actually tends to diminish the integrity of a storage site and thereby increase the risk of migration of a CO2 plume into inappropriate geologic formations. Such a result would obviously run directly counter to the Proposed Rule’s fundamental purpose and is not what EPA intends.

Response: EPA disagrees that the rule requirements would allow owners or operators to diminish the integrity of a GS site. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a protective foundation for ensuring protection of USDWs that is based on successful field experience and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well understood.

Commenter Name: Jonathon Palm Letter ID: 0222 Commenter Organization: Nevada Division of Environmental Protection, Bureau

of Water Pollution Control Comment ID:

21641 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: 2. The fluid to be injected into the ground may contain pollutants carried with the CO2 that potentially could enter a drinking water source. This follows from the first bullet above. Gases could be injected into a confined space with insufficient capacity for the volume of gas to be injected. Pressure would build up as more gas is pumped in, forcing a breach in the reservoir. Pollutants could escape and migrate into a source of drinking water.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential that CO2 injection for GS may result in leaching of subsurface materials that could mobilize contaminants or compromise pore space and endanger USDWs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. To ensure USDW protection and mitigate risks, the GS regulation requires the owner or operator of a Class VI well to submit data about the site (during the site characterization process), including information on the porosity, permeability, mineralogy, and geochemistry of the injection and confining zones, along with information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82. This data can help identify potential geochemical reactions that may occur between the injected CO2 andthe host geologic formation, as well as help determine the capacity of the proposed injection formation. EPA adds that computational AoR modeling, required at §146.84, must account for the physical properties of the receiving formation (based on the collected data described above) and the properties of the CO2, e.g., injection volumes and rates. Identification of potential reactions prior to injection would address concerns that formation of carbonic acid could dissolve potential limestone creating karst features.

During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation, including contamination as specified in §146.94, and provide financial responsibility to address contamination as specified in §146.85.

Commenter Name: Darrick Eugene Letter ID: 0223 Commenter Organization: Texas Carbon Capture and Storage Association Comment ID: 23961 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: Point #4: The use of the term "CO2 buoyancy," enumerated countless times in the draft rules, is misleading. The Preamble to the Proposed Rule makes very clear that changes to the VIC program for CO2 geologic storage are based among other things on the assertion that CO2 is "buoyant". This is simply incorrect. CO2 is a non-explosive, non-flammable, non-toxic gas that possesses different physical properties than some other injectates or existing formation fluids. These physical properties do not include any special buoyancy characteristics or properties. Rather, CO2 is simply more dense than some underground fluids or gases and less dense than others. Hence the movement of injected CO2 in a reservoir, or any type of system containing different fluids or gases, will vary based on the relative densities of the various formation fluids or gases that are in the reservoir. The various formation fluids will simply segregate based on the relative densities of the fluids or gases, including CO2. As a result, CO2 may be the fluid that sinks to the bottom, rises to the top, or resides somewhere in between the top and the bottom within the reservoir system.

Response: EPA disagrees with the commenter. Field and laboratory studies that evaluated two deep wells exposed to CO2 for nearly three decades have provided evidence of upward vertical flow of CO2. In Carey et al (2007), a sample of well cement collected from a section of well in the confining zone at SACROC showed evidence of cement alteration (carbonation) due to exposure from CO2. (The study was not able to determine whether the alteration was due to exposure to CO2 in the presence of water, dry CO2, or to a CO2-brine mixture.) In Crow et al (2009), a similar study was conducted on a CO2 production well that was drilled into and completed in a natural CO2 producing formation. This study concluded that CO2 had caused alteration (carbonation) of the well cement and acidification of fluids adjacent to the caprock. The study could not determine if the alteration was due to exposure from CO2 diffusion up into the overlying caprock or by upward CO2 migration within wellbore system defects (perhaps cement-caprock and/or cement-formation interfaces). In both studies, the CO2 apparently moved from the underlying reservoir into the well bore section located within the overlying caprock. These observations, especially in conjunction with the larger CO2 volumes and higher reservoir pressures anticipated with GS, justify the well construction requirements in the final GS rule in order to prevent deterioration of the materials between the well casing and the well bore that can result in unacceptable fluid movement.EPA adds that buoyancy of CO2 is among several unique considerations for large scale GS that warrant the tailored construction requirements at §146.86. For example, seismic surveys at Sleipner showed that CO2 had migrated to the top of the 200 to 300 meter thick formation as early as 3 years after injection began. The overall behavior of CO2 at Sleipner is for it to migrate to the top of the formation and spread laterally from there (Chadwick et al 2006). Additionally, CO2 has the potential to be corrosive (in the presence of water or aqueous formation fluids during CO2 injection), and the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II ER/ CO2 injection wells.

Commenter Name: Kurt Waltzer Letter ID: 0250 Commenter Organization: Clean Air Task Force Comment ID: 22304 Other EPA Comment Codes and Descriptions: 1240 1.1.1.3 Suggested changes/edits to rule language

Comment: The term "transmissive fault or fracture" should be clarified

The proposed rule in §146.83(a)(2) requires a confining zone(s) that is free of transmissive faults or fractures, while §146.81 defines this term as "A fault or fracture that has sufficient permeability and vertical extent to allow fluids to move between formations". We suggest the following modification to the definition in §146.81(d) in order to avoid unduly restricting movement that is merely between formations (compare our comments above on the definition of "confining zone"):

[In the paragraph below the text in all CAPS denotes added text. See also EPA-HQ-OW-0390-0250.pdf to see the original formatting.]

"Transmissive fault or fracture means a fault or fracture that has sufficient permeability and vertical extent to allow fluids to move between formations

BEYOND A CONFINING ZONE."

Response: EPA has retained the definition in the final rule. While there may be cases, as the commenter suggests, where a transmissive fault may exist but not pose a concern for confinement, i.e., in the context of all other information, EPA believes the definition is accurate. Based on its evaluation of all public comments and input on the proposed rule and NODA and Request for Comment EPA has made many revisions to the GS Rule. See the final rule and the geologic site characterization discussion in the preamble for further discussion on EPA's final approach.

Commenter Name: Mark Singer Letter ID: 0504 Commenter Organization: Green America Project, LLC Comment ID: 21244

Comment: In the Federal Register they say that protecting underground sources of drinking water, USDWs, may be permanent, this sequestration may be permanent. May, that sounds like a, like permanence would be a happy accident rather than the primary objective. If geologic sequestration starts leaking it will be a major anthropocentric, anthropogenic source of greenhouse gas.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts.However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Comment Code: 1620 1.3.2 Induced seismicity



### Individual Comments

Commenter Name: Nancy LaPlaca Letter ID: 0115 Commenter Organization: Bardwell Consulting Comment ID: 22047 Other EPA Comment Codes and Descriptions: 1600 1.3 Risk Associated with CO2 GS

Comment: Here are the problems with underground injection of CO2: - it's risky: who will bear the risk of leakage? - CO2 is heavier than air and displaces air - couple incidents in Africa (one in Cameroon) in late 1980's where large "cloud" of CO2 was released and suffocated 1800 people and 1100 head of cattle. - liquid CO2 is very corrosive - injecting CO2 can induce seismic activity

Response: The final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Regarding the cost of responding to leaks, the GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. In the event of contamination or other adverse event to a USDW associated with GS, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions.

EPA disagrees that the CO2 releases at Lake Nyos is a valid analogue for GS. GS sites have little in common with the physical setting or mechanism that resulted in the release of naturally-occurring CO2 trapped at the bottom of Lake Nyos, a stratified tropical lake that suddenly overturned through a process known as "limnic eruption." No injection was associated with this event, and this site would not have been considered sufficiently geologically stable to be issued a Class VI permit based on the rigorous site characterization requirements at §146.82 (e.g., including lack of confining units).

GS takes places thousands of feet below the Earth’s surface within porous spaces in deep rock formations. CO2 is injected for GS through technically engineered wells with multiple barriers designed to isolate the injectate in the well and protect formations outside the well materials. The injected CO2 is stored in geologic formations underneath confining layers of rock that act as natural barriers to leakage. It is unlikely that CO2 would escape from a GS site that is properly characterized, operated, monitored, and closed. During the site selection process, operators of Class VI wells identify and evaluate the appropriateness of a site for GS of CO2. The evaluation includes the identification of surface and subsurface features such as deep stratified lakes and other naturallyoccurring pockets of CO2. Furthermore, during GS operation, injection pressures and formation conditions are monitored to avoid overpressuring the storage formation.

EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirements to address seismic risk. First, as part of the site characterization process, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone.

Commenter Name: Rob McCormic Letter ID: 0119 Commenter Organization: Dallas County Park Cities Municipal Utility

District Comment ID:

22069

Comment: Concerning the proposed rule allowing Geological Sequestration of Carbon Dioxide, what safeguards are there against accidently activating or reactivating seismic (earthquake) faults at or near a proposed sequestration site, particularly with injecting "supercritical" liquid CO2?

Response: EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirements to address seismic risk. First, as part of the site characterization process under §146.82, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site; data on known or suspected faults in the AoR; and geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over-pressurization of the injection zone.

To support consistent interpretation and application of the safeguards related to induced seismicity in the GS rule, EPA is developing guidance on site characterization for GS projects to assist owners or operators and Directors in evaluating permit requirements and applications under §146.82. The guidance provides recommendations to owners or operators regarding information to support characterizing the regional geology and hydrogeology of a proposed GS site as well as how to perform the necessary geochemical, geomechanical, and geophysical analyses of the injection and confining zone. EPA expects that this guidance will assist permit writers and UIC Directors in making an objective decision about requiring additional confining layers. The guidance can be found on EPA’s website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.

Commenter Name: Bonnie Lovelace Letter ID: 0152 Commenter Organization: Montana Department of Environmental Quality Comment ID:(MDEQ) 22107 Other EPA Comment Codes and Descriptions: 5220 2.8.2.1 Post-injection monitoring activities

Comment: 7. EPA clearly identifies the risks of seismic effects from geologic sequestration and indicates the need to only select sites that are geologically stable. Each state has a geologic survey which monitors seismic activity. Further, any area can surprise geologists with activity that was unexpected. [An example in Montana would be the usually seismically quiet area near Grass Range that surprisingly had a recent event at over 4 on the Richter scale. In fact, no areas of Montana are seismically at zero on the Richter scale, but may still be appropriate for sequestration.] Each geologic sequestration site should be required to add seismic monitoring that is added to the state's monitoring network. This monitoring should be started as baseline and continued well after closure of injection activities.

Response: EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirements to address seismic risk. First, as part of the site characterization process, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone.

Given the emphasis on site selection to reduce the potential for induced seismicity, EPA disagrees that seismic monitoring is necessary at all GS sites. However, EPA adds that the Director has the authority to require such monitoring under §146.90(i) if he or she believes this to be appropriate based on site-specific information.

EPA does not believe that limiting GS to "stable areas" will provide certainty that seismic events will not occur. The Agency acknowledges that some regions of the country are at risk for infrequent, damage-causing seismic events even if such events have not been recorded in the recent historical record (i.e., in the past several hundred years). For this reason, EPA requires seismic risk to be evaluated on a site-specific basis, through an analysis of seismic history and an evaluation of known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). In addition, if an adverse event, such as a well failure or evidence of fluid movement were to occur, the monitoring requirements at §146.90 and emergency and remedial response requirements as specified in §146.94 provide additional protection.

Commenter Name: James Dooley Letter ID: 0156 Commenter Organization: Joint Global Change Research Institute, Pacific Northwest National Laboratory Comment ID:

22658

Comment: - Page 43498, section on "Seismic Events." The first sentence in this section is clearly speaking to the potential for CO2 injection to cause seismic activity in the future when commercial deployment of CCS becomes more common place.However, the second sentence and the subsequent discussion of induced seismicity at the Rocky Mountain Arsenal are not related to CO2 injection. To be clear, it was not CO2 that was being injected into deep geologic formations beneath the Rocky Mountain Arsenal. If this section of the preamble is retained in future versions of this proposed rule, this section must be rewritten to make it clear that the technical literature suggests that poorly managed CO2 injection could in the future induce small scale seismic activity. And then if there is a need to discuss previous instances where injection of fluids that were not CO2 triggered seismic activity the language needs to be clear and explicit so the reader understands that these are not past instances of poor CO2 injection.

Response: EPA clarifies that the seismic episodes at the Rocky Mountain Arsenal, which occurred in the 1960s—before the original UIC regulations were developed—were due to poor site characterization and well operation, including high, unmonitored injection pressures (73 FR 43498). While EPA acknowledges that the volumes of CO2 injected at GS sites will likely be larger than the volumes of waste water injected at the Rocky Mountain Arsenal, injection volume is not the sole factor that determines induced seismicity. Induced seismicity also depends on other geologic variables such as pre-existing faults, porosity, and permeability (Sminchak & Gupta, 2003). With proper site characterization (i.e., pursuant to §146.82), these variables can often be quantified prior to injection (Sminchak and Gupta, 2003) and used to identify sites capable of safely sustaining prolonged injection of large volumes with low risk. As long as a site is well-characterized and monitored, and the injection volume and rate remain within permitted limits set forth by the Director, the injection of large volumes of fluid should not increase the risk of seismic activity.

EPA does not believe that limiting GS to "stable areas" will provide certainty that seismic events will not occur. The Agency acknowledges that some regions of the country are at risk for infrequent, damage-causing seismic events even if such events have not been recorded in the recent historical record (i.e., in the past several hundred years). For this reason, EPA requires seismic risk to be evaluated on a site-specific basis, through an analysis of seismic history and an evaluation of known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). In addition, if an adverse event, such as a well failure or evidence of fluid movement were to occur, the monitoring requirements at §146.90 and emergency and remedial response requirements as specified in §146.94 provide additional protection.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23396 Other EPA Comment Codes and Descriptions: 1260 1.1.1.5 More certainty/stringency is needed

Comment: Because information and technology related to carbon sequestration are sure to develop as more experience is gained, APPA urges EPA to do what it can avoid the use of arbitrary or blanket prohibitions or absolutes in the EPA final rule. However, APPA believes that there are some common sense prohibitions that may be justifiable. For example, EPA should have in the final rule an explanation, consistent with the Class I program, that seismic-induced subsurface conveyance risks such as major faults, or proximity to sole source aquifer [FN5] protections are essential. Sole source aquifers are not the same as deep saline aquifers. APPA believes there are some prohibitions that are key to protection of USDWs. At the same time we do not want to contribute to "NIMBY" or "not in my backyard" or "NUMBY" - or "not under my back yard". What APPA asks for in thecontext of seismicity issues are clear-cut and understandable parameters or USGS guidelines so that power plant owner/operators don't pursue a geologic formation thinking that it is eligible only to learn that the EPA has used a USGS designation on seismic risks that would render it disqualified later in the permitting process. APPA asks that when the EPA or state directors make seismicity conditions that these be subject to notice and comment and be published in the Federal Register and the state equivalent publication. It would be terrible to have a power plant owner/operator spend time and significant money pursuing a geologic formation only to learn after he had spent many

hundreds of thousands of dollars that the site did not meet the EPA’s seismic risk or USGS seismic requirements. Seismicity risk avoidance is a new factor for thermal or fossil plants and not one with which we have experience. APPA includes in the Appendix a paper from an NETL-funded study on seismic activity induced by injection of CO2 into deep saline aquifers [FN6] and an article regarding the Greek government’s concerns with injection of CO2 in the Mediterranean. [FN7] [See EPA-HQ-OW-2008-0390-0169.pdf for these documents.] Including these references to seismic issues does not mean that APPA fears that CO2 will cause seismic activity. Instead APPA does not want to see APPA member utilities pursue geology which has underlying seismic risks that are unknown to the power sector (and perhaps to the state agencies) and misuse critical resources, time and money pursuing that location for permitting only to find out later that they must start again. Most locations in the U.S. have not had recent seismic data assessed at the "fine granular" level needed to target the right formations for carbon dioxide geosequestration. This will necessitate the support of United States Geologic Survey and other agencies.

[FN5] A sole source aquifer (SSA) is an underground water supply designated by the U.S. EPA as the "sole or principal" source of drinking water for an area under Section 1424(e) the Safe Drinking Water Act of 1974. "Sole or principal" has been interpreted to mean that the aquifer must supply at least 50 percent of the drinking water to persons living over the aquifer; there should be no alternate and feasible sources of drinking water that could replace the aquifer.

[FN6] Issues Related to Seismic Activity Induced by the Injection of CO2 in Deep Saline Aquifers, Joel Sminchak and Neeraj Gupta, Battelle Memorial Institute

[FN7] "Why doesn't Greece like carbon capture?" Leigh Phillips, EU Observer, 9/23/08, http://euobserver.com/19/26794

Response: The GS rule, at §146.82(a)(5) requires prospective owners or operators to submit information on all USDWs within the AoR. EPA expects that this information will include identification of any sole source aquifers. The GS rule also requires operators to submit extensive information about the site, including the geologic characteristics of the injection and confining zones, to demonstrate that the injected CO2 will remain within the target formation. The Director must consider this information when determining whether GS is acceptable at a given site. EPA expects that during this evaluation the Director will consider the potential impact of the GS project on any sole source aquifers.

Regarding seismicity, EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirementsto address seismic risk. First, as part of the site characterization process, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone.

EPA clarifies that the rule does not contain any specific requirements describing "seismically appropriate" areas, and does not believe this is appropriate for all sites. EPA believes such determinations should be made on a site-specific basis. If such information is available, and the Director determines it to be relevant to the site characterization, it is in their authority to require detailed evaluations. However, EPA disagrees that this should be a requirement for all GS projects. In many cases, UIC Directors will have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

EPA is developing guidance on site characterization for GS projects to assist owners or operators and Directors in evaluating permit requirements and applications under §146.82. The guidance provides recommendations to owners or operators regarding information to support characterizing the regional geology and hydrogeology of a proposed GS site as well as how to perform the necessary geochemical, geomechanical, and geophysical analyses of the injection and confining zone. EPA expects that this guidance will assist permit writers/UIC Directors in making an objective decision about requiring additional confining layers. The guidance can be found on EPA’s website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23672

Comment: Seismicity: The seismicity requirements in the Area of Review requirements are not very prescriptive. AWWA believes there is too much latitude for interpretation and that the regulation could be applied inconsistently by Directors of different states. AWWA recommends making the language stronger to clarify exactly what is meant by the following requirement (§146.82(d)(3)): "...information on seismic history including the presence and depth of seismic sources and a determination that the seismicity would not interfere with containment." A geologic sequestration project should be evaluated on the entire risk spectrum using different ranges of seismic activity and distance requirements from active faults to determine if the proposed site is acceptable. EPA should develop guidance that will assist owner/operators in making the appropriate determinations regarding seismic risk for a geologic sequestration project. For example, is there a minimum distance that should be provided between the potential plume footprint and an area of seismic activity? This information is critical as different owner/operators could decide to take on a different level of risk due to their comfort with the financial implications.AWWA does not want to see USDW protection compromised due to faulty assumptions about seismic activity in and around a potential project site.

AWWA recommends that EPA also investigate the need for modeling the potential for seismic shifts due to the changes in subsurface pressures associated with the carbon dioxide injection process. A literature search should be performed to see if either Laurence Berkley National Laboratory or the National Energy Technology Laboratory has developed any information on this topic.

Response: EPA believes that decisions about seismic risk should be made on a site-specific basis. The Class VI requirements are designed to ensure that, where GS is employed, it is done in a manner that protects USDWs from endangerment. These requirements include site characterization during which owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, as well as data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director in conjunction with information about well construction, operation, monitoring, post-injection site care, and other site-specific information. The Director determines the suitability of a potential project site for GS. Sites with the potential for reopening or reactivation of faults or unacceptable seismic risk

that could otherwise interfere with containment would not be suitable for GS sites–as owners or operators seeking to inject CO2 for GS at such sites would not be able to demonstrate USDW protection from endangerment.

The final rule also contains operational requirements to ensure USDW protection including injection pressure limitations. During injection, the pressure in the injection zone must not exceed 90 percent of fracture pressure of the injection zone as specified in §146.88(a). This requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone. EPA adds that these requirements are based on extensive study and review of scientific literature and laboratory and field experience.

EPA clarifies that the rule does not contain any specific requirements describing "seismically appropriate" areas, and does not believe this is appropriate for all sites. EPA believes such determinations should be made on a site-specific basis. If such information is available, and the Director determines it to be relevant to the site characterization, it is in their authority to require detailed evaluations. However, EPA disagrees that this should be a requirement for all GS projects. In many cases, UIC Directors will have extensive knowledge of which areas are suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of a particular site or formation. It is the responsibility of the Director to evaluate the information collected and submitted by the owner or operator to determine whether a permit for GS at the site is appropriate.

To support consistent interpretation and application of the safeguards related to induced seismicity in the GS rule, EPA is developing guidance on site characterization for GS projects to assist owners or operators and Directors in evaluating permit requirements and applications under §146.82. The guidance provides recommendations to owners or operators regarding information to support characterizing the regional geology and hydrogeology of a proposed GS site as well as how to perform the necessary geochemical, geomechanical, and geophysical analyses of the injection and confining zone. EPA expects that this guidance will assist permit writers/UIC Directors in making an objective decision about requiring additional confining layers. The guidance can be found on EPA’s website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.Commenter Name: Andy Horn Letter ID: 0196 Commenter Organization: Colorado Ground Water Association (CGWA) Comment ID: 23924

Comment: Issue 4. The proposed regulation is ambiguous on the issue of tectonic stress release (earthquakes).

The proposed regulation should specifically address the issue of triggering tectonic stress releases, to avoid problems, such as the generation of earthquakes that resulted from deep waste injection at the Rocky Mountain arsenal in the 1960s and in other locations such as the Paradox Valley, Colorado (Ake, et al, 2005). From 1962 through 1966 the Rocky Mountain Arsenal injected a volume of approximately 165 million gallons of waste, or roughly 35 million gallons annually. This volume would be dwarfed by the injection volumes proposed on the three billion gallons of supercritical CO2 annually. While the proposed rule states that the potential for induced seismicity is low, the magnitude of the volumes proposed for injection indicate that this issue has the potential to present a significant risk to occupants within a GS project Area of

Review AoR.

Ake, Jon, Kenneth Mahrer, Daniel O’Connell and Lisa Block, 2005. Deep-Injection and Closely Monitored Induced Seismicity at Paradox Valley, Colorado, Bulletin of the Seismological Society of America; April 2005; v. 95; no. 2; p. 664-683;

Response: EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirements to address seismic risk. First, as part of the site characterization process, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone.

EPA adds that the seismic episodes at the Rocky Mountain Arsenal, which occurred in the 1960s— before the original UIC regulations were developed—were due to poor site characterization and well operation, including high, unmonitored injection pressures (73 FR 43498). While EPA acknowledges that the volumes of CO2 injected at GS sites will likely be larger than the volumes of waste water injected at the Rocky Mountain Arsenal, injection volume is not the sole factor that determines induced seismicity. Induced seismicity also depends on other geologic variables such as pre-existing faults, porosity, and permeability (Sminchak & Gupta, 2003). With proper site characterization (i.e., pursuant to §146.82), these variables can often be quantified prior to injection (Sminchak and Gupta, 2003) and used to identify sites capable of safely sustaining prolonged injection of large volumes with low risk. As long as a site is well-characterized and monitored, and the injection volume and rate remain within permitted limits set forth by the Director, the injection of large volumes of fluid should not increase the risk of seismic activity.

EPA does not believe that limiting GS to "stable areas" will provide certainty that seismic events willnot occur. The Agency acknowledges that some regions of the country are at risk for infrequent, damage-causing seismic events even if such events have not been recorded in the recent historical record (i.e., in the past several hundred years). For this reason, EPA requires seismic risk to be evaluated on a site-specific basis, through an analysis of seismic history and an evaluation of known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). In addition, if an adverse event, such as a well failure or evidence of fluid movement were to occur, the monitoring requirements at §146.90 and emergency and remedial response requirements as specified in §146.94 provide additional protection.

Commenter Name: Kurt Waltzer Letter ID: 0250 Commenter Organization: Clean Air Task Force Comment ID: 22326 Other EPA Comment Codes and Descriptions: 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83)

Comment: Seismicity

Naturally occurring seismicity has been cited as an area of concern for geologic sequestration of CO2. We do believe that seismicity merits diligent treatment both in the regulations and in project operation, but we see no need for a blanket ban of sequestration in seismically active areas. Although some sites - especially ones near major active faults - would not be advisable for injection, there are plenty of other sites in seismically active areas that would make excellent candidates for safe and effective sequestration. Moreover, tools to measure, predict and design against the effects of seismic activity are

available.

Nature has proven its ability to retain fluids trapped in the subsurface in seismically active areas in many instances over hundreds of millions of years, even in highly tectonically active regions of the country such as California. The potential for slippage for faults to create leakage pathways to USDWs or the surface can be managed and effectively minimized through careful siting and operational design using well-established tools and methods. The regulations should ensure that suitable sites are selected, while high risk areas, such as those near major, non-sealing faults or those that demonstrate frequent activity, are rejected. The most likely potential CO2 leakage paths would be injection wells, and not faults. However, these can be designed to prevent leakage and to be resilient to earthquakes.

We regard a ban on sequestration in seismically active areas unwarranted. We do however believe that additional diligence is required in site characterization and selection in such areas. The requirement in §146.82(c)(3) should be modified

as follows:

Response: EPA agrees that GS should not be banned in any type of environment or geologic setting and believes that decisions about seismic risk should be made on a site-specific basis. The Class VI requirements to properly characterize, permit, operate, and monitor a GS project are designed to ensure that, where GS is employed, it is done in a manner that protects USDWs from endangerment. These requirements include site characterization during which owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, as well as dataon known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director in conjunction with information about well construction, operation, monitoring, post-injection site care, and other site-specific information. The Director determines suitability of a potential project site for GS. Sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment would not be suitable for GS sites –as owners or operators seeking to inject CO2 for GS at such sites would not be able to demonstrate USDW protection from endangerment.

EPA acknowledges that wells in the AoR are potential leakage pathways, and the GS rule contains rigorous provisions for both injection well construction at §146.86 and corrective action on active or abandoned wells located in the AoR at §146.84.

Commenter Name: Kurt Waltzer Letter ID: 0250 Commenter Organization: Clean Air Task Force Comment ID: 22327 Other EPA Comment Codes and Descriptions: 1240 1.1.1.3 Suggested changes/edits to rule language

Comment: [In the paragraph below the text in all CAPS denotes added text. See also EPA-HQ-OW-0390-0250.pdf, to see the original formatting.]

"Information on seismic history including the presence and depth of seismic

sources and aN ASSESSMENT OF that WHETHER SUCH seismicity would not interfere with containment;"

In addition, language should be added to the minimum criteria for siting in §146.83, clarifying that if induced or natural seismicity poses unacceptable risks, a permit will not be granted. In order properly to assess the risk of significant induced seismicity in light of permitted operating conditions, the rule may need to require applicants to submit information beyond what is currently required in proposed §146.82. The effects of any seismic events during project operation should also be taken into account when updating, or considering whether to update, the Area of Review and Corrective Action Plan, the Testing and Monitoring Plans, and the Emergency and Remedial Response Plans, as well as any other plans as necessary.

Response: Based on its evaluation of all public comments and input on the proposed rule and NODA and Request for Comment EPA has made many revisions to the GS Rule. See the final rule and preamble discussion of geologic site characterization for further discussion on EPA's final approach.

EPA clarifies that under §146.82(a)(21), the Director has the authority to require additional information to be submitted with the permit application. EPA agrees that seismic events should be taken into account when updating the plans or other permit conditions and clarifies that existing language at §144.39(a)(2) allows the Director to modify the permit when he or she receives new information that was not available at the time of permit issuance.

Commenter Name: Scott Anderson Letter ID: 0520Commenter Organization: Environmental Defense Fund Comment ID: 21431 Other EPA Comment Codes and Descriptions: 4110 2.4.1.1 Injection pressure limitations; 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: Injection pressure limits. This is very important and we think EPA's about halfway toward addressing this properly. The half that seems to be well done is that the proposed rule requires quite a bit of geomechanical information to be submitted. The kind of information that could be used, should be used to determine whether or not there is a risk of induced seismicity and to determine whether or not there is risks of reopening otherwise closed faults and fractures making them, making what starts out as a non-transmissive fault into a transmissive fault. So the proposed rule calls for the information that enables that kind of stuff to be calculated, but it fails to require that information to be used as part of the permitting process to inform the injection pressure limits. Instead the rule uses the traditional sort of injection pressure limit from oil and gas regulation that says accepted as a percentage of fracture pressure. The problem with that is that these other problems I mentioned, induced seismicity and reopening of faults can occur in lower pressures than say 90% of fracture pressure, it is possible for one to comply with the 90% of fracture pressure requirement and yet still cause these other geomechanics related problems.

Response: EPA clarifies that all information about the site, including seismic history and data on rock mechanics, will be used to inform pressure limitations.

In response to the concern about induced seismicity and reopening of faults at lower pressures than 90 percent of fracture pressure, EPA believes that the requirement for the owner or operator to submit data on known or suspected faults and fractures and information on the seismic history of the site, including the presence and depth of seismic sources and a determination that the seismicity would not interfere with containment per §146.82(a)(3)(v), will inform the determination of an appropriate pressure limitation in the permit. This investigation would also identify any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise

interfere with containment.

The Director will also review geologic, hydrogeologic, and geomechanical information submitted by the owner or operator in setting permit conditions. If, based on this information, a lower pressure limitation is appropriate, the Director has the authority to set a lower limit in the operating permit. EPA clarifies that fracturing of the confining zone during injection and/or stimulation is also prohibited at §146.88(a).

Commenter Name: Nancy LaPlaca Letter ID: 0529

Comment ID: 21495

Comment: In addition when you pump liquid CO2 underground, you basically lubricate existing faults and here in Denver, in the 1960's, they injected 165 million gallons of liquid toxic waste from Rocky Mountain arsenal underneath the Denver basin and they created some 1,500 seismic events between 1962 and 1967. Three of those events were over magnitude five. My husband was a little boy living here then and most people who lived here then and remembered that, remember those earthquakes very clearly.My father-in-law, George Bardwell, mathematician who taught at DU was approached by a group of geologists headed by a guy named David Evans who is now deceased. David Evans and my father-in-law George E. Bardwell now 84 years old this year -- George did a study for them correlating the injection of these liquids with seismic events. The more they injected, the more earthquakes there were. The less they injected, the less earthquakes and actually George told me that it took a long time and they really did not come out with this blue ribbon panel report that they were promising for years and years. They went to the press, George Bardwell my father-in-law and these geologists and the press would not report on it. They went to the government and they said you know what government, there is a real problem with this and the government would not

listen to them either.

Response: EPA acknowledges that induced seismicity is a risk that may be associated with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several requirements to address seismic risk. First, as part of the site characterization process, owners or operators must submit information about the seismic history of and seismic sources near a proposed GS site, data on known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). This information is evaluated by the Director, who determines the suitability of a potential project site for GS. Any sites with the potential for reopening or reactivation of faults or unacceptable seismic risk that could otherwise interfere with containment will not be permitted as GS sites. During injection, the pressure in the injection zone must not exceed 90 percent of the fracture pressure of the injection zone as specified in §146.88(a); this requirement is intended to prevent the opening of fractures or faults through over pressurization of the injection zone.

EPA adds that the seismic episodes at the Rocky Mountain Arsenal, which occurred in the 1960s— before the original UIC regulations were developed—were due to poor site characterization and well operation, including high, unmonitored injection pressures (73 FR 43498). While EPA acknowledges that the volumes of CO2 injected at GS sites will likely be larger than the volumes of waste water injected at the Rocky Mountain Arsenal, injection volume is not the sole factor that determines induced seismicity. Induced seismicity also depends on other geologic variables such as pre-existing faults, porosity, and permeability (Sminchak & Gupta, 2003). With proper site characterization (i.e., pursuant to §146.82), these variables can often be quantified prior to injection (Sminchak and Gupta, 2003) and used to identify sites capable of safely sustaining prolonged injection of large volumes with low risk. As long as a site is well-characterized and monitored, and the injection volume and rate remain within permitted limits set forth by the Director, the injection of large volumes of fluid should not increase the risk of seismic activity.

EPA does not believe that limiting GS to "stable areas" will provide certainty that seismic events will not occur. The Agency acknowledges that some regions of the country are at risk for infrequent, damage-causing seismic events even if such events have not been recorded in the recent historical record (i.e., in the past several hundred years). For this reason, EPA requires seismic risk to be evaluated on a site-specific basis, through an analysis of seismic history and an evaluation of known or suspected faults in the AoR, geomechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as specified in §146.82(a)(3). In addition, if an adverse event, such as a well failure or evidence of fluid movement were to occur, the monitoring requirements at §146.90 and emergency and remedial response requirements as specified in §146.94 provide additional protection.Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)



### Individual Comments

Commenter Name: Paul Pike Letter ID: 0111 Commenter Organization: Ameren Corporation on behalf of USWAG Comment ID: 22403

Comment: 4. Of particular importance is the potential for liability under RCRA and CERCLA, including Natural Resource Damages, stemming from injection and sequestration of carbon dioxide. As EPA can surely appreciate, the potential for these openended liabilities will act as a serious deterrent to would-be Owners or Operators of Class VI injection wells. Simply put, EPA must mitigate the threat of potential RCRA and CERCLA liability to the extent possible in this rulemaking.

With respect to RCRA, it is premature to suggest that the captured and injected carbon dioxide is "discarded" and therefore possibly solid waste under RCRA. Carbon dioxide is a commodity used in a variety of processes; to the extent that there is any possibility that carbon dioxide injection operations could be subject to RCRA controls, EPA should create an applicable exemption from RCRA under the well-established "contingent management" concept given that the UIC permit will ensure that the injected material is not mismanaged. Such an exclusion would be legally justified, consistent with the Agency’s past promulgation of conditional exclusion rules, and would make sound policy sense by removing a potentially significant regulatory barrier to the commercial development of carbon dioxide sequestration operations.

The bottom line is that the potential for interaction with RCRA or liability under CERCLA must be mitigated to avoid significant delays and an overall chilling effect. USWAG recognizes that while there are some measures the Agency can take in the regulatory context to address these concerns, those measures may be limited. In the end, USWAG believes that the Agency should consider whether a legislative solution is necessary to eliminate these concerns; if so, we recommend that the EPA strongly support such a solution.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations. Under the final GS rule, owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2stream may only occur in a Class I hazardous waste injection well.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Elizabeth Lokey Letter ID: 0112 Commenter Organization: Camco International Comment ID: 22046 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: Currently, the proposed rule (EPA-HQ-OW-2008-0390) defines CO2 that can be injected under a class VI designation as the following:

"CO2 that has been captured from an emission source (e.g. power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that

meets the definition of a hazardous waste under 40 CFR Part 261."

This definition is vague and needs clarification in terms of the percentage of CO2 in a given volume of gas to allow the CO2 to qualify for this injection permit. Otherwise, entire stack emissions or chemicals used in the separation process could end up being transported and injected. This could have unintended consequences on the reservoirs where the CO2 is stored as minerals could be dissolved and allow plumes to spread.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA understands that many CO2 streams may be relatively pure, and research indicates that theestimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies. EPA clarifies that the GS rule does not apply to capture technologies.

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22516 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: dangerous and 2) unnecessary and should not promulgated. Also, we believe the Safe Drinking Water Act is not suited to provide necessary safety to the citizenry, because EPA, by promulgating Class VI wells, is authorizing construction of a CERCLA imminent hazard substance storage site and a RCRA hazardous substance (corrosivity) storage site. Each of these concerns and many more are discussed below. We request these comment be made a part of the record EPA-HQ-OW-2008-0390.

Response: EPA disagrees that the final GS rule is authorizing construction of CERCLA imminent hazard substance storage sites or RCRA hazardous substance storage sites. It is authorizing the construction and operation of a new class of injection well for purposes of long term storage of

CO2.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

EPA is not authorizing the injection of RCRA hazardous wastes under the terms of the GS rule, since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR Part 261. Under the rule, owners or operators will need to characterize their CO2 stream as part of their permit application process to determine whether the injectate is a RCRA hazardous waste. If the CO2 stream is determined to be a hazardous waste, injection may only occur in a Class I hazardous waste injection well.

The GS rule also requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals inboth the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22532 Other EPA Comment Codes and Descriptions: 1460 1.2.2.2 Oppose EPA's authority to regulate CO2 injection

Comment: EPA DOES NOT HAVE PROPER STATUTORY AUTHORITY TO PROPOSE CO2 SEQUESTRATION RULE

EPA relies on the Safe Drinking Water Act (SDWA) to protect USDWs from CO2 sequestration. The SDWA authorizes EPA to protect drinking water, not encourage indefinite storage of a corrosive, high press fluid. CO2 is known to attack carbon and stainless steel, Meyer (2007). The fact that Meyer reported stainless steel 404 was badly corroded by "dry" CO2 indicates wet CO2 (carbonic acid) is a RCRA corrosive waste, since it meets the RCRA definition of corrosive. In addition, the fact a leak of CO2 could enter a building basement suffocating the inhabitants, demonstrates CO2 sequestration is not an environmental problem, but, when sequestered, it is a pervasive and dangerous life threatening hazard. EPA is ill equipped to control potentially unsafe activities under the guise of protecting drinking water.

Meyer, J.P. 2007. "Summary of Carbon Dioxide Enhanced Oil Recovery (CO2EOR) Injection Well Technology" prepared for American Petroleum Institute, p 21.

Response: EPA disagrees that the SDWA does not provide EPA with adequate authority to regulate underground injection of CO2 for GS or that the GS rule oversteps the boundaries or authority of the SDWA. The GS regulation, which addresses the injection of CO2 for the purpose of protecting USDWs from endangerment, is within EPA's authority under the SDWA. Injection wells are regulated under the authority of Part C of the SDWA (42 U.S.C. 300h et seq.). Under the SDWA, the underground injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and includes liquids, gases, and semisolids (i.e., slurries) injected into the subsurface.

EPA disagrees that properly managed GS projects are dangerous. EPA believes that the GS requirements, which are based on the long-standing UIC regulatory framework and tailored to meetthe unique nature of CO2 injection for GS, appropriately address endangerment risks to USDWs. The GS rule contains minimum technical criteria for the permitting, geologic site characterization, AoR and corrective action, well construction, operation, mechanical integrity testing, monitoring, financial responsibility, injection well plugging, post-injection site care, and site closure of GS wells, which will ensure that USDWs are protected from endangerment.

EPA considers the risk of asphyxiation and other chronic and acute health effects from airborne exposure resulting from CO2 injection activities (even in the case of leakage or accidental exposure) to be minimal. This finding is based on experience gained in the oil and gas industry, experience from international GS projects, and evaluation of large scale releases of naturally occurring CO2 (73 FR 43498).

Please also see the GS final rule preamble sections entitled, “Under What Authority is This Rulemaking Promulgated?" and "How Does This Rulemaking Relate to Other Federal Authorities

and GS Initiatives?"

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22536 Other EPA Comment Codes and Descriptions: 1460 1.2.2.2 Oppose EPA's authority to regulate CO2 injection

Comment: Further, EPA believes they can assume the RCRA type authority for Class VI wells under the SDWA. If challenged in court, the court most likely will disagree, because the SDWA was written only for protection of USDW. Even the Agency suggests the Safe Drinking Water Act is not appropriate to regulate CO2 sequestration.

Response: EPA disagrees that the SDWA does not provide the UIC Program with adequate authority to regulate underground injection of CO2 for GS or that the GS rule oversteps the boundaries or authority of the SDWA. The GS regulation, which addresses the injection of CO2 for the purpose of protecting USDWs from endangerment, is within EPA's authority under the SDWA. Injection wells are regulated under the authority of Part C of the SDWA (42 U.S.C. 300h et seq.). Under the SDWA, the underground injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and includes liquids, gases, and semisolids (i.e., slurries) injected into the subsurface.

Please also see the GS final rule preamble sections entitled, “Under What Authority is This Rulemaking Promulgated?" and "How Does This Rulemaking Relate to Other Federal Authorities

and GS Initiatives?"

Commenter Name: Leslie Savage Letter ID: 0122 Commenter Organization: Railroad Commission of Texas (RRC) Comment ID: 24733

Comment: The Proposal treats CO2 as a waste. The EPA states in the preamble that it has not classified CO2 as a waste or a commodity. However, by using the Class I waste injection well requirements as the framework for the Class VI requirements, the Proposal implies that the CO2 stream is a waste. This implication increases not only the potential liability for carbon dioxide sequestration, but also the potential liability for anthropogenic CO2 injectionfor the purpose of enhanced recovery of oil and/or natural gas.

Many provisions of the Proposal address Class VI wells from a waste based perspective. With respect to construction, area of review (AoR) and monitoring, the Proposal begins with the regulatory framework for Class I non-hazardous industrial waste injection well requirements and then adds numerous layers of requirements to prevent or detect the escape of CO2 from the injection zone.

The Proposal excludes CO2 that is a hazardous waste from regulation under the Class VI program, but has proposed requirements for Class VI injection wells that are more stringent than those for wells used for the injection of hazardous waste. RRC strongly disagrees that CO2 buoyancy, corrosivity, and high injection volumes for a Class VI project justify a Class I approach.

Response: EPA disagrees that the requirements in the GS rule are too stringent or overstate the risk associated with GS. The requirements for Class VI wells are tailored to address the unique nature of full-scale CO2 GS, including the injection volumes anticipated for long-term storage, the buoyant and viscous nature of the injectate, and its corrosivity in the presence of water. While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well and lead to contamination.

EPA also disagrees that the Class VI requirements themselves, or EPA’s consideration of the Class I requirements, necessarily have any implications for whether a particular material is a RCRA “solid waste” or implicates CERCLA liability, as EPA understands the comment to suggest. EPA notes that the GS rule is not promulgated under either of those statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. EPA also notes that the commenter provides no legal analysis explaining why the Class VI rule’s requirements alleged implication that CO2 is a waste “increases . . . the potential liability for carbon dioxide sequestration [or] for anthropogenic CO2 injection for the purpose of enhanced recovery of oil and/or natural gas.” EPA adds that liability for Class II wells is outside the scope of this rulemaking.

Commenter Name: John Hanger Letter ID: 0130 Commenter Organization: Pennsylvania Dept. of Env. Protection Comment ID: 21522

Comment: -DEP believes that the CO2 for geologic sequestration is a residual waste if it does not otherwise qualify as a hazardous waste. Pennsylvania’s Solid Waste Management Act and residual waste regulations define disposal to include the injection of a residual waste and require a permit for disposal.

Response: EPA clarifies that the GS rule itself does not change the status of CO2 as a solid waste or hazardous waste under RCRA. Under the final GS rule, owners or operators will need to determine whether the CO2 stream is a hazardous waste under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well.

Commenter Name: Carl Carlsson Letter ID: 0131 Commenter Organization: SUEZ Energy Generation NA, LLC Comment ID: 21527Comment: CO2 as a Hazardous Waste Regarding the question of characterizing CO2 streams to determine if they need to be regulated as a hazardous waste, SEGNA feels that it is desirable to provide regulatory clarity on this issue, and therefore it is appropriate to consider, either as part of the rule or as a separate rulemaking, a categorical exemption for CO2

streams.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility. Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, owners or operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate is a RCRA hazardous waste. If so, injection may only occur in a Class I hazardous waste injection well.

Commenter Name: Dwight Lockwood, PE, QEP Letter ID: 0141 Commenter Organization: Global Energy, Inc. Comment ID: 23104 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment); 4620 2.6.2 Injectate monitoring

Comment: CO2 as Hazardous Waste (RCRA or CERCLA)

1.We support the EPA view that injectate should be characterized relative to 40

CFR Part 261. We further believe that the stream can be treated to remove undesired contaminants to the levels that thresholds are not triggered.

2.Characterization and certification in the permit application should be a sufficient basis for assurance here. Periodic sampling and analysis on some reasonable frequency during injection is acceptable. On the other hand, we do not believe that this measurement and reporting needs to be more than perhaps quarterly, as the adverse impact of exceedances for relatively short periods is not likely to be geologically significant very fast. Corrective action to mitigate the effects of an incorrect injection fluid (but not to remedy an injection already accomplished) needs to be pragmatic and not onerous.

3.As with Class I well liability exemptions, Class VI wells, once their injectate is characterized and approved (as not triggering CERCLA or RCRA), andregular sampling of the stream for quality control is implemented then a similar exemption is warranted.

Response: EPA agrees that monitoring of the injectate prior to and during injection is important to allow for comparison of baseline data and operational-phase monitoring results to provide warning of potential USDW endangerment. For this reason owners or operators must perform an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82 (a)(7)(iv). In addition, Section §146.90(a) requires owners or operators to perform analysis of the CO2 stream during injection operations with sufficient frequency to yield data representative of its chemical and physical characteristics.

The necessary frequency of injectate analysis will be project-specific and will depend upon the CO2 source and the likelihood of variability in injectate composition. For example, a CO2-capture process from a coal-fired power plant with a consistent coal source and operating parameters is likely to produce a CO2 stream with a fairly consistent composition. A process with a changing composition of coal may have more variability in the purity of the CO2 that is captured. In such a setting, more frequent sampling may be appropriate. The details of the sampling should be describedin the testing and monitoring plan, which will be approved by the Director based on a review of sitespecific information, including information on the source and characteristics of the injectate.

EPA clarifies that, following an initial characterization of the injectate, EPA expects that the permit would stipulate the acceptable composition of the injectate (e.g., as CO2 plus an acceptable range of expected impurities). Any divergence from this would be a permit violation.

EPA notes however, that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations. Accordingly, the CO2 stream characterization requirements under the GS rule would not substitute for the obligation of a generator of RCRA solid waste to characterize its waste in accordance with EPA’s RCRA regulations. Injection of a RCRA hazardous waste may only occur in a Class I hazardous waste injection well.

EPA notes that CO2 itself is not listed as a hazardous substance under CERCLA, although the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The commenter’s reference to a Class I liability exemption is unclear and not legally correct. Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Patrick Nugent Letter ID: 0143Commenter Organization: Texas Pipeline Association (TPA) Comment ID: 23138 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 5. The carbon dioxide stream is a commodity not a waste and should be regulated as such. EPA should make clear that carbon dioxide injectate is not being categorized or regulated as a waste or a pollutant, but rather as a commodity. The sequestered carbon dioxide is expected to generate a credit in a future carbon credit scheme. At that point, the act of sequestering the carbon dioxide will generate an emission credit that can be sold in the open market. Accordingly, TPA urges EPA to remain neutral at this point in time in characterizing the carbon dioxide stream as a waste or a pollutant in any of its regulatory programs. Those kinds of labels would saddle this program with the liability schemes imposed by RCRA or CERCLA and would be severely detrimental to the development and use of geologic sequestration technology. It is highly unlikely that industry will commit the substantial capital required for geologic sequestration projects unless and until the potential for liability is clearly defined and understood. Such financial commitment is unlikely to be made if participants run the risk of incurring open-ended and ruinous liability under RCRA and CERCLA. In this regard, Class VI permits should be written as broadly as possible, so as to maximize protections that may be provided by federally permitted release exemptions.

Response: EPA clarifies that the GS rule, being issued only under the SDWA, does not affect the status of, or entities’ potential obligations for managing, or liability for management of, CO2 under RCRA or CERCLA. While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well

and lead to contamination.

In addition, issues related to carbon crediting are outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Patrick Nugent Letter ID: 0143 Commenter Organization: Texas Pipeline Association (TPA) Comment ID: 23139 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: 6. Incidental waste streams in the carbon dioxide stream should not cause

the stream to be characterized as a hazardous waste or hazardous substance. As EPA has pointed out, the carbon dioxide stream may have pollutants in it that could cause the waste stream to be classified as a hazardous waste. For example. the carbon dioxide stream captured from a power plant may include emissions of mercury, a hazardous substance. A carbon dioxide stream captured from a gas processing plant may have emissions of nitrous oxides or hydrogen sulfides. The incidental presence of these waste streams in a carbon dioxide stream should not

cause the entire carbon dioxide stream to be classified as a hazardous waste or a waste. The proposed regulations do not specify content or constituent concentration requirements. They merely state that "[t]his subpart does not apply to any carbon dioxide stream that meets the definition of a hazardouswaste under 40 CFR part 261." Proposed § 146.81(d). TPA urges EPA to establish a content percentage or constituent concentration of a pollutant in the carbon dioxide stream before the stream is declared a hazardous waste, or some other methodology that would promote the goals of this program without compromising environmental protection. The cost of removing the offending constituents or pollutants could defeat the economic viability of the carbon sequestration project, generate additional detrimental air emissions through the removal process and in the end be counter-productive as the best longterm disposal option for the pollutant may be to sequester it in a deep well. In short, such specifications might restrict the amount or kinds of greenhouse gas fluids that could be stored through geologic sequestration technology and may defeat the program in its entirety.

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Kenneth Alexander Letter ID: 0146 Commenter Organization: Old Dominion Electric Cooperative (ODEC) Comment ID: 21724 Other EPA Comment Codes and Descriptions: 1680 1.3.8 Don't overstate risk, don't stigmatize

CO2

Comment: 5.EPA should be careful not to stigmatize as operations and to take positivemeasures to build public acceptance. EPA should avoid characterizing stored CO2

as a waste.

Response: EPA clarifies that the GS rule, being issued only under the SDWA, does not affect whether CO2 is considered a solid waste under RCRA or EPA’s RCRA regulations.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for

that rule.

Commenter Name: Kenneth Alexander Letter ID: 0146 Commenter Organization: Old Dominion Electric Cooperative (ODEC) Comment ID: 21725 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 6.EPA must settle the way as activities will relate to RCRA and CERCLA. RCRA is simply the wrong tool to use to regulate as of C02 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for as of CO2), are not applied to this highly specialized storage operation.

7. Dealing with these last two hazardous waste issues appears to ODEC to be one of the most difficult hurdles standing in the way of commercial deployment of full scale as projects and we recognize that Congressional action may be needed.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLAsection 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21752 Other EPA Comment Codes and Descriptions: 1520 1.2.3 Other authorities (e.g., CAA, MPRSA, London Convention); 1640 1.3.4 CERCLA issues (seeking comment)

Comment: For example, if EPA eventually determines that CO2 is hazardous, what are the ramifications under the Resource Conservation and Recovery Act (RCRA)?[FN3 42 U.S.C. §§ 6901 et seq.] Presumably, its stringent "cradle to grave" requirements will be imposed on all generators, transporters, and treatment, storage and disposal facilities involved in the CCS project. Or, in the event of a release, under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)?[FN4 42 U.S.C. §§ 9601 et seq.] The Clean Air Act? [FN5 42 U.S.C. §§ 7401 et seq.] If CO2 is deemed a "hazardous air pollutant" under Section 112, it will automatically trigger CERCLA liability as it incorporates HAPs in its definition of "hazardous substance." [FN6 CERCLA, Section 101(14).] The Clean Water Act? [FN7 33 U.S.C. §§ 1251 et seq.]

Response: Under the final GS rule, owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21766 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: The issue becomes even more acute when you consider that EPA has already declined to address the very basic question of how to classify the CO2 stream if trace amounts of hazardous constituents get in it prior to injection:

Because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA. [FN8 Federal Register, Vol. 73 Fed. Reg. No. 144, pg. 43493 (July 25, 2008)]

Instead, EPA advocates making determinations about the hazardous classification of injected CO2 on a case-by-case basis. In essence, EPA is saying that hazardous constituents could be present in the injected CO2 stream, and if they are, then it will be treated as hazardous. This approach provides little guidance to industry, particularly facility owners and operators who are required to characterize their CO2 stream as part of their initial permit application.

Response: EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations. The existing RCRA hazardous waste characterization regulations apply to evaluations of CO2 streams, and those regulations define which RCRA solid wastes are regulated as RCRA hazardous wastes – it is not EPA’s position that the presence of any levels of impurities would necessarily render a CO2 stream a hazardous waste, without reference to those regulations.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21767 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Such overwhelming regulatory uncertainty will only serve to deter investment in CCS technology and slow the rate at which large-scale commercial CCS projects are developed. Instead, EPA needs to examine and explain which environmental statutes could be triggered, how they will interact or overlap, and what potential liability exists for industry. EPA should also explore the possibility of creating regulatory exemptions under RCRA, CERCLA, etc., for injected CO2,thereby reducing regulatory hurdles for CCS projects. One example of this would be to ensure that final Class VI permits have the broadest possible reach to maximize the protection offered by CERCLA’s "federally permitted release" [FN9 CERCLA, Section 107(j).] exemption. This would mean including within the scope of the permit for carbon dioxide injection all other CERCLA hazardous constituents likely to be contained in the CO2 stream, thus providing some comfort to owners and operators that they will not be subject to CERCLA liability. When you consider that EPA lacks the authority to transfer well ownership between entities, and that owners are therefore liable in perpetuity, the need to craft regulatory exemptions becomes clear.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

As described above, EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility. If the CO2 stream is determined to be a hazardous waste, injection may only occur in a Class I hazardous waste injection well.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that providing financial incentives for or promoting the use of GS is outside the scope of

the GS rule.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21772 Other EPA Comment Codes and Descriptions: 1680 1.3.8 Don't overstate risk, don't stigmatize

CO2

Comment: 4. Why Does the Proposed Rule Treat CO2 like a Hazardous Waste?Carbon dioxide is not a hazardous waste; yet the proposed rules for CO2 storage are, in many ways, far more strict than those for underground injection of hazardous wastes under Class I of the UIC program. Many of the construction, mechanical integrity, monitoring and financial assurance provisions for Class VI wells are more comprehensive and more onerous than those for Class I wells.

The Chamber does not believe that CO2 should be treated more stringently than hazardous waste because it distorts public perception about the safety of carbon capture and storage, and it may make securing financial backing for CCS more

difficult.

Response: EPA disagrees that the requirements in the GS rule are too stringent or overstate the risk associated with GS. The requirements for Class VI wells are tailored to address the unique nature of full-scale CO2 GS, including the injection volumes anticipated for long-term storage, the buoyant and viscous nature of the injectate, and its corrosivity in the presence of water.

While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well and lead to

contamination.

Commenter Name: Brianne Metzger Letter ID: 0151 Commenter Organization: Spectra Energy Corp Comment ID: 21852 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: III. EPA MUST ADDRESS THE LEGAL UNCERTAINTIES AND IMPEDIMENTS

TO CCS.

As has been well documented elsewhere, including a recent GAO report, [3] the legal uncertainties related to underground injection of CO2, including the possible application of CERCLA and RCRA, are a very real legal impediment to the viability of carbon capture and geologic sequestration. We agree with the GAO’s recommendation that EPA more comprehensively examine CERCLA and RCRA as a potential barrier to CCS. As discussed in greater detail below, we believe the Agency has sufficient authority to develop responsible policies and regulations that provide the requisite protection to owner/operators of GS operations while still ensuring the adequate protection of human health and the environment. Toward this end, we would ask the EPA to further examine and clearly articulate what it believes is the outer bounds of its statutory and regulatory authority to provide such legal certainty. If, in the event EPA does not believe it has such authority or, for whatever reason, is unwilling to invoke such authority, we would request the Administration and the Agency work with Congress to enact legislation to bring about the needed legal certainty.

3 GAO Report, Climate Change, Federal Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option, REPORT TO THE

CHAIRMAN ON THE SELECT COMMITTEE ON ENERGY INDEPENDENCE AND GLOBAL WARMING, HOUSE OF REPRESENTATIVES, GAO-08-1080 (September 2008).Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

The GS Rule is being promulgated appropriately under the SDWA. Injection wells are regulated under the authority of Part C of the SDWA (42 U.S.C. 300h et seq.). Under the SDWA, the underground injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and includes liquids, gases, and semisolids (i.e., slurries) injected into the subsurface. EPA adds that comments related to requesting Congress for additional authority are outside the scope of this rulemaking.

Commenter Name: Brianne Metzger Letter ID: 0151 Commenter Organization: Spectra Energy Corp Comment ID: 21855

Comment: C. RCRA Should Not Apply To GS Or, Alternatively, EPA Must Clarify And Minimize The Potential Applicability And Scope Of RCRA.

We begin this section by noting that CO2 re-injection from gas processing is currently exempt from Subtitle C requirements of RCRA. Therefore, the following comments regarding the potential application of RCRA pertains to injection of CO2 from non-exempt processes and industries.

Under the proposed rule, EPA has stated that it "cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA." See Rule at 43503. The Agency goes on to say that if the CO2 stream is considered hazardous under RCRA, then the more stringent UIC Class I requirements for injection of hazardous waste apply. Consequently, the Agency has defined

"carbon dioxide stream" to exclude hazardous wastes as defined in 40 C.F.R. Part 261 (e.g., wastes that are characteristically hazardous due to pH or toxicity).

For many of the same reasons set forth above for CERCLA, Spectra likewise believes that RCRA’s waste regulatory regime is completely unnecessary and inappropriate for geologic sequestration of CO2. First, CO2 is neither a pollutant, a solid waste,[9] nor a hazardous waste. Second, CO2 has been properly and safely injected for decades in the context of enhanced oil recovery (EoR), without the regulatory overlay of Subtitle C of RCRA. Third, there are other regulatory regimes that can apply to CO2 injection that makethe application of RCRA unnecessary.

1. RCRA Hazardous Waste Requirements Would Be Costly And Burdensome.

EPA itself has acknowledged the burden of RCRA and the fact that many of its requirements are poorly suited to at least some of the activities to which they apply. EPA initiated a rulemaking in 2002 to reduce the burdens associated with the RCRA hazardous waste program. 68 Fed. Reg. 61662, 61664 (Oct. 29, 2003). The agency noted, "[t]he existing hazardous waste regulations require the submittal of 334 notifications, reports, certifications, demonstrations, and plans from generators and [treatment, storage, and disposal facilities] to demonstrate compliance with the RCRA regulations." Id. at 61664. Reporting requirements are just one example of RCRA’s burdens. Others include treatment, storage, and disposal facility requirements generally, waste manifesting, training requirements for transporters and handlers, citizen suit provisions, and the fact that hazardous waste regulation often increases one’s exposure to Superfund liability.

While EPA seeks to downplay the potential applicability of RCRA, by opining that concentrations of impurities in a CO2 stream are "expected to be very low" there is no clear assurance that RCRA does not apply. As currently proposed, the EPA has shifted the burden to the owner/operator to determine whether its CO2 stream is not a hazardous waste under RCRA. The only way for an owner/operator to determine whether its stream is not a hazardous waste is to test the CO2 stream or apply "generator knowledge." To require testing for CO2 streams would be overly burdensome and expensive, particularly given the diverse sources of CO2 streams and their varied composition. As well, the high variability of CO2 stream composition makes reliance upon "generator knowledge" risky if not entirely unworkable.

2. EPA Has Authority To Exempt CO2 Under Its Contingent Management Approach.

The Agency has authority under Subtitle C of RCRA to determine which wastes are subject to federal hazardous waste regulations. Section 3001 directs the

Administrator of EPA to

develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject to the provisions of this subchapter, taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics. Such criteria shall be revised from time to time as may be appropriate. 42 U.S.C. § 6921(a).

It is clear from the language of Section 3001, that Congress left to the EPA the discretion to determine which hazardous wastes would be subject to federal regulations and which ones would be exempt therefrom. See Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir. 1998) ("Congress’ broad delegation to EPA to develop criteria for listing hazardous wastes . . . indicates that Congress intended the agency to have substantial room to exercise itsexpertise"). The criteria set forth above enable EPA to take into consideration the relative risks posed by different wastes (i.e., some wastes are by nature more toxic than others), the capacity for a waste to breakdown and thus become less toxic in the environment (i.e., some wastes degrade faster than others), how long it takes a waste to degrade, and the potential for human exposure and accumulation in tissue. The application of these criteria to CO2 weigh in the favor of exempting CO2 injection and disposal from hazardous waste regulations.

EPA considers the risk of chronic and acute health effects from airborne exposure from properly operated CO2 injection as minimal. GS Rule at 43498. It likewise considers the risk of adverse impacts to ecosystems from properly managed GS injection activities as minimal. Id. Overall, the Agency believes that the risks to human health and the environmental from properly managed CO2 injection activities are minimal. These risks EPA believes will be properly addressed and managed through the new Class VI UIC well program.

Given the minimal risks from properly managed CO2 pursuant to SDWA’s authority, EPA should exempt CO2 streams entirely from RCRA hazardous waste regulations or, alternatively, establish a "safe harbor" for the injection of CO2, including impurities, by clarifying minimum performance standards or testing requirements. The concept of a blanket exemption is fully consistent with the Agency’s "contingent management" approach under RCRA, whereby certain low-risk wastes are exempted entirely from RCRA Subtitle C regulations. See EPA’s Contingent Management Technical Background Document, October 29, 1999. According to the Agency,

EPA's longstanding regulatory criteria for determining whether wastes pose hazards that require regulatory control incorporate the idea that a waste that is otherwise hazardous may not present a hazard if already subject to adequate regulation. See, e.g., 40 CFR 261.11(a)(3)(x), which requires EPA to consider action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste.) Thus, where a waste might pose a hazard only under limited management scenarios, and other regulatory programs already address such scenarios, EPA is not required to classify a waste as hazardous waste subject to regulation under Subtitle C. 62 Fed. Reg. 6622, 6636 (Feb. 12, 1997). The D.C. Circuit Court of Appeals has upheld EPA’s contingent management approach on at least three occasions. Edison Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993) (court upheld a temporary exemption from Subtitle C for petroleum-contaminated media based on the fact that the potential hazards of such materials are already controlled under the underground storage tank regulations); NRDC v. EPA, 25 F.3d 1063 (D.C. Cir. 1994) (court upheld EPA's finding that alternative management standards for used oil promulgated under RCRA section 3014 reduced the risks of mismanagement and eliminated the need to list as a hazardous waste); Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir. 1998) (court upheld EPA’s military munitions rule as obviating the need to apply RCRA’s hazardous waste regulations).

As EPA has emphasized before, even the legislative history of Subtitle C supports the Agency’s contingent management concept. In a House Report, Congress stated that "the basic thrust of this hazardous waste title is toidentify what wastes are hazardous in what quantities, qualities, and concentrations, and the methods of disposal which may make such wastes hazardous." 62 Fed. Reg. 6622, 6636 (citing H. Rep. No. 94-1491, 94th Cong., 2d Sess.6 (1976), reprinted in A Legislative History of the Solid Waste Disposal Act, as Amended, Congressional Research Service, Vol.1, 567 (1991)).

3. CO2 Geologic Sequestration Should Be Subject To Bevill Exemptions.

Further argument for a RCRA exemption, and consistent with the concept of contingent management, is the fact that Congress exempted certain wastes from regulation under Subtitle C of RCRA. In 1980, when Congress amended the Solid Waste Management Act, it opted to temporarily exempt certain high-volume low toxicity wastes from the Subtitle C hazardous waste regulatory scheme, including, among others, "fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels" (hereafter referred to as "FFC" wastes) 42 U.S.C. § 6921(b)(3)(A)(i) (emphasis added). This amendment (a/k/a the Bevill Amendment), was prompted in large measure by Congress’ concern regarding the potential added recycling costs (estimated at $3B annual increase) of subjecting fossil-fuel combustion wastes to hazardous waste requirements. 58 Fed. Reg. 42466, 42468 (Aug. 9, 1993). Under the Bevill Amendment, Congress directed EPA to make a regulatory determination on whether or not FFC needed to be regulated under Subtitle C.

As part of the Agency’s regulatory determination, EPA conducted a three-part technical analysis evaluating whether (1) the FFC wastes posed human health or environmental problems, (2) whether the wastes could pose significant risks at any site under current or plausible management scenarios, and (3) whether the wastes exhibited any of the characteristics of hazardous waste. EPA’s rationale for the iterative analysis was to determine, first, whether the wastes posed serious risks, second, whether current management practices and federal and state regulatory controls were adequate to manage the risks and, third, the economic impact on the industry before regulating the waste as hazardous. EPA identified a number of sites with unlined lagoons and ponds where FFC wastes clearly had resulted in extensive ground water impacts from arsenic, barium, cadmium, chromium, fluoride, lead, mercury, nickel and selenium that had leached into the water. Id. at 42475. EPA concluded, however, that such sites were ordinarily not located near populations and drinking water systems. EPA also concluded that up to 7% of the FFC wastes exhibited the characteristics of hazardous waste based on toxicity. Despite these negative findings, EPA ultimately made the determination that more stringent regulations were not necessary or desirable.

Based on a plain language reading of the Bevill Amendment, it appears that CO2 falls within the scope of the exemption as a flue gas emission control waste. Similar to FFC wastes, CO2 are a high-volume low toxicity waste when properly managed in underground formations. Therefore, we believe the Bevill Amendment presents the Agency with another viable option for exempting CO2 from Subtitle

9 For a waste to be a hazardous waste, it must first be a solid waste. Thereis a legitimate question whether CO2 is even a solid waste based on the statutory definition of "solid waste" expressly including "contained gaseous material." 42 U.S.C. § 1004(27). EPA has consistently interpreted this provision as excluding uncontained gases from the definition of solid waste. See, e.g., 47 Fed. Reg. 27530 (June 24, 1982) (gases from fume incinerators not subject to RCRA, because fumes are not a solid waste); 54 Fed. Reg. 50973 (Dec. 11, 1989) (uncontainerized gases are excluded from RCRA); In re BP Chemicals America, Inc., RCRA Appeal No. 89-4, 1991 WL 208971, at *2 (Admin., Aug. 20, 1991) (Administrator rejected the argument that otherwise uncontained gas passing through piping or the facility made it "contained" and subject to RCRA). While CO2 emissions would clearly fit into the "uncontained" gas classification, what is unclear is whether the Agency’s interpretation would extend to CO2 subsequently captured and injected into an underground formation. We believe this merits further clarification by the Agency on what constitutes an uncontained vs. contained gas.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Bonnie Lovelace Letter ID: 0152 Commenter Organization: Montana Department of Environmental Quality (MDEQ) Comment ID:

22109

Comment: 9. EPA discussed the possibility that some carbon dioxide streams may qualify as hazardous waste under 40 CFR 261 and indicates that Class I UIC would regulate. owever, this rule set contains requirements that should be applied to geologic sequestration no matter which class regulates. Area of Review, mechanical integrity, seismic and other requirements should apply to any geologic sequestration operations, regardless of well class. EPA should identify those requirements and add them to the Class I rules for any geologic sequestration.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenterswho wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA adds that revising the requirements for other classes of wells is outside the scope of the GS rulemaking.

EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility. Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, owners or operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate is a RCRA hazardous waste. If so, injection may only occur in a Class I hazardous waste injection well.

Commenter Name: James Childress Letter ID: 0158 Commenter Organization: Gasification Technologies Council (GTC) Comment ID: 23756

Comment: #1: Potential Applicability of CFR40 Part 261 (RCRA). (Ref: page 43503, Section 1)

In the preamble to the ANPR, EPA poses the question of whether injected CO2 might be considered a RCRA hazardous waste, but does not answer the question. Any ambiguity concerning the applicability of complex and expensive regulatory regimes such as RCRA and CERCLA will be a major disincentive to the development and deployment of CCS. Regulatory clarity and certainty are critical to companies facing multi-billion dollar investment decisions regarding gasification facilities and CO2 sequestration projects.

EPA should explicitly address these issues in the final rule and not leave open any implication that RCRA and CERCLA may or may not apply to CCS. The presence of low levels of hazardous contaminants in CO2 as a result of the carbon capture process should not limit the storage of the CO2 using Class VI wells, especially taking into account the di minimus risk of exposure associated with the disposition of CO2 into deep geological formations under the stringent controls required by this proposed regulation. We strongly recommend that EPA provide a categorical exclusion in this rulemaking, that CO2 streams that are specifically intended to be stored in geologic structures are not RCRA hazardous wastes. Such an exclusion would be analogous to the provision of40 CFR §261.4(b)(5), which excludes drilling fluids, produced waters, and other wastes associated with the development, or production of crude oil, natural gas or geothermal energy, and therefore can be injected into Class II wells.

In terms of its approach, we recommend that EPA consider captured CO2 -- inclusive of transport, the injection facility and within injection wells --as material that constitutes a stream that is contained within a process and therefore, not a solid waste. Within this scope, protection of health and the environment will be provided by controls required under other regulatory domains

such as OSHA and NESHAPS.For purposes of evaluating the potential RCRA status of the captured CO2 that maybe injected in Class VI wells, the CO2 streams trigger none of the RCRA hazardous waste criteria. Specifically, captured CO2 is not a "listed" hazardous waste as set forth in 40 C.F.R. §261.31 -.35, nor is it "characteristically" hazardous pursuant to 40 C.F.R. § 261 .20 -.24. It is neither "ignitable" nor "corrosive", and the TCLP test used to determine whether a waste is characteristically "toxic" cannot be used on the supercritical liquid CO2 stream. In any event, the level of trace contaminants in the CO2 is so low that TCLP levels are not even approached when measured on an absolute concentration

basis.

Next, the CO2 stream is not "reactive," since the injected CO2 stream will not generate toxic gases in a quantity sufficient to present a danger to human health or the environment. For example, the levels of hydrogen sulfide likely to be present in the CO2 stream (generally less than 0.3%) are an order of magnitude less than those typically present in the "acid gas" that is widely injected into Class II underground injection wells in the U.S., which have an average hydrogen sulfide concentration of approximately 40%. See Kleweki (Cadmus Group), Kobelski (U.S . EPA), Karimjee (U.S. EPA), and Sham (Cadmus Group): Acid Gas Injection In The United States (Presentation on May8, 2006 at the Fifth Annual Conference On Carbon Capture & Sequestration). U.S. EPA continues to encourage the underground injection of "acid gas" streams, recently including such a requirement in a proposed consent decree that would resolve an enforcement case brought under the Clean Air Act. U.S. v. Merit Energy Company, Civil Action No. 1:08-CV-917 (W.D. Mich.), proposed Consent Decree lodged on September 30, 2008 (73 Fed. Reg. 58267 (Oct. 6, 2008) (U.S . EPA's October 1, 2008 press release in this matter stated that the underground injection of the acid gas would result in "zero sulfur dioxide emissions.")

EPA should take into account the specific disposition of the CO2 that the ruling is focused on (i.e., deep underground storage). A well permitted under this rule will be protective of underground sources of drinking water. The minimum depth of injection required to maintain CO2 in a supercritical state is approximately 2,500 feet. This, in conjunction with the controls and safeguards required by this rule throughout the injection and post-injection period, will ensure that CO2 injected into a Class VI well poses de minimus risk. There is very little likelihood for hazardous constituents to be released where they would pose a risk to human health or the environment. (See, e.g., Final Risk Assessment for the FutureGen Project Environmental Impact Statement, DOE, April, 2007)

Finally, much higher H2S levels than will be used in CCS have been successfully and safely used for EOR injection with Class II wells. For example, in Canada, there are 45 ongoing projects where high levels (up to 68%) of H2S in CO2 are being injected into saline aquifers or producing oilfields [1,2,3] for disposal purposes. These combined gas streams of H2S and CO2 are commonly referred to as acid gas and originate from purification of sour natural gas, are highly toxic and in some cases of high concentration, flammable. These projects have been studied in detail and their success is well documented [3,4]. In addition, there have never been any significant safety incidents reported, since the start of the first injection of acid gas into a depleted oil reservoir on the outskirtsof the city of Edmonton, Alberta in the early 1990's. Nor have there ever been any reports of leakage ofH2S from these operations[4].

Accordingly, EPA has sufficient information now to conclude that captured CO2 streams are not RCRA hazardous wastes and do not pose greater risks that many streams than are already being routinely injected in Class II and other UIC wells as non-hazardous wastes. Indeed, to conclude otherwise would create the nonsensical result of suggesting that sequestering a material in deep geological formations poses more hazards than emitting it into the air. It is very important that EPA make this determination as soon as possible to remove the implication that CCS might be subject to RCRA regulation, an implication that would be extremely damaging to the future of CCS, and to the goal of significantly reducing the carbon footprint of the nation's energy sector.

1. Keushnig, H. (1995); Hydrogen sulfide - if you don't like it, put it back. J. Canadian Petroleum Technology. 34: 18-20.

2 Longworth, H.L., G.C . Dunn, M. Semchuck (1996); Underground disposal of acid gas in Alberta, Canada: Regulatory concerns and case histories. SPE 35584. pg

181-192.

3 Bachu, S., K. Haug (2005) In situ characteristics of acid-gas injection operations in the Alberta Basin, Western Canada: Demonstration of CO2 geological storage. in Carbon Dioxide for Storage in Deep Geological Formations. Vol. 3. ed. D.C. Thomas, S.M. Benson. Elsevier Ltd. pg 867-876.

4 Bachu, S., W.D. Gunter; Overview of Acid-Gas Injection Operations in Western Canada. In Proceedings of 7th International Conference on Greenhouse Gas Control Technologies. Volume 1 : Peer-Reviewed Papers and Plenary Presentations (E.S . Rubin, D.W. Keith and C.F. Gilboy, ed.), IEA Greenhouse Gas Programme, Cheltenham, UK, 2005.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it isstored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Skiles Boyd Letter ID: 0160 Commenter Organization: DTE Energy Comment ID: 21271 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: CHARACTERIZATION OF CO2

The preamble discussion regarding the characterizations of CO2 is confusing. The preamble includes an analysis of the potential application of RCRA to CO2 injection and storage activities that appear to be based upon an assumption that CO2 is not a "commodity" but a "waste". Yet EPA does not wish to characterize CO2 as either. As the regulated entity that will want to utilize this technology in the future, it would help us on several fronts (unnecessary regulatory burdens, public acceptance not being the least of these concerns) if EPA did reconsider this position and add some clarifying language to the regulations. EPA should revisit the application of RCRA and CERCLA regulation to the UIC program for CO2 injection. DTE Energy endorses EEI’s recommendation for EPA to consider CO2 injected under the UIC program as either exempted or excluded from regulation under RCRA or CERCLA or adapt performance standards to the injectate that again exclude RCRA and CERCLA regulation. For example, EPA could appropriately establish a permit condition that injectate must meet Toxic Characteristic Leaching Procedure or pH standards without reference to

material’s waste status.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. Under the final GS rule, owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurfacethat could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Joseph Eutizi Letter ID: 0161 Commenter Organization: San Miguel Electric Cooperative, Inc Comment ID: 21289 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 6. EPA must settle the way GS activities will relate to RCRA and CERCLA. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for GS of CO2), are not applied to this highly specialized gas storage operation.

7. Dealing with these last two hazardous waste issues appears to San Miguel to be one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects and we recognize that Congressional action may be needed.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Sandi Tabor Letter ID: 0162 Commenter Organization: Lignite Energy Council (LEC) Comment ID: 21302

Comment: 3. Categorization of Injected C02 Considered a Hazardous Waste under RCRA -Underthe proposal EPA states that it cannot make a categorical determination as to whether injected C02 is hazardous under RCRA. It suggests the burden should be on the operators to characterize their C02 stream as part of the permit application to determine if the injectate is considered hazardous as defined in 40 CFR Part 261. RCRA regulates the production, management and disposal of wastes and RCRA's potential application in the case of C02 injectate is dependent upon the existence of a solid waste. If the material is a solid waste, the law requires further analysis to determine if it is also a hazardous waste.

Injected CO2 should be considered a product or a commodity and not a solid waste. Leaving the question to be resolved when operators characterize their C02 streams with the potential that RCRA liability may attach will be a deterrent to C02 storage projects. The LEC urges the EPA to make a determination under its RCRA authority that CCS activities meeting Class VI permit requirements do not equate to DISCARDING the C02. By so doing, Class VI CO2 injection operations would not be considered waste management activities and would not be subject to

RCRA.

As further justification for this position, simply consider the success of existing acid gas injection operations into depleted oil and gas reservoirs conducted under the existing UIC regulations. Low level impurities, such as H2S or mercaptans should not trigger a classification under RCRA. The proposed rule has adequate protection for drinking water aquifers and addresses corrective action, financial assurance requirements, and long-term monitoring after closure. These requirements negate the need for any RCRA regulation.

Response: EPA clarifies that the GS rule itself does not change the status of CO2 as a solid waste or

hazardous waste under RCRA.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

The GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21317 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: § EPA must settle the way GS activities will relate to RCRA and CERCLA. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for GS of CO2), are not applied to this highly specialized gas storage operation.

§ Dealing with these last two hazardous waste issues appears to NRECA to be one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects and we recognize that Congressional action may be needed.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21330 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: The CCS Alliance has evaluated technical, market, and policy risks associated with CCS deployment. On behalf of the CCS Alliance, Andrew Paterson of Econergy International interviewed dozens of market participants earlier this year, including project developers, utilities, technology vendors, risk managers, and financial providers to assess which risks were considered most likely to occur, and which, if they occurred, would be considered to have the greatest impact to the project. The CCS Alliance study showed that market participants identified one of the highest risk factors to be the lack of clarity in EPA and stateregulations dealing with the technical aspects of injection and with liability. NRECA believes that the largest and most important aspect of the proposed UIC regulations will be how GS activities are coordinated with RCRA and CERCLA. Currently we believe that this is one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects. One way of dealing with this issue to avoid classifying injected CO2 as a waste. ********

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21331

Comment: 9. Anecdotal evidence from pilot scale Carbon Sequestration and Storage projects seem to suggest that it is not likely that CO2 removed from the flue gas stream of a coal-fired power plant would be classified as a RCRA hazardous waste. NRECA believes that EPA should specifically exempt CO2 gas streams from coverage by RCRA and develop requirements specifically tailored to this material if necessary to assure further environmental protection beyond that already provided by the UIC permitting process. RCRA is simply not the right tool to use

in this situation.

In 2002, EPA found that "the existing hazardous waste regulations require the submittal of 334 notifications, reports, certifications, demonstrations and plans from generators and TSDFs to demonstrate compliance with RCRA Regulations" (See comments of the CCS Alliance). Reporting requirements are just one example of RCRA's burdens. Others include TSD facility requirements generally, waste manifesting, training requirements for transporters and handlers, citizen suitprovisions, and the fact that hazardous waste regulations implicates Superfund liability. And to further expose potential CO2 GS facilities to open-ended liabilities, applying RCRA could expose all other waste management units at the facility, including units that are in no way related to the injection operations, to the full panoply of RCRA's Subtitle C corrective action program. If one considers that an injection well could be located at an existing industrial site or power plant, it should be very clear how a private party would be reluctant to insure or finance a GS project under these conditions.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Michael Mudd Letter ID: 0167 Commenter Organization: FutureGen Alliance (FGIA) Comment ID: 22464

Comment: Hazardous Waste Exclusion p. 43503, c. 3

Because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA. Owners or operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate is considered hazardous as defined in 40 CFR Part 261. If the injectate is considered hazardous under RCRA, then the more stringent UIC Class I requirements for injection of hazardous waste apply. The design changes EPA is proposing are meant to address the mobility and corrosivity caused by long term GS of CO2, and not the long term storage of

hazardous wastes.

By defining ‘‘carbon dioxide stream’’ to exclude hazardous wastes (146.81(d)), today’s rule, if finalized, assures that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, today’s proposed rule would preclude the injection of hazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of impurities in the CO2 stream.

Comment: Relegating CO2 waste streams that designate as hazardous waste to the Class I hazardous waste program will prevent their inclusion in the proposed Class VI well classification where standards, guidance, and expertise will tailored for the properties of the bulk solvent.GS is being pursued to address the burden of CO2 release to the atmosphere from power plants. In burning fossil fuels for power, there is a considerable amount of other products of combustion and other components that are typically scrubbed or otherwise removed from the off-gas stream to prevent their release to the atmosphere. The clean up steps for removing these various gas and products of combustion from the CO2 waste stream ultimately impact the power plant’s net energy output, which adversely affects the cost of electricity. Significantly increasing the cost of electricity will discourage GS.

If the objective of GS is to reduce and/or reduce the release of CO2 to the atmosphere, the delta in energy cost may be made more palatable by combining other products of combustion with the CO2 waste stream. Additional technical information is needed to understand the merits and risks of co-injection of contaminants. A Proposed Rule for GS based on a high-purity CO2 stream priorto understanding the trade-offs of co-injection of contaminants seems shortsighted. The Proposed Rule should have provisions and leeway for regulators and industry to balance cost, energy conservation, waste reduction, and waste management program while protecting USDWs and safety of the public.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals. EPA clarifies that Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Michael Mudd Letter ID: 0167 Commenter Organization: FutureGen Alliance (FGIA) Comment ID: 22466

Comment: I. Is Injected CO2 considered a Hazardous Waste Under RCRA? II-I. EPA shouldspecify the information needed to characterize the CO2 stream to determine if

meets the definition of "Hazardous" as defined in 40 CFR Part 261

If a CO2 stream is determined to be hazardous per RCRA, can the CO2 stream still be injected via wells that are constructed and operated per the Class I UIC regulations, or does this preclude injection of the hazardous CO2 stream?

Response: EPA clarifies that GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261. Therefore, owners or operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate

is considered hazardous as defined under RCRA. If the CO2 stream is determined to be a hazardous waste, injection may only occur in a Class I hazardous waste injection well under 40 CFR Part 146 Subpart G.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23364

Comment: Interaction with RCRA -- Pg.33

APPA believes that RCRA corrective action for the entire power plant would rank with parasitic power loss as possibly insurmountable obstacles for geologic sequestration.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23379 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 7. Congress must address a number of critical liability issues under CERCLA and RCRA to enable widespread commercial deployment of geosequestration of CO2 from power plants. That issue primarily is outside the scope of this rulemaking but must be acknowledged. Unless these issues are resolved, first generation plants cannot progress. As EPA recognized in its ANPR on CO2, this UIC rulemaking provides one opportunity to address these issues, while protecting the public health and welfare under the Safe Drinking Water Act.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that aregeologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23406

Comment: · EPA prematurely assumes that the CO2 injected for GS is a solid waste. The CO2 that will be captured and injected for long-term storage into Class VI wells is an uncontained gas and therefore does not meet the statutory definition of a "solid waste" under the Resource Conservation and Recovery Act ("RCRA"). Further, it is premature to assume that material will be "discarded" as CO2 is currently used as a commodity in a variety of manufacturing processes. To the extent there is any possibility that CO2 injection operations could be subject to RCRA controls, EPA should exempt such activities from RCRA's corrective action program under the well established "contingent management" concept given that the UIC permit will ensure that the injected material is not mismanaged.

APPA is confident that state directors will have strict rules on how the injections are managed. On this topic of RCRA and solid waste, APPA defers to the Utility Solid Waste Activities Group (USWAG) and recommends those aspects of

their comments.

Response: As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements

for CO2 GS in Class VI wells.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23415

Comment: Interaction with RCRAThe U.S. EPA seeks comment on the question of whether CO2 that exhibits a Resource Conservation and Recovery Act or "RCRA" hazardous waste characteristic should be precluded from injection in a Class VI CO2 GS well. Id. at 43503. APPA questions the underlying premise behind EPA's discussion regarding the potential applicability of the RCRA hazardous waste regulations to CO2 GS. Id. The fundamental error in EPA's request for comment on this point is its premature assumption that CO2 is being discarded and therefore is a solid waste. A

material cannot be a RCRA hazardous waste if it is not first a "solid waste." See 40 C.F.R. § 261.2. The statutory definition of "solid waste" is limited to specified "discarded" materials; a material cannot be a "solid waste" unless it has first been "discarded." 42 U.S.C. § 6903 (RCRA § 3001). While there have been numerous judicial decisions addressing what constitutes "discard," the fundamental holding from these cases is simple and straightforward: Congress intended to extend EPA’s authority to regulate "solid waste" under RCRA "only to materials that are truly discarded, disposed of, thrown away, or abandoned" American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) (emphasis added). The D.C. Circuit has emphasized that the "plain meaning" of the term "solid waste" extends only to materials that are "discarded" and that the term "discard" should be interpreted with reference to its ordinary meaning. Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051-52 (D.C. Cir. 2000). CO2 is a valuable commodity used in a variety of manufacturing operations, including in the enhanced oil recovery ("EOR") and enhanced gas recovery ("EGR") production process. When used in these commercial oil/gas production applications, CO2 is not "discarded" and therefore is not a solid waste. While large volumes of CO2 will be produced under the carbon capture and sequestration programs contemplated by the UIC Class VI program, it is premature for EPA to presume

that these additional volumes of CO2 will not retain commercial value and that their sequestration in Class VI wells automatically means that they have been "discarded" as that term has been defined under RCRA. As we have already noted, the Agency should refrain from making categorical assumptions associated with this still-emerging technology associated with the commercial deployment of CO2 GS operations, including with respect to the status of captured CO2 destined for

GS.

Finally, assuming, for purposes of argument, that CO2 is "discarded" and exhibits a hazardous waste characteristic when injected for long-term sequestration, there are compelling policy reasons to exclude such activities from RCRA regulation. Subjecting these injection operations to regulation under a Class I UIC hazardous waste injection permit could expose all other waste management units at the power plant facility, including units that are in no way related to the injection operations, to the full panoply of RCRA’s Subtitle C corrective action program. This is because a Class I UIC hazardous waste injection permit is a classified as a RCRA "permit by rule" under RCRA’s hazardous waste permit program. See 40 C.F.R. §§ 270.1(c)(1)(i) and 270.64. Facilities that have obtained a RCRA permit by rule for the operation of a Class I UIC hazardous waste injection well are potentially subject to the full scope of RCRA’s corrective action program for all solid waste management units ("SWMUs") located at the facility. If RCRA were to regulate the CO2 as a waste this would make many power plant owner/operators reticent to pursue these technologies. See EPA RCRA/Superfund Hotline Monthly Summary, "Corrective Actionfor UIC Wells," April 1986 (9502.1986(07)). The specter of RCRA corrective action is a significant economic and practical operational obstacle for any facility considering whether to seek a permit for a new Class VI well for geosequestration.

The imposition of this obstacle is completely unwarranted. Any well receiving a permit under the UIC Program for CO2 GS will be, by definition, protective of USDWs. EPA’s RCRA program has established a legally sound process, referred to as "contingent management," for the exclusion of materials from hazardous waste regulation when such materials are already subject to an alternate regulatory regime that ensures the wastes are managed in an environmentally protective manner. EPA has employed the contingent management concept in several contexts where the Agency determined that other regulatory regimes adequately addressed any potential mismanagement scenarios related to certain materials, including used oil and military munitions.

The D.C. Circuit has reviewed EPA's legal theory underlying the contingent management concept and found it to be a "permissible construction of the statute" - namely, that the statutory definition of "hazardous waste" is predicated upon the risks posed by a solid waste when "improperly" managed; therefore, "where a waste might pose a hazard only under limited management scenarios, and other regulatory programs already address such scenarios, EPA is not required to classify a waste as hazardous waste subject to regulation under [RCRA] Subtitle C." Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir 1998) (emphasis added).

APPA believes that RCRA corrective action for the entire power plant would rank with parasitic power loss as strong deterrents to geologic sequestration for many small municipality power plant owner/operators. We do not want to see these CCS projects prevented because of RCRA waste concerns.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Kyle Isakower Letter ID: 0170 Commenter Organization: American Petroleum Institute Comment ID: 24143 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: Rule Provision: 146.81(d) [Definition - Carbon dioxide stream]API Comments: Carbon dioxide stream means carbon dioxide, IN ANY PHYSICAL STATE OR FORM, AND ANY ASSOCIATED substances derived from the that has been captured

from an emission source (e.g., a power plant), plus incidental associated substances derived from the source materials and the capture process, and any, ITS PROCESSING, OR substances added to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.

Rationale: Source of CO2 is not an issue in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. Original text would have precluded injection of CO2 from some sources.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs.

Commenter Name: Erik Silvola Letter ID: 0171 Commenter Organization: Great River Energy Comment ID: 23445 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 6. EPA must settle the way GS activities will relate to RCRA and CERCLA. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for GS of CO2), are not applied to this highly specialized gas storage operation.

7. Dealing with these last two hazardous waste issues appears to GRE to be one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects and we recognize that Congressional action may be needed.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility dependsentirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Rower Letter ID: 0173 Commenter Organization: Utility Solid Waste Activities Group (USWAG) Comment ID: 23459 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: • EPA must resolve key policy and legal uncertainties to alleviate financial concerns of potential Class VI well Owners or Operators and to encourage investment in the development and operation of Class VI CO2 injection wells.

Issues that must be addressed include the interaction of the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") with Class VI injection activities as well as long-term post-injection liability.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Rower Letter ID: 0173 Commenter Organization: Utility Solid Waste Activities Group (USWAG) Comment ID: 23463

Comment: • In discussing the potential applicability of RCRA's hazardous waste rules to Class VI CO2 injection activities, EPA prematurely assumes that the CO2 is being "discarded" and is a solid waste under RCRA. To the extent there is any possibility that CO2 injection operations could be subject to RCRA controls, EPA should exempt such activities from RCRA regulation under the well-established "contingent management" concept, particularly given that the UIC permit willensure that the injected material is not mismanaged.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: James Rower Letter ID: 0173 Commenter Organization: Utility Solid Waste Activities Group (USWAG) Comment ID: 23483

Comment: 6. Interaction with RCRA

The Agency seeks comment on the proposal to preclude the injection of hazardous waste into Class VI injection wells. Id. at 43503. USWAG takes issue with the underlying premise behind EPA's discussion regarding the potential applicability of the RCRA hazardous waste regulations to CO2 GS. Id. The fundamental error in EPA's request for comment on this point is its premature assumption that CO2 is being discarded and therefore is a solid waste. A material cannot be a RCRA hazardous waste if it is not first a "solid waste." See 40 C.F.R. § 261.2. Under the statutory definition of "solid waste," a material cannot be a "solid waste" unless it has first been "discarded." 42 U.S.C. § 6903 (RCRA § 3001).

While there have been numerous judicial decisions addressing what constitutes "discard," the fundamental holding from these cases is simple and straightforward: Congress intended to extend EPA's authority to regulate "solid waste" under RCRA "only to materials that are truly discarded, disposed of, thrown away, or abandoned" American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) (emphasis added). The D.C. Circuit has emphasized that the "plain meaning" of the term "solid waste" extends only to materials that are "discarded" and that the term "discard" should be interpreted with reference to its ordinary meaning. Ass'n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051-52 (D.C. Cir. 2000).

CO2 is a valuable commodity used in a variety of manufacturing operations, including in the enhanced oil recovery ("EOR") and enhanced gas recovery ("EGR") production process. When used in these commercial applications, CO2 is not "discarded" and therefore is not a solid waste. While large volumes of CO2 will be produced under the CCS programs contemplated by the UIC Class VI Proposal, it is premature for EPA to presume that these additional volumes of CO2 will not retain commercial value and that their sequestration in Class VI wells automatically means that they have been "discarded" as that term has been defined under RCRA. As we have already cautioned, the Agency should refrain frommaking categorical assumptions associated with this still-emerging technology, including with respect to the status of captured CO2 destined for GS.

Assuming, for purposes of argument, that CO2 is "discarded" and exhibits a hazardous waste characteristic when injected for long-term sequestration, there are compelling policy reasons to exclude such activities from RCRA regulation. Facilities that have obtained a RCRA "permit by rule" for the operation of a Class I UIC hazardous waste injection well are potentially subject to the full scope of RCRA's corrective action program for all solid waste management units ("SWMUs") located at the facility, including units that are in no way related to the CO2 injection operations. See 40 C.F.R. §§ 270.1 (c)(1 )(i) and 270.64; see also EPA RCRA/Superfund Hotline Monthly Summary, "Corrective Action for UIC Wells," 9502.1986(07) (April 1986). The potential for RCRA applicability on such a broad scale is a significant economic and practical obstacle for any facility considering whether to seek a permit for a new Class VI well, as facility-wide RCRA corrective action is an administratively complex and exceedingly expensive undertaking.

The imposition of this obstacle is unwarranted because any well receiving a permit under the UIC Program for CO2 GS will be, by definition, protective of USDWs. EPA's RCRA program has established a legally sound process, referred to as "contingent management," for the exclusion of materials from hazardous waste regulation when such materials are already subject to an alternate regulatory regime that ensures the wastes are managed in an environmentally protective manner. As discussed below, where the potential for mismanagement of a waste is already adequately addressed by another regulatory regime - as would be the case with the injection of CO2 under the Class VI UIC program - regulation of such materials under the RCRA's hazardous waste program is duplicative and unwarranted. EPA has successfully employed the contingent management concept in various contexts where the Agency determined that other regulatory regimes adequately addressed any potential mismanagement scenarios related to certain materials; examples include regulation of used oil, mixed radioactive/hazardous waste, and military munitions.

The Court of Appeals for the District of Columbia Circuit has reviewed EPA's legal theory underlying the contingent management concept and found it to be a "permissible construction of the statute," based on the idea that the statutory definition of "hazardous waste" is predicated upon the risks posed by a solid waste when "improperly" managed. Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir 1998) (emphasis added). Therefore, "where a waste might pose a hazard only under limited management scenarios, and other regulatory programs already address such scenarios, EPA is not required to classify a waste as hazardous waste subject to regulation under [RCRA] Subtitle C." Id.

Even if such operations were deemed subject to RCRA regulation, including a RCRA permit by rule, EPA could - and should - establish a conditional exclusion from RCRA regulation for CO2 GS operations. Such an exclusion would be legally justified, consistent with the Agency's past promulgation of conditional exclusion rules, and would make sound policy sense by removing a potentially significant regulatory barrier to the commercial development of CO2 GSoperations.

Response: EPA clarifies that the GS rule does not address the status of CO2 as a pollutant or a commodity. Under the SDWA and the UIC program, EPA regulates the injection of a range of fluids, which may include pollutants and commodities, regardless of how they are characterized, for the purpose of protecting USDWs.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Pamela Faggert Letter ID: 0175 Commenter Organization: Dominion Comment ID: 23529 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 7. Interaction of CO2 with RCRA and CERCLA

It is essential that the Agency resolve key policy and legal uncertainties regarding the interaction of the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA or Superfund") with Class VI injection activities. EPA's proposed rule refers to the potential presence of unknown or unidentifiable hazardous constituents in various streams. See 73 Fed. Reg. at 43,503-04. This leaves Class VI permittees with little certainty as to which constituents, whether present in the CO2 stream itself, in the receiving underground soil and aquifer, or via some reaction between the two, might subject the permittee to liability under RCRA or CERCLA. This regulatory uncertainty will make it difficult for CCS to attract the investment necessary to ensure its viability as a climate mitigation strategy.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.With respect to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Pamela Faggert Letter ID: 0175 Commenter Organization: Dominion Comment ID: 23530

Comment: To the extent there is any possibility that CO2 injection operations could besubject to RCRA controls, EPA should exempt such activities under the wellestablished "contingent management" concept given that the UIC permit will ensure that the injected material is not mismanaged.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI

wells.

Commenter Name: Pamela Faggert Letter ID: 0175 Commenter Organization: Dominion Comment ID: 23532 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Further, EPA already has ample civil and criminal enforcement authority under the SDWA to address violations of UIC permits, including the ability to impose fines of up to $32,500 per day in civil penalties. This authority thus provides a significant and independent means of addressing environmental contamination.

Finally, EPA should support legislative solutions to ensure companies employing CCS technologies are assured of reasonable liability protections. While CO2 is not listed as a hazardous substance under CERCLA, statutory exemptions under both RCRA and CERCLA for a clearly defined set of CO2 injection streams could bean appropriate device for mitigating liability concerns. Or, a more tailored approach to limiting the scope of RCRA and CERCLA liability for certain types of CCS projects could be proposed.

In order to effectively promote CCS as a viable climate mitigation strategy, legal uncertainties surrounding potential CERCLA and RCRA liability associated with GS wells must be addressed. To this end, EPA should employ RCRA's "contingent management" concept and CERCLA's "federally permitted release" exemption as regulatory means to limit potential liability and uncertainty. In addition, EPA should advocate or support legislative solutions to limit Class VI permittee liability

under these statutes.

Response: EPA thanks the commenter for their suggestions and clarifies that any comments related to supporting legislative changes to any environmental statutes are outside the scope of this rulemaking. Changes to the RCRA and CERCLA statutes are outside the scope of the GS rulemaking under the SDWA. EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. As described above, with respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells.

Commenter Name: Kenneth Nemeth Letter ID: 0176 Commenter Organization: Southern States Energy Board Comment ID: 23537 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Importantly, under the proposed rule, EPA should specify that CO2 is not considered hazardous, nor subject to regulation under RCRA or CERCLA, (while the rule recognizes that other gases could contaminate the CO2, resulting in hazards to USDWs). Equally important, there should not be limitations on formations that

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

With respect to CERCLA, EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exemptsfrom liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Quinlan J. Shea Letter ID: 0177 Commenter Organization: Edison Electric Institute Comment ID: 23559 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Finally, EEI is concerned about the potential application to CCS activities of environmental laws that were, without exception, not intended to apply to CCS or even crafted with CCS in mind and that could impose significant obligations and potential liabilities not only on project operators, but also potentially on other entities in the CO2 chain, such as entities producing the CO2 that is ultimately injected. These laws include the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and RCRA. EEI urges EPA to evaluate carefully any proposed treatment of these two laws (or others) that it may be considering under the Class VI regulations to ensure that any such treatment is necessary and does not serve as an unintended springboard for hampering the successful commercialization of CCS. EEI submits that any characterization of potentially hazardous constituents in CO2 injectate may be addressed as part of the UIC permitting process without addressing any potential RCRA jurisdictional issues.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

With respect to CERCLA, EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefullystructured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Quinlan J. Shea Letter ID: 0177 Commenter Organization: Edison Electric Institute Comment ID: 23605 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: J. Issues Related to Potential Application of Other Environmental Laws

EEI and our members are concerned about the potential application to CCS activities of environmental laws that were, without exception, not intended to apply to CCS or even crafted with CCS in mind and that could impose significant obligations and potential liabilities not only on project operators, but also potentially on other entities in the CO2 chain, such as entities producing the CO2 that is ultimately injected. These laws include in particular the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and RCRA. EEI agrees that issues related to potential liabilities under these laws must be resolved.[FN12] Setting aside for the moment important questions of whether either of these laws could apply to CCS activities and, if so, precisely how and to what extent, EEI does not disagree with the Agency‘s position that drafting a clear exception from either of these regimes may be difficult in the sole context of this SDWA UIC rulemaking. Nonetheless, EEI urges EPA to evaluate carefully any proposed treatment of these two laws (or others) that it may be considering under the Class VI regulations to ensure that any such treatment is necessary and does not serve as an unintended springboard for hampering the successful commercialization of CCS.

[FN12] The recent released GAO report on CCS echoes the importance of addressing these liability issues. GAO recommends that EPA examine its authorities and responsibilities the under RCRA and CERCLA to determine "where additional statutory authority might be needed to address key regulatory and legal issues related" to CCS. GAO report, supra n. 9, at 52.

Response: As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements

for CO2 GS in Class VI wells.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Quinlan J. Shea Letter ID: 0177Commenter Organization: Edison Electric Institute Comment ID: 23606

Comment: To turn briefly to the RCRA issue, EPA comments in the preamble that SDWA is currently used to regulate the injection of both "pollutants" and "commodities"; therefore, the rules do not need to address the status of CO2 as a pollutant or a commodity.[FN13] Regardless, the preamble continues to include an analysis of the potential application of RCRA to CO2 injection and storage activities that appears to be based upon an assumption that CO2 is in fact not a commodity, but

a waste.

As the Agency is aware, RCRA regulates production, management and disposal of wastes; RCRA‘s potential application thus depends upon existence of a waste in the first instance (more particularly, a solid waste). Once a material is deemed to be "discarded" and thus a solid waste, an additional set of parameters applies to determine whether that substance is also a hazardous waste and thus subject to further regulation. It is likely within EPA’s regulatory ambit (albeit under RCRA) to determine that CCS activities meeting permit requirements are not equated to discarding the CO2, and EEI recommends that EPA examine that approach.

Further, while the preamble notes that it is unnecessary to label CO2 a waste or a commodity for purposes of proposing and implementing UIC regulations for its injection and storage, it jumps to an unnecessary and potentially confusing discussion of whether injected CO2 may be a hazardous waste, thus perhaps implying the assumption that CO2 is a solid waste to begin with. The preamble

states:

Because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA.[FN14]

Thus, EPA states, operators "will need to characterize their CO2 stream as part of their permit application to determine if the injectate is consideredhazardous" under RCRA, and potential application of RCRA is left to a case-bycase determination depending upon the contents of the injectate. EEI submits that any characterization of potentially hazardous constituents in CO2 injectate may be addressed as part of the UIC permitting process without addressing any potential RCRA jurisdictional issues. For instance, EPA could appropriately establish a permit condition that injectate must meet Toxicity Characteristic Leaching Procedure or pH standards, without reference to the material‘s waste

status.

[FN13] 73 Fed. Reg. 43496, col.3

[FN14] Id. at 43503, col. 3.

Response: First, EPA notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations, which continue to apply on their own terms.At the same time, under the final GS rule, owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well under 40 CFR Part 146 Subpart G. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23799 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment); 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: Single, Clear Liability Structure

To the extent possible, policymakers should put in place a single, clear liability regime for CCS activities. In the context of this rule, EPA has considered the possibility of cleanup liability both under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund") and the Resource Conservation and Recovery Act ("RCRA), in addition to the UIC program. There is also the possibility of liability under state statutes and common law. Parties who may be injured in the future must be able to resort to a fair liability scheme, but potential applicability of multiple schemes is likely to discourage CCS development.

Response: EPA acknowledges the commenter's concerns regarding the applicability of multiple statutes to GS projects and the need for a single clear liability regime for owners or operators. As a federal agency, EPA is working to create a nationally consistent financial responsibility regime within its authority while providing permitting authorities an appropriate level of flexibility. EPA is finalizing financial responsibility requirements under authority of the SDWA. EPA believes that the general authorities provided under SDWA include the authority to set minimum federal requirements for financial responsibility to ensure that financial resources are available to protect USDWs throughout the life of the GS project. See the final rule and preamble for further discussion of EPA's final approach to financial responsibility.

Furthermore, an owner or operator may always be subject to any action the Administrator deems necessary to protect the health of persons under §1431 of the SDWA after site closure if there is unanticipated migration towards or into a USDW that causes or threatens imminent and substantial endangerment to public health. The action may include issuing administrative orders or commencing a civil action for appropriate relief. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply

continues.The Agency acknowledges and clarifies that, after site closure, an owner or operator may, depending on the fact scenario and state law, remain liable under state tort law and other remedies, or under other Statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992.

EPA appreciates the commenter’s suggestions for a single liability scheme for CCS; however, the GS rule is not promulgated under either RCRA or CERCLA, and making legislation changes or addressing liability under state statutes and common law is also outside the scope of the GS rulemaking. EPA also notes that the applicability of RCRA and CERCLA will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply.

EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23815 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment); 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: B. POTENTIAL APPLICABILITY OF RCRA AND CERCLA

As discussed in greater detail below, the potential applicability of RCRA and CERCLA is a key concern. These statutes simply are not designed with the thought in mind of encouraging the safe and widespread deployment of a new technology. The CCS Alliance believes that many parties involved in the CCS chain of events should bear responsibility for safe operation. Rather than apply environmental statutes with contentious and litigious histories, Congress should enact a new regulatory and liability framework for CCS in place of the multiple regimes that now may apply. This is not meant to detract from the progress EPA is making in this rulemaking. It merely recognizes the limitations and overlapping structures EPA itself has noted. CCS should be subject to a single, clear regulatory structure, and a single, clear liability structure. In the meantime, EPA should use what interpretive authority it has to limit the applicability of multiple statutes and provisions, the applicability of which would discourage CCS.

Response: EPA acknowledges the commenter's concerns regarding the applicability of multiple statutes to GS projects and the need for a single clear liability regime for owners or operators. EPAis working to create a nationally consistent financial responsibility regime within its authority while providing permitting authorities an appropriate level of flexibility. EPA is finalizing financial responsibility requirements under authority of the SDWA, which includes the authority to set federal minimum requirements for financial responsibility to ensure that resources are available to protect USDWs throughout the life of the GS project.

This authority does not extend to release owners or operators from long-term responsibility under other statutes, such as CERCLA, for potential impacts after the PISC period has ended, or for the potential economic costs associated with impacts unrelated to USDWs. Under current SDWA provisions, EPA does not have authority to transfer liability from one entity to another and it does not provide for the creation of a third party financial instrument where EPA is the trustee.

Under SDWA authority, owners or operators of injection wells must ensure protection of USDWs from endangerment and are subject to liability for enforcement under the Act. The final rule requires that an owner or operator conduct monitoring as specified in the Director-approved PISC and site closure plan following the cessation of injection until he or she can demonstrate to the Director that the geologic sequestration project no longer poses an endangerment to USDWs. For additional information about the PISC and site closure requirements, see the preamble to the final GS rule.

Once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, the financial instrument required under §146.85 will be released if it has not been used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable even after site closure was approved if the Director relied on erroneous information provided by the owner or operator when approving site closure.

Additionally, an owner or operator may always be subject to any action the Administrator deems necessary to protect the health of persons under §1431 of the SDWA after site closure if there is unanticipated migration towards or into a USDW that causes or threatens imminent and substantial endangerment to public health. If the owner or operator fails to comply with the order, he or she may be subject to a civil penalty for each day in which such violation occurs or failure to comply

continues.

The Agency clarifies that Class VI well permits may be transferred to another owner or operator pursuant to §144.38 whereby generally all other regulatory responsibilities are transferred to that new owner and operator, including all potential liabilities associated with meeting the requirements of that permit.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Comments requesting congressional legislation on liability for GS are outside of the scope of this rulemaking.

EPA agrees that identifying and addressing potential barriers to the deployment of CCS, whileprotecting human health and the environment, is important. As described above, making legislation changes is outside the scope of the GS rulemaking. Also as described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23835

Comment: VIII. SPECIAL FOCUS: APPLICABILITY OF RCRA

The Proposed Rule raises the question whether injected CO2 streams will be considered "hazardous waste" under RCRA. Rather than apply on top of the SDWA another environmental statute that was not designed with the thought of encouraging development and deployment of technology to address climate change, which is likely to discourage CCS deployment, CCS should be subject to a single. clear regulatory structure shaped by consideration of climate change objectives. Designating the CO2 stream as a hazardous waste also will result in it being considered a "hazardous substance" under CERCLA, the problems with which are

discussed above.

The Proposed Rule states:

Because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA. Owners and operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate is considered hazardous as defined in 40 CFR Part 261. If the injectate is considered hazardous under RCRA, then the more stringent UIC Class I requirements for injection of hazardous waste apply.[FN38]

[FN38] Proposed Rule, 73 Fed Reg. 43503.

Where EPA faces an interpretive question about the applicability of RCRA, it should avoid applying the statute. As noted above, the CCS Alliance believes that in place of existing, ill-suited regulatory regimes, a new single, clear regulatory structure should apply to protect the environment.

Response: EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. As mentioned, making legislation changes is outside the scope of the GS rulemaking.

As discussed above, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VIUIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23836

Comment: A. BURDENS AND BARRIERS OF RCRA

The UIC regulatory structure proposed by EPA to minimize releases not only protects groundwater, but by extension protects human health and the environment. RCRA's requirements are extensive, expensive, and ill-suited to activities to sequester large volumes of low-toxicity materials, especially when such activities will be regulated under the UIC program.

EPA itself has acknowledged the burden of RCRA and the fact that many of its requirements are poorly suited to at least some of the activities to which they apply. EPA initiated a rulemaking in 2002 to reduce the burdens associated with the RCRA hazardous waste program.[FN39] The Agency noted, "[t]he existing hazardous waste regulations require the submittal of 334 notifications, reports, certifications, demonstrations, and plans from generators and TSDFs to demonstrate compliance with the RCRA regulations."[FN40] Reporting requirements are just one example of RCRA's burdens.

[FN39] Resource Conservation and Recovery Act Burden Reduction Initiative. 67 Fed. Reg. 2518 (proposed Jan. 17, 2002); see also RCRA Burden Initiative; Final Rule, 71 Fed. Reg. 16,862 (Apr. 4,2006).

[FN40] RCRA Burden Reduction Initiative: Notice of Data Availability, 68 Fed. Reg. 61,662, 61,644 (Oct. 29, 2003).

Given that CCS is a technology that the Agency and a broad array of others want to encourage, with this rule more than most others, EPA must consider very carefully whether the emission streams involved truly warrant hazardous waste regulation. Imposing extensive. burdensome RCRA regulations likely to have little benefit for human health and the environment may result in larger atmospheric releases of CO2 if this "key" technology is not as widely deployed.

Class I wells under the UIC program are intended, in part, to regulate hazardous waste disposal wells for the injection of hazardous waste, as defined by RCRA. If EPA were to determine that CO2 is a hazardous waste under RCRA, CO2 injection would be required to meet the more rigorous Class I well requirements, rather than the proposed Class VI requirements. Indeed, the construction, permitting, operating, monitoring, and post-site closure requirements are much more burdensome for Class I hazardous wells than for the other types of injectionwells. For instance, Class I wells have a requirement that there be no migration for 10,000 years. Such strict requirements may be appropriate to protect USDWs and the environment from certain hazardous wastes, but such requirements were not established with CO2 injectate in mind.

Furthermore, if a facility were required to obtain a Class I UIC hazardous waste injection permit, all other waste management units at the facility couId be subject to the full extent of RCRA's Subtitle C corrective action program, which is an extremely costly and administratively complex program. Determining that CO2 constitutes a hazardous waste and subjecting CO2 injection and storage to the burdensome Class I well requirements would not promote underground injection and storage of CO2.

Response: The Agency acknowledges the commenter’s concerns over potential barriers to CCS deployment, and will consider these comments as it examines the issue of RCRA applicability to CO2 streams being geologically sequestered in a separate Agency action related to RCRA, already described above. The Agency recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23837

Comment: B. CONTINGENT MANAGEMENT

Materials already subject to another regulatory regime that will ensure environmentally protective management of wastes can be excluded from RCRA regulation under "contingent management," a practice EPA has applied in other

contexts.

In this Proposed Rule, EPA is proposing a framework it believes is appropriate to ensure environmentally protective management of injected CO2. The Agency makes clear that the extent of the UIC program limits the purpose of EPA's proposal to protection of USDWs; however, the Agency adds that it considers the risk of -'chronic and acute health effects from airborne exposure resulting from CO2 injection activities (even in the case of leakage or accidental exposure) is minimal."[FN41]

[FN41] Proposed Rule, 73 Fed. Reg. at pp. 43,497-98 (emphasis added).

EPA has applied the contingent management practice in cases where potential mismanagement scenarios are addressed under other regulation. With respect to the Proposed Rule, EPA has proposed measures that would limit potential effects on human health and the environment by ensuring that the injectate should remain contained within the injection zone. The contingent management practice has been upheld, with the court holding that where other appropriate management programs are in place. hazardous waste classification and regulation are not required.[FN42]

[FN42] See. e.g., Military Toxics Project v. EPA, 146 F. 36 948 (D.C. Cir.1998).

Response: As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. The Agency recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23838

Comment: C. CONDITIONAL EXCLUSION

If EPA considers that geologic sequestration of CO2 constitutes waste disposal that cannot be subject to exclusion from RCRA regulation under a contingent management theory, it should establish a conditional exclusion from RCRA regulation for geologic sequestration of CO2 injectate.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23688

Comment: EPA Request for Comment: Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit. EPA requests comment on particular situations where this might occur. EPA notice

43504.

AWWA Response: AWWA agrees with EPA’s assertion that the permits and well requirements need to be carefully structured to prevent "authorized" releases of hazardous substances into subsurface geologic formations. We are not aware of any situations where this might occur, as long as the injectate is properly characterized and is not classified as a hazardous substance. There may be a situation where a release of carbon dioxide from the confining layer might cause the formation of a hazardous substance due to reactions with the surrounding geologic strata. To prevent this problem from occurring, the geologiccharacteristics of the geologic formations should be evaluated prior to injection for potential interactions with the injectate stream. If there are indications that hazardous substances could be formed, the site should not be considered acceptable for carbon sequestration.

Response: EPA agrees that proper siting, operation, and monitoring are important for protecting USDWs from endangerment. In addition, the UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

EPA clarifies that, while the Administrator reserves the right to promulgate regulations designating additional substances as hazardous under §102 of CERCLA, EPA intends to avoid any potential overlap of SDWA and CERCLA authority through its comprehensive Class VI requirements.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Scott Davis Letter ID: 0187 Commenter Organization: Arizona Public Service Company Comment ID: 25220 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment); 5460 2.9.2 Comments on transfer of liability for long-term care

Comment: - The final rule must resolve several key policy and legal questions regarding underground injection of CO2, including but not limited to implications under the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), and limiting post injection liability.

Response: Under the final GS rule, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may besubject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA also clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: G. Graham Holden Letter ID: 0189 Commenter Organization: Oglethorpe Power Corporation Comment ID: 25250 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 6. EPA should define the way GS activities will relate to the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") 42 U.S. §§ 9601, et seq. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA (never intended for GS of CO2) are not applied to this highly specialized storage operation.7. Appropriately defining the relationship of GS activities with RCRA and CERCLA is critical to the commercial deployment of full scale GS projects and may require Congressional action.

Response: EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24323 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: D. RCRA/CERCLA Applicability

In light of the current uses and potential future uses of CO2 for EOR/EGR, EPA has taken a sensible approach by proposing to create a new Class VI well category based on the injection of the CO2 stream as fluid without characterizing that stream as a waste. It is neither necessary nor helpful to categorize CO2 as a pollutant or waste, and that would likely prove detrimental to technology development. Indeed, we are concerned that EPA’s brief discussion of a supposed potential for injected CO2 streams to be characterized as hazardous waste (or some type of hazardous release) are causing apprehension and could have a significant chilling effect on any future deployment of carbon capture and sequestration technologies. Through the work of our engineers and scientists with capture technologies and their extensive experience with the types of power plant flue gas likely to be sources of CO2 for sequestration, we do not believe that captured CO2 streams should trigger the application of either RCRA or CERCLA. Accordingly, we encourage EPA to dispel concerns that geologic sequestration could be encumbered with those requirements exceptpossibly through the commingling of a captured CO2 stream with an actual waste stream, and we are not suggesting that such commingling should be permissible in

the GS context.

Response: EPA thanks the commenter for their views on CCS, and notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24324

Comment: 1. RCRA Applicability

EPA’s Proposal suggests that injected CO2 may be considered hazardous waste for RCRA purposes, and defines "carbon dioxide stream" to exclude hazardous waste. 73 Fed. Reg. at 43503. The premise appears to be that CO2 is solid waste, and that a waste determination for such solid waste would turn on the specific composition of the CO2 in question. Id. Based on this premise, the preamble suggests that "EPA cannot make a categorical determination as to whether injected CO2 is hazardous waste under RCRA." Id.

In fact, there are important categorical determinations that EPA can and shouldmake with respect to the RCRA status of CO2. We urge EPA to make these

determinations as follows.

First, EPA should clarify that gas-phase CO2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.

The RCRA definition of "solid waste" does not include gaseous material unless it is "contained." RCRA 1004(27), 42 U.S.C. 6903(27). EPA has long taken the position that gasses do not qualify as "solid waste" under this definition unless they are "contained" in a cylinder or similar container. 54 Fed. Reg. 50968 at 50970, 50973 (December 11, 1989). It follows that gas-phase CO2 streams are not solid waste, are not subject to the waste determination requirements of 40 C.F.R. 262.11, and cannot be considered hazardous waste for RCRA purposes.

Second, EPA should clarify that supercritical CO2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.

Again, the RCRA definition of solid waste is limited to "solid, liquid, semisolid, or contained gaseous material." RCRA 1004(27). Because supercritical CO2 is none of these things; a plain reading of the statutory text suggests that supercritical CO2 should not be considered "solid waste." This reading of the statute makes sense, because RCRA is plainly aimed at the kind of material that could end up being dumped into a landfill. Uncontained supercritical CO2 is not such a material. Instead, the physical properties of supercritical CO2 are such that it would immediately vaporize - becoming an uncontained gas - before it could contribute to the contents of a landfill. A related practical

consideration is the fact that the hazardous characteristics - the broad waste determination criteria that provide a primary means for determining when solid waste is hazardous waste - are based largely on test methods that are inapplicable to materials such as supercritical CO2. In particular, the toxicity characteristic depends on test methods that can only be applied to materials that are solids or liquids at standard temperatures and pressures. This is unsurprising, because the toxicity characteristic was designed to assess the threat waste would have in a municipal landfill disposal scenario, a scenario that - as already discussed - is inherently inapplicable to uncontained supercritical CO2. Accordingly, it makes no legal, policy, or practical sense to treat uncontained supercritical CO2 as "solid waste" for RCRA purposes. EPA should therefore confirm that uncontained supercritical CO2 is not "solid waste" and is not subject to RCRA waste determination requirements.

It follows that a CO2 stream would only qualify as "solid waste" if it is actually in the form of a liquid (i.e., a liquid containing dissolved CO2). In such a case, the liquid would meet the statutory definition of "solid waste," the requirement to perform a RCRA waste determination would be triggered, and the familiar test methods for waste determinations could be applied.

Response: EPA thanks the commenter for their suggested clarifications on the applicability of RCRA to CO2 streams being geologically sequestered. As noted elsewhere, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that aregeologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24401 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: Rule Provision: 146.81(d) [Definition - Carbon dioxide stream]

Proposed CCS Group Recommendations: Carbon dioxide stream means carbon dioxide, IN ANY PHYSICAL STATE OR FORM, AND ANY ASSOCIATED substances derived from the that has been captured from an emission source (e.g., a power plant), plus

incidental associated substances derived from the source materials and the capture process, and any OR ITS PROCESSING, AND substances added to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.

Basis for CCS Group Comments: Source of CO2 is not an issue in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. Original text would have precluded injection of CO2 from some

sources.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs.

Although the GS regulation does not apply to the source of CO2 streams, the GS rule, at §146.82(a)(7)(iv), requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream because the concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

Commenter Name: Jeff W. Sheets Letter ID: 0192 Commenter Organization: ConocoPhillips Comment ID: 23899

Comment: RCRA- CO2 should only be considered to be RCRA hazardous if combined with a

RCRAlisted hazardous stream.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: John R. Baza Letter ID: 0193 Commenter Organization: Utah Division of Oil, Gas, and Mining Comment ID: 23916 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Waste Characterization

Injected CO2 is not and should not be considered a hazardous waste or regulated

under RCRA or CERCLA. It is assumed that RCRA or CERCLA wastes would be removed from the CO2 stream prior to injection.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Paul Pike Letter ID: 0198 Commenter Organization: Ameren Corporation Comment ID: 23945

Comment: RCRA Issues

Ameren is concerned that the CO2 stream being regulated under the Safe Drinking Water Act ("SDWA") may be wrongly classified under the Resource Conservation and Recovery Act ("RCRA"). It should be unnecessary to label CO2 a waste or a commodity for purposes of proposing and implementing UIC regulations for its injection and storage, because sites should be developed based on site-specific conditions. However, the preamble includes a discussion of whether injected CO2 may be a hazardous waste, thus perhaps implying the assumption that CO2 is asolid waste to begin with. The preamble states:

"Because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA." 73 Fed. Reg. at 43503

First, we do not believe that it is the within the jurisdiction of the SDWA to evaluate the nature of a material, or if a waste determine whether it is hazardous or not. Secondly if we assume, for purposes of argument, that CO2 is "discarded" and exhibits a hazardous waste characteristic when injected for long-term sequestration, there are compelling policy reasons to exclude such activities from RCRA regulation. Subjecting these injection operations to regulation under a Class I UIC hazardous waste injection permit could expose all other waste management units at the facility, including units that are in no way related to the injection operations, to all of RCRA’s Subtitle C corrective action program. This is because a Class I UIC hazardous waste injection permit is classified as a RCRA "permit by rule" under RCRA’s hazardous waste permit program. See 40 C.F.R. §§ 270.1(c)(1)(i) and 270.64. Facilities that have obtained a RCRA permit by rule for the operation of a Class I UIC hazardous waste injection well are potentially subject to the full scope of RCRA’s corrective action program for all solid waste management units located at the facility. See EPA RCRA/Superfund Hotline Monthly Summary, "Corrective Action for UIC Wells," 9502.1986(07) (April 1986). The specter of RCRA corrective action is a significant economic and practical obstacle for any facility considering whether to seek a permit for a new Class VI well, as facility-wide RCRA corrective action is an administratively complex and exceedingly expensive undertaking.

The imposition of facility-wide RCRA corrective action is unwarranted because any well receiving a permit under the UIC Program for CO2 GS will be, by definition, protective of USDWs. EPA’s RCRA program has established a legally sound process, referred to as "contingent management," for the exclusion of materials from hazardous waste regulation when such materials are already subject to an alternate regulatory regime that ensures the wastes are managed in an environmentally protective manner. As discussed below, where the potential for mismanagement of a waste is already adequately addressed by another regulatory regime -- as would be the case with the injection of CO2 under the Class VI UIC program -- regulation of such materials under the RCRA’s hazardous waste program is duplicative and unwarranted. EPA has successfully employed the contingent management concept in various contexts where the Agency determined that other regulatory regimes adequately addressed any potential mismanagement scenarios related to certain materials; examples include regulation of used oil, mixed radioactive/hazardous waste, and military munitions.

The D.C. Circuit has reviewed EPA's legal theory underlying the contingent management concept and found it to be a "permissible construction of the statute" -- namely, that the statutory definition of "hazardous waste" is predicated upon the risks posed by a solid waste when "improperly" managed;therefore, "where a waste might pose a hazard only under limited management scenarios, and other regulatory programs already address such scenarios, EPA is not required to classify a waste as hazardous waste subject to regulation under [RCRA] Subtitle C." Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir 1998) (emphasis added).Even if such operations were deemed subject to RCRA regulation, including a RCRA permit by rule, EPA could -- and should -- establish a conditional exclusion from RCRA regulation for CO2 GS operations. Such an exclusion would be legally justified, consistent with the Agency's past promulgation of conditional exclusion rules, and would make sound policy sense by removing a potentially significant regulatory barrier to the commercial development of CO2 GS operations.

Response: EPA agrees CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Under the final GS rule, owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well under 40 CFR Part 146 Subpart G. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Craig R. Walters Letter ID: 0200 Commenter Organization: Anadarko Petroleum Corporation Comment ID: 24634 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: Rule Provision: 146.81(d) [Definition - Carbon dioxide stream]

Anadarko Petroleum Corporation (APC) Comments: Carbon dioxide stream means carbon dioxide, WHICH WILL BE INJECTED IN ANY PHYSICAL STATE OR DISSOLVED,

AND ANY ASSOCIATED substances derived from the that has been captured from anemission source (e.g., a power plant), plus incidental associated substances derived from the source materials and the capture process, and any , ITS PROCESSING, OR substances added to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.

Rationale: Source of CO2 is not an issue in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. Original text would have precluded injection of CO2 from some sources.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs.

Although the GS regulation does not apply to the source of CO2 streams, the GS rule, at §146.82(a)(7)(iv), requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream because the concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Chris M. Hobson Letter ID: 0201 Commenter Organization: Southern Company Comment ID: 22158

Comment: Potential interaction with RCRA - Southern Company commends EPA for avoiding characterization of the CO2 stream to be injected into Class VI wells. See id. at 43503. We, however, are concerned with the Preamble's vague reference to potential interaction with the Resource Conservation and Recovery Act ("RCRA"). Id. EPA should pursue all available regulatory and legislative avenues to preclude applicability of RCRA to Class VI well operations. For example, EPA could make use of the established "contingent management" concept, which allows for the exclusion of certain materials from RCRA hazardous waste regulation when those materials are' adequately regulated under another environmental regime. The contingent management approach would allow EPA to sidestep any chilling effect that potential RCRA liability would have on CO2 GS operations under the UIC Program without jeopardizing protection of USDWs.Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. With respect to providing clarity on RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility. Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, owners or operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate is a RCRA hazardous waste. If so, injection may only occur in a Class I hazardous waste injection well.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Thomas Curtis Letter ID: 0204 Commenter Organization: American Water Works Association (AWWA) Comment ID: 22186 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: - Congress must address liability issues under CERCLA, RCRA and Natural Resource Damage Assessment before this technology is commercially deployable.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility.

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Comments related to congressional action are outside the scope of this rulemaking.

Commenter Name: Michael Stroben Letter ID: 0209Commenter Organization: Duke Energy Comment ID: 22680 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: RCRA AND CERCLA APPLICABILITY

To encourage adoption and use of the Class VI wells by the regulated community EPA must resolve policy and legal issues regarding the applicability of RCRA and CERCLA Regulation and liabilities to projects permitted and operated under the proposed rule. Subjecting any CO2 GS project to RCRA controls, and failure to adequately mitigate the potential for unlimited CERCLA liability will pose a serious obstacle to the commercial deployment of GS technology.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Michael Stroben Letter ID: 0209 Commenter Organization: Duke Energy Comment ID: 22681

Comment: Injection of CO2 into a Cass VI well should not be viewed as disposal of a waste subject to RCRA regulation. Alternative scenarios may involve temporary storage of a commodity, or containment of a material in an industrial process. If CO2 is deemed a waste under the rule, the current RCRA regulations and testing guidelines will need to be revised to address characterization of supercritical

fluids.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22692Comment: 1. EPA needs to categorically exclude CO2 specifically intended for geologic storage from the definition of RCRA hazardous waste.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility. Since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, owners or operators will need to characterize their CO2 stream as part of their permit application to determine if the injectate is a RCRA hazardous waste. If so, injection may only occur in a Class I hazardous waste injection well.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22704 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: #1: Potential Applicability of CFR 40 Part 261 (RCRA). (Ref: page 43503, Section I) In the preamble to the ANPR, EPA poses the question of whether injected CO2 might be considered a RCRA hazardous waste, but does not answer the question. Any ambiguity concerning the applicability of complex and expensive regulatory regimes such as RCRA and CERCLA will be a major disincentive to the development and deployment of CCS. Regulatory clarity and certainty are critical to companies facing multi-billion dollar investment decisions regarding gasification facilities and CO2 sequestration projects.

EPA should explicitly address these issues in the final rule and not leave open any implication that RCRA and CERCLA may or may not apply to CCS. The presence of low levels of hazardous contaminants in CO2 as a result of the carbon capture process should not limit the storage of the CO2 using Class VI wells, especially taking into account the diminimus risk of exposure associated with the disposition of CO2 into deep geological formations under the stringent controls required by this proposed regulation. We strongly recommend that EPA provide a categorical exclusion in this rulemaking, that CO2 streams that are specifically intended to be stored in geologic structures are not RCRA hazardous wastes. Such an exclusion would be analogous to the provision of 40 CFR §261.4(b)(5), which excludes drilling fluids, produced waters, and other wastes associated with the development, or production of crude oil, natural gas or geothermal energy, and therefore can be injected into Class II wells.Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22705

Comment: In terms of its approach, we recommend that EPA consider captured CO2 -- inclusive of transport, the injection facility and within injection wells -- as material that constitutes a stream that is contained within a process and therefore, not a solid waste. Within this scope, protection of health and the environment will be provided by controls required under other regulatory domains

such as OSHA and NESHAPS.

For purposes of evaluating the potential RCRA status of the captured CO2 that may be injected in Class VI wells, the CO2 streams trigger none of the RCRA hazardous waste criteria. Specifically, captured CO2 is not a "listed" hazardous waste as set forth in 40 C.F.R. §261.31 - .35, nor is it "characteristically" hazardous pursuant to 40 C.F.R. § 261.20 - .24. It is neither "ignitable" nor "corrosive", and the TCLP test used to determine whether a waste is characteristically "toxic" cannot be used on the supercritical liquid CO2 stream. In any event, the level of trace contaminants in the CO2 is so low that TCLP levels are not even approached when measured on an absolute concentration basis. Next, the CO2 stream is not "reactive," since the injected CO2 stream will not generate toxic gases in a quantity sufficient to present a danger to human health or the environment. For example, the levels of hydrogen sulfide likely to be present in the CO2 stream (generally less than 0.3%) are an order of magnitude less than those typically present in the "acid gas" that is widely injected into Class II underground injection wells in the U.S., which have an average hydrogen sulfide concentration of approximately 40%. See Kleweki (Cadmus Group), Kobelski (U.S. EPA), Karimjee (U.S. EPA), and Sham (Cadmus Group): AcidGas Injection In The United States (Presentation on May 8, 2006 at the Fifth Annual Conference On Carbon Capture & Sequestration). U.S. EPA continues to encourage the underground injection of "acid gas" streams, recently including such a requirement in a proposed consent decree that would resolve an enforcement case brought under the Clean Air Act. U.S. v. Merit Energy Company, Civil Action No. 1:08-CV-917 (W.D. Mich.), proposed Consent Decree lodged on September 30, 2008 (73 Fed. Reg. 58267 (Oct. 6, 2008) (U.S. EPA’s October 1, 2008 press release in this matter stated that the underground injection of the acid gas would result in "zero sulfur dioxide emissions.")

EPA should take into account the specific disposition of the CO2 that the ruling is focused on (i.e., deep underground storage). A well permitted under this rule will be protective of underground sources of drinking water. The minimum depth of injection required to maintain CO2 in a supercritical state is approximately 2,500 feet. This, in conjunction with the controls and safeguards required by this rule throughout the injection and post-injection period, will ensure that CO2 injected into a Class VI well poses de minimus risk. There is very little likelihood for hazardous constituents to be released where they would pose a risk to human health or the environment. (See, e.g., Final Risk Assessment for the FutureGen Project Environmental Impact Statement, DOE, April, 2007)

Finally, much higher H2S levels than will be used in CCS have been successfully and safely used for EOR injection with Class II wells. For example, in Canada, there are 45 ongoing projects where high levels (up to 68%) of H2S in CO2 are being injected into saline aquifers or producing oilfields [1,2,3] for disposal purposes. These combined gas streams of H2S and CO2 are commonly referred to as acid gas and originate from purification of sour natural gas, are highly toxic and in some cases of high concentration, flammable. These projects have been studied in detail and their success is well documented [3,4]. In addition, there have never been any significant safety incidents reported, since the start of the first injection of acid gas into a depleted oil reservoir on the outskirts of the city of Edmonton, Alberta in the early 1990’s. Nor have there ever been any reports of leakage of H2S from these operations [4].

Accordingly, EPA has sufficient information now to conclude that captured CO2 streams are not RCRA hazardous wastes and do not pose greater risks that many streams than are already being routinely injected in Class II and other UIC wells as non-hazardous wastes. Indeed, to conclude otherwise would create the nonsensical result of suggesting that sequestering a material in deep geological formations poses more hazards than emitting it into the air. It is very important that EPA make this determination as soon as possible to remove the implication that CCS might be subject to RCRA regulation, an implication that would be extremely damaging to the future of CCS, and to the goal of significantly reducing the carbon footprint of the nation’s energy sector.

1 Keushnig, H. (1995); Hydrogen sulfide -- if you don’t like it, put it back. J. Canadian Petroleum Technology. 34: 18-20.

2 Longworth, H.L., G.C. Dunn, M. Semchuck (1996); Underground disposal of acid gas in Alberta, Canada: Regulatory concerns and case histories. SPE 35584. pg181-192.

3 Bachu, S., K. Haug (2005) In situ characteristics of acid-gas injection operations in the Alberta Basin, Western Canada: Demonstration of CO2 geological storage. in Carbon Dioxide for Storage in Deep Geological Formations. Vol. 3. ed. D.C. Thomas, S.M. Benson. Elsevier Ltd. pg 867-876.

4 Bachu, S., W.D. Gunter; Overview of Acid-Gas Injection Operations in Western Canada. In Proceedings of 7th International Conference on Greenhouse Gas Control Technologies. Volume 1: Peer-Reviewed Papers and Plenary Presentations (E.S. Rubin, D.W. Keith and C.F. Gilboy, ed.), IEA Greenhouse Gas Programme, Cheltenham, UK, 2005.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA supports the use of CO2 capture technologies that minimize impurities in the CO2 stream. However, the GS rule does not apply to CO2 sources.

Commenter Name: John King Letter ID: 0211 Commenter Organization: Shell Exploration and Production Company (SEPCo) Comment ID:

22754

Comment: - Relationships with other Environmental Laws:

- EPA should clarify that gas-phase CO2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.

- EPA should clarify that supercritical CO2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VIwells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: John King Letter ID: 0211 Commenter Organization: Shell Exploration and Production Company (SEPCo) Comment ID:

22763

Comment: G. RCRA

SEPCO agrees with the concept that Class VI wells should not be injecting hazardous wastes but is proposing some modifications to EPA’s definition of CO2

stream in the rule. The modifications reflect the fact that the source of CO2 should not be a factor in the context of defining the CO2 stream. The rule applies to the injection of CO2 and should not address the origins of the materials since that is beyond the scope of this regulation. The original text would have precluded injection of CO2 from some sources. SEPCo contends that the question of how CO2 should be accounted for in a GHG management and accounting system is beyond the scope of this regulation. More to the issue of "impurities", SEPCO objects to any mandated purity standards for CO2. The inclusion of impurities in stored CO2 should not be arbitrarily prohibited; however, it is recognized that the presence of those impurities at sufficient concentrations may trigger the applicability of other statutory limits or requirements. Determining the type and levels of impurities in the CO2 stream is - absent a compelling public or environmental health risk - best left to contractual negotiations between partners in a CCS value chain as opposed to an arbitrary regulatory determination. The contracting parties are best able to evaluate the types of impurities, their compatibility with the reservoir and equipment, and determine the acceptable levels of those impurities in the stored CO2. To the extent that there is an overriding public interest in limiting thetype or level of contaminants, principles of cost-effectiveness and riskmanagement should guide the decision making process.

With specific respect to RCRA, SEPCo is concerned that EPA’s brief discussion of a supposed potential for injected CO2 streams to be characterized as hazardous waste (or some type of hazardous release) could have a significant chilling effect on the deployment of CO2 capture and sequestration technologies. Based on the work of our engineers and scientists with capture technologies and their extensive experience with the types of power plant flue gas likely to be sources of CO2 for sequestration, we do not believe that captured CO2 streams should trigger the application of RCRA. In addition, EPA’s Proposal suggests that injected CO2 may be considered hazardous waste for RCRA purposes, and defines "carbon dioxide stream" to exclude hazardous waste. 73 Fed. Reg. at 43503. The premise appears to be that CO2 is solid waste, and that a waste determination for such solid waste would turn on the specific composition of the CO2 in question. Id. Based on this premise, the preamble suggests, "EPA cannot make a categorical determination as to whether injected CO2 is hazardous waste under

RCRA." Id.

Rationale:The RCRA definition of "solid waste" does not include gaseous material unless it is "contained." RCRA 1004(27), 42 U.S.C. 6903(27). EPA has long taken the position that gasses do not qualify as "solid waste" under this definition unless they are "contained" in a cylinder or similar container. 54 Fed. Reg. 50968 at 50970, 50973 (December 11, 1989). It follows that gas-phase CO2 streams are not solid waste, are not subject to the waste determination requirements of 40 C.F.R. 262.11, and cannot be considered hazardous waste for RCRA purposes.

The RCRA definition of solid waste is limited to "solid, liquid, semi-solid, or contained gaseous material." RCRA 1004(27). Because supercritical CO2 is none of these things; a plain reading of the statutory text suggests that supercritical CO2 should not be considered "solid waste." This reading of the statute makes sense, because RCRA is plainly aimed at the kind of material that could end up being dumped into a landfill. Uncontained supercritical CO2 is not such a material. Instead, the physical properties of supercritical CO2 are such that it would immediately vaporize -- becoming an uncontained gas -- before it could contribute to the contents of a landfill. A related practical consideration is

the fact that the hazardous characteristics -- the broad waste determination criteria that provide a primary means for determining when solid waste is hazardous waste -- are based largely on test methods that are inapplicable to materials such as supercritical CO2. In particular, the toxicity characteristic depends on test methods that can only be applied to materials that are solids or liquids at standard temperatures and pressures. This is unsurprising, because the toxicity characteristic was designed to assess the threat waste would have in a municipal landfill disposal scenario, a scenario that -- as already discussed -- is inherently inapplicable to supercritical CO2. Accordingly, it makes no legal, policy, or practical sense to treat uncontained supercritical CO2 as "solid waste" for RCRA purposes. EPA should therefore confirm that uncontained supercritical CO2 is not "solid waste" and is not subject to RCRA waste determination requirements.

It follows that a CO2 stream would only qualify as "solid waste" if it is actually in the form of a liquid (i.e., a liquid containing dissolved CO2). In such a case, the liquid would meet the statutory definition of "solid waste," the requirement to perform a RCRA waste determination would be triggered, and the familiar test methods for waste determinations could be applied.

Recommendations:

There are important categorical determinations that EPA can and should make with respect to the RCRA status of CO2. SEPCo recommends the following:

1. EPA should clarify that gas-phase CO2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.

2. EPA should clarify that supercritical CO2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.

3. In order to more clearly illustrate the actual risks of CO2 transport and storage, EPA should work to dispel concerns that geologic sequestration could beencumbered with those requirements except possibly through the commingling of a captured CO2 stream with an actual waste stream.

Response: With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Paul L. Carpinone Letter ID: 0212 Commenter Organization: Tampa Electric Company Comment ID: 22897 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking; 1640 1.3.4 CERCLA issues (seeking comment)

Comment: This rulemaking can resolve some important policy and legal issues and, in doing so, help foster the development of a practical, commercially deployable CCS regulatory program. For example, the Final Rule can provide much needed clarity regarding (1) the potential for liability under the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") resulting from CO2 injection and GS activities, and (2) the options for addressing long-term post-injection liability for Class VI wells. As discussed below, there are practical regulatory and legislative options available to resolve these uncertainties that will help assure the public and the regulated community that CO2 UIC activities can be

conducted in a manner that is both safe and effective.

Response: EPA agrees that regulatory clarity is important. With respect to RCRA and need for regulatory clarity, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Paul L. Carpinone Letter ID: 0212 Commenter Organization: Tampa Electric Company Comment ID: 22903Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Issues that must be addressed include the interaction of RCRA and CERCLA with Class VI injection activities as well as long-term post-injection liability.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Additionally, while CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health ofpersons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Paul L. Carpinone Letter ID: 0212 Commenter Organization: Tampa Electric Company Comment ID: 22907

Comment: - In discussing the potential applicability of RCRA's hazardous waste rules to Class VI CO2 injection activities, EPA prematurely assumes that the CO2 is being "discarded" and is a solid waste under RCRA. To the extent there is any possibility that CO2 injection operations could be subject to RCRA controls, EPA should exempt such activities from RCRA regulation under the well-established "contingent management" concept, particularly given that the UIC permit will ensure that the injected material is not mismanaged.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Dennis R. James Letter ID: 0214 Commenter Organization: North American Coal Corporation (NAC) Comment ID: 22961 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: I. Is Injected CO2 Considered a Hazardous Waste Under RCRA?

J. Is Injected CO2 Considered a Hazardous Substance Under CERCLA?

Both RCRA and CERCLA are written to deal with hazardous wastes and pollutants at or near the surface where they can interact with our biosphere. Geologic sequestration of CO2 is, by definition, not impacting the biosphere. Therefore, these rules should not apply to the injection of CO2 and associated compounds.

The chemical environment of deep saline aquifers or deleted oil and gasreservoirs will be very different from that at the surface. For example, hydrogen sulfide (H2S) is a very toxic and hazardous substance in the biosphere. However, it commonly occurs in formations at depth as a normal, naturally occurring constituent that causes no harm. Thus, the presence of H2S in a CO2 stream may not only be non-hazardous upon injection but beneficial; it could make the injected gas chemically more compatible with the target formation’s natural environment. It is more important to consider the impacts of injected CO2 and associated substances on the target formation’s environment. Therefore, injected CO2 should not be considered a hazardous waste under RCRA or a

hazardous substance under CERCLA.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Ronald Evans Letter ID: 0215 Commenter Organization: Denbury Resources, Inc. (DRI) Comment ID: 24285 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: III. ANY FINAL RULE MUST CLEARLY ADDRESS POTENTIAL EXPOSURE

UNDER RCRA AND

CERCLA

EPA can and should simultaneously protect underground sources of drinking water and promote the capture of carbon dioxide. Its strategy in both areas should be crafted to avoid unintended consequences. EPA’s goal in this rulemaking shouldbe to fulfill its obligations to protect the nation’s USDWs from both naturallyoccurring and man-made contaminants, while at the same time promoting progress towards successful commercial-scale carbon capture and storage in order to address broader environmental protection concerns.If EPA is going to address these broader concerns by establishing a framework for the injection and sequestration of CO2 in addition to the incidental storage that occurs in EOR activities, it must address potentially limitless liability under other statutes that EPA administers, including CERCLA [FN40] and RCRA [FN41]. Liability under these statutes would act as a strong deterrent to the development of CCS.

Regulated industry has learned a great deal in the last 30 years regarding environmental liability. When Congress passed CERCLA, it imposed joint and several liability on landowners, transporters, and generators of hazardous substances and it made that liability retroactive. Most recently, the Supreme Court, in Massachusetts v. EPA, 549 U.S. 497 (2007), recognized that the Clean Air Act ("CAA"), with its "capacious" definition of air pollutant, could be used to regulate substances (in this case, CO2) which Congress appeared to not intend to regulate and whose regulation under many provisions of the CAA (i.e., the NAAQS) is awkward at best. One lesson from these statutes and the Courts’ interpretation is that regulated industry cannot underestimate its potential liability for pollution, irrespective of its compliance with current regulations and irrespective of the magnitude of its role in the waste disposal process.

Accordingly, as EPA attempts to promote efforts to reduce anthropogenic CO2 emissions, it faces an ever more cautious regulated community. We urge EPA to take determined steps to provide regulatory clarity as to compliance obligations and potential for liability.

[40] Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675.

[41] Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901-6992k.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLAsection 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Ronald Evans Letter ID: 0215 Commenter Organization: Denbury Resources, Inc. (DRI) Comment ID: 24286

Comment: A. EPA Should Ensure Clarity Regarding the Possible Coverage of CCS under RCRA

Regarding RCRA, in Section 2.I of the proposal, EPA considers whether the CO2 stream is a hazardous waste. It notes that the composition of a particular CO2 stream will depend on the source of CO2, the flue gas scrubbing technology, additives, and the CO2 capture technology. EPA concludes that it cannot make a "categorical determination" as to whether injected CO2 is hazardous under RCRA. Such a determination must be made by owners and operators, however, and a positive finding would mean that the well would be subject to UIC Class I requirements. Thus, EPA’s failure to resolve this issue could inhibit permitting of wells under the proposed new Class VI regime.

The Proposed Rule asserts that its design changes are meant to address the mobility and corrosivity caused by long term geologic sequestration of CO2, and not the long term storage of hazardous wastes. EPA seeks comment on its

definition of "carbon dioxide stream" to exclude hazardous wastes:

"Carbon dioxide stream means carbon dioxide that has been captured from an emission source (e.g., a power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part

261."

Using its authority under RCRA, EPA has previously excluded certain substances from coverage under 40 C.F.R. § 261.2. CO2 is not excluded under this section, but it is also not specifically included as a hazardous substance under 40 C.F.R. § 261.3. Thus, the status of CO2 under RCRA remains a concern.

A determination that CCS activities are subject to RCRA would subject those activities to stringent handling, storage, and disposal procedures above what would be required by the Proposed Rule (except with regard to the post-closure period for financial responsibility, which, at 30 years, would be less demanding than the proposed 50 year term for a Class VI well). Such a finding would serve to inhibit the development and adoption of CCS, to the frustration of EPA’s larger efforts to reduce CO2 emissions.

Denbury sets out this basic information only to introduce its specific responses to EPA’s statements and request for comment in the proposed rule. RCRA defines solid waste to include "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial . . . operations." 42 U.S.C. § 6903(27). EPA should clarify that injected CO2 in the form of asupercritical fluid does not fall within the definition of a solid waste because it is neither a liquid nor a contained gaseous material. Moreover, any CO2 supply that is acquired for value for use in EOR or EGR activities should be explicitly excluded as it would not be "discarded" at all, but sold for valuable consideration. Were CO2 to not be a solid waste, it would not be subject to RCRA’s waste determination provisions. Only in those cases where the CO2 stream is in the form of a liquid (which it would not be, at pipeline or reservoir conditions) would it be subject to these provisions.

Using authority granted by RCRA § 3001, EPA has exempted from RCRA’s definition of solid waste certain low-toxicity wastes that exist in high-volumes, including domestic sewage, mining wastes, and certain nuclear materials, when those materials are covered by other laws. Similarly, EPA should consider its comprehensive regulation of CCS under the UIC permitting provisions to be a sufficient reason to exempt injected supercritical CO2 from RCRA’s coverage as a solid waste even where it cannot be sold and used for EOR operations.

Even if EPA decides not to exclude or exempt injected supercritical CO2 from the definition of solid waste, EPA could and should exempt injected CO2 from the

definition of hazardous waste. A hazardous waste under RCRA is a solid waste that, because of its "quantity, concentration, or physical, chemical, or infectious characteristics" may pose a substantial present or potential hazard to human health or the environment. 42 U.S.C. § 6903(5). Hazardous wastes can be specifically listed by EPA, have hazardous characteristics (such as corrosivity, reactivity, etc), be mixed with a listed waste, or be derived from a listed waste. In the proposed rule, EPA raises the spectre that the injection of CO2 in conjunction with hazardous components could cause it to be considered a hazardous waste. Because CO2 storage will be closely regulated under the proposed rule, EPA should exempt stored CO2 from the definition of hazardous waste, as it has done for wastes associated with the exploration, development, and production of crude oil, natural gas, and geothermal energy. See Regulatory Determination for Oil and Gas and Geothermal Exploration, Development, and Production Wastes, 53 Fed. Reg. 25,446 (July 6, 1988).

Even if at present EPA does not foresee bringing an enforcement action for CCS activities, it is important for EPA to exempt CCS activities from RCRA’s definition of solid and hazardous waste to foreclose the availability of a citizen suit under section 7002, brought, perhaps by anti-CCS activists, and the maintenance of which would irreversibly chill CCS projects.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VIwells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs. EPA adds that promoting the use of GS is outside the scope of the GS rule.

Commenter Name: Barbara Walz Letter ID: 0216 Commenter Organization: Tri-State Generation and Transmission Association,

Inc. Comment ID:

22974 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: As the GAO report cautions, EPA must resolve key policy and legal uncertainties including the interaction of the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act(CERCLA) with Class VI injection activities and the specter of long-term postinjection liability -to alleviate financial concerns of potential Class VI well owners or operators, and to encourage investment in the development and operation of Class VI CO2 injection wells. Tri-State recognizes that Congressional action may be needed to clear these hurdles standing in the way of commercial deployment of full-scale geologic sequestration projects.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.Commenter Name: Barbara Walz Letter ID: 0216 Commenter Organization: Tri-State Generation and Transmission Association,

Inc. Comment ID:

22975

Comment: In discussing the potential applicability of RCRA's hazardous waste rules to Class VI CO2 injection activities, EPA prematurely assumes that the CO2 is being "discarded" and thus is a solid waste under RCRA. Currently, CO2 is a valuable commodity that is used in a variety of manufacturing processes and it is too early for EPA to summarily conclude -especially given technological advancements that will likely be made in the coming years -that CO2 materials managed in Class VI wells will be permanently discarded. Tri-State believes that EPA should specifically exempt CO2 gas streams from coverage by RCRA, and develop requirements specifically tailored to this material if necessary to assure further environmental protection beyond that already provided by the UIC permitting process. To the extent there is any possibility that CO2 injection operations could be subject to RCRA controls, EPA should exempt such activities from RCRA's corrective action program under the well-established "contingent management" concept, particularly given that the UIC permit will ensure that the injected material is not mismanaged. EPA should take steps in the final rule to

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Olon Plunk Letter ID: 0217 Commenter Organization: Xcel Energy, Inc. Comment ID: 21552 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: In their comments regarding the proposed rule, both the Edison Electric Institute (EEI) and the Utility Solid Waste Activity Group (USWAG) present well articulated concerns regarding the legal and regulatory issues that could arise from the inappropriate treatment of captured CO2 within the context of the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation and Liability Act. Both groups describe potential solutions to this issue; Xcel Energy endorses these comments and suggested

solutions.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VIwells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

For additional information, please see EPA's responses to specific comments by Edison Electric Institute and the Utility Solid Waste Activity Group.

Commenter Name: Edward Steadman Letter ID: 0220 Commenter Organization: The Energy and Environmental Research Center at the University of North Dakota Comment ID:

21608

Comment: Page 43503. H. Is Injected CO2 Considered a Hazardous Waste under RCRA?

No. CO2 should not be considered a hazardous waste under RCRA.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Darrick Eugene Letter ID: 0223 Commenter Organization: Texas Carbon Capture and Storage Association Comment ID: 23956 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Point #1: The lack of clarification of the CO2 injectate stream which could leadto the stream being considered a waste. We recognize and salute EPA's attempt to avoid labeling CO2 injection as waste injection. Nevertheless, by tracking closely the Class I rules for the injection of hazardous waste (see AttachmentA), the Proposed Rule appears to treat CO2 as a waste. It will be difficult for geologic storage to move forward on this basis.

Also, in choosing not to state a composition specification minimum for CO2, the EPA opens the door to having the CO2 injectate stream declared a waste. We feel that is a serious weakness, compelling a regulatory approach for a worst-case injectate composition stream, and providing a basis for additional regulation under the Resources Conservation and Recovery Act (RCRA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The failure to define the composition specification minimum for CO2 contributes to the overly protective approach of the EPA to the geologic storage of CO2. The EPA should address this concern by specifically excluding injected supercritical CO2 for geologic storage from regulation under both RCRA and CERCLA similar to what has been done for wastes associated with the exploration, development and production of crude oil, natural gas and geothermal energy under RCRA [FN2]

2 See Regulatory Determination for Oil and Gas and Geothermal Exploration, Development, and Production Wastes; Regulatory Determination, 53 Fed. Reg. 25445 (July 6, 1988)

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). The GS rule, however, addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.Commenter Name: Andrew Duguid Letter ID: 0226 Commenter Organization: Schlumberger Carbon Services Comment ID: 24001 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 2. Now that the EPA has introduced the topics of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) we urge the EPA to clarify the roles of both with respect to CO2 injection under the UIC program.

Response: EPA received many comments regarding the need for clarity with respect to RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Andrew Duguid Letter ID: 0226 Commenter Organization: Schlumberger Carbon Services Comment ID: 24002

Comment: Schlumberger supports the EPA in defining the injected CO2 stream to exclude hazardous wastes. We feel that this definition implies that CO2 itself is not a hazardous waste under RCRA and that the injected CO2 stream can only be considered a hazardous waste if it is mixed with

another hazardous waste.

Schlumberger feels that supercritical and gaseous CO2 do not fit the definition of solid waste under RCRA which is limited to "solid, liquid, semisolid, and contained gaseous materials" and are therefore not regulated under RCRA. We encourage the EPA to explore this possibility and if in agreement, to adopt and espouse this position in the preamble for the final rule. We further feel that EPA should specify that uncontainerized supercritical CO2, like that at injected for CCS, is not solid waste and therefore not subject to RCRA waste determination requirements.Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Neeraj Gupta Letter ID: 0229 Commenter Organization: Battelle Energy Technology (BET) Comment ID: 21827 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: Page 54 CO2 Composition Requirements and Hazardous Waste under RCRA- While we agree some chemical impurities may cause CO2 to be designated hazardous waste, there must be more clear guidance on this issue. In the MRCSP tests, each regulatory agency had different requirements on this issue injectate composition and analysis, even for commercial CO2. One agency required injection to cease if the injectate was above any maximum contaminant level (MCL) for groundwater, which is a large list of chemicals. Another state agency asked for some technically infeasible analyses on the CO2 stream (pH, Fluouride, Mercury). Some impurities like H2S and hydrocarbons are naturally occurring in most deep saline formations anyway, so we would discourage setting limits on these items. Another significant aspect is the composition of CO2 derived from various industrial, power generation, and capture processes. All of these are likely to result in minor differences in chemical compositions. In most cases the concentration of hazardous impurities is likely to be very low. The incremental environmental impact of these minor or trace impurities in deep formations that already have brine and will have CO2 must be demonstrated before these are excluded from the Class VI injection wells. EPA is encouraged to evaluate the range of potential impurities from various streams, their environmental impact if any, and provide more specific guidance on this topic. The evaluation should also assess how many of the GS projects could become infeasible due to this requirement. Finally, EPA should clarify whether CO2 streams with RCRA level of impurities can be injected under Class I permits.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment periodfor that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Since the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Commenter Name: Michael E. Moore Letter ID: 0232 Commenter Organization: Blue Source Comment ID: 21896 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment); 2046 1.5.2.3 Continuing to classify CO2 injection for EOR/EGR as Class II/ dividing line between Class II and Class VI (seeking comment)

Comment: II. Specific Comments on the Proposed Regulations

a. Background

Blue Source’s comments here are focused on a narrow, but critical, aspect of EPA’s proposal - namely, whether CO2-EOR operators should have the option of participating in EPA’s forthcoming CCS regulatory scheme. [FN1]

[FN1: We believe that adoption of our comments is a necessary component of ensuring that CO2-EOR flourishes as CCS, but other steps need to be taken, too. For example, we also believe that EPA needs to ensure that carbon dioxide is not regulated as a hazardous waste or substance under statutes such as RCRA and CERCLA during storage operations; in a future rulemaking EPA perhaps could do so by expanding current exemptions which apply to oil & gas operations to include "storage" operations.]

Response: EPA clarifies that the Class VI GS rule is designed to ensure the protection of USDWs from endangerment, and does not aim to promote GS deployment.EPA notes that the GS rule is not promulgated under the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The Agency acknowledges the commenter's concerns regarding the scope and possible impacts of CERCLA liability on CCS activities, however EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply.

EPA adds that, if it develops regulations in the future, stakeholders will be provided opportunity for public comment.

Commenter Name: M. Granger Morgan Letter ID: 0233 Commenter Organization: Carnegie Mellon University on behalf of the CCS Reg Project Comment ID:

21917 Other EPA Comment Codes and Descriptions: 1210 1.1.1 Comments about the proposed rule

Comment: 25. Perverse incentives: The stringency of the Class VI rules (relative to the other UIC well classes) may create perverse incentives. For example, an operator could add hydrogen sulfide to the carbon dioxide stream and then seek a Class I permit with less stringent area of review, monitoring, post-injection and closure requirements than a Class VI permit. Thus, EPA should review the requirements and applicability of Class I wells in conjunction with the proposed rulemaking for Class VI wells.

Response: EPA disagrees with this comment and does not anticipate this type of scenario will take place because under the final GS rule, owners or operators must determine whether the CO2 stream is hazardous under EPA’s RCRA regulations; If so, any injection of the hazardous CO2 stream mayonly occur in a Class I hazardous waste injection well under 40 CFR Part 146 Subpart G. For Class I hazardous wells, owners or operators are required under 40 CFR 286.6 to demonstrate, to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous or for 10,000 years via a fluid flow no migration petition. EPA anticipates that this may be very difficult to demonstrate for long-term storage of CO2 at anticipated volumes. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream). EPA received many comments related to RCRA applicability to GS sites and has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

EPA adds that revising the requirements for other classes of wells is outside the scope of the GS rulemaking.

Commenter Name: Steven B. Corneli Letter ID: 0234 Commenter Organization: NRG Energy, Inc. Comment ID: 23173

Comment: RCRA Applicability

The preamble of the proposed rule suggests that CO2 injected for GS projects may be considered hazardous waste for RCRA purposes. 73 Fed. Reg. at 43503. EPA’s brief discussion of the potential for injected CO2 streams to be characterized as hazardous waste are causing concern among the electric power industry and could have an effect on the future development of carbon capture and sequestration projects. The premise that CO2 could be characterized as a hazardous waste would likely prove detrimental to project development. The RCRA definition of "solid waste" is limited to "solid, liquid, semi-solid, or contained gaseous material." RCRA 1004(27). Because the gas and liquid (supercritical) phases involved in GS do not meet this definition, reading of federal law would suggests that the CO2 stream for GS should not be considered a "solid waste". EPA should clarify that the gas and liquid phases of the CO2 stream is not a solid or hazardous waste for RCRA purposes and therefore not subject to RCRA waste determination requirements.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.Furthermore, EPA disagrees that the Class VI requirements themselves, necessarily have any implications for whether a particular material is a RCRA “solid waste” or implicates CERCLA liability, as EPA understands the comment to suggest. EPA notes that the GS rule is not promulgated under either of those statues, and further, the applicability of those statutes will not be determined under the SDW or the terms of the GS rule, but rather according to those statues themselves and any implementing regulations may apply.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Abbie Krebsbach Letter ID: 0235 Commenter Organization: Montana-Dakota Utilities Co. Comment ID: 23180

Comment: CO2 Not to Be Considered a Hazardous Waste

Montana-Dakota believes it is critical that any regulation under the UIC program does not unnecessarily characterize CO2 as a waste, pollutant or contaminant or otherwise unduly stigmatize the injection and GS of CO2. While it is appropriate to consider the actual characteristics of CO2 and tailor regulations accordingly, unwarranted characterization of CO2 as a hazardous waste, for example, should be

avoided.

Response: The GS rule does not address the status of CO2 as a pollutant or commodity. While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well and lead to

contamination.

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

Commenter Name: Abbie Krebsbach Letter ID: 0235 Commenter Organization: Montana-Dakota Utilities Co. Comment ID: 23192 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Other Law Implications

Montana-Dakota urges EPA to evaluate carefully any proposed treatment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA), or other laws, that it may beconsidering under the Class VI regulations to ensure that any such treatment is necessary and does not serve as an unintended springboard for hampering the successful commercialization of CCS. Unless CO2 is categorized as a commodity, and not as a waste, there could be significant complications in implementing C02 GS projects.

Once a material is deemed to be a solid waste, an additional set of parameters applies to determine whether that substance is also a hazardous waste and thus subject to further regulation. Montana-Dakota recommends that EPA examine an approach to determining that CCS activities which meet UIC permit requirements are not equated to discarding the CO2. Identifying CO2 as a waste could limit the use of stored CO2 in any potential future applications.

The EPA jumps to an unnecessary and potentially confusing discussion in the preamble of whether injected CO2 may be a hazardous waste, potentially implying that CO2 is a solid waste to begin with. Montana-Dakota recommends that any characterization of potentially hazardous constituents in CO2 injectate may be addressed, possibly through Toxicity Characteristic Leaching Procedures, as part of the UIC permitting process without addressing any potential RCRA jurisdictional issues. This should be examined further by EPA in regard to both RCRA and CERCLA implications.

Response: As described above, the GS rule does not affect the regulatory status of CO2 under RCRA. Furthermore, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

Commenter Name: Robert E. Carter Jr. Letter ID: 0236 Commenter Organization: Indiana Department of Natural Resources (IDNR) Comment ID: 23204 Other EPA Comment Codes and Descriptions: 1680 1.3.8 Don't overstate risk, don't stigmatize

CO2

Comment: Section II-What Is EPA Proposing? Subsection I -Is Injected CO2 Considered a Hazardous Waste Under RCRA ?

Comment: EPA has attempted to address this very important consideration by defining "carbon dioxide stream" in the proposed rule in such a way that those CO2 streams which exhibit hazardous characteristics would not be permitted under the proposed Class VI well classification but rather must be permitted and regulated as Class I wells instead. We are in agreement with those who believe that although captured C02 will contain some impurities, in those rare instances where concentrations could potentially be viewed as exhibiting RCRA hazardous characteristics, such impurities should be able to be removed by appropriate treatment methods prior to their storage in underground formations. While it is not possible to ignore the obligations and liabilities of waste generators underRCRA, any perception that CO2 streams could exhibit these characteristics and therefore require their management as hazardous wastes would have a very chilling effect on the widespread deployment of CCS and GS operations. We would prefer that instead of referring to CO2 streams as "waste", they should be viewed as an important resource to be managed accordingly.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities.

With respect to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Angie Burckhalter Letter ID: 0239 Commenter Organization: Oklahoma Independent Petroleum Association Comment ID: 23214 Other EPA Comment Codes and Descriptions: 1680 1.3.8 Don't overstate risk, don't stigmatize

CO2

Comment: EPA has proposed to regulate CO2 as a waste and has proposed regulations that are as stringent as or more stringent than EPA’s requirements for Class I hazardous waste wells. We think treating CO2 as a waste is the wrong approach as it will unnecessarily open up unwarranted concerns, increased burdens and costs, and liability issues associated with the use of CO2 in EOR projects. In addition, it will prevent or discourage entities from proceeding with projects to store CO2 in underground formations or convert depleted Class II EOR wells to Class VI CO2 storage wells. We encourage EPA to not consider CO2 as a waste product.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. Secondly, EPA disagrees that the Class VI requirements themselves, or EPA’s consideration of the Class I requirements, necessarily have any implications for whether a particular material is a RCRA “solid waste” or implicates CERCLA liability, as EPA understands the comment to suggest. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VIwells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

EPA adds that encouraging the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Mark Bohrer Letter ID: 0241 Commenter Organization: North Dakota Industrial Commission Comment ID: 23228 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: 7. By defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)), EPA’s rule, if finalized, assures that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, EPA’s proposed rule would preclude the injection of hazardous wastes in Class VI injection wells. EPA seeks comment on this approach and other considerations associated with the presence of "impurities" in the CO2 stream. EPA Notice

43503.

The presence of certain hazardous wastes should not preclude the overall carbon dioxide stream from injection into a sequestration zone. The process of removing the carbon dioxide and making it suitable for transportation and injection should render it relatively pure. The presence of impurities can be dealt with at a specific source and the overall waste stream certified for injection. If the well construction and geologic setting is suitable to confine the carbon dioxide stream and prevent its migration into a USDW, then certain impurities and/or hazardous wastes should be allowed.

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies. For this reason, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces

or the dissolution of formation minerals.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible optionof a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Kevin Wanttaja Letter ID: 0248 Commenter Organization: Western Energy Supply and Transmission

Associates Comment ID:

22247 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: [FN1: See EPA's VEF-Technical_Document_072408, pg. 6.]

– WEST is concerned about arguments made by some stakeholders that a whole suite of environmental laws should be applied to CCS projects, including the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and the Resource Conservation and Recovery Act ("RCRA"). These laws applied to CCS would impose significant obligations and potential liabilities not only on GS operators, but also potentially on other entities in the CO2 abatement chain, such as the power plant operators producing the CO2. This would likely chill technology advancement and commercialization of CCS. WEST urges EPA to design the UIC for CO2 GS program to limit CCS projects' liability under CERCLA and

RCRA.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose ofthe GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: James T. Sims Letter ID: 0249 Commenter Organization: Western Business Roundtable Comment ID: 22261 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 3. Avoid Regulatory Creep - We are extremely concerned by arguments that the whole suite of environmental laws -- including the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and the Resource Conservation and Recovery Act ("RCRA") -- be applied to CCS projects.

These laws, if applied broadly to CCS, would impose significant obligations and potential liabilities not only on project operators, but also potentially on other entities in the CO2 chain, such as entities producing the CO2 that is ultimately injected. That would put advancement of CCS commercialization into a deep freeze. Such an outcome would clearly be counter-productive. Thus, we urge the Agency to pursue options that will limit CCS projects’ liability under

CERCLA and RCRA.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that encouraging the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Walter L. Baker Letter ID: 0253 Commenter Organization: Utah Division of Water Quality Comment ID: 22345 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: DEFINING CO2 STREAM TO EXCLUDE HAZARDOUS WASTE/SUBSTANCEUNDER RCRA/CERCLA

We consider potential liability under RCRA and/or CERCLA a major deterrent to developing and deploying CCGS projects and one that must be addressed. Towards removing this as a barrier to CCGS, we strongly encourage EPA to address the issues surrounding the composition of the injected CO2 stream. These issues include: providing a clear description of the analytical methods for characterizing the CO2 stream, providing a clear description of the limitation on the CO2 stream composition so as to avoid inclusion under RCRA or CERCLA, and investigating thoroughly the possibility of RCRA and CERCLA exemption for CCGS while still providing protection to USDWs and other natural resources. Since capture and separation technology is still being developed for large stationary CO2 sources, it is important to have a clearly defined target for design objectives.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs.

With respect to the commenter’s concern about RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Mike Nasi Letter ID: 0254 Commenter Organization: Clean Coal Technology Foundation of Texas Comment ID: 22365

Comment: As for RCRA, EPA states that it "cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA," and further states that "owners or operators will need to characterize their CO2 as hazardous under RCRA." These statements are inconsistent with EPA's belief that the proposed rule does not address CO2 as a commodity or pollutant. Statements such as the one referenced, connote that the CO2 stream is a waste. EPA should create a categorical exemption under RCRA for CO2 sequestration pursuant to the Class VI VIC program

under RCRA.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologicallysequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

Commenter Name: Keith McCoy Letter ID: 0258 Commenter Organization: National Association of Manufacturers Comment ID: 22374 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: The NAM believes that a CCS policy can be designed that promotes a variety of public goals, including energy security, economic prosperity and protection of public health and the environment. The NAM believes that policy makers, building on the knowledge and expertise of energy professionals who have long injected carbon into geologic formations to enhance oil recovery, should establish a new regime and regulatory scheme which will promote the development and commercial deployment of CCS technology. The NAM is concerned, however, that EPA regulators may be looking backward, by considering liability schemes pursuant to the Superfund and Resource Conservation and Recovery Act (RCRA), as models on which to establish a framework for the long-term capture and storage of carbon. The NAM does not believe that use of a statute such as Superfund, which has been the source of endless litigation, is an appropriate model on which to base something as modern as CCS.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protectsUSDWs from endangerment.

Commenter Name: Michel Paque Letter ID: 0259 Commenter Organization: Ground Water Protection Council Comment ID: 24855 Other EPA Comment Codes and Descriptions: 1220 1.1.1.1 Terminology and definitions

Comment: EPA Proposal: Carbon dioxide plume means the underground extent, in three dimensions, of an injected carbon dioxide stream.

Carbon dioxide stream means carbon dioxide that has been captured from an emission source (e.g., a power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.

GWPC Recommendations: Carbon dioxide stream means carbon dioxide, plus associated substances derived from the source materials and any processing, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.

Source of CO2 should not be an issue in the context of defining the CO2 stream.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs. The GS rule does not apply to generators of CO2. Additionally, EPA has received numerous comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Claire Olson Letter ID: 0260 Commenter Organization: Basin Electric Power Cooperative Comment ID: 22394

Comment: "I. Is Injected CO2 Considered a Hazardous Waste Under RCRA?

Under the proposal, EPA states that it cannot make a categorical determination as to whether injected CO2 is hazardous under RCRA. It suggests the burdenshould be on the operators to characterize their CO2 stream as part of the permit application to determine if the injectate is considered hazardous as defined in 40 CFR Part 261. RCRA regulates the production, management, and disposal of wastes and RCRA's potential application in the case of CO2 injectate is dependent upon the existence of a solid waste. If the material is a solid waste, the law requires further analysis to determine if it is also a hazardous

waste.

Injected CO2 should be considered a product or a commodity and not a solid waste. Leaving the question to be resolved when operators characterize their CO2 streams with the potential that RCRA liability may attach will be a deterrent to CO2 storage projects. Basin Electric urges the EPA to make a determination under its RCRA authority the CCS activities meeting Class VI permit requirement do not equate discarding the CO2. By so doing, Class VI CO2 injection operations would not be considered waste management activities and would not be subject to RCRA.

EPA should view CCS as a resource, not a waste. EPA should specifically exempt injected CO2 streams from coverage by RCRA and develop requirements tailored to this material if necessary to ensure further environmental protection beyond that provided by the UIC permitting process.

As further justification for this position, simply consider the success of existing acid gas injection operations into depleted oil and gas reservoirs conducted under the existing protective UIC regulations. Impurities, such as H2S or mercaptans, should not trigger a classification under RCRA. The proposed rule has adequate protection for drinking water aquifers and addresses corrective action, financial assurance requirements, and long-term monitoring after closure. These requirements negate the need for any RCRA regulation. Basin Electric wants to avoid open-ended and enhanced liabilities and risks resulting from requirements that do not significantly contribute to health and environmental protection.

Response: EPA clarifies that the GS rule does not address the status of CO2 as a pollutant or a commodity. Under the SDWA and the UIC program, EPA regulates the injection of a range of fluids, which may include pollutants and commodities, regardless of how they are characterized, for the purpose of protecting USDWs. Comments related to existing acid gas injection operations are outside the scope of the GS rulemaking.

EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations. However, with respect to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.Letter ID: 0263 Commenter Organization: Interstate Oil & Gas Compact Commission Comment ID: 24960

Comment: II . I. Is Injected CO2 Considered a Hazardous Waste Under RCRA?

H. EPA seeks comment on this approach and other considerations associated with the presence of impurities in the CO2 stream.

IOGCC Response: Injected CO2 is not and should not be considered a hazardous waste or regulated under RCRA or CERCLA. It is assumed that RCRA or CERCLA wastes

Response: EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams.

With respect to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Michael Moore Letter ID: 0265 Commenter Organization: North American Carbon Capture & Storage Association (NACCSA) Comment ID:

22872 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: 9. Relationships with other Environmental Laws

NACCSA is concerned about the potential application of other environmental laws to CCS activities. These laws include the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). Setting aside for the moment the important questions of whether either of these laws could apply to CCS activities and, if so, precisely how and to what extent, NACCSA understands and does not disagree with the Agency's position that drafting a clear exception from either of these regimes likely cannot be accomplished through the context of this SDWA UIC rulemaking. Nonetheless, NACCSA urges EPA to carefully consider whether to include any discussion of these two laws (or others) along with the Class VI regulations, as well as the particulars of what any such discussion may contain, to ensure that such discussion is necessary and does not serve as an unnecessary and unintended springboard for hampering the successful commercialization of CCS.NACCSA believes that EPA should clarify that supercritical and gaseous CO2 do not fit the definition of" solid waste" under RCRA,and that injected CO2 is not solid waste that is "disposed of" and thus subject to RCRA regulation. While NACCSA acknowledges that such clarification may be best achieved in the context of a RCRA rulemaking, the Preamble to the proposed rules appears to make the assumption that injected CO2 is a solid waste that is being disposed of in the first instance, in the context of its discussion regarding waste characterizations that may be required of permitees. Such discussion in the Preamble is unnecessary and will only prove harmful to those seeking to move forward with CCS projects. Further, any concern about potentially hazardous constituents in CO2 injectate may be addressed without addressing any potential RCRA implications, as the contents of an injectate must be "characterized" under the proposed rules regardless, and permit limitations maybe imposed to address the content of injectate without reference to RCRA's provisions.

In addition, EPA should clarify that the provisions of CERCLA are not triggered by Class VI operations. As a preliminary matter, as the Agency is aware, CERCLA imposes liability for releases of hazardous substances. EPA indicates in the Preamble that whether injected CO2 may be considered a hazardous substance "depends entirely on the make-up of the specific CO2 stream and of the environmental media . . . in which it is stored," leaving the door open for claims of environmental harm arising out of CO2 injection and storage activities. This discussion, however, assumes that CO2 injection activities could fall within CERCLA's ambit in the first instance. As with the RCRA issue, a determination of this issue is unnecessary from the point of view of regulating injection and storage of CO2 under the UIC program, and NACCSA urges the Agency to avoid creating unnecessary hurdles for the successful commercial deployment of CCS by assuming potential applications of other statutes that may not come into play. Regardless, even if the provisions of CERCLA could be interpreted to apply to CCS activities, NACCSA is opposed to any limitations on the federally permitted release exemption from CERCLA liability, which should be given its fullest application in the Class VI context. Relatedly, NACCSA encourages the Agency, pursuant to its authority under RCRA and CERCLA, to examine possibilities for exemption or exclusion from those programs.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurfacethat could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: William Herz Letter ID: 0266 Commenter Organization: The Fertilizer Institute Comment ID: 22879

Comment: Injected CO2 as a Hazardous Waste under the Resource Conservation and Recovery Act (RCRA)

EPA seeks comment on defining "carbon dioxide stream" to exclude hazardous wastes (146.81(d)) in order to assure that it would apply only to CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261. As a result, today's proposed rule would preclude the injection of hazardous wastes in Class VI injection

wells. EPA also seeks comment on other considerations associated with the presence of impurities in the CO2 stream. (73 Fed. Reg. 43,503)

TFI understands EPA's concern with the potential for impurities in the CO2 stream and the risk that contaminants such as hydrogen sulfide and sulfurous and nitrous oxides in the CO2 stream could migrate into a USDW. TFI also agrees that because the types of impurities and their concentrations in the CO2 stream are likely to vary by facility, plant operating conditions and pollution removal technologies, EPA cannot make a categorical determination as to whether injected CO2 is a

hazardous waste under RCRA.

TFI asks for greater guidance for potential upstream industrial clients of CO2 wells. TFI is concerned about the implications of considering the long-term storage of CO2 as "discard" as EPA suggests by stating that the CO2 stream needs to be non-hazardous. RCRA applicability to carbon sequestration activities would discourage industry from engaging in sequestration to avoid associated regulatory burdens and potential citizen suits. EPA should therefore interpret its rule to exclude GS injectate from RCRA regulation to the greatest degree possible. RCRA would apply only where the injectate meets the definitional criteria in 42 U.S.C. § 6903(27).

GS injectate should not qualify as a "solid waste" under this definition because the injectate is not "discarded" but is recoverable and has commercial value, in particular in enhanced oil recovery operation. In other regulatory situations EPA has exempted materials from RCRA where the materials are subject to a separate regulatory regime providing equivalent environmentally protective measures (such as UIC). EPA states in the NPRM that the UIC regulatory scheme is adequate to protect USDWs, and that "chronic and acute health effects from airborne exposure resulting from CO2 injection activities even in the case of leakage or accidental exposure is minimal." 72 Fed. Reg. at 43487-98. EPA has relied on "contingent management" (management of materials outside of RCRA regulation where a separate regulatory regime provides equivalentprotection) to great effect and in a manner which has been upheld by federal courts. See Military Toxics Project v. EPA, 146 F. 3d 948 (D.C. Cir.1998). Assuch, TFI requests that EPA interpret the injectate to not constitute a RCRAregulated waste, or at least to apply contingent management to the injectate to avoid RCRA regulation.

Furthermore, to the extent they are not already expressly exempted, TFI requests that the final rule delineate monitoring and/or reporting requirements for upstream industrial clients that could provide RCRA liability relief. TFI asks that upstream industrial clients providing CO2 streams that are not hazardous wastes as defined in 40 CFR Part 261 be provided an exemption from RCRA liability. Absent a RCRA exemption, TFI requests that EPA develop contaminant limits that would be allowed in CO2 streams from upstream industrial clients. TFI also asks that EPA clarify that risks to USDWs from improperly managed GS projects -including CO2 migration into USDWs, causing the leaching and mobilization of contaminants (e.g., arsenic, lead, and organic compounds), changes in regional groundwater flow, and the movement of saltier formation fluids into USDWs, causing degradation of water quality (73 Fed. Reg. 43,497) -are solely the responsibility of the owner and/or operator of the well.

Where not otherwise exempted from RCRA, delineation of contaminant levels, monitoring and recordkeeping requirements and liability protection are necessary to provide the certainty, consistency and transparency to potential upstream industrial clients. TFI also is concerned about the consequences of CO2 storage prior to injection as related to the potential implications for solid waste storage regulations as well as applicable state regulatory obligations on the injection of solid waste.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Bill Hertz Letter ID: 0500 Commenter Organization: Fertilizer Institute Comment ID: 21210

Comment: Now, items that, that need additional regulatory clarity include the liability aspects. TFI understands the EPA's concern with the potential for impurities inthe CO2 stream and the risks that contaminants, such as hydrogen sulfide and sulfuric and nitrous oxide in the CO2 stream could migrate into a USDW.

TFI also agrees that because the types of impurities and their concentrations in the stream are likely to vary by facility, plant operating conditions, and pollution removal technologies, EPA can not make a categorical determination as to whether the injected CO2 is hazardous under RCRA. TFI would request greater guidance for potential upstream industrial clients in CO2 disposal wells.

And among the RCRA related questions we would like to discuss before regulations are promulgated include the implications of considering the long-term storage ofCO2 as discard, as the EPA suggests, by stating that CO2 streams need to be nonhazardous, the consequences of CO2 storage prior to injection, and the potential implications for solid waste storage regulation, and potential state regulatory obligations on the injection of solid waste. Monitoring and/or reporting requirements for upstream industrial clients that could provide RCRA liability

relief.

Response: The Agency appreciates the concerns regarding the need for clarity when it comes to RCRA liability in GS. As a result of this comment and numerous others, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Bill Hertz Letter ID: 0500 Commenter Organization: Fertilizer Institute Comment ID: 21212

Comment: We agree with previous comments that in terms of paying or otherwise tagging CO2 leakage down the road could be a major disincentive for capital investment on these types of projects. Because the expectation that a ton of CO2 could be 10 times or 40 times the current cost would, would really, again, be a disincentive for companies to move forward with this.

We would request, finally, clarification for upstream industrial clients as to the appropriate requirements for analyzing the CO2 stream at a frequency sufficient to yield representative data of its chemical and physical characteristics as cited in the Federal Register Notice. As well as appropriaterequirements for upstream industrial clients in terms of monitoring and recordkeeping.

Response: EPA clarifies that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment. EPA adds that the GS rule does not apply to generators of

CO2.Commenter Name: Mike Moore Letter ID: 0532 Commenter Organization: North American Carbon Capture and Storage Association (NACCSA) Comment ID:

21373

Comment: Our final area of concern relates to the Agency's comments in the preamble that injected carbon dioxide could be deemed a hazardous waste under RCRA and CERCLA. NACSA believes it is appropriate for geologically stored carbon dioxide to be categorically excluded from the definitions of hazardous waste. NACSA urges the Agency to reconsider its positions and the deleterious effect it could have on the development of CCS.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Paul Pike Letter ID: 0535 Commenter Organization: Ameren Corporation on behalf of Utility Solid Waste Activities Group (USWAG) Comment ID:

21436

Comment: With respect to RCRA, it is premature to conclude that captured injected carbon dioxide is discarded and therefore possibly a solid waste under RCRA. Carbon dioxide is a commodity used in a variety of processes currently and we do not know exactly what methods or mechanisms will be created as a result to deal with CO2. EPA should create an applicable exemption from RCRA under the well established contingent management concept given that the UIC will ensure that they injected material is not mismanaged. Such an exclusion will be legally justified, consistent with past promulgation of excluded rules and it would make sound policy since by removing a potentially significant regulatory barrier to the commercial development of carbon dioxide sequestration operations.

Response: EPA received many comments regarding the applicability of the RCRA regulations andstatute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Paul Pike Letter ID: 0535 Commenter Organization: Ameren Corporation on behalf of Utility Solid Waste Activities Group (USWAG) Comment ID:

21437 Other EPA Comment Codes and Descriptions: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: The bottom line is that the potential for interaction with CERCLA or liability in RCRA must be mitigated to avoid significant delays in an overall chilling effect on this process.

Response: EPA clarifies that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment)



### Individual Comments

Commenter Name: Paul Pike Letter ID: 0111 Commenter Organization: Ameren Corporation on behalf of USWAG Comment ID: 22402

Comment: 4. Of particular importance is the potential for liability under RCRA and CERCLA, including Natural Resource Damages, stemming from injection and sequestration of carbon dioxide. As EPA can surely appreciate, the potential for these openended liabilities will act as a serious deterrent to would-be Owners or Operators of Class VI injection wells. Simply put, EPA must mitigate the threat of potential RCRA and CERCLA liability to the extent possible in this rulemaking.

One step that the Agency can take with respect to CERCLA is to ensure that final Class VI permits have the broadest possible reach - while remaining protective of USDWs - to maximize the protection offered by the federally permitted release exemption. This would mean including in the scope of the permit for carbon dioxide injection all other CERCLA hazardous constituents likely to be contained in the CO2 stream, including those generated during capture and transport as well as any that could be formed in the injection zone as a result of the injection of carbon dioxide. Similarly, the scope of the authorized "permitzone" should be as broad as possible while remaining protective of USDWs.

The bottom line is that the potential for interaction with RCRA or liability under CERCLA must be mitigated to avoid significant delays and an overall chilling effect. USWAG recognizes that while there are some measures the Agency can take in the regulatory context to address these concerns, those measures may be limited. In the end, USWAG believes that the Agency should consider whether a legislative solution is necessary to eliminate these concerns; if so, we recommend that the EPA strongly support such a solution.

Response: As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements

for CO2 GS in Class VI wells.

The Agency acknowledges the commenter's concerns regarding the scope and possible impacts of CERCLA liability on CCS activities, however EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22516 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: dangerous and 2) unnecessary and should not promulgated. Also, we believe the Safe Drinking Water Act is not suited to provide necessary safety to the citizenry, because EPA, by promulgating Class VI wells, is authorizing construction of a CERCLA imminent hazard substance storage site and a RCRA hazardous substance (corrosivity) storage site. Each of these concerns and many more are discussed below. We request these comment be made a part of the record EPA-HQ-OW-2008-0390.

Response: EPA disagrees that the final GS rule is authorizing construction of CERCLA imminent hazard substance storage sites or RCRA hazardous substance storage sites. It is authorizing the construction and operation of a new class of injection well for purposes of long term storage of

CO2.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates arebased on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

EPA is not authorizing the injection of RCRA hazardous wastes under the terms of the GS rule, since the GS rule, at §146.81(d), prohibits CO2 streams that meet the definition of a hazardous waste under 40 CFR Part 261. Under the rule, owners or operators will need to characterize their CO2 stream as part of their permit application process to determine whether the injectate is a RCRA hazardous waste. If the CO2 stream is determined to be a hazardous waste, injection may only occur in a Class I hazardous waste injection well.

The GS rule also requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Sam Kitto Letter ID: 0126 Commenter Organization: National Tribal Air Association Comment ID: 23044 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: Hazardous Substances With respect to hazardous substances, the GS rule would prohibit the injection of these substances in Class VI injection wells (e.g., specific to geologic sequestration), but the EPA offers no means for removing hazardous impurities such as hydrogen sulfide and mercury which are often found in CO2 streams, the types that would be sequestered as a result of the rule. In the rule, the Agency instead focuses on what is considered a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as CERCLA or Superfund; and the potential liability to owners and operators of geologic sequestration operations for injection of CO2 and

associated hazardous substances.

Indeed, liability is an important matter that needs to be addressed upfront, particularly since some Indian tribes and their citizens may one day be engaged in geologic sequestration. The EPA must not forget, however, that a primary purpose of the GS rule is to prevent endangerment to underground sources ofdrinking water (USDWs). As such, every effort should be made by the Agency to ensure that hazardous substances, at any level, do not find their way into USDWs so as to best protect human health and the environment from the harmful impacts

of these substances.

The NTAA therefore recommends that the EPA clearly communicate how it will address hazardous impurities often found in CO2 streams, specifically how such impurities will be removed or their impacts mitigated so as not to endanger

USDWs.

Response: EPA agrees that protecting USDWs from endangerment is the primary purpose of the GS rule, and that the purpose of the tailored requirements in the GS rule is to ensure that GS projects are permitted sited, constructed, operated, and closed in a manner that avoids releases of CO2 into

USDWs.

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Because the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

EPA supports the use of CO2 capture technologies that minimize impurities in the CO2 stream, but clarifies that the GS rule does not address the development or regulation of capture technologies or technologies for removing impurities from CO2.

EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Dwight Lockwood, PE, QEP Letter ID: 0141 Commenter Organization: Global Energy, Inc. Comment ID: 23104 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment); 4620 2.6.2 Injectate monitoring

Comment: CO2 as Hazardous Waste (RCRA or CERCLA)

1.We support the EPA view that injectate should be characterized relative to 40

CFR Part 261. We further believe that the stream can be treated to remove undesired contaminants to the levels that thresholds are not triggered.

2.Characterization and certification in the permit application should be asufficient basis for assurance here. Periodic sampling and analysis on some reasonable frequency during injection is acceptable. On the other hand, we do not believe that this measurement and reporting needs to be more than perhaps quarterly, as the adverse impact of exceedances for relatively short periods is not likely to be geologically significant very fast. Corrective action to mitigate the effects of an incorrect injection fluid (but not to remedy an injection already accomplished) needs to be pragmatic and not onerous.

3.As with Class I well liability exemptions, Class VI wells, once their injectate is characterized and approved (as not triggering CERCLA or RCRA), and regular sampling of the stream for quality control is implemented then a similar exemption is warranted.

Response: EPA agrees that monitoring of the injectate prior to and during injection is important to allow for comparison of baseline data and operational-phase monitoring results to provide warning of potential USDW endangerment. For this reason owners or operators must perform an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82 (a)(7)(iv). In addition, Section §146.90(a) requires owners or operators to perform analysis of the CO2 stream during injection operations with sufficient frequency to yield data representative of its chemical and physical characteristics.

The necessary frequency of injectate analysis will be project-specific and will depend upon the CO2 source and the likelihood of variability in injectate composition. For example, a CO2-capture process from a coal-fired power plant with a consistent coal source and operating parameters is likely to produce a CO2 stream with a fairly consistent composition. A process with a changing composition of coal may have more variability in the purity of the CO2 that is captured. In such a setting, more frequent sampling may be appropriate. The details of the sampling should be describedin the testing and monitoring plan, which will be approved by the Director based on a review of sitespecific information, including information on the source and characteristics of the injectate.

EPA clarifies that, following an initial characterization of the injectate, EPA expects that the permit would stipulate the acceptable composition of the injectate (e.g., as CO2 plus an acceptable range of expected impurities). Any divergence from this would be a permit violation.

EPA notes however, that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations. Accordingly, the CO2 stream characterization requirements under the GS rule would not substitute for the obligation of a generator of RCRA solid waste to characterize its waste in accordance with EPA’s RCRA regulations. Injection of a RCRA hazardous waste may only occur in a Class I hazardous waste injection well.

EPA notes that CO2 itself is not listed as a hazardous substance under CERCLA, although the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.The commenter’s reference to a Class I liability exemption is unclear and not legally correct. Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Patrick Nugent Letter ID: 0143 Commenter Organization: Texas Pipeline Association (TPA) Comment ID: 23138 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 5. The carbon dioxide stream is a commodity not a waste and should be regulated as such. EPA should make clear that carbon dioxide injectate is not being categorized or regulated as a waste or a pollutant, but rather as a commodity. The sequestered carbon dioxide is expected to generate a credit in a future carbon credit scheme. At that point, the act of sequestering the carbon dioxide will generate an emission credit that can be sold in the open market. Accordingly, TPA urges EPA to remain neutral at this point in time in characterizing the carbon dioxide stream as a waste or a pollutant in any of its regulatory programs. Those kinds of labels would saddle this program with the liability schemes imposed by RCRA or CERCLA and would be severely detrimental to the development and use of geologic sequestration technology. It is highly unlikely that industry will commit the substantial capital required for geologic sequestration projects unless and until the potential for liability is clearly defined and understood. Such financial commitment is unlikely to be made if participants run the risk of incurring open-ended and ruinous liability under RCRA and CERCLA. In this regard, Class VI permits should be written as broadly as possible, so as to maximize protections that may be provided by federally permitted release exemptions.

Response: EPA clarifies that the GS rule, being issued only under the SDWA, does not affect the status of, or entities’ potential obligations for managing, or liability for management of, CO2 under RCRA or CERCLA. While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well

and lead to contamination.

In addition, issues related to carbon crediting are outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Kenneth Alexander Letter ID: 0146 Commenter Organization: Old Dominion Electric Cooperative (ODEC) Comment ID: 21725 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 6.EPA must settle the way as activities will relate to RCRA and CERCLA. RCRA issimply the wrong tool to use to regulate as of C02 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for as of CO2), are not applied to this highly specialized storage operation.

7. Dealing with these last two hazardous waste issues appears to ODEC to be one of the most difficult hurdles standing in the way of commercial deployment of full scale as projects and we recognize that Congressional action may be needed.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21752 Other EPA Comment Codes and Descriptions: 1520 1.2.3 Other authorities (e.g., CAA, MPRSA, London Convention); 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: For example, if EPA eventually determines that CO2 is hazardous, what are the ramifications under the Resource Conservation and Recovery Act (RCRA)?[FN3 42 U.S.C. §§ 6901 et seq.] Presumably, its stringent "cradle to grave" requirements will be imposed on all generators, transporters, and treatment, storage and disposal facilities involved in the CCS project. Or, in the event of a release, under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)?[FN4 42 U.S.C. §§ 9601 et seq.] The Clean Air Act? [FN5 42 U.S.C. §§ 7401 et seq.] If CO2 is deemed a "hazardous air pollutant" under Section 112, it will automatically trigger CERCLA liability as it incorporates HAPs in its definition of "hazardous substance." [FN6 CERCLA, Section 101(14).] The Clean Water Act? [FN7 33 U.S.C. §§ 1251 et seq.]

Response: Under the final GS rule, owners or operators will need to determine whether the CO2stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21767 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Such overwhelming regulatory uncertainty will only serve to deter investment in CCS technology and slow the rate at which large-scale commercial CCS projects are developed. Instead, EPA needs to examine and explain which environmental statutes could be triggered, how they will interact or overlap, and what potential liability exists for industry. EPA should also explore the possibility of creating regulatory exemptions under RCRA, CERCLA, etc., for injected CO2, thereby reducing regulatory hurdles for CCS projects. One example of this would be to ensure that final Class VI permits have the broadest possible reach to maximize the protection offered by CERCLA’s "federally permitted release" [FN9 CERCLA, Section 107(j).] exemption. This would mean including within the scope of the permit for carbon dioxide injection all other CERCLA hazardous constituents likely to be contained in the CO2 stream, thus providing some comfort to owners and operators that they will not be subject to CERCLA liability. When you consider that EPA lacks the authority to transfer well ownership between entities, and that owners are therefore liable in perpetuity, the need to craft regulatory exemptions becomes clear.Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

As described above, EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility. If the CO2 stream is determined to be a hazardous waste, injection may only occur in a Class I hazardous waste injection well.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that providing financial incentives for or promoting the use of GS is outside the scope of

the GS rule.

Commenter Name: Brianne Metzger Letter ID: 0151 Commenter Organization: Spectra Energy Corp Comment ID: 21852 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: III. EPA MUST ADDRESS THE LEGAL UNCERTAINTIES AND IMPEDIMENTS

TO CCS.

As has been well documented elsewhere, including a recent GAO report, [3] the legal uncertainties related to underground injection of CO2, including the possible application of CERCLA and RCRA, are a very real legal impediment to the viability of carbon capture and geologic sequestration. We agree with the GAO’s recommendation that EPA more comprehensively examine CERCLA and RCRA as a potential barrier to CCS. As discussed in greater detail below, we believe the Agency has sufficient authority to develop responsible policies and regulations that provide the requisite protection to owner/operators of GS operations while still ensuring the adequate protection of human health and the environment. Toward this end, we would ask the EPA to further examine and clearly articulatewhat it believes is the outer bounds of its statutory and regulatory authority to provide such legal certainty. If, in the event EPA does not believe it has such authority or, for whatever reason, is unwilling to invoke such authority, we would request the Administration and the Agency work with Congress to enact legislation to bring about the needed legal certainty.

3 GAO Report, Climate Change, Federal Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option, REPORT TO THE

CHAIRMAN ON THE SELECT COMMITTEE ON ENERGY INDEPENDENCE AND GLOBAL WARMING, HOUSE OF REPRESENTATIVES, GAO-08-1080 (September 2008).

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

The GS Rule is being promulgated appropriately under the SDWA. Injection wells are regulated under the authority of Part C of the SDWA (42 U.S.C. 300h et seq.). Under the SDWA, the underground injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and includes liquids, gases, and semisolids (i.e., slurries) injected into the subsurface. EPA adds that comments related to requesting Congress for additional authority are outside the scope of this rulemaking.

Commenter Name: Brianne Metzger Letter ID: 0151 Commenter Organization: Spectra Energy Corp Comment ID: 21853

Comment: A. The Liability Regime Under CERCLA Is Inappropriate For GS And EPA Must Minimize To The Fullest Extent Of Its Authority; Alternatively, Congress Must

Act.

The potential application of the sweeping liability regime under the Comprehensive, Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") will have an absolute chilling effect on the underground injection of CO2. The threat of CERCLA litigation and the potential liability to a GS owner or operator is alone significant and could seriously discourage the siting and construction of a GS operation. Under CERCLA’s strict liability regime, an owner or operator may be held jointly and severally liable for response costs related to any release or potential release of a hazardous substance from a facility. In addition to federal and state enforcementactions, CERCLA also authorizes private parties to seek remediation costs from an owner/operator who is alleged to have caused an actionable release under CERCLA. Therefore, given the extensive size of the CO2 plume, covering tens of square miles, a private landowner within the AoR and whose property is situated above the CO2 plume could potentially assert a CERCLA claim against an owner/operator of a GS operation. In its proposed GS Rule, EPA states as

follows:

[W]hether or not there is a hazardous substance that may result in CERCLA liability from a sequestration facility depends entirely on the make-up of the specific CO2 stream and of the environmental media (e.g., soil, groundwater) in

which it is stored.

Unfortunately, the Proposed Rule leaves considerable uncertainty regarding potential CERCLA liability. See GAO Report, Climate Change: federal actions will greatly affect the viability of carbon capture and storage as key mitigation option, GAO-08-1080, September 2008.

Response: The Agency acknowledges the commenter's concerns regarding the scope and possible impacts of CERCLA liability on CCS activities, however EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Brianne Metzger Letter ID: 0151 Commenter Organization: Spectra Energy Corp Comment ID: 21854

Comment: We oppose the application of CERCLA liability to owner/operators of GS facilities, particularly where the owners/operators may have very little control, if any, over the migration of the CO2 plume or geochemical reactions post-injection. As the Agency has acknowledged, despite all the geologic and geochemical data that is developed as part of the UIC permitting process, there may be unknown and unanticipated geochemical reactions that occur underground post-injection that could constitute a "release" [4] under CERCLA, thereby triggering liability. Scenarios that could potentially constitute a release under CERCLA include: (1) migration of CO2 from the injection zone into another zone or outside the AoR; (2) migration of displaced brine or fluids outside the injection zone, (3) geochemical reactions within or outside of the injection zone, and (4) atmospheric releases of CO2. Subsurface releases that are geologically contained (releases (1) - (3) above), even if they migrate beyond the AoR or out of the injection zone, ordinarily will not result in a type of release that threatens the ambient environment or presents an imminent and substantial endangerment to human health and the environment, unless a USDW is endangered.

It is important to emphasize that CO2 is itself not a "hazardous substance" under CERCLA nor under any other federal environmental law. However, as EPA points out, some of the impurities potentially contained in a CO2 stream, such as mercury and sulfuric acid, are hazardous substances even though theirconcentrations, according to EPA, are "expected to be very low." GS Rule at 43503. Thus, the presence and possible release of these impurities could give rise to CERCLA liability.

Spectra strongly believes that an owner/operator of a GS injection well who materially complies with the terms of its UIC permit as a general rule should not be subject to CERCLA liability. While there may be limited circumstances, such as a catastrophic release of CO2 to the atmosphere,[5] where CERCLA may be appropriate, we believe as a general matter CERCLA liability is not necessary and serves as a major deterrent to large-scale commercial deployment of GS. Consequently, we believe the Agency must seek to establish a "safe harbor" for those engaged in GS operations. Such safe harbor must include the CO2 and any impurities by clarifying minimum performance standards, employed technologies, or testing requirements, which if used, will exempt subsurface releases from CERCLA liability. Toward this end, the Agency has suggested that several enumerated defenses under CERCLA, such as the "federally permitted release" provision, may provide sufficient safe harbor. However, as discussed below, Spectra is concerned that this defense is woefully inadequate.

B. EPA Must Clarify And Expand The Scope Of The "Federally Permitted Release" Defense Which Has Been Seriously Eroded By Court Decisions.

Section 107(j) of CERCLA provides that any release that occurs pursuant to an approved federal permit or program is not subject to CERCLA liability.[6] This provision is known as the "federally permitted release" exemption. Among the list of 11 enumerated federally permitted releases is "any injection of fluids authorized under Federal underground injection control programs or State programs submitted for Federal approval . . . pursuant to part C of the Safe Drinking Water Act" (hereafter referred to as the "UIC Exemption"). 42 U.S.C. § 9601(10)(G). Although the EPA cites the federally permitted release defense as a way for an owner/operator to avoid liability, this defense or statutory exemption has been seriously eroded in recent years by court decisions. See, e.g., Carson Harbor Vill, Ltd. v. Unocal Corp., 287 F. Supp. 2d 1118 (C.D. Cal. 2003) (court found liability for releases that (1) are not expressly permitted (2) exceed the limitations of the permit or (3) occur at a time when there was no permit); State of Idaho v. Bunker Hill Company, 635 F.Supp. 665 (D. Idaho 1986) (court held that a federally permitted release must be expressly identified in a permit). [7]

Given that subsurface plumes from commercial GS operations may encompass 50 square miles or more (roughly the size of the District of Columbia), this defense provides little comfort to an owner/operator of a GS injection facility who could incur tens of millions of dollars in response costs under CERCLA. In order for this statutory defense to have any meaningful application in the context of GS, and to provide the shield Congress intended, EPA must resuscitate this provision by providing further clarification of where and how it should apply. There is precedent for the Agency providing clarification of the scope and extent of the "federally permitted release" exemption in the context of air emissions with respect to reporting requirements for releases. See Guidance on the CERCLA Section 101(10)(H) Federally Permitted ReleaseDefinition for Certain Air Emissions, 67 Fed. Reg. 18899 (April 17, 2002). As EPA acknowledged in this guidance, it is difficult to establish a "bright line" for when releases qualify for the release exemption. However, we believe the Agency needs to do just that - establish a bright line.

EPA has the authority and discretion to interpret and further clarify the scope and extent of the "federally permitted release" exemption to GS injection. A review of the 11 enumerated releases under 101(10) reveals dissimilar text, wherein some of the exemptions include phrases like "in compliance with," "subject to," "identified in," or "authorized under." The language used for the UIC Exemption, does not specifically limit the exemption to compliance with or the terms identified in an enforceable permit; rather, the UIC Exemption uses a much broader phrase "authorized under." Herein, the UIC Exemption applies to the (i) injection of fluids (ii) authorized under (iii) federal or an approved state UIC program. The EPA Environmental Appeals Board had occasion to construe these 11 exemptions and their dissimilar language and reasoned that Congress' use of different phrases must be given due effect. See In re Mobil Oil Corporation, EPCRA Appeal No. 94-2, 5 EAD 490, 1994 WL 544260 (EAB, Sept. 29, 1994) (construing the meaning of the phrase "subject to" and the statutory purposes of the Clean Air Act and CERCLA).[8]

Under the plain language of this UIC Exemption, the Agency has the authority to define more broadly (whether pursuant to a permit or outside the context of a permit) what fluids and releases are authorized by either the federal or state UIC program. This issue is significant in that the Agency has stated in the GS Rule: "Class VI requirements and permits will need to be carefully structured to ensure that they do not ‘authorize’ inappropriate hazardous releases . . . include clarifying if there are potential release from the well which are outside the scope of the Class VI permit." GS Rule at 43504.

First, it is clear that the Agency believes there are certain releases that are "inappropriate" and that, if occur, would give rise to CERCLA liability. This raises many concerns and more questions than answers. What releases are deemed outside the scope of the Class VI permit? Is any subsurface release not specifically identified in a UIC permit an inappropriate release? Is an unanticipated geochemical reaction an inappropriate release or outside the scope of the Class VI permit? Is the migration of a CO2 stream out of the injection zone or AoR a release whether or not it endangers a USDW? How would an appropriate v. inappropriate release be determined? As evidenced from these questions, it is critical that the Agency clarify what is meant by the term "inappropriate" hazardous release and in what context such releases may be outside the scope of the UIC program.

Based on the case law, for an owner/operator to maximize its shield under the exemption, all potential releases should be identified and authorized under the permit, including appropriate and inappropriate ones. Thus, there is clear tension between EPA’s statement that no inappropriate release be authorized by permit and the current state of the law which requires all releases be identified in a permit to benefit from the exemption.It is unambiguous from the plain text of the statute that Congress intended that releases authorized under the SDWA UIC program not be subject to CERCLA liability. It is also clear that the Agency has broad authority to clarify what releases should be covered under the GS Rule. Therefore, the Agency need not wait for the issuance of permits to decide on a case-by-case basis what is an appropriate or inappropriate release. EPA should make clear that all fluids injected pursuant to an authorized program or an approved permit will not give rise to CERCLA liability where the release occurs in and effects only subsurface formations and is geologically contained. The Agency could authorize, for example, the migration of the CO2 stream outside the injection zone or any other release that does threaten ambient air.

The extension of the UIC Exemption to subsurface or geologically contained releases is appropriate in that subsurface releases of CO2 are fundamentally

different than releases of CO2 to ambient air. Releases of sufficient quantities of CO2 to ambient conditions can pose serious health risks and even death. Whereas, the slow movement of a CO2 plume in confined subsurface strata ordinarily presents little, if any, imminent or substantial risk to human health or the environment. EPA has recognized the distinction in the nature

and risks of subsurface and ambient releases of CO2. See GS Rule at 43498 ("geologic confining systems do not experience . . . rapid and complete turnover [of CO2]"). Thus, while the application of CERCLA may still be appropriate in the event of releases of CO2 to the ambient air, the statute is not necessary to address releases that involve only subsurface locations. Unlike the decision in In re Mobil, where the broad interpretation of the CERCLA air exemption would leave a gap in the government’s ability to respond to a release, in the case of a subsurface release from a GS injection well, no such gap would exist, as the Agency has broad authority under SDWA to respond appropriately. In addition to civil, criminal and administrative enforcement authorities under the UIC program, 42 U.S.C. § 300h-2, and the potential to levy substantial monetary penalties, the EPA Administrator has broad emergency powers under SDWA to respond to a threat to any source of underground drinking water. Specifically, Section 300i says:

[T]he Administrator, upon receipt of information that a contaminant which is present in or is likely to enter a public water system or an underground source of drinking water . . . which may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health of such persons, may take such actions as he may deem necessary in order to protect the health of such persons. 42 U.S.C. § 300i

Under this emergency authority, the Administrator make take whatever measures necessary to protect human health, including ordering any corrective action or replacement of drinking water supplies or commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction. Thus, the Agency has adequate authority under SDWA to address any release or contamination that presents an endangerment.

4 The term "release" is broadly defined to mean"any spilling, leaking, pumping,pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)." 42 U.S.C. § 9601(22). The term "release" specifically excludes "emissions from engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine." Although this exemption has not been interpreted by many courts, it does represent Congress’ clear intent to exempt CO2 emissions (and other impurities) from vehicles or vessels that might otherwise constitute a release under CERCLA. Arguably, it also denotes a qualitative distinction between CO2 and other hazardous substances for which Congress saw fit to apply CERCLA.

5 If a catastrophic release of CO2 occurred, it would be the release of CO2 itself, and not the minute constituents of other impurities contained in the CO2, that would arguably threaten human health and the environment. However, CO2 is not a hazardous substance and therefore would not trigger release reporting requirements under CERCLA or the Emergency Planning And Community Right-to-Know Act (EPCRA). Another regulatory regime may be more appropriate to deal with this potential scenario.

6 Section 107(j) says "recovery by any person . . .for response costs or damages resulting from a federally permitted release shall be pursuant to existing laws in lieu of this section."

7 See also Kurt Ryland, Saving A Disappearing Exemption To CERCLA Liability, N.Y.U. ENV. L.J. (1995). According to the author, federal courts have threatened the utility of the exemption through holdings that have weakened the protective shield provided by a permit. The author explores these decisions and how they leave many unanswered questions concerning the exemption's

coverage.

8 In the In re Mobil case, the defendant violated its Clean Air Act permit and EPA initiated an enforcement action for the defendant’s failure to provide notice of a release under EPCRA. Mobil argued that even if its emissions violated any specific permit limit, its emissions were subject to the federal permitting release exemption because the emissions were "subject to" a state issued implementation plan. Ultimately, the EAB rejected Mobil’s argument after concluding that Mobil’s argument would create a gap in the government’s ability to respond adequately to air releases of hazardous substances.

Response: EPA thanks the commenter for their detailed comments and recommendations regarding the applicability of CERCLA and the scope of the exemption for federally permitted releases, in response to the Agency’s request. CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit. EPA reiterates that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations ofCERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: James Childress Letter ID: 0158 Commenter Organization: Gasification Technologies Council (GTC) Comment ID: 23757

Comment: Concern #2: Scope of Class VI Permits and the Potential Applicability of Superfund to CCS. (Ref page 43503, Section J)

EPA raises, but does not answer, the question of whether the underground injection of CO2 might trigger Superfund and associated natural resource damages liabilities, and appears to suggest that Class VI permits might be written to allow future Superfund liability associated with CCS. EPA must emphatically conclude that CO2 containing trace contaminants does not open any regulatory pathways for subjecting a geological storage site to Superfund liability. Aswith RCRA, any ambiguity on applicability of CERCLA will be potentially fatal to the development and deployment of CCS. It is highly unlikely that CCS will be implemented on a meaningful scale if there is a possibility that CCS might trigger Superfund.

CERCLA expressly excludes from Superfund liability "federally permitted releases." Further, "any injection of fluids authorized under the Federal underground injection control programs or State programs submitted for Federal approval . . . pursuant to part C of the Safe Drinking Water Act" are "federally permitted releases." 42 U.S.C. § 9601(10)(G) (CERCLA Section 101(10) (G)). Therefore, any captured CO2 stream that is injected in a Class VI well pursuant to a Federal or State permit is a "federally permitted release" and not subject to Superfund liability (including natural resource damages). It would be inconsistent with existing practice in the UIC program, impractical, and fatal to the future of CCS to limit Class VI permits solely to the CO2 portion of the stream and explicitly exclude any trace contaminants.

By its inherent nature, gasification will provide a stream of >90% CO2 having extremely low levels of both organic and inorganic hazardous air pollutants (HAPS). There are several mechanisms that provide this : 1) destruction of organic HAPS within a gasifier due to the extreme (~2,500 °F) gasification temperature, 2) removal of inorganic content in the melting and slagging process, 3) particulate scrubbing or filtration, 4) activated carbon beds to remove mercury and other condensed metals;, and finally 5) cooling followed by acid gas scrubbing. The combination of these HAP reductions is very effective. As a point of reference, the total inorganic HAPS that would be injected with captured CO2 from an IGCC or gasification process over 30 years of CCS operation will be at least an order-of-magnitude lower than the annual limits (both total and individual components) of NSPS.

Response: The Agency thanks the commenter for their detailed comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, the GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.Commenter Name: James Childress Letter ID: 0158 Commenter Organization: Gasification Technologies Council (GTC) Comment ID: 23758

Comment: Concern #3: Potential releases from the well which are outside the scope of the Class VI permit. (Ref: page 43504, Section J)

Class VI UIC permits must also be carefully written to identify and address the potential post-injection releases of hazardous substances, or the generation of

hazardous substances from the chemical interaction of the CO2 with the geological storage formation (e.g. -leaching of metals) so that they would be federally permitted releases. If the potential release or generation of such hazardous substances is viewed as beyond the scope of Class VI permits, CCS sites could be subjected to the threat of long-term Superfund liability, a threat that could be fatal to the viability of CCS.

With respect to releases from the well itself, the primary source of such releases could occur during injection operation through failure of well seals, flanges and gaskets, piping breaches, liners, valve packing and other mechanical components or failure to follow operational and safety procedures. Such releases will likely be confined to the injection period. During operation and the measurement, monitoring, and validation (MMV) period, the injection facility (metering, distribution and injection systems), should be classified as a production facility where industrial safety standards, design and operating procedures (e.g., -HAZOPS reviews) will apply. Appropriate regulation will be derived from permits under the Clean Air Act that are issued to the facility along with protection of operating personal as required by OSHA.

Response: Again, the Agency thanks the commenter for their detailed comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. Additionally, comments related to permitting under the CAA are outside the scope of this rulemaking.

Commenter Name: Skiles Boyd Letter ID: 0160 Commenter Organization: DTE Energy Comment ID: 21271 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: CHARACTERIZATION OF CO2

The preamble discussion regarding the characterizations of CO2 is confusing. The preamble includes an analysis of the potential application of RCRA to CO2 injection and storage activities that appear to be based upon an assumption that CO2 is not a "commodity" but a "waste". Yet EPA does not wish to characterize CO2 as either. As the regulated entity that will want to utilize this technology in the future, it would help us on several fronts (unnecessary regulatory burdens, public acceptance not being the least of these concerns) if EPA did reconsider this position and add some clarifying language to theregulations. EPA should revisit the application of RCRA and CERCLA regulation to the UIC program for CO2 injection. DTE Energy endorses EEI’s recommendation for EPA to consider CO2 injected under the UIC program as either exempted or excluded from regulation under RCRA or CERCLA or adapt performance standards to the injectate that again exclude RCRA and CERCLA regulation. For example, EPA could appropriately establish a permit condition that injectate must meet Toxic Characteristic Leaching Procedure or pH standards without reference to

material’s waste status.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. Under the final GS rule, owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a Class I hazardous waste injection well. Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream).

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Joseph Eutizi Letter ID: 0161 Commenter Organization: San Miguel Electric Cooperative, Inc Comment ID: 21289 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 6. EPA must settle the way GS activities will relate to RCRA and CERCLA. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for GS of CO2), are not applied to this highly specialized gas storage operation.

7. Dealing with these last two hazardous waste issues appears to San Miguel tobe one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects and we recognize that Congressional action may be needed.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Sandi Tabor Letter ID: 0162 Commenter Organization: Lignite Energy Council (LEC) Comment ID: 21303

Comment: 4. Categorization of injected C02 as a hazardous substance under CERCLA EPA seeks comment on whether Class VI permittees could be exempted from CERCLA under its "federally permitted release" provision. First, liability under CERCLA depends on whether there has been a disposal of hazardous substances. While CO2 is not a CERCLA hazardous substance, EPA suggests in the preamble that the makeup of a particular injected C02 stream may trigger a CERCLA analysis. However, the preamble also states that CERCLA's federally permitted releases provision exempts releases in compliance with a UIC permit under SDWA from CERCLA liability. This exemption in and of itself should put the issue to rest. We urge the EPA to fully address the longterm liability for stored C02 under UIC Class VI Well permit. EPA should avoid creating unnecessary hurdles for the successful deployment of CCS by preempting the applicability of CERCLA to Class

VI activities.

Response: The Agency thanks the commenter for their detailed comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementingregulations that may apply.

CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21317 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: § EPA must settle the way GS activities will relate to RCRA and CERCLA. RCRA issimply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for GS of CO2), are not applied to this highly specialized gas storage operation.

§ Dealing with these last two hazardous waste issues appears to NRECA to be one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects and we recognize that Congressional action may be needed.

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21330 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: The CCS Alliance has evaluated technical, market, and policy risks associated with CCS deployment. On behalf of the CCS Alliance, Andrew Paterson of Econergy International interviewed dozens of market participants earlier this year, including project developers, utilities, technology vendors, risk managers, and financial providers to assess which risks were considered most likely to occur, and which, if they occurred, would be considered to have the greatest impact to the project. The CCS Alliance study showed that market participants identified one of the highest risk factors to be the lack of clarity in EPA and state regulations dealing with the technical aspects of injection and with liability. NRECA believes that the largest and most important aspect of the proposed UIC regulations will be how GS activities are coordinated with RCRA and CERCLA. Currently we believe that this is one of the most difficult hurdles standing inthe way of commercial deployment of full scale GS projects. One way of dealing with this issue to avoid classifying injected CO2 as a waste. ********

Response: EPA agrees that any requirements for the CO2 stream should be clearly identified. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21332

Comment: 10. Likewise the specter of regulation under Superfund exposes a GS project to potentially unknown and open-ended liabilities. Obtaining a UIC permit and carefully defining the AoR should go a long way toward protecting the environment. Subjecting the project to Superfund, may not significantly increase environmental protection, but it would surely increase risks and liabilities for the owner/operator. NRECA believes that there may be no other answer than to exempt GS projects from superfund. EPA discusses the availability of a shield from superfund liability being provided by the "federally permitted release" exclusion, however in the event of any unforeseen circumstance or accident that is not explicitly identified in the permit, such protection would vanish. Unfortunately, NRECA doubts that EPA can find a way to design reliable regulatory and liability protection to save GS projects from unnecessary involvement with Superfund while ensuring that they "do not authorize inappropriate hazardous releases" (ibid at 43504).

Response: The Agency thanks the commenter for their detailed comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA orthe terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply.

EPA agrees that proper site characterization and AoR studies are important for USDW protection. In addition, the UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from violations of the Class VI permit in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23365

Comment: Interaction with CERCLA -- Pg. 37

APPA believes that Congress will need to act to correct the potential for open ended CERCLA liability for any contamination resulting from CO2 GS activities before commercial deployment should be expected.

Response: The Agency acknowledges the commenter’s concern regarding the scope and possibleimpacts of CERCLA liability on CCS activities. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23379 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 7. Congress must address a number of critical liability issues under CERCLA and RCRA to enable widespread commercial deployment of geosequestration of CO2 from power plants. That issue primarily is outside the scope of this rulemaking but must be acknowledged. Unless these issues are resolved, first generation plants cannot progress. As EPA recognized in its ANPR on CO2, this UIC rulemaking provides one opportunity to address these issues, while protecting the public health and welfare under the Safe Drinking Water Act.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Theresa Pugh Letter ID: 0169 Commenter Organization: American Public Power Association Comment ID: 23421

Comment: Interaction with CERCLA

APPA has been bothered by the risks of CERCLA given the complexities of what can trigger CERCLA and remediation under the statute’s ARARs. (Applicable or Relevant and Appropriate Requirements). A critically important issue on whichEPA seeks comment is the interaction of the CO2 GS regulatory program with the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). While EPA acknowledges that "CO2 itself is not listed as a hazardous substance under CERCLA," the Agency raises the specter of potential CERCLA liability if the CO2 stream contains other CERCLA hazardous constituents (e.g., mercury), or if other hazardous constituents are formed when the injected CO2 stream reacts with groundwater (e.g., sulfuric acid). Id. at 43504. As EPA can surely appreciate, the potential for open-ended CERCLA liability for any contamination resulting from CO2 GS activities will act as a serious deterrent to would-be Owners or Operators of Class VI wells and could jeopardize the contemplated wide-spread commercial deployment of CO2 GS operations. CERCLA liability would be the ultimate disincentive for commercial deployment. APPA believes that Congress will need to act to correct this risk before commercial deployment should be expected. APPA’s white paper on CERCLA issues by Marianne Horinko, former Acting EPA Administrator, and career policy senior manager at the U.S. EPA on CERCLA and other waste matters address these points. That paper is found in the Appendix. [FN8] [See EPA-HQ-OW-2008-0390-0169.pdf for this document.]

EPA correctly acknowledges that CERCLA’s "federally permitted release" exemption will provide CERCLA protection from those "releases" that fall within the scope of a Class VI permit (e.g., contained within the Area of Review ("AoR")), but the Agency also recognizes the limitations of this exemption, as it does not offer protection for any release of a hazardous substance that is out the scope of the Class VI permit (e.g., outside the AoR). Indeed, EPA states that any permits will have to "be carefully structured to ensure that they do not 'authorize' inappropriate hazardous releases," including "potential releases from the well which are outside the scope of the Class VI permit." Id.

APPA appreciates that the contamination issue is extremely important and should be addressed in the Final Rule. However, we have no reason to believe that the technology and safeguards developed to prevent migration of injected CO2 or its constituents will fail. At the same time, the specter of open-ended CERCLA liability will impede the ability of Owners or Operators to calculate and demonstrate financial responsibility, obtain financial assurance, and obtain the initial capital necessary to invest in this important technology. Simply put, EPA (and Congress) must mitigate the threat of potential CERCLA liability to the extent possible in this rulemaking.

One step that the Agency can take is to ensure that final Class VI permits for individual CO2 GS projects have the broadest possible reach - while remaining protective of USDWs - to maximize the protection offered by the Federally Permitted Release exemption. This would mean including in the scope of the permit for CO2 injection all other CERCLA hazardous constituents likely to be contained in the CO2 stream, including those generated during capture and transport as well as any that could be formed in the injection zone as a result of the injection of CO2. Similarly, the scope of the authorized "permit zone" should be as broad as possible while remaining protective of USDWs. This could mean, for example, effectively authorizing the migration of constituents contained in the CO2 stream (or resulting from injection) outside the scope of the AoR, provided that such migration does not directly impact a USDW.The bottom line is that the potential for unlimited CERCLA liability must be mitigated to avoid significant delays and an overall chilling effect for geosequestration. APPA recognizes that while there are some measures the Agency can take in the regulatory context to address this concern, including those described above, those measures may be limited. In the end, APPA believes that a legislative solution is critical to eliminate this liability concern. APPA recommends that the EPA strongly support such a broader liability solution and communicate that support to Congress at the appropriate time.

[FN8]Marianne Horinko "Carbon Capture and Sequestration Legal and Environmental Challenges Ahead," August 2007

Response: The Agency thanks the commenter for their detailed comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply.

As described above, whether the release of any hazardous substances in the CO2 may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Comments recommending that EPA support legislation for purposes of creating a broader liability framework for GS are outside the scope of this rulemaking.

Commenter Name: Kyle Isakower Letter ID: 0170 Commenter Organization: American Petroleum Institute Comment ID: 24220

Comment: Rule Provisions: 73 FR 43504 EPA Preamble Question: 8. Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit. EPA requests comment on particular situations where this might occur. EPA notice

43504.

API Response: Well chosen sites should prevent these conditions from occurring. At the same time, permit writers should not write permits so restrictive as to make the undertaking of a GS project untenable. EPA should remember that CERCLA liability will not only impact owners and operators of GS projects, but also hundreds, thousands, and even more numerous pore space owners. EPA should consider the threat of subjecting these pore space owners to CERCLA liability. Their property interests in the CO2 GS project injection zones could subject them to strict, joint, and several liability under CERCLA pursuant to whateverliability theories might be developed by future litigants seeking compensation for response and remediation costs incurred in the cleanup of releases from geologic sequestration injection zones. EPA should recognize the significant chilling effect CERCLA liability concerns will have on GS projects, and seize the opportunity in this rulemaking to alleviate any CERCLA liability concerns to the greatest extent possible.

Response: The Agency thanks the commenter for their comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA agrees that proper site characterization that meets the requirements of §146.82 and §146.83 is important for protecting USDWs. Additionally, the UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of suchpersons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Kyle Isakower Letter ID: 0170 Commenter Organization: American Petroleum Institute Comment ID: 24221

Comment: Rule Provisions: 73 FR 43504 EPA Preamble Question: 9. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA.

EPA Notice 43504.

API Response: API is concerned that potential CERCLA liabilities will have the potential to chill enthusiasm for undertaking GS projects. EPA needs to respond clearly and positively to this concern by developing appropriate language in the regulations and permits to provide the clarity and assurance needed to promote continued research and development for GS projects.

Response: Again, EPA thanks the commenter for their comments regarding the scope and possible impacts of CERCLA liability on CCS activities. We reiterate that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of CERCLA, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Erik Silvola Letter ID: 0171 Commenter Organization: Great River Energy Comment ID: 23445 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 6. EPA must settle the way GS activities will relate to RCRA and CERCLA. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA, (never intended for GS of CO2), are not applied to this highly specialized gas storage operation.

7. Dealing with these last two hazardous waste issues appears to GRE to be one of the most difficult hurdles standing in the way of commercial deployment of full scale GS projects and we recognize that Congressional action may be needed.Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Rower Letter ID: 0173 Commenter Organization: Utility Solid Waste Activities Group (USWAG) Comment ID: 23459 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: • EPA must resolve key policy and legal uncertainties to alleviate financial concerns of potential Class VI well Owners or Operators and to encourage investment in the development and operation of Class VI CO2 injection wells.

Issues that must be addressed include the interaction of the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") with Class VI injection activities as well as long-term post-injection liability.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream maycontain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: James Rower Letter ID: 0173 Commenter Organization: Utility Solid Waste Activities Group (USWAG) Comment ID: 23484

Comment: 7. Interaction with CERCLA

An important issue on which EPA seeks comment is the interaction of CERCLA with the CO2 GS regulatory program. While EPA acknowledges that "CO2 itself is not listed as a hazardous substance under CERCLA," the Agency raises the possibility of potential liability under CERCLA, including liability for natural resource damages, if the CO2 stream contains other CERCLA hazardous constituents (e.g., mercury), or if other hazardous constituents are formed when the injected CO2 stream reacts with groundwater.[FN3] 73 Fed. Reg. at 43504. The potential for open-ended CERCLA liability for any contamination resulting from CO2 GS activities will act as a serious deterrent to would-be Owners or Operators of Class VI wells and could jeopardize the contemplated wide-spread commercial deployment of CO2 GS operations.

EPA correctly acknowledges that CERCLA's "federally permitted release" exemption will provide CERCLA protection from those releases that fall within the scope of a Class VI permit (e.g., contained within the AoR), but the Agency also recognizes the limitations of this exemption, as it does not offer protection for any release of a hazardous substance that is beyond the scope of the Class VI permit (e.g., outside the AoR). Indeed, EPA states that any permits will have to "be carefully structured to ensure that they do not 'authorize' inappropriate hazardous releases," including "potential releases from the well which are outside the scope of the Class VI permit." Id.

USWAG appreciates that the contamination issue is extremely important. At the same time, the potential for open-ended CERCLA liability will impede the ability of Owners or Operators to calculate and demonstrate financial responsibility, obtain financial assurance, and acquire the initial capital necessary to invest in this important technology. The specter of CERCLA liability will serve as a significant barrier to the commercial development of CO2 GS -unnecessarily so, given EPA's ample civil and criminal enforcement authority under the SDWA for violations of UIC permits (see SDWA § 1423(b), 42 U.S.C. § 300h-2(b) (authorizing the imposition of $32,500 per day civil penalties and/or criminal penalties and imprisonment)). EPA must mitigate the threat of potential CERCLA liability to the extent possible in this rulemaking.

One step that the Agency can take is to ensure that final Class VI permits for individual CO2GS projects have the broadest possible reach while remainingprotective of USDWs in order to maximize the protection offered by the federally permitted release exemption. This would mean including in the scope of the permit for CO2 injection all other CERCLA hazardous constituents likely to be contained in the CO2 stream, including those generated during capture and transport as well as any that could be formed in the injection zone as a result of the injection of CO2. Similarly, the scope of the authorized "permit zone" should be as broad as possible while remaining protective of USDWs. This could mean, for example, effectively authorizing the migration of constituents contained in the CO2 stream (or resulting from injection) outside the scope of the AoR, provided that such migration does not directly impact a USDW.

We understand that EPA's authority in this rulemaking is limited by the SDWA. However, given the importance of this issue from a public policy perspective, we urge EPA to take whatever regulatory measures are available to mitigate the chilling effect that the potential for such open-ended liability could have on CO2 GS operations, and then consider whether a legislative solution is necessary to eliminate this concern. If so, we recommend that EPA strongly support such a

solution.

[FN3] In the Preamble to the Proposal, EPA suggests that sulfuric acid is one such hazardous substance that could be formed when the injected CO2 stream reacts with groundwater; it is extremely unlikely that sulfuric acid would be produced as a result of the injectate reacting with groundwater.

Response: The Agency thanks the commenter for their comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. As the commenter points out, the GS rule is not promulgated under CERCLA; therefore, the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Pamela Faggert Letter ID: 0175 Commenter Organization: Dominion Comment ID: 23529 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 7. Interaction of CO2 with RCRA and CERCLA

It is essential that the Agency resolve key policy and legal uncertainties regarding the interaction of the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA or Superfund") with Class VI injection activities. EPA's proposed rule refers to the potential presence of unknown or unidentifiable hazardous constituents in various streams. See 73 Fed. Reg. at 43,503-04. This leaves Class VI permittees with little certainty as to which constituents, whether present in the CO2 stream itself, in the receiving underground soil and aquifer, or via some reaction between the two, might subject the permittee to liability under RCRA or CERCLA. This regulatory uncertainty will make it difficult for CCSto attract the investment necessary to ensure its viability as a climate mitigation strategy.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

With respect to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Pamela Faggert Letter ID: 0175 Commenter Organization: Dominion Comment ID: 23531

Comment: EPA also should incorporate in its Final Rule application of CERCLA's "federally permitted release" exemption to Class VI permits, which would minimize the potential for CERCLA liability attaching to Owners or Operators of Class VI injection wells. This would mean including in the scope of the Class VI permit all CERCLA hazardous constituents likely to be contained in the CO2 stream, including those generated during capture and transport, as well as any that could be formed in the injection zone.

Response: The Agency thanks the commenter for their comments regarding the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA,therefore the applicability and interpretation of that statute are outside the scope of this rulemaking and will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply.

Commenter Name: Pamela Faggert Letter ID: 0175 Commenter Organization: Dominion Comment ID: 23532 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Further, EPA already has ample civil and criminal enforcement authority under the SDWA to address violations of UIC permits, including the ability to impose fines of up to $32,500 per day in civil penalties. This authority thus provides a significant and independent means of addressing environmental contamination.

Finally, EPA should support legislative solutions to ensure companies employing CCS technologies are assured of reasonable liability protections. While CO2 is not listed as a hazardous substance under CERCLA, statutory exemptions under both RCRA and CERCLA for a clearly defined set of CO2 injection streams could be an appropriate device for mitigating liability concerns. Or, a more tailored approach to limiting the scope of RCRA and CERCLA liability for certain types of CCS projects could be proposed.

In order to effectively promote CCS as a viable climate mitigation strategy, legal uncertainties surrounding potential CERCLA and RCRA liability associated with GS wells must be addressed. To this end, EPA should employ RCRA's "contingent management" concept and CERCLA's "federally permitted release" exemption as regulatory means to limit potential liability and uncertainty. In addition, EPA should advocate or support legislative solutions to limit Class VI permittee liability

under these statutes.

Response: EPA thanks the commenter for their suggestions and clarifies that any comments related to supporting legislative changes to any environmental statutes are outside the scope of this rulemaking. Changes to the RCRA and CERCLA statutes are outside the scope of the GS rulemaking under the SDWA. EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. As described above, with respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells.

Commenter Name: Kenneth Nemeth Letter ID: 0176 Commenter Organization: Southern States Energy Board Comment ID: 23537 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Importantly, under the proposed rule, EPA should specify that CO2 is not considered hazardous, nor subject to regulation under RCRA or CERCLA, (while the rule recognizes that other gases could contaminate the CO2, resulting in hazards to USDWs). Equally important, there should not be limitations on formations thatResponse: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

With respect to CERCLA, EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Quinlan J. Shea Letter ID: 0177 Commenter Organization: Edison Electric Institute Comment ID: 23559 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Finally, EEI is concerned about the potential application to CCS activities of environmental laws that were, without exception, not intended to apply to CCS or even crafted with CCS in mind and that could impose significant obligations and potential liabilities not only on project operators, but also potentially on other entities in the CO2 chain, such as entities producing the CO2 that is ultimately injected. These laws include the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and RCRA. EEI urges EPA to evaluate carefully any proposed treatment of these two laws (or others) that it may be considering under the Class VI regulations to ensure that any such treatment is necessary and does not serve as an unintended springboard for hampering the successful commercialization of CCS. EEI submits that any characterization of potentially hazardous constituents in CO2 injectate may be addressed as part of the UIC permitting process without addressing any potential RCRA jurisdictional issues.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply.

EPA received many comments regarding the applicability of the RCRA regulations and statute toCO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

With respect to CERCLA, EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Quinlan J. Shea Letter ID: 0177 Commenter Organization: Edison Electric Institute Comment ID: 23605 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: J. Issues Related to Potential Application of Other Environmental Laws

EEI and our members are concerned about the potential application to CCS activities of environmental laws that were, without exception, not intended to apply to CCS or even crafted with CCS in mind and that could impose significant obligations and potential liabilities not only on project operators, but also potentially on other entities in the CO2 chain, such as entities producing the CO2 that is ultimately injected. These laws include in particular the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and RCRA. EEI agrees that issues related to potential liabilities under these laws must be resolved.[FN12] Setting aside for the moment important questions of whether either of these laws could apply to CCS activities and, if so, precisely how and to what extent, EEI does not disagree with the Agency‘s position that drafting a clear exception from either of these regimes may be difficult in the sole context of this SDWA UIC rulemaking. Nonetheless, EEI urges EPA to evaluate carefully any proposed treatment of these two laws (or others) that it may be considering under the Class VI regulations to ensure that any such treatment is necessary and does not serve as an unintended springboard for hampering the successful commercialization of CCS.

[FN12] The recent released GAO report on CCS echoes the importance of addressing these liability issues. GAO recommends that EPA examine its authorities andresponsibilities the under RCRA and CERCLA to determine "where additional statutory authority might be needed to address key regulatory and legal issues related" to CCS. GAO report, supra n. 9, at 52.

Response: As described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements

for CO2 GS in Class VI wells.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Quinlan J. Shea Letter ID: 0177 Commenter Organization: Edison Electric Institute Comment ID: 23607

Comment: As to CERCLA, the preamble states that the statute "exempts from liability certain 'federally permitted releases' including releases in compliance with a UIC permit under SDWA. Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not 'authorize' inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit." The preamble continues on to request comment on "particular situations where this might occur" as well as more generally on "other considerations associated with the presence of impurities in the CO2 stream related to CERCLA." This discussion implies that, in the first instance, activities associated with CCS could be subject to CERCLA.

EEI acknowledges that limits exist on EPA‘s ability to affect issues related to potential CERCLA liability in the context of this SDWA rulemaking. Nonetheless, EEI submits that EPA should seek to provide as much clarity and certainty as possible in this context to allow for the most expansive application of CERCLA‘s federally permitted release exemption as appropriate to activities permitted under the proposed rules. Insofar as the contents of a given CO2 stream will be characterized for permitting purposes and, as the permit may identify particular impurities in the stream, the presence of such impurities would fall squarely within the federally permitted release exemption should not result in "inappropriate hazardous releases." Further, the application of the federally permitted release exemption to the expected, intended composition of the injectate does not inappropriately undermine other limits on the application of the federally permitted release exemption that may exist, potentially including situations where an impurity not contemplated by the permit writer is introduced into the stream or where hazardous substances in the injectate cause the incurrence of response costs where material permit compliance has not beenmaintained.

Furthermore, as noted above, the preamble‘s discussion is based on the assumption that CERCLA would be triggered in the first instance. As the Agency is aware, CERCLA liability (at minimum for certain classes of potentially responsible parties) turns to a significant extent on whether there has been "disposal" of hazardous substances. As with the RCRA issue, a determination of this issue is unnecessary from the perspective of regulating injection and storage of CO2 under the UIC program, and EEI urges the Agency to avoid creating unnecessary hurdles for the successful commercial deployment of CCS by assuming potential applications of other statutes that may not come into play. EEI also encourages the Agency, pursuant to its authority under RCRA and CERCLA, to examine possibilities for exemption or exclusion from those programs.

Response: The Agency thanks the commenter for their detailed comments regarding the scope and possible impacts of CERCLA liability on CCS activities, and in particular comments related to the CERCLA exemption for federally-permitted releases. EPA notes that the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

With respect to the commenter’s reference to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23799 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment); 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: Single, Clear Liability Structure

To the extent possible, policymakers should put in place a single, clear liability regime for CCS activities. In the context of this rule, EPA has considered the possibility of cleanup liability both under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund") and the Resource Conservation and Recovery Act ("RCRA), in addition to the UIC program. There is also the possibility of liability under state statutes and common law. Parties who may be injured in the future must be able to resort to a fair liability scheme, but potential applicability of multiple schemes is likely to discourage CCS development.Response: EPA acknowledges the commenter's concerns regarding the applicability of multiple statutes to GS projects and the need for a single clear liability regime for owners or operators. As a federal agency, EPA is working to create a nationally consistent financial responsibility regime within its authority while providing permitting authorities an appropriate level of flexibility. EPA is finalizing financial responsibility requirements under authority of the SDWA. EPA believes that the general authorities provided under SDWA include the authority to set minimum federal requirements for financial responsibility to ensure that financial resources are available to protect USDWs throughout the life of the GS project. See the final rule and preamble for further discussion of EPA's final approach to financial responsibility.

Furthermore, an owner or operator may always be subject to any action the Administrator deems necessary to protect the health of persons under §1431 of the SDWA after site closure if there is unanticipated migration towards or into a USDW that causes or threatens imminent and substantial endangerment to public health. The action may include issuing administrative orders or commencing a civil action for appropriate relief. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply

continues.

The Agency acknowledges and clarifies that, after site closure, an owner or operator may, depending on the fact scenario and state law, remain liable under state tort law and other remedies, or under other Statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992.

EPA appreciates the commenter’s suggestions for a single liability scheme for CCS; however, the GS rule is not promulgated under either RCRA or CERCLA, and making legislation changes or addressing liability under state statutes and common law is also outside the scope of the GS rulemaking. EPA also notes that the applicability of RCRA and CERCLA will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply.

EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23815 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment); 5400 2.9 Proposed Financial Responsibility and Long-Term Care RequirementsComment: B. POTENTIAL APPLICABILITY OF RCRA AND CERCLA

As discussed in greater detail below, the potential applicability of RCRA and CERCLA is a key concern. These statutes simply are not designed with the thought in mind of encouraging the safe and widespread deployment of a new technology. The CCS Alliance believes that many parties involved in the CCS chain of events should bear responsibility for safe operation. Rather than apply environmental statutes with contentious and litigious histories, Congress should enact a new regulatory and liability framework for CCS in place of the multiple regimes that now may apply. This is not meant to detract from the progress EPA is making in this rulemaking. It merely recognizes the limitations and overlapping structures EPA itself has noted. CCS should be subject to a single, clear regulatory structure, and a single, clear liability structure. In the meantime, EPA should use what interpretive authority it has to limit the applicability of multiple statutes and provisions, the applicability of which would discourage CCS.

Response: EPA acknowledges the commenter's concerns regarding the applicability of multiple statutes to GS projects and the need for a single clear liability regime for owners or operators. EPA is working to create a nationally consistent financial responsibility regime within its authority while providing permitting authorities an appropriate level of flexibility. EPA is finalizing financial responsibility requirements under authority of the SDWA, which includes the authority to set federal minimum requirements for financial responsibility to ensure that resources are available to protect USDWs throughout the life of the GS project.

This authority does not extend to release owners or operators from long-term responsibility under other statutes, such as CERCLA, for potential impacts after the PISC period has ended, or for the potential economic costs associated with impacts unrelated to USDWs. Under current SDWA provisions, EPA does not have authority to transfer liability from one entity to another and it does not provide for the creation of a third party financial instrument where EPA is the trustee.

Under SDWA authority, owners or operators of injection wells must ensure protection of USDWs from endangerment and are subject to liability for enforcement under the Act. The final rule requires that an owner or operator conduct monitoring as specified in the Director-approved PISC and site closure plan following the cessation of injection until he or she can demonstrate to the Director that the geologic sequestration project no longer poses an endangerment to USDWs. For additional information about the PISC and site closure requirements, see the preamble to the final GS rule.

Once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, the financial instrument required under §146.85 will be released if it has not been used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable even after site closure was approved if the Director relied on erroneous information provided by the owner or operator when approving site closure.

Additionally, an owner or operator may always be subject to any action the Administrator deems necessary to protect the health of persons under §1431 of the SDWA after site closure if there is unanticipated migration towards or into a USDW that causes or threatens imminent and substantial endangerment to public health. If the owner or operator fails to comply with the order, he or she maybe subject to a civil penalty for each day in which such violation occurs or failure to comply

continues.

The Agency clarifies that Class VI well permits may be transferred to another owner or operator pursuant to §144.38 whereby generally all other regulatory responsibilities are transferred to that new owner and operator, including all potential liabilities associated with meeting the requirements of that permit.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Comments requesting congressional legislation on liability for GS are outside of the scope of this rulemaking.

EPA agrees that identifying and addressing potential barriers to the deployment of CCS, while protecting human health and the environment, is important. As described above, making legislation changes is outside the scope of the GS rulemaking. Also as described above, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23833

Comment: VII. SPECIAL FOCUS: APPLICABILITY OF CERCLA

The Proposed Rule raises the question whether the injected CO2 stream[FN27]"

will be considered a "hazardous substance" under CERCLA.

[FN27] The rule uses the terms "carbon dioxide stream" and "injectate" interchangeably. EPA's proposed definition of these terms includes CO2 "plus

incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that

meets the definition of a hazardous waste under 40 CFR Part 261."

The Proposed Rule states:

While CO2 itself is not listed as a hazardous substance under CERCLA, the CO2 stream may contain other substances such as mercury that are

hazardous substances or the constituents of the CO2 stream could react with groundwater to produce listed hazardous substances such as sulfuric acid. Thus, whether or not there is a "hazardous substance" that mayresult in CERCLA liability from a sequestration facility depends entirely on the make-up of the specific CO2 and of the environmental media (e.g., soil, groundwater) in which it is stored.

A mechanism must be in place to address liability for releases from GS sites. However, Superfund has had a number of problems that EPA should carefully consider in the context of a regulatory regime the Agency hopes will encourage deployment of CCS. Cleanups sometimes have been delayed by decades, lawsuits can stretch for years and involve numerous parties, and cleanups have been far too costly. EPA should use its interpretive authority to limit the applicability of Superfund and respond to releases under other authorities. Ultimately, Congress should adopt a new response and liability system recognizing the policy goals, scale, and other special features of CCS that is unburdened by the problems of Superfund.

A. RELEVANT PROBLEMS WITH SUPERFUND

Superfund imposes a strict, joint, and several liability scheme upon facility owners and operators, parties who arrange for treatment, storage, transportation, or disposal of hazardous substances; and transporters of hazardous substances. This strict, joint, and several liability scheme, in conjunction with other features of Superfund, particularly what many consider to be inordinately high cleanup costs, frequently results in expensive and lengthy lawsuits and delayed cleanups. Superfund also has been criticized for remedies that are far more aggressive than the risks warrant.

B. SUPERFUND APPLICABILITY

EPA's authority to order cleanups under CERCLA is triggered whenever any

"hazardous substance" is released or there is a substantial threat of such a release into the environment. The Agency is considering whether the injectate, substances mobilized as a result of injection, or substances formed by geochemical reactions between the injectate and underground materials will trigger the "hazardous substance" definition.

While EPA correctly notes that CO2 is not now a hazardous substance, that may not continue to be the case given Massachusetts v. EPA,[FN28] in which the Supreme Court ruled that CO2 is a pollutant and directed the EPA to determine whether or how it should be regulated. Such a decision could affect whether CO2

is determined to be a hazardous substance under CERCLA.

[FN28] Massachusetts v. EPA, 549 U.S. 497 (2007).

CERCLA defines a hazardous substance to include "any hazardous air pollutant listed under section 112 of the Clean Air Act . . . ."[FN29] CO2 is not on this list at present. However, Section 112 authorizes EPA to add a compound to the list if the Agency finds that emissions of the compound "may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects."[FN30] If in response to Massachusetts v. EPA, EPA were to decide to regulate CO2 under Section 112, releases of CO2, even without the presence ofor interaction with hazardous substances, would be subject to Superfund liability.

[FN29] 42 U.S. C. $9601.

[FN30] 42 U.S. C. $7411.

EPA also notes that the presence of other materials or the injectate's reaction with other substances underground may result in it becoming a hazardous substance. These post-injection geochemical reactions are of significant concern because CO2 injectate considered non-hazardous upon injection could, over time, react with underground materials, potentially creating a hazardous substance and triggering unintended and unanticipated Superfund applicability.

Triggering application of the "hazardous substance" definition under Superfund to CO2, either pre- or post-injection, will create concerns about liability that will not encourage CCS development and, as our research cited above suggests. likely will be an impediment to the investment and risk management needed for CCS projects.

C. FEDERALLY PERMITTED RELEASE EXEMPTION

Superfund liability does not apply to a "federally permitted release," pursuant to Section 107(j).[FN31] The Proposed Rule notes that parties may be able to avoid Superfund liability through this exception. However, this exception likely would not apply in cases where injectate accidentally has been released from a storage site. Both EPA [FN32] and the courts [FN33] have interpreted the federally permitted release exemption to apply to releases that are in compliance with a permit, but not to accidental releases. It potentially may not apply where injectate remains safely within a containment zone, but beyond the area for which a permit was granted. The EPA should consider the potential for triggering Superfund liability in determining how it writes permits, particularly in cases where the CO2 remains safely stored.

[FN31] 42 U.S.C. # 9607.

[FN32] "In most circumstances, releases resulting from accidents and maifunctions do not qualify for the federally permitted release exemption as defined in CERCLA section 101(10)(H). Releases due to accidents and malfunctions, because they are by definition not anticipated, are difficult to subject to controls which limit or eliminate emissions. Congress did not intend to exempt unanticipated releases such as accidents and malfunctions from CERCLA section 103. An accidental release not in compliance with a permit would be subject to response costs and damages claims under Superfund in addition ot the provisions of the SDWA and state and common law." Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions, 67 Fed. Reg. 18899, 18903 (Apr. 17,2002).

[FN33] See United States v. Iron Mountain Mines. Inc., 812 F. Supp. 1528. 1540-41 (E.D. Cal. 1992) ("Congress considered the interplay between FWPCA andCERCLA when it enacted the latter statute, but declined to exempt municipal sewer authorities from its broad reach . . FWPCA exemption extends to industrial discharges into POTWs, indicating that Congress specifically intended for CERCLA liability to reach releases from sewers or POTWs.") Reading Co. v. City of Philadelphia, 823 F. Supp. 1218, 1230-31 (E.D. Penn. 1993) (Toxic Substances Control Act (TSCA) compliance is insufficient to invoke the RCRA exemption under CERCLA); Westfarm Associates Ltd. Partnership v. International Fabricare Inst., 1993 U.S. Dist. LEXIS 19952 (D.Md. 1993). See also Idaho v. Bunker Hill Co., 635 F. Supp. 665, 673 (D. Idaho 1986); Reporting Exemptions for Federally Permitted Releases of Hazardous Substances, 53 Fed. Reg. 27,268-81 (proposed July 19, 1988) (to be codified at 40 C.F.R. $$ 117.12, 302.3, 302.6, 355).

If Superfund does not apply because of the exemption, remedies may be obtained under other law. CERCLA's federally permitted release exemption states that "recovery . . . for response costs . . . resulting from a federally permitted release shall be pursuant to existing law in lieu of [CERCLA]."[FN34]

[FN34] 42 U.S. C. $ 9607(j) (2006).

Response: CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

EPA clarifies that, while the Administrator reserves the right to promulgate regulations designating additional substances as hazardous under §102 of CERCLA, EPA intends to avoid any potential overlap of SDWA and CERCLA authority through its comprehensive Class VI requirements.

CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit.Commenter Name: Frederick R. Eames Letter ID: 0178 Commenter Organization: CCS Alliance Comment ID: 23834 Other EPA Comment Codes and Descriptions: 5400 2.9 Proposed Financial Responsibility and Long-Term Care Requirements

Comment: D. POTENTIAL EFFECT OF SUPERFUND ON CCS DEPLOYMENT

The CCS Alliance conducted a Risk Study earlier this year, surveying more than 30 executives in companies involved with or considering CCS deployment.[FN35] the purpose of the Risk Study was to identify policy, technical, and market risks that could pose barriers to proceeding with CCS projects. Respondents were asked to rate the likelihood of a policy, technical, or market factor occurring, as well as the severity of the impact to a CCS project if it did occur. The product of the likelihood and the severity of impact to the project for each surveyed issue generated a risk ranking.

[FN35] Risk Study for Commercial Deployment of CCS: Factors Affecting Financing for Early Plants, CCS Alliance (July 2008).

Three of the top eight concerns identified by respondents related to liability for CCS, including lack of clarity in the applicability of federal and state liability regimes. As the following chart demonstrates, particularly results for responses to questions 17,31, and 34. executives are very much concerned with the risks associated with the lack of clarity in state and federal regulations and liability regimes, as well as with liability over the long-term.

[Please see Comment Pdf for Chart, pg. 38]

Moreover, a recent GAO report emphasizes the concern about liability:

EPA's 2007 UIC workshop, attended by more than 200 stakeholders, revealed liability associated with unintended migration of injected CO2 to be a critical concern. Similarly, 19 of the 20 stakeholders we interviewed told us that liability related to CO2 storage was a large or very large barrier to deployment of CCS at commercial scale, with some noting that liability concerns have already negatively impacted companies' ability to initiate CCS projects. For example. two stakeholders reported that these concerns have already made it difficult to obtain insurance for CCS projects. [FN36]

[FN36] U.S. GAO, GAO-08-1080. FEDERAL ACTIONS WlLL GREATLY AFFECT THE

VIABILITY OF CARBON CAPTURE AND STORAGE AS A KEY MITIGATION OPTION 25 (2008).

Although we currently are aware of no report specifically stating that liability under Superfund is the principal liability concern among CCS proponents, it clearly is a significant issue that has been raised repeatedly, including through EPA advisory processes and the imposition of which would negatively affect future investment in CCS technologies.[FN37]

[FN37] EPA's Advanced Coal Technology Work Group Final Report recommends thatEPA's UIC rulemaking proposal should "include a thorough discussion of. . liability implications under other statutes (CERCLA, RCRA, etc.) and potential linkages and impacts (or lack thereof) for CCS projects." U.S. ENVIRONMEKTAL PROTECTION AGENCY, FINAL REPORT: ADVANCED COAL TECHNOLOGY WORK

GROUP REPORT 5 (Jan. 29,2008).

Response: As described above, EPA is working to create a nationally consistent financial responsibility regime within its authority while providing permitting authorities and owners or operators an appropriate level of flexibility. EPA believes that the general authorities provided under SDWA include the authority to set federal minimum requirements for financial responsibility to ensure that resources are available to protect USDWs throughout the life of the GS project. However, this authority does not extend to release owners or operators from long-term responsibility of other environmental statutes, such as CERCLA, for potential impacts to USDWs after the PISC period has ended, or for the potential economic costs associated with activities with impacts unrelated to USDWs (e.g., risks to air, or ecosystems).

Additionally, an owner or operator may always be subject to any action the Administrator deems necessary to protect the health of persons under §1431 of the SDWA after site closure if there is unanticipated migration towards or into a USDW that causes or threatens imminent and substantial endangerment to public health. The action may include issuing administrative orders or commencing a civil action for appropriate relief. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply

continues.

Furthermore, the Agency clarifies that, after site closure, an owner or operator may, depending on the fact scenario, remain liable under tort and other remedies, or under other Statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992.

See the final rule and preamble for further discussion of final approach to financial responsibility for GS projects.

As described above, whether the presence of hazardous substances in CO2 streams may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

Commenter Name: Lee O. Fuller Letter ID: 0179 Commenter Organization: Independent Petroleum Association of America et

al. Comment ID:

23613

Comment: EPA has requested comments on the application of the Comprehensive EnvironmentalResponse, Compensation, and Liability Act (CERCLA or Superfund) to Class VI wells. Because of the interrelation of Class VI and Class II CO2 EOR operations, we offer the following observations. EPA states that CO2 is not a listed hazardous substance under Superfund - nor should it be. Rather EPA focuses on the potential for such substances to be included in a carbon capturing operation or for the presence of CO2 to react in GS. We do not believe that CO2 GS operations reasonably fall under the scope of Superfund. As long as compositional controls are specified, it is not a hazardous substance nor is it a pollutant or contaminant under the Superfund definition. Assuming that some other chemicals could be present and trigger Superfund’s application, UIC program operations fall under Superfund’s "federally permitted releases" limitations. This provision allows EPA to respond to a release or threat of a release assuring environmental protection. Recovery of the response costs would have to be sought under other federal or state laws rather than CERCLA. However, UIC operations under federal and state regulatory programs already provide for mechanisms to correct for failures and, in fact, these operations have proven to be very effective. Unfortunately, we believe that EPA’s focus on the potential application of Superfund creates the appearance of risks that will impede the development of GS wells. More importantly, as stated above, from our perspective the threat of new liability exposure can chill CO2 EOR and risk both billions of barrels of American oil production and a valuable and expedient mechanism for sequestration.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operatormay be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Scott Davis Letter ID: 0187 Commenter Organization: Arizona Public Service Company Comment ID: 25220 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment); 5460 2.9.2 Comments on transfer of liability for long-term care

Comment: - The final rule must resolve several key policy and legal questions regarding underground injection of CO2, including but not limited to implications under the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), and limiting post injection liability.

Response: Under the final GS rule, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action forappropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA also clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: G. Graham Holden Letter ID: 0189 Commenter Organization: Oglethorpe Power Corporation Comment ID: 25250 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 6. EPA should define the way GS activities will relate to the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") 42 U.S. §§ 9601, et seq. RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to insure that the onerous requirements of CERCLA (never intended for GS of CO2) are not applied to this highly specialized storage operation.

7. Appropriately defining the relationship of GS activities with RCRA and CERCLA is critical to the commercial deployment of full scale GS projects and may require Congressional action.Response: EPA agrees that any requirements applicable to CO2 injectate should be clearly identified to the public and to the regulated community. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24323 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: D. RCRA/CERCLA Applicability

In light of the current uses and potential future uses of CO2 for EOR/EGR, EPA has taken a sensible approach by proposing to create a new Class VI well category based on the injection of the CO2 stream as fluid without characterizing that stream as a waste. It is neither necessary nor helpful to categorize CO2 as a pollutant or waste, and that would likely prove detrimental to technology development. Indeed, we are concerned that EPA’s brief discussion of a supposed potential for injected CO2 streams to be characterized as hazardous waste (or some type of hazardous release) are causing apprehension and could have a significant chilling effect on any future deployment of carbon capture and sequestration technologies. Through the work of our engineers and scientists with capture technologies and their extensive experience with the types of power plant flue gas likely to be sources of CO2 for sequestration, we do not believe that captured CO2 streams should trigger the application of either RCRA or CERCLA. Accordingly, we encourage EPA to dispel concerns that geologic sequestration could be encumbered with those requirements except possibly through the commingling of a captured CO2 stream with an actual waste stream, and we are not suggesting that such commingling should be permissible in

the GS context.Response: EPA thanks the commenter for their views on CCS, and notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24325

Comment: 2. CERCLA Applicability

The proposed rule raises the specter of CERCLA liability arising out of CO2 geologic sequestration (GS) projects. Specifically, in Section II.D. of the preamble, EPA notes several "potential USDW impacts," including the potential that the injected CO2 could (1) force native brines into USDWs; (2) contain impurities; or (3) cause naturally occurring or otherwise pre-existing chemicals to be mobilized within the injection zone, for example, via the formation of carbonic acid and its leaching effects. 73 Fed. Reg. 43492, 43497 (July 25, 2008). EPA then goes so far as to suggest that "The migration of formation fluids containing mobilized contaminants could cause endangerment of USDWs." Id.

EPA reiterates some of these concerns under preamble Section 2.J., under the heading "Is injected CO2 considered a hazardous substance under CERCLA?" 73 Fed. Reg. at 43503-04. EPA indicates that CO2, while not itself a CERCLA "hazardoussubstance," could contain hazardous substance impurities. EPA indicates further that "the CO2 stream could react with groundwater to produce listed hazardous substances such as sulfuric acid." 73 Fed. Reg. at 43504. (It is unclear whether the reference to groundwater means injection zone formation fluids or USDW formation fluids.) In short, the CERCLA liability concerns flagged by EPA arise out of two basic scenarios: (1) pre-existing hazardous substances, or hazardous substance impurities or reaction products moving into or within the injection zone; and (2) these hazardous substances (or displaced brines) migrating from the injection zone.

EPA also states:

CERCLA exempts from liability certain "federally permitted releases" including releases in compliance with a UIC permit under SDWA. Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit.

73 Fed. Reg. at 43504.

The first concern raised by EPA does not appear to pose a very serious concern because injection into a permitted injection does not constitute a release under CERCLA. EPA has issued some relevant guidance in the UIC context. Specifically, EPA has concluded that the emplacement of fluids into an injection zone through an authorized injection well does not constitute a "release" for purposes of RCRA or CERCLA. See 50 Fed. Reg. 28712 (July 15, 1985). EPA relied upon CERCLA’s definition of "release," which requires hazardous substances to make it into the "environment." Under EPA’s interpretation, UIC injection zones do not constitute the "environment," but rather the injection zone is essentially part of the injection well system. Id. at 28713. One of the key elements for CERCLA liability is a release (or threatened release) of hazardous substances. Therefore, at least with respect to hazardous substances remaining in the injection zone, one of the key elements for CERCLA liability would not be met, regardless of whether the hazardous substances were in the discharge stream, mobilized pre-existing substances, or in-situ reaction products. For clarification, EPA should reiterate this interpretation in the preamble to the

final GS rule.

Notwithstanding this interpretation, significant CERCLA liability concerns could remain with respect to any migration from the injection zone. While we are unaware of any attempt to date by EPA or another government agency or private party, to apply CERCLA to a UIC site in such a scenario, or any similar context, the mere possibility is a significant concern that should be addressed by EPA in order to avoid serious discouragement of development and investment in CO2 GS projects. EPA should clarify in the final regulations the so-called "federally permitted release" exemption from CERCLA liability for purposes of the UIC program, as referenced by EPA in the preamble to the GS proposal. 73 Fed. Reg. at 43504. The FPR exemption affects two separate CERCLA areas: (1) releasereporting and (2) cleanup liability. The FPR exemption operates differently in each area, and is more accurately characterized as two separate exemptions.

Under CERCLA’s release reporting provisions, certain releases of hazardous substances are subject to a one-time notification requirement, but FPRs are

exempt:

Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as he has knowledge of any release (other than a federally permitted release) of a hazardous substance from such vessel or facility in quantities equal to or greater than those determined pursuant to CERCLA - Sec. 9602 of this title, immediately notify the National Response Center....

42 USC § 9603(a). FPR is in turn defined to include various types of releases/discharges authorized under any of several federal or delegated state regulatory programs including "(G) any injection of fluids authorized under Federal underground injection control programs or State programs submitted for Federal approval (and not disapproved by the Administrator of the Environmental Protection Agency) pursuant to part C of the Safe Drinking Water Act [42 U.S.C. 300h et seq.] ... 42 USC § 9601(10) (emphasis added). To apply the FPR exemption in the release reporting context, the issue for UIC permittees would simply be whether the release at issue was an authorized injection of fluids. If so, the release would not have to be reported. The FPR for cleanup liability purposes is more complicated.

CERCLA § 107(j) states:

Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazardous substance or for removal or

remedial action or the costs of removal or remedial action of such

hazardous substance....

42 USC § 9607(j). First, it is important to understand that the FPR exemption from cleanup liability only forecloses a CERCLA action; otherwise-viable actions under other laws remain viable, and are not affected. An aggrieved party would be free to assert claims based on any number of other causes of action typically utilized in hazardous substance contamination cases, such as common law claims for trespass, nuisance, negligence, strict liability, or "toxic tort," or statutory claims arising under state groundwater protection or cleanup liability

laws.

More importantly, in comparison with the release reporting context, the FPR exemption from cleanup liability applies not to the FPR directly, but rather to "response costs or damages resulting from" the FPR. This parallels CERCLA’sliability imposing provisions, which require a release of hazardous substances from a facility "which causes the incurrence of response costs." This exemption is obviously broader than just the FPR itself in that any resulting costs are covered. In other words, the measure of the scope of the exemption for liability purposes is not limited to whether the release qualifies as a FPR, but rather

whether the costs at issue result from the FPR.

With respect to UIC wells, if the emplacement of fluids through a well is authorized by the permit, the resulting costs due to the various circumstances identified by EPA - in-situ reaction or mobilization, migration, etc. - remain ultimately the result of the FPR, and would be covered by the liability exemption. In other words, but for the authorized injection, the costs would not have been incurred. Therefore, the FPR exemption should apply to the scenarios identified by EPA in the preamble, with the exception of costs incurred due solely to unauthorized releases - i.e., releases resulting from unauthorized injection.

The scope of the FPR exemption in the CERCLA cleanup liability context has been interpreted narrowly by some courts, but none of the cases involved UIC sites. In promulgating the final rule, EPA could provide a more reasoned analysis of the FPR exemption, and dispel any unwarranted concerns about CERCLA liability. EPA realized over 20 years ago that CERCLA’s FPR exemption needed additional clarification with respect to both release reporting and liability issues. EPA issued proposed rules in 1983 and 1988 that were never finalized. See 53 Fed. Reg. 27267 (July 19, 1988). Most of the attention, however, focused on the release reporting issues, rather then the cleanup liability issues. 54 Fed. Reg. 29305, 29307 (July 11, 1989). EPA did observe in the preamble to the proposal that an "underground injection of hazardous substances permitted under an [authorized state or EPA program] is considered federally permitted for purposes of CERCLA notification." (53 Fed. Reg. at 27273). EPA did not find it necessary to propose any amendments to the UIC program regulations.

Having raised these CERCLA issues in its proposal, EPA should take the present opportunity to provide a regulatory clarification of the existing exemption from CERCLA cleanup liability for UIC projects. EPA should clarify that the scope of "authorized injection of fluids" which defines the FPR exemption should be provided by the definition of CO2 stream, which should define the scope of the permitted injection to include:

[Any] carbon dioxide that has been captured from any source, plus

incidental associated substances derived from the source materials or a capture process, and any substances added to the stream to enable or improve the injection process.

73 Fed. Reg. at 43535, proposed 40 CFR §146.81(d), definition of "Carbon dioxide stream" (with our proposed modifications). For further clarification, EPA could provide that only the injection under a Class VI permit of streams failing to meet this definition would fall outside the scope of the "authorized injection of fluids" unless expressly authorized for injection in the permit covering the well. EPA should also address CERCLA § 107(j) and provide an appropriateclarification of the broad array of potential response costs or damages it would consider to result from an authorized UIC project, e.g. costs to address the migration of impurities, mobilized pre-existing contaminants, or displaced

brines.

Although the risk of a CO2GS project giving rise to CERCLA liability is relatively low, raising the prospect of any potential for CERCLA liability may be so chilling as to significantly curtail efforts to develop CO2GS projects. CERCLA’s far-reaching liability web and the tremendous costs that can be imposed on parties potentially liable under CERCLA are now well-known. Also well-known is the reluctance of businesses and investors to support projects faced with a potential for liabilities of a CERCLA-scale. For example, the impacts of CERCLA on the commercial/industrial property market in the late 1980’s and early 1990’s were devastating to many urban centers. To avoid incurring CERCLA liability, property owners and prospective purchasers simply avoided deals involving properties with any potential hazardous substance contamination. This contributed to the so-called "brownfield" problem of unused or underutilized properties being shunned due to potential or actual contamination, and the associated CERCLA liability concerns. This in turn led to the expansion of development to previously undeveloped "greenfields" sites that, while less risky from a CERCLA perspective, raised their own array of concerns such as urban sprawl, infrastructure costs, etc. In response to the negative impacts of potential CERCLA liability, EPA and many states have gone to great lengths over the last ten years to alleviate liability concerns and encourage brownfield development projects. Similarly, EPA should recognize the significant chilling effect that CERCLA liability concerns would have on the development and deployment CO2GS projects, especially in this era of high volatility in the investment markets. EPA should use the opportunity in this rulemaking to alleviate unwarranted CERCLA liability concerns to the greatest extent possible.

Even more troubling than the potential negative impact on the investment community is the threat of subjecting hundreds, thousands, and even more numerous pore space owners to CERCLA liability. Their property interests in potential deep subsurface CO2GS project injection zones could subject them to strict, joint, and several liability under CERCLA pursuant to liability theories that could be conjured up by future litigants seeking compensation for investigation response - and possibly remediation - costs claimed to be incurred as a result of releases from geologic sequestration injection zones. The discussion of what might be required to acquire any necessary rights to conduct CO2GS projects is complex enough already without even beginning to consider how the willingness of pore space owners to participate might be obliterated by the uncertainties of CERCLA liabilities hanging over their heads.

In short, EPA needs to seize the opportunity to dispel the specter of CERCLA liability raised in its preamble by developing appropriate language to provide the clarity and assurance needed to promote continued research, development and deployment of CO2GS projects.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances inthe subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24513

Comment: Rule Provisions or Federal Register Cite: 73 FR 43504 EPA Preamble Question: 8. Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit. EPA requests comment on particular situations where this might occur. EPA notice

43504.

CSC Response: Well chosen sites should prevent these conditions from occurring. At the same time, permit writers should not write permits so restrictive as to make the undertaking of a GS project untenable. EPA should remember that CERCLA liability will not only impact owners and operators of GS projects, but also hundreds, thousands, and even more numerous pore space owners. EPA should consider the threat of subjecting these pore space owners to CERCLA liability. Their property interests in the CO2 GS project injection zones could subject them to strict, joint, and several liability under CERCLA pursuant to whatever liability theories might be developed by future litigants seeking compensation for response and remediation costs incurred in the cleanup of releases from geologic sequestration injection zones. EPA should recognize the significant chilling effect CERCLA liability concerns will have on GS projects, and seize the opportunity in this rulemaking to alleviate any CERCLA liability concerns to the greatest extent possible.

Rule Provisions or Federal Register Cite: 73 FR 43504 EPA Preamble Question: 9. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA.

EPA Notice 43504.

CSC Response: CSC is concerned that potential CERCLA liabilities will have the potential to chill enthusiasm for undertaking GS projects. EPA needs to respond clearly and positively to this concern by developing appropriate language in the regulations and permits to provide the clarity and assurance needed to promote continued research and development for GS projects.

Response: As described above, whether the presence of hazardous substances in the CO2 may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protectsUSDWs from endangerment.

Commenter Name: Jeff W. Sheets Letter ID: 0192 Commenter Organization: ConocoPhillips Comment ID: 23900

Comment: CERCLA- CO2 injection under UIC permits will meet EPA's requirements and area of review along with all permitting requirements; which will ensure appropriate injection and handling. We are very concerned that by raising this issue, EPA opens broad concern and uncertainty which could seriously jeopardize progress on

CCS.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

EPA agrees that proper site characterization and operation of a GS project is important for protecting USDWs from endangerment. The UIC program Director also has authority under the SDWA to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: John R. Baza Letter ID: 0193 Commenter Organization: Utah Division of Oil, Gas, and Mining Comment ID: 23916 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Waste Characterization

Injected CO2 is not and should not be considered a hazardous waste or regulated

under RCRA or CERCLA. It is assumed that RCRA or CERCLA wastes would be removed from the CO2 stream prior to injection.

Response: EPA received many comments regarding the applicability of the RCRA regulations andstatute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Craig R. Walters Letter ID: 0200 Commenter Organization: Anadarko Petroleum Corporation Comment ID: 24575

Comment: Rule Provisions: 73 FR 43504 EPA Rule Issue: 8. Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit. EPA requests comment on particular situations where this might occur. EPA notice 43504.

Anadarko Petroleum Corporation (APC) Response: Well chosen sites should prevent these conditions from occurring. At the same time, permit writers should not write permits so restrictive as to make the undertaking of a GS project untenable. EPA should remember that CERCLA liability will not only impact owners and operators of GS projects, but also hundreds, thousands, and even more numerous pore space owners. EPA should consider the threat of subjecting these pore space owners to CERCLA liability. Their property interests in the CO2 GS project injection zones could subject them to strict, joint, and several liability under CERCLA pursuant to whatever liability theories might be conjured up by future litigants seeking compensation for response and remediation costs incurred in the cleanup of releases from geologic sequestration injection zones. EPA should recognize the significant chilling effect CERCLA liability concerns will have on GS projects, and seize the opportunity in this rulemaking to alleviate any CERCLA liability concerns to the greatest extent possible.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.EPA agrees that proper site characterization and operation of a GS project is important for protecting USDWs from endangerment. The UIC program Director also has authority under the SDWA to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Craig R. Walters Letter ID: 0200 Commenter Organization: Anadarko Petroleum Corporation Comment ID: 24576

Comment: Rule Provisions: 73 FR 43504 EPA Rule Issue: 9. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA. EPA Notice

43504.

Anadarko Petroleum Corporation (APC) Response: APC is concerned that potential CERCLA liabilities will have the potential to chill enthusiasm for undertaking GS projects. EPA needs to respond clearly and positively to this concern by developing appropriate language to provide the clarity and assurance needed to promote continued research and development for GS projects.

Response: As described above, promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Chris M. Hobson Letter ID: 0201 Commenter Organization: Southern Company Comment ID: 22159

Comment: Potential interaction with CERCLA - EPA also raises the potential for liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") stemming from CO2 GS operations. 73 Fed. Reg. at 43504. The potential for liability under CERCLA will have similar adverse implications as the potential for RCRA applicability _ specifically, potential CERCLA liability will act as a significant deterrent to participation or investment in CO2 GS projects. Southern Company again encourages EPA to pursue whatever regulatory and/or legislative avenues are available to remove this obstacle without jeopardizing the Program's standard of protection of USDWs.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media inwhich it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Thomas Curtis Letter ID: 0204 Commenter Organization: American Water Works Association (AWWA) Comment ID: 22186 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: - Congress must address liability issues under CERCLA, RCRA and Natural Resource Damage Assessment before this technology is commercially deployable.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA clarifies that the GS rule requires owner or operators of Class VI wells to characterize their injection stream prior to injection, and throughout the operational life of the injection facility.

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Comments related to congressional action are outside the scope of this rulemaking.

Commenter Name: Michael Stroben Letter ID: 0209 Commenter Organization: Duke Energy Comment ID: 22680 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: RCRA AND CERCLA APPLICABILITY

To encourage adoption and use of the Class VI wells by the regulated community EPA must resolve policy and legal issues regarding the applicability of RCRA and CERCLA Regulation and liabilities to projects permitted and operated under the proposed rule. Subjecting any CO2 GS project to RCRA controls, and failure to adequately mitigate the potential for unlimited CERCLA liability will pose a serious obstacle to the commercial deployment of GS technology.Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Michael Stroben Letter ID: 0209 Commenter Organization: Duke Energy Comment ID: 22682

Comment: Injection of CO2 into vast areas underlying multiple political jurisdictions and surface properties owned by multiple parties was not anticipated when "Superfund liability" was initially conceived. Failure to address liability uncertainties via a permitted injection exemption or by a mechanism for transfer of long-term liability to government bodies will be a disincentive to commercial deployment of GS technology.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22693

Comment: 2. EPA must emphatically conclude that CO2 containing trace contaminants does not open any regulatory pathways to subjecting a geological storage site to Superfund liability.

Response: CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA clarifies that, while the Administrator reserves the right to promulgate regulations designating additional substances as hazardous under §102 of CERCLA, EPA intends to avoid any potential overlap of SDWA and CERCLA authority through its comprehensive Class VI requirements.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22694 Other EPA Comment Codes and Descriptions: 5460 2.9.2 Comments on transfer of liability for long-term care

Comment: 3. CLASS VI (Underground Injection Control (UIC) permits need to identify the potential for hazardous substances that might be generated in geologic formations after facility decommissioning and well closure so that should releases occur, they would be federally-permitted.

Response: As described above, CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatorynoncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22704 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: #1: Potential Applicability of CFR 40 Part 261 (RCRA). (Ref: page 43503, Section I) In the preamble to the ANPR, EPA poses the question of whether injected CO2 might be considered a RCRA hazardous waste, but does not answer the question. Any ambiguity concerning the applicability of complex and expensive regulatory regimes such as RCRA and CERCLA will be a major disincentive to the development and deployment of CCS. Regulatory clarity and certainty are critical to companies facing multi-billion dollar investment decisions regarding gasification facilities and CO2 sequestration projects.

EPA should explicitly address these issues in the final rule and not leave open any implication that RCRA and CERCLA may or may not apply to CCS. The presence of low levels of hazardous contaminants in CO2 as a result of the carbon capture process should not limit the storage of the CO2 using Class VI wells, especially taking into account the diminimus risk of exposure associated with the disposition of CO2 into deep geological formations under the stringent controls required by this proposed regulation. We strongly recommend that EPA provide a categorical exclusion in this rulemaking, that CO2 streams that are specifically intended to be stored in geologic structures are not RCRA hazardous wastes. Such an exclusion would be analogous to the provision of 40 CFR §261.4(b)(5), which excludes drilling fluids, produced waters, and other wastes associated with the development, or production of crude oil, natural gas or geothermal energy, andtherefore can be injected into Class II wells.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22706

Comment: Concern #2: Scope of Class VI Permits and the Potential Applicability of Superfund to CCS. (Ref: page 43503, Section J)

EPA raises, but does not answer, the question of whether the underground injection of CO2 might trigger Superfund and associated natural resource damages liabilities, and appears to suggest that Class VI permits might be written to allow future Superfund liability associated with CCS. EPA must emphatically conclude that CO2 containing trace contaminants does not open any regulatory pathways for subjecting a geological storage site to Superfund liability. As with RCRA, any ambiguity on applicability of CERCLA will be potentially fatal to the development and deployment of CCS. It is highly unlikely that CCS will be implemented on a meaningful scale if there is a possibility that CCS might trigger Superfund.

CERCLA expressly excludes from Superfund liability "federally permitted releases." Further, "any injection of fluids authorized under the Federal underground injection control programs or State programs submitted for Federal approval . . . pursuant to part C of the Safe Drinking Water Act" are "federally permitted releases." 42 U.S.C. § 9601(10)(G) (CERCLA Section 101(10)(G)). Therefore, any captured CO2 stream that is injected in a Class VI well pursuant to a Federal or State permit is a "federally permitted release" and not subject to Superfund liability (including natural resource damages). It would beinconsistent with existing practice in the UIC program, impractical, and fatal to the future of CCS to limit Class VI permits solely to the CO2 portion of the stream and explicitly exclude any trace contaminants.

Response: As described above, whether the presence of hazardous substances in the CO2 may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22708

Comment: Concern #3: Potential releases from the well which are outside the scope of the Class VI permit. (Ref: page 43504, Section J)

Class VI UIC permits must also be carefully written to identify and address the potential post-injection releases of hazardous substances, or the generation of

hazardous substances from the chemical interaction of the CO2 with the geological storage formation (e.g. - leaching of metals) so that they would be federally permitted releases. If the potential release or generation of such hazardous substances is viewed as beyond the scope of Class VI permits, CCS sites could be subjected to the threat of long-term Superfund liability, a threat that could be fatal to the viability of CCS.

Response: As described above, whether the presence of hazardous substances in the CO2 may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Paul L. Carpinone Letter ID: 0212 Commenter Organization: Tampa Electric Company Comment ID: 22897 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking; 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: This rulemaking can resolve some important policy and legal issues and, in doing so, help foster the development of a practical, commercially deployable CCS regulatory program. For example, the Final Rule can provide much needed clarity regarding (1) the potential for liability under the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") resulting from CO2 injection and GSactivities, and (2) the options for addressing long-term post-injection liability for Class VI wells. As discussed below, there are practical regulatory and legislative options available to resolve these uncertainties that will help assure the public and the regulated community that CO2 UIC activities can be

conducted in a manner that is both safe and effective.

Response: EPA agrees that regulatory clarity is important. With respect to RCRA and need for regulatory clarity, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Paul L. Carpinone Letter ID: 0212 Commenter Organization: Tampa Electric Company Comment ID: 22903 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Issues that must be addressed include the interaction of RCRA and CERCLA with Class VI injection activities as well as long-term post-injection liability.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Additionally, while CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues(e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Dennis R. James Letter ID: 0214 Commenter Organization: North American Coal Corporation (NAC) Comment ID: 22961 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: I. Is Injected CO2 Considered a Hazardous Waste Under RCRA?

J. Is Injected CO2 Considered a Hazardous Substance Under CERCLA?

Both RCRA and CERCLA are written to deal with hazardous wastes and pollutants at or near the surface where they can interact with our biosphere. Geologic sequestration of CO2 is, by definition, not impacting the biosphere. Therefore, these rules should not apply to the injection of CO2 and associated compounds.

The chemical environment of deep saline aquifers or deleted oil and gas reservoirs will be very different from that at the surface. For example,hydrogen sulfide (H2S) is a very toxic and hazardous substance in the biosphere. However, it commonly occurs in formations at depth as a normal, naturally occurring constituent that causes no harm. Thus, the presence of H2S in a CO2 stream may not only be non-hazardous upon injection but beneficial; it could make the injected gas chemically more compatible with the target formation’s natural environment. It is more important to consider the impacts of injected CO2 and associated substances on the target formation’s environment. Therefore, injected CO2 should not be considered a hazardous waste under RCRA or a

hazardous substance under CERCLA.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Ronald Evans Letter ID: 0215 Commenter Organization: Denbury Resources, Inc. (DRI) Comment ID: 24285 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: III. ANY FINAL RULE MUST CLEARLY ADDRESS POTENTIAL EXPOSURE

UNDER RCRA AND

CERCLA

EPA can and should simultaneously protect underground sources of drinking water and promote the capture of carbon dioxide. Its strategy in both areas should be crafted to avoid unintended consequences. EPA’s goal in this rulemaking shouldbe to fulfill its obligations to protect the nation’s USDWs from both naturallyoccurring and man-made contaminants, while at the same time promoting progress towards successful commercial-scale carbon capture and storage in order to address broader environmental protection concerns.If EPA is going to address these broader concerns by establishing a framework for the injection and sequestration of CO2 in addition to the incidental storage that occurs in EOR activities, it must address potentially limitless liability under other statutes that EPA administers, including CERCLA [FN40] and RCRA [FN41]. Liability under these statutes would act as a strong deterrent to the development of CCS.

Regulated industry has learned a great deal in the last 30 years regarding environmental liability. When Congress passed CERCLA, it imposed joint and several liability on landowners, transporters, and generators of hazardous substances and it made that liability retroactive. Most recently, the Supreme Court, in Massachusetts v. EPA, 549 U.S. 497 (2007), recognized that the Clean Air Act ("CAA"), with its "capacious" definition of air pollutant, could be used to regulate substances (in this case, CO2) which Congress appeared to not intend to regulate and whose regulation under many provisions of the CAA (i.e., the NAAQS) is awkward at best. One lesson from these statutes and the Courts’ interpretation is that regulated industry cannot underestimate its potential liability for pollution, irrespective of its compliance with current regulations and irrespective of the magnitude of its role in the waste disposal process.

Accordingly, as EPA attempts to promote efforts to reduce anthropogenic CO2 emissions, it faces an ever more cautious regulated community. We urge EPA to take determined steps to provide regulatory clarity as to compliance obligations and potential for liability.

[40] Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675.

[41] Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901-6992k.

Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLAsection 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Ronald Evans Letter ID: 0215 Commenter Organization: Denbury Resources, Inc. (DRI) Comment ID: 24287

Comment: B. EPA Should Exclude Injection and Geologic Storage of CO2 from Coverage Under

CERCLA

Regarding CERCLA liability, in section II.J of the preamble to the Proposed Rule, EPA notes that the CO2 stream may contain hazardous substances or that the CO2 stream could react with groundwater to produce hazardous substances, and concludes that "whether or not there is a ‘hazardous substance’ that may resultin CERCLA liability from a sequestration facility depends entirely on the makeup of the specific CO2 stream and of the environmental media (e.g., soil, groundwater) in which it is stored." 73 Fed. Reg. at 43,504. EPA notes that CERCLA exempts from liability certain "federally permitted releases," including releases in compliance with a UIC permit under SDWA, and recognizes that Class VI permits will need to be structured to not permit "inappropriate hazardous releases." Id. EPA also requests comment on "particular situations" where there exists the potential for "releases from the well which are outside the scope of the Class VI permit." EPA requests comment on "other considerations associated with the presence of impurities in the CO2 stream related to CERCLA."

Denbury is concerned that any potential for CERCLA liability will deter efforts to develop CCS projects. Under CERCLA, private parties or government entities can sue to recover "response costs" associated with any "release" from a "facility" of a "hazardous substance." Liability is retroactive, joint and several, and falls upon both current and past owners of facilities, and on those who generated or transported those "hazardous substances." 42 U.S.C. § 9607(a). The broad nature of CERCLA liability makes it a vigorous means of addressing sites contaminated with hazardous substances, but when applied to CCS would serve to discourage regulated parties who would otherwise undertake carbon sequestration.

Pure CO2 is non-toxic at low concentrations and is not a listed hazardous waste under environmental statutes that CERCLA cross-references in defining "hazardous substances." While it is certainly the case that CO2 is not the type of "hazardous substance" that Congress envisioned when it enacted CERCLA, the definition that Congress included in the statute is reminiscent of the "capacious" definition of "air pollutant" that the Supreme Court gave effect to in Massachusetts v. EPA, 549 U.S. 497 (2007), to apply provisions of the Clean Air Act to CO2, something that Congress showed no intent to do when it enacted the Clean Air Act. To avoid a similar outcome here, the EPA should define that the injection of CO2 under a Class VI permit constitutes a "federally permitted

release."

EPA’s definition of "federally permitted release" includes "any injection of fluids authorized under Federal underground injection control programs or Stateprograms submitted for Federal approval . . . pursuant to part C of the Safe Drinking Water Act . . ." 42 U.S.C. § 9601(10). CERCLA exempts a federally permitted release from response cost recovery actions. 42 U.S.C. § 9607(j) ("Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section.") In the past, EPA has made only minimal efforts to clarify the scope of the federally permitted release exemption (the "FPR exemption"). In 1988, it stated in the preamble to a proposed rule that would have clarified the FPR exemption that "any underground injection of hazardous substances permitted under a State program . . . or EPA-administered program, is considered federally permitted for purposes of CERCLA notification." Reporting Exemptions for Federally Permitted Releases of Hazardous Substances; Proposed Rule, 53 Fed. Reg. 27,268, 27,273 (Jul. 19, 1988). EPA did not finalize that proposal. EPA should use the present proposed rulemaking to reaffirm that an authorized release under the UIC program qualifies for the exemption from CERCLA cleanup liability under section 9607.

To be sure, this would be a narrow exemption, because EPA has also taken the position that the FPR exemption does not apply to accidental releases. See Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions, 67 Fed. Reg. 18,899, 18,903 (Apr. 17, 2002). In U.S. v. United Nuclear Corp., EPA took the position that seepage from uranium tailings ponds into groundwater was not part of the permitted activity. 814 F. Supp. 1552 (D.N.M. 1992). In Idaho v. Bunker Hill, the court accepted a state’s claim that CERCLA liability will attach to releases "which were not expressly permitted in the various permits, which exceeded the limitations established by the permits, or which occurred during a time period when there were no permits." 635 F. Supp. 665, 673-74 (D. Idaho 1986). Accordingly, EPA could recognize the applicability of the FPR exemption without significantly revising its position

on the FPR.

Yet another basis on which to exclude injected supercritical CO2 from CERCLA’s ambit is the fact that CO2 is currently a commodity - whether used in the food and beverage industry or for EOR - and will likely remain so for years to come. Denbury currently has contracts to purchase anthropogenic CO2 from multiple sources. While the price of the CO2 varies, it has a significant value to Denbury and other EOR operators. As discussed above, the most realistic path for storage of CO2 over the next several years is incidentally in oil and gas bearing formations. Thus, captured anthropogenic CO2 will be a commodity for purposes of EOR for many years.[FN42] Further, Denbury or other EOR operators may need to access the stored CO2 for use in future EOR operations or for other unforeseen purposes where the use of supercritical substances is necessary and desirable. The proposed rule should thus recognize these factors and clearly classify CO2 as a commodity that is excluded from CERCLA’s coverage.

To be sure, EPA does not have the authority to protect CCS operations from liability under state statutes and common law, and Denbury is not suggesting that EPA attempt to do so in the context of this rulemaking. However, Denbury is asking EPA to use its authority under laws it administers, to reduce the overall risk of exposure for companies engaging in CCS under a UIC permit regime.[42] See also Ferguson, et al., supra text accompanying note 34, (estimating potential market for CO2 for EOR purposes around 7,500 million metric tonnes between now and 2030).

Response: CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit. EPA is promulgating this rule under the authority of SDWA. To the extent that the commenter is seeking interpretation of CERCLA and its related provisions, such interpretations are outside the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

EPA clarifies that, while the Administrator reserves the right to promulgate regulations designating additional substances as hazardous under §102 of CERCLA, EPA intends to avoid any potential overlap of SDWA and CERCLA authority through its comprehensive Class VI requirements.

EPA adds that promoting or encouraging the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Barbara Walz Letter ID: 0216 Commenter Organization: Tri-State Generation and Transmission Association,

Inc. Comment ID:

22974 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: As the GAO report cautions, EPA must resolve key policy and legal uncertainties including the interaction of the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act(CERCLA) with Class VI injection activities and the specter of long-term postinjection liability -to alleviate financial concerns of potential Class VI well owners or operators, and to encourage investment in the development and operation of Class VI CO2 injection wells. Tri-State recognizes that Congressional action may be needed to clear these hurdles standing in the way of commercial deployment of full-scale geologic sequestration projects.Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Barbara Walz Letter ID: 0216 Commenter Organization: Tri-State Generation and Transmission Association,

Inc. Comment ID:

22976

Comment: injected material is not mismanaged. EPA should take steps in the final rule to minimize the potential for CERCLA liability attaching to owners of operators of Class VI injection wells by issuing permits that take full advantage of CERCLA's "federally permitted release" exemption.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit. EPA is promulgating this rule under the SDWA. To the extent that the commenter is seeking interpretations of CERCLA and its related provisions, such interpretations are outside the scope of this rulemaking.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Olon Plunk Letter ID: 0217 Commenter Organization: Xcel Energy, Inc. Comment ID: 21552 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: In their comments regarding the proposed rule, both the Edison Electric Institute (EEI) and the Utility Solid Waste Activity Group (USWAG) present well articulated concerns regarding the legal and regulatory issues that could arise from the inappropriate treatment of captured CO2 within the context of the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation and Liability Act. Both groups describe potential solutions to this issue; Xcel Energy endorses these comments and suggested

solutions.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media inwhich it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

For additional information, please see EPA's responses to specific comments by Edison Electric Institute and the Utility Solid Waste Activity Group.

Commenter Name: Edward Steadman Letter ID: 0220 Commenter Organization: The Energy and Environmental Research Center at the University of North Dakota Comment ID:

21609

Comment: Page 43504. J. Is Injected CO2 Considered a Hazardous Waste under CERCLA?

No. CO2 should not be considered a hazardous waste under CERCLA.

Response: CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA is promulgating this rule under SDWA. To the extent that commenter is seeking interpretations of CERCLA and its related provisions, such interpretations are outside the scope of this rulemaking.

EPA clarifies that, while the Administrator reserves the right to promulgate regulations designating additional substances as hazardous under §102 of CERCLA, EPA intends to avoid any potential overlap of SDWA and CERCLA authority through its comprehensive Class VI requirements.

Commenter Name: Darrick Eugene Letter ID: 0223 Commenter Organization: Texas Carbon Capture and Storage Association Comment ID: 23956 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Point #1: The lack of clarification of the CO2 injectate stream which could leadto the stream being considered a waste. We recognize and salute EPA's attempt to avoid labeling CO2 injection as waste injection. Nevertheless, by tracking closely the Class I rules for the injection of hazardous waste (see Attachment A), the Proposed Rule appears to treat CO2 as a waste. It will be difficult for geologic storage to move forward on this basis.

Also, in choosing not to state a composition specification minimum for CO2, the EPA opens the door to having the CO2 injectate stream declared a waste. We feel that is a serious weakness, compelling a regulatory approach for a worst-case injectate composition stream, and providing a basis for additional regulation under the Resources Conservation and Recovery Act (RCRA) or the ComprehensiveEnvironmental Response, Compensation, and Liability Act (CERCLA). The failure to define the composition specification minimum for CO2 contributes to the overly protective approach of the EPA to the geologic storage of CO2. The EPA should address this concern by specifically excluding injected supercritical CO2 for geologic storage from regulation under both RCRA and CERCLA similar to what has been done for wastes associated with the exploration, development and production of crude oil, natural gas and geothermal energy under RCRA [FN2]

2 See Regulatory Determination for Oil and Gas and Geothermal Exploration, Development, and Production Wastes; Regulatory Determination, 53 Fed. Reg. 25445 (July 6, 1988)

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). The GS rule, however, addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

EPA recognizes that many CO2 streams may be relatively pure, and research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited information, and uncertainties remain about the expected concentrations of impurities from the various types of CO2 streams. The concentrations of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Andrew Duguid Letter ID: 0226 Commenter Organization: Schlumberger Carbon Services Comment ID: 24001 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 2. Now that the EPA has introduced the topics of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) we urge the EPA to clarify the roles of both with respect to CO2 injection under the UIC program.Response: EPA received many comments regarding the need for clarity with respect to RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Andrew Duguid Letter ID: 0226 Commenter Organization: Schlumberger Carbon Services Comment ID: 24003

Comment: The preamble of the draft points out that under federally permitted release provision of CERCLA releases in compliance with a UIC permit are exempt from liability under CERCLA. Schlumberger fails to see how the any releases under the proposed rule that involves both characterization of the injection stream and characterization of the subsurface can fall outside the federally permitted release provision. We urge the EPA to better clarify any cases where injection of CO2 in accordance with a UIC permit is not released from liability under the federally permitted release provision of CERCLA. We cannot envision a permit being issued for an injection that could cause an unintended release, especially, in light of the information that is required in the permit application on the composition of the injection stream and on the chemical makeup of

the subsurface.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.Commenter Name: Michael E. Moore Letter ID: 0232 Commenter Organization: Blue Source Comment ID: 21896 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment); 2046 1.5.2.3 Continuing to classify CO2 injection for EOR/EGR as Class II/ dividing line between Class II and Class VI (seeking comment)

Comment: II. Specific Comments on the Proposed Regulations

a. Background

Blue Source’s comments here are focused on a narrow, but critical, aspect of EPA’s proposal - namely, whether CO2-EOR operators should have the option of participating in EPA’s forthcoming CCS regulatory scheme. [FN1]

[FN1: We believe that adoption of our comments is a necessary component of ensuring that CO2-EOR flourishes as CCS, but other steps need to be taken, too. For example, we also believe that EPA needs to ensure that carbon dioxide is not regulated as a hazardous waste or substance under statutes such as RCRA and CERCLA during storage operations; in a future rulemaking EPA perhaps could do so by expanding current exemptions which apply to oil & gas operations to include "storage" operations.]

Response: EPA clarifies that the Class VI GS rule is designed to ensure the protection of USDWs from endangerment, and does not aim to promote GS deployment.

EPA notes that the GS rule is not promulgated under the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The Agency acknowledges the commenter's concerns regarding the scope and possible impacts of CERCLA liability on CCS activities, however EPA notes that the GS rule is not promulgated underCERCLA, therefore the applicability of that statute will not be determined under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any implementing regulations that may apply.

EPA adds that, if it develops regulations in the future, stakeholders will be provided opportunity for public comment.

Commenter Name: Steven B. Corneli Letter ID: 0234 Commenter Organization: NRG Energy, Inc. Comment ID: 23174

Comment: CERCLA Applicability

The preamble of the proposed rule suggests that CERCLA liability may arise out of CO2 GS projects due to "potential USDW impacts", presence of impurities in the stream, and the potential for reaction products to migrate from the injection zone. 73 Fed. Reg. 43492, 43497 (July 25, 2008). EPA also states that (CERCLA exempts from liability certain "federally permitted releases" including releases in compliance with a UIC permit under SDWA. Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit.) 73 Fed. Reg. at 43504.

EPA’s suggestion that CERCLA liability may apply to CO2 GS projects raises concern among the electric power industry. Because EPA raised this as a potential issue, businesses and investors may be reluctant to support GS projects faced with a potential for CERCLA liability hanging over their heads. In order to prevent any discouragement of development in CO2 GS projects, EPA should provide confirmation in the final regulations that injection of CO2 into a permitted injection zone does not constitute a "release" for purposes of RCRA or CERCLA. EPA should also take the opportunity to dispel the CERCLA liability concerns by developing appropriate language to provide the clarity and assurance needed to promote continued research, development and deployment of CO2 GS projects.

Response: EPA notes that the GS rule is not promulgated under the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such assulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Abbie Krebsbach Letter ID: 0235 Commenter Organization: Montana-Dakota Utilities Co. Comment ID: 23192 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Other Law Implications

Montana-Dakota urges EPA to evaluate carefully any proposed treatment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA), or other laws, that it may be considering under the Class VI regulations to ensure that any such treatment is necessary and does not serve as an unintended springboard for hampering the successful commercialization of CCS. Unless CO2 is categorized as a commodity, and not as a waste, there could be significant complications in implementing C02 GS projects.

Once a material is deemed to be a solid waste, an additional set of parameters applies to determine whether that substance is also a hazardous waste and thus subject to further regulation. Montana-Dakota recommends that EPA examine an approach to determining that CCS activities which meet UIC permit requirements are not equated to discarding the CO2. Identifying CO2 as a waste could limit the use of stored CO2 in any potential future applications.

The EPA jumps to an unnecessary and potentially confusing discussion in the preamble of whether injected CO2 may be a hazardous waste, potentially implying that CO2 is a solid waste to begin with. Montana-Dakota recommends that any characterization of potentially hazardous constituents in CO2 injectate may be addressed, possibly through Toxicity Characteristic Leaching Procedures, as part of the UIC permitting process without addressing any potential RCRA jurisdictional issues. This should be examined further by EPA in regard to both RCRA and CERCLA implications.Response: As described above, the GS rule does not affect the regulatory status of CO2 under RCRA. Furthermore, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

Commenter Name: Mark Bohrer Letter ID: 0241 Commenter Organization: North Dakota Industrial Commission Comment ID: 23229

Comment: 8. Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit. EPA requests comment on particular situations where this might occur. EPA Notice 43504.

Carbon dioxide should not be classified as a hazardous waste. Carbon dioxide is not hazardous or toxic under normal conditions. CERCLA liability will not only impact owners and operators of carbon dioxide sequestration projects, but also pore space owners. Subjecting pore space owners to CERCLA liability and joint and several liability under CERCLA will greatly hamper carbon dioxide sequestration projects. EPA should take the opportunity in this rulemaking to alleviate any CERCLA liability concerns.

9. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA. EPA Notice 43504.

CERCLA should not apply to carbon dioxide sequestration. EPA needs to provide assurances to facilitate carbon dioxide sequestration projects.

Response: EPA notes that the GS rule is not promulgated under the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of CERCLA or RCRA and its related provisions, such interpretations are beyond the scope of this rulemaking.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 streammay contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: Kristin Henry Letter ID: 0242 Commenter Organization: Sierra Environmental Law Program, Sierra Club Comment ID: 23327

Comment: VII. The Rule Should Specify That an Intrusion Into a USDW is Not a "Federally

Permitted Release" Under CERCLA.

The rule itself, rather than individual permits, should assure that Class VI permits do not allow responsible parties to avoid CERCLA liability on grounds that a release constitutes a "federally permitted release."

EPA notes in the preamble to the proposed rule, 73 Fed. Reg 43504, that CERCLA exempts from liability certain "federally permitted releases, including releases in compliance in a UIC permit under the Safe Drinking Water Act." EPA further notes that "Class VI requirements and permits will need to be carefully structured to ensure that they do not ‘authorize’ inappropriate hazardous releases." EPA should go further and effectively prohibit Class VI permit conditions that would make the "federally permitted release" defense available should injected fluids or displaced formation fluids enter or endanger USDWs. This prohibition should be added to Subpart E - Permit Conditions, or to any other appropriate section of the rule.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatorynoncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Kevin Wanttaja Letter ID: 0248 Commenter Organization: Western Energy Supply and Transmission

Associates Comment ID:

22247 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: [FN1: See EPA's VEF-Technical_Document_072408, pg. 6.]

– WEST is concerned about arguments made by some stakeholders that a whole suite of environmental laws should be applied to CCS projects, including the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and the Resource Conservation and Recovery Act ("RCRA"). These laws applied to CCS would impose significant obligations and potential liabilities not only on GS operators, but also potentially on other entities in the CO2 abatement chain, such as the power plant operators producing the CO2. This would likely chill technology advancement and commercialization of CCS. WEST urges EPA to design the UIC for CO2 GS program to limit CCS projects' liability under CERCLA and

RCRA.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. With respect to RCRA, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of thatproposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: James T. Sims Letter ID: 0249 Commenter Organization: Western Business Roundtable Comment ID: 22261 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 3. Avoid Regulatory Creep - We are extremely concerned by arguments that the whole suite of environmental laws -- including the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and the Resource Conservation and Recovery Act ("RCRA") -- be applied to CCS projects.

These laws, if applied broadly to CCS, would impose significant obligations and potential liabilities not only on project operators, but also potentially on other entities in the CO2 chain, such as entities producing the CO2 that is ultimately injected. That would put advancement of CCS commercialization into a deep freeze. Such an outcome would clearly be counter-productive. Thus, we urge the Agency to pursue options that will limit CCS projects’ liability under

CERCLA and RCRA.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurfacethat could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that encouraging the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Kurt Waltzer Letter ID: 0250 Commenter Organization: Clean Air Task Force Comment ID: 22283 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking; 2020 1.5.1 Support Class VI designation

Comment: We consider the Phase III Deployment Phase of the Department of Energy’s (DOE) Regional Partnership Program to be very worthwhile, but we do not consider the completion of this program to be a prerequisite for either commercial implementation of CCS or for the promulgation of a sound and protective rule. The DOE’s program has limited funds available through appropriations, and its demonstration projects will be of limited scale and duration. In addition, it focuses as much or more on the optimum way to apply existing technologies as it does on fundamental research or even demonstrations that particular technologies "work." Our scientific and practical understanding and experience in GS itself, as well as in related underground injection activities, is sufficient to construct and operate the first large-scale, commercial plants in the U.S., provided they are regulated adequately. In that respect, we do not consider the proposed rule premature, but a very timely and necessary development.

The rule itself, rather than individual permits, should assure that Class VI permits do not allow responsible parties to avoid CERCLA liability on grounds that a release constitutes a "federally permitted release"

Response: EPA agrees that tailored requirements for Class VI wells are necessary to address the unique nature of injecting large volumes of CO2 and to ensure that USDWs are protected from endangerment. The GS rule contains tailored requirements for the permitting, geologic site characterization, AoR and corrective action, well construction, operation, mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure of GS wells that directly address issues unique to the nature of large-scale CO2 injection for GS.

EPA believes, as supported by the rule's administrative record, that sufficient data and experience currently exist to develop UIC regulations for GS wells. The GS rulemaking builds upon decades of knowledge about safe injection practices. While developing the GS regulation, EPA has evaluated relevant GS research, including projects conducted by the seven regional carbon sequestration partnerships funded by the U.S. Department of Energy and coordinated through the National Energy Technology Laboratory (NETL), and several international projects. Additionally, EPA's Office of Water continues to fund research at the Lawrence Berkeley National Laboratory examining the effects of CO2 interaction with ground water aquifers and any potential mobilization of traceelements that may occur.

CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not 'authorize' inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA recognizes the significant amount of data generated by the DOE partnerships and agrees that sufficient data have been collected to inform the final GS rule. EPA has evaluated permits and reviewed operational data and information associated with the seven regional carbon sequestration partnerships funded by the U.S. Department of Energy and coordinated through the National EnergyTechnology Laboratory. EPA believes that these projects form a solid basis for finalizing the GS requirements, and agrees there is no reason to wait until all phases of the DOE demonstration tests are complete.

Commenter Name: Kurt Waltzer Letter ID: 0250 Commenter Organization: Clean Air Task Force Comment ID: 22284

Comment: EPA notes in the preamble to the proposed rule (73 Fed. Reg. 43504) that CERCLA exempts from liability certain "federally permitted releases, including releases in compliance with a UIC permit under the Safe Drinking Water Act." EPA further notes that "Class VI requirements and permits will need to be carefully structured to ensure that they do not ‘authorize’ inappropriate hazardous releases." Our Environmental NGO Group strongly urges EPA to go further and effectively prohibit Class VI permit conditions that would make the "federally permitted release" defense available should injected fluids or displaced formation fluids enter or endanger USDWs. We suggest that such a prohibition be added to Subpart E - Permit Conditions, or to any other section of the rule that EPA finds appropriate.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit. Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water systemor an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA recognizes the significant amount of data generated by the DOE partnerships and agrees that sufficient data have been collected to inform the final GS rule. EPA has evaluated permits and reviewed operational data and information associated with the seven regional carbon sequestration partnerships funded by the U.S. Department of Energy and coordinated through the National Energy Technology Laboratory. EPA believes that these projects form a solid basis for finalizing the GS requirements, and agrees there is no reason to wait until all phases of the DOE demonstration tests are complete.

Commenter Name: Walter L. Baker Letter ID: 0253 Commenter Organization: Utah Division of Water Quality Comment ID: 22345 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: DEFINING CO2 STREAM TO EXCLUDE HAZARDOUS WASTE/SUBSTANCE

UNDER RCRA/CERCLA

We consider potential liability under RCRA and/or CERCLA a major deterrent to developing and deploying CCGS projects and one that must be addressed. Towards removing this as a barrier to CCGS, we strongly encourage EPA to address the issues surrounding the composition of the injected CO2 stream. These issues include: providing a clear description of the analytical methods for characterizing the CO2 stream, providing a clear description of the limitation on the CO2 stream composition so as to avoid inclusion under RCRA or CERCLA, and investigating thoroughly the possibility of RCRA and CERCLA exemption for CCGS while still providing protection to USDWs and other natural resources. Since capture and separation technology is still being developed for large stationary CO2 sources, it is important to have a clearly defined target for design objectives.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities. For purposes of GS, the UIC program’s authority under the SDWA is limited to ensuring that GS projects are sited, constructed, operated, and closed in a manner that protects USDWs.

With respect to the commenter’s concern about RCRA, EPA has decided to initiate a separateproposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Mike Nasi Letter ID: 0254 Commenter Organization: Clean Coal Technology Foundation of Texas Comment ID: 22364

Comment: EPA must also mitigate the threat of potential RCRA and CERCLA liability to the extent possible. With respect to CERCLA liability, CERCLA exempts from liability certain "federally permitted releases" including released in compliance with a UIC permit under SDWA. Because of this exemption, in the proposed rules, EPA states that Class VI requirements and permits must be carefully structured to ensure that they do not authorize inappropriate hazardous releases. This is an issue of particular importance, as the presence of CERCLA liability could have a crippling effect on large scale commercial deployment of carbon capture and storage technology. To eliminate any such barriers, EPA should include in the scope of the permit all CERCLA hazardous substances that are likely to be contained in the CO2 stream, including those generated during capture and transport as well as any constituents that are formed in the injection zone as a result of the injection of CO2.

Response: EPA notes that the GS rule is not promulgated under the RCRA or CERCLA statutes, and further, the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. To the extent the commenter is seeking interpretations of CERCLA or RCRA, such interpretations are beyond the scope of this rulemaking.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for

that rule.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42U.S.C. 9607, certain "federally permitted releases" as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not 'authorize' inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Keith McCoy Letter ID: 0258 Commenter Organization: National Association of Manufacturers Comment ID: 22374 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)Comment: The NAM believes that a CCS policy can be designed that promotes a variety of public goals, including energy security, economic prosperity and protection of public health and the environment. The NAM believes that policy makers, building on the knowledge and expertise of energy professionals who have long injected carbon into geologic formations to enhance oil recovery, should establish a new regime and regulatory scheme which will promote the development and commercial deployment of CCS technology. The NAM is concerned, however, that EPA regulators may be looking backward, by considering liability schemes pursuant to the Superfund and Resource Conservation and Recovery Act (RCRA), as models on which to establish a framework for the long-term capture and storage of carbon. The NAM does not believe that use of a statute such as Superfund, which has been the source of endless litigation, is an appropriate model on which to base something as modern as CCS.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Michel Paque Letter ID: 0259 Commenter Organization: Ground Water Protection Council Comment ID: 24812

Comment: EPA Rule Issue: 8. Class VI requirements and permits will need to be carefully structured to ensure that they do not "authorize" inappropriate hazardous releases. This would include clarifying if there are potential releases from the well which are outside the scope of the Class VI permit. EPA requests comment on particular situations where this might occur. EPA notice 43504.GWPC CO2 Committee Response: CERCLA application should be avoided or sorted out and affirmed by Congress to indicate that it would not apply; municipal operators have major concern over this potential because cities will be around long-term and look like deep pockets

As EPA has noted, CERCLA liability does not apply to federally permitted releases (FPRs), including releases covered by a UIC permit, even if GS would lead to a hazardous substance release. Nor should CERCLA liability apply to any downstream reactions or transformations resulting from FPRs. Accordingly, there appears to be little real potential for CERCLA liability resulting from GS. Yet EPA needs to clarify that CERCLA liability is extremely unlikely to result from any GS operation that has not injected streams that are not covered by its UIC permit.

Rationale: Even the potential for CERCLA liability is viewed with such apprehension because of the overwhelmingly negative effects that such liability has had on the investing community, however, that EPA’s discussion of that possibility without substantial clarification is very likely to have a chilling effect on the support for development and deployment of CCS technologies.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not “authorize” inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under§1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.

Commenter Name: Michel Paque Letter ID: 0259 Commenter Organization: Ground Water Protection Council Comment ID: 24813 Other EPA Comment Codes and Descriptions: 1614 1.3.1.2 Impurities in captured CO2; purity

standards for CO2

Comment: EPA Notice Questions: 73 FR 43504

EPA Rule Issue: 9. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA. EPA Notice

43504.

GWPC CO2 Committee Response: The only need is to address constituents in a CO2 stream that would defeat capture, compression, transport or GS, and these can be addressed through the use of special materials in many cases. The focus should be on compatibility rather than on any need for purification.

Response: The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the source of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to submit data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confining zones and the materials used to construct the well, per §146.82(c)(3). This information can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals.

Commenter Name: Claire Olson Letter ID: 0260 Commenter Organization: Basin Electric Power Cooperative Comment ID: 22395

Comment: "J. Is Injected CO2 Considered a Hazardous Substance Under CERCLA?"EPA seeks comment on whether Class VI permittees could be exempt from CERCLA under its "federally permitted release" provision. First, liability under CERCLA depends on whether there has been a disposal of hazardous substances. While CO2 is not a CERCLA hazardous substance, EPA suggests in the preamble that the makeup of a particular injected CO2 stream may trigger a CERCLA analysis. However, the preamble also states that CERCLA's "federally permitted releases" provision exempts releases in compliance with a UIC Permit under the Safe Drinking Water Act (SDWA) from CERCLA liability. This exemption in and of itself should put the issue to rest. EPA should make clear that this exclusion provides a shield from Superfund liability. We urge the EPA to address the longterm liability for stored CO2 within the UIC Class VI Well Permit. EPA should avoid creating unnecessary hurdles for the successful deployment of CCS by assuming that potential applications of other statutes that may come into play.

Basin Electric requests that EPA recognizes that CO2 injection and storage is exempt from CERCLA liabilities and regulates this activity by compliance with the UIC Class VI Well Permit. Also, please see previous comments on the exclusion of the injected CO2 stream as a hazardous waste (RCRA). If the UIC Program cannot coordinate these exclusions for RCRA and CERCLA, BEPC requests that a legislative option be considered.

EPA should establish a single, clear, and reasonable regulatory structure for managing risks and liabilities for CCS projects. The process to obtain a UIC Class VI Permit and defining the Area of Review (AoR) will provide proper protections of the USDWS, environment, and health.

Response: CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements underPart 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Letter ID: 0263 Commenter Organization: Interstate Oil & Gas Compact Commission Comment ID: 24961

Comment: II. J. Is Injected CO2 Considered a Hazardous Substance Under CERCLA?

1. EPA requests comment on particular situations where this might occur. EPA also requests comment on other considerations associated with the presence of impurities in the CO2 stream related to CERCLA.

IOGCC Response: Injected CO2 is not and should not be considered a hazardous waste or regulated under RCRAor CERCLA. It is assumed that RCRA or CERCLA wastes would be removed from the CO2 stream prior to storage.

Response: CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

With respect to the commenter’s reference to RCRA, EPA received many comments regarding theapplicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule.

Commenter Name: Michael Moore Letter ID: 0265 Commenter Organization: North American Carbon Capture & Storage Association (NACCSA) Comment ID:

22872 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 9. Relationships with other Environmental Laws

NACCSA is concerned about the potential application of other environmental laws to CCS activities. These laws include the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). Setting aside for the moment the important questions of whether either of these laws could apply to CCS activities and, if so, precisely how and to what extent, NACCSA understands and does not disagree with the Agency's position that drafting a clear exception from either of these regimes likely cannot be accomplished through the context of this SDWA UIC rulemaking. Nonetheless, NACCSA urges EPA to carefully consider whether to include any discussion of these two laws (or others) along with the Class VI regulations, as well as the particulars of what any such discussion may contain, to ensure that such discussion is necessary and does not serve as an unnecessary and unintended springboard for hampering the successful commercialization of CCS.

NACCSA believes that EPA should clarify that supercritical and gaseous CO2 do not fit the definition of" solid waste" under RCRA,and that injected CO2 is not solid waste that is "disposed of" and thus subject to RCRA regulation. While NACCSA acknowledges that such clarification may be best achieved in the context of a RCRA rulemaking, the Preamble to the proposed rules appears to make the assumption that injected CO2 is a solid waste that is being disposed of in the first instance, in the context of its discussion regarding waste characterizations that may be required of permitees. Such discussion in the Preamble is unnecessary and will only prove harmful to those seeking to move forward with CCS projects. Further, any concern about potentially hazardous constituents in CO2 injectate may be addressed without addressing any potential RCRA implications, as the contents of an injectate must be "characterized" under the proposed rules regardless, and permit limitations maybe imposed to address the content of injectate without reference to RCRA's provisions.

In addition, EPA should clarify that the provisions of CERCLA are not triggered by Class VI operations. As a preliminary matter, as the Agency is aware, CERCLA imposes liability for releases of hazardous substances. EPA indicates in thePreamble that whether injected CO2 may be considered a hazardous substance "depends entirely on the make-up of the specific CO2 stream and of the environmental media . . . in which it is stored," leaving the door open for claims of environmental harm arising out of CO2 injection and storage activities. This discussion, however, assumes that CO2 injection activities could fall within CERCLA's ambit in the first instance. As with the RCRA issue, a determination of this issue is unnecessary from the point of view of regulating injection and storage of CO2 under the UIC program, and NACCSA urges the Agency to avoid creating unnecessary hurdles for the successful commercial deployment of CCS by assuming potential applications of other statutes that may not come into play. Regardless, even if the provisions of CERCLA could be interpreted to apply to CCS activities, NACCSA is opposed to any limitations on the federally permitted release exemption from CERCLA liability, which should be given its fullest application in the Class VI context. Relatedly, NACCSA encourages the Agency, pursuant to its authority under RCRA and CERCLA, to examine possibilities for exemption or exclusion from those programs.

Response: EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Commenter Name: William Herz Letter ID: 0266 Commenter Organization: The Fertilizer Institute Comment ID: 22880

Comment: Consideration of Injected CO2 as a Hazardous Substance under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA)

TFI also asks for additional clarification on potential CERCLA liability. We agree with EPA's interpretation in the proposed rule that the release of CO2, if the rule is adopted as proposed, would constitute a" federally permitted release" as defined in CERCLA,42 U.S.C. § 9601 (10), and that CERCLA exempts from liabilityreleases in compliance with a UIC permit under SDWA (73 Fed. Reg. 43,503). However, we remain concerned about potential CERCLA liability for upstream industrial clients of sequestration wells, especially for comingled CO2 streams and for injectate stream constituents that could react with groundwater to produce listed hazardous substances.

If EPA, as it has stated, desires to encourage implementation of carbon sequestration technology by industry, it should exempt such activities from CERCLA liability. If EPA should decide against such an exemption, TFI asks that EPA include regulatory language governing monitoring and/or reporting requirements for upstream industrial clients of sequestration wells that would provide CERCLA liability relief or exclusion in the promulgated rule. For example, EPA could provide in the rule that upstream industrial clients providing CO2 streams could

make certain demonstrations of conditions under which EPA will not consider the injectate exempt from the purview of CERCLA. This exemption should apply, by extension, to any claims brought against upstream clients of sequestration wells for natural resource damages. Furthermore, TFI requests that EPA develop monitoring report requirements which provide the basis of establishing the injectate as a "federally permitted release" as defined in CERCLA. Where these reports indicate no presence of CERCLA hazardous substances, the injectate should be considered a "federally permitted release" exempt from CERCLA liability. EPA should clarify in the rule that CO2, absent impurities constituting hazardous substances or with the potential to react with groundwater constituents to form hazardous substances, is not itself a CERCLA hazardous substance. This liability exemption for "federally permitted releases" should extend to upstream clients of sequestration wells even for accidental releases or where releases from the well are not in accordance with the well operator's UIC permit. As an alternative, EPA should establish contaminant limits in the injectate of upstream clients of sequestration wells.

TFI requests clarification for upstream industrial clients as to the appropriate requirements for "analyz[ing] the CO2 stream at a frequency sufficient to yield data representative of its chemical and physical characteristics" (73 Fed. Reg. 43,514 and 73 Fed. Reg. 43,549), as well as appropriate requirements for upstreamindustrial clients in terms of monitoring and recordkeeping. TFI suggests a semiannual monitoring report and a three-year post injectate or site closure data retention period for upstream industrial clients similar to that proposed for owners or operators of Class VI wells (73 Fed. Reg. 43,517), regardless of the post-closure site care period selected (73 Fed. Reg. 43,518).

TFI also asks that EPA include regulatory language providing liability protection or exclusion for upstream industrial clients in the event of potential future liability in the event of leaks, well failure or release of reaction products.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLAsection 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Bill Hertz Letter ID: 0500 Commenter Organization: Fertilizer Institute Comment ID: 21211

Comment: We would also raise the CERCLA issue and the CERCLA liability issue. We agree with the EPA's interpretation in the proposed rule that the release of CO2 constitutes a federally permitted release as defined in CERCLA 42 USC 9601.However, we remain concerned about potential CERCLA liability for upstream industrial clients, especially for comingled injectate streams, and for injectate stream constituents that could react with ground water to produce

listed hazardous substances.

TFI would request EPA include regulatory language governing monitoring, reporting requirements for upstream industrial clients that would provide CERCLA liability relief for exclusion in the promulgated rule. We would request that EPA include regulatory language providing liability protection or exclusion in the, and a potential liability in the event of leaks, well failure, or the release of reaction products.

Response: CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releases from the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

EPA adds that it is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities.

Commenter Name: Paul Pike Letter ID: 0535 Commenter Organization: Ameren Corporation on behalf of Utility Solid Waste Activities Group (USWAG) Comment ID:

21435

Comment: Of particular importance is also potential for liability under CERCLA including the natural resources damages cases stemming from injection and sequestration of carbon dioxide. As EPA can surely appreciate the potential for these opening liabilities will act as a serious deterrent for would-be owners and operators of these injection wells. Simply put, EPA must mitigate the threat of potential CERCLA liability to the extent possible in the rulemaking.

One step that the Agency can take with respect to CERCLA is to ensure that the Class VI permits have the broadest possible reach or meaning protective of drinking waters. To maximize this protection offered by the federally permitted release exemption, this would mean including the scope of the permit for carbon dioxide injection, all other CERCLA hazardous constituents likely to be contained in the CO2 stream including those generated along with the carbon capture and transport and in the injection zone.

Similarly the scope of the authorized permit zone should be as broad as possible while remaining protective of drinking water.

Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Therefore, Class VI requirements and permits will need to be carefully structured to ensure that they do not 'authorize' inappropriate releases, and would need to prevent potential releases from the well which are outside the scope of the Class VI permit.

Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretations of CERCLA and its related provisions, such as the definition of a federally permitted release, such interpretations are beyond the scope of this rulemaking.

CO2 itself is not listed as a hazardous substance under CERCLA however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize substances in the subsurface that could react with ground water to produce listed hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration facility depends entirely on the composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted releases" as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure that they prevent potential releasesfrom the well which are outside the scope of the Class VI permit.

The UIC program Director has authority under SDWA §1423 to address potential compliance issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedial response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be developed and updated to address such events and that owners or operators demonstrate that financial resources are set aside to implement the plans if necessary, per §146.85.

Regarding long term liability, once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells and the Director has approved site closure pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to enforcement for regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be released if it was not used. However, even if a site closure is approved under §146.93, an owner or operator may be held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even after site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be subject to a §1431 response order even after proper site closure is approved under §146.93. Under §1431 the Administrator may require an owner or operator to take necessary response measures if he or she receives information that a contaminant is present or is likely to enter a public water system or an USDW, which may present an imminent and substantial endangerment to the health of persons, and the appropriate State and local authorities have not acted to protect the health of such persons. The action may include issuing administrative orders or commencing a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner or operator fails to comply with the order, they may be subject to a civil penalty for each day in which such violation occurs or failure to comply continues.

Furthermore, after site closure an owner or operator may remain liable under tort and other remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. §§7401-7671; CERCLA, 42 U.S.C. §9601-9675; and RCRA, 42 U.S.C. §6901-6992. EPA does not have authority to transfer SDWA or other legal liability for Class VI wells to the State or federal government or a third-party fund. See the final rule preamble for further discussion of EPA's final approach.

Commenter Name: Paul Pike Letter ID: 0535 Commenter Organization: Ameren Corporation on behalf of Utility Solid Waste Activities Group (USWAG) Comment ID:

21437 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: The bottom line is that the potential for interaction with CERCLA or liability in RCRA must be mitigated to avoid significant delays in an overall chilling effect on this process.

Response: EPA clarifies that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.Comment Code: 1650 1.3.5 Human health impacts



### Individual Comments

Commenter Name: Sam Kitto Letter ID: 0126 Commenter Organization: National Tribal Air Association Comment ID: 23047 Other EPA Comment Codes and Descriptions: 1660 1.3.6 Ecosystem impacts (soil, air, surface water)

Comment: Environmental Impacts

The EPA is proposing to do something of a significant magnitude for the first time which is the injection of substantial amounts of carbon dioxide into the ground at high pressures. The EPA is seeking to control a pollutant that is very buoyant and corrosive, and with a technology that has to be fully tested. As such, the NTAA is concerned about the potential environmental impacts of geologic sequestration to the nation’s Indian tribes.

While geologic sequestration could likely affect tribal property rights - i.e., the diminishment of mineral rights values and cause property damage, it is its potential harm to humans and the environment which most concern the NTAA. The World Resources Institute recently communicated in its report Guidelines for Carbon Dioxide Capture, Transport and Storage, that "risks to people and ecosystems [can] arise from the potential for CO2 to accumulate in low-lying areas or areas with poor ventilation. If CO2 leaks to the surface in areas with poor ventilation, such as basements or shallow dips in the ground, it can accumulate to levels that could cause stress or even asphyxiation in humans and animals." Unfortunately, owners and operations of geologic sequestration operations will not be held liable for such injuries as the GS rule solely focuses on the protection of USDWs (e.g., prevention of CO2 migration into USDWs). While the EPA might be correct in its understanding that geologic sequestration impacts to air, human health and ecosystems are outside the scope of the Safe Drinking Water Act, this does not negate the Agency’s trust responsibility to best manage and preserve tribal lands from any undue outside influences, and in this case, CO2 leakage as a result of geologic sequestration.

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. EPA believes that the measures in the GS rule that directly mitigate the possibility of CO2 leakage out of the injection zone will also indirectly mitigate the risks to receptors mentioned by the commenters, including fresh water, wildlife, ecosystems, and agriculture.

EPA adds that Class VI well owners and operators must site, construct, operate, monitor, and close their wells in a manner that protects USDWs, and Class VI permits will set forth rigorous technical requirements to ensure careful planning, operation, and closure of GS projects. Failure to meet these requirements would be considered a violation of the permit and would be subject to applicable civil,criminal, or administrative penalties.

EPA also notes that owners or operators of Class VI wells must ensure that resources are available to prevent endangerment of USDWs from improper plugging, remediation, and management of wells. The GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. In the event of contamination or other adverse event associated with GS, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions.

EPA believes that sufficient data and experience currently exist to develop regulations for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices regulated by the UIC Program. While developing the GS regulation, EPA has evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects.

Industry also has decades of experience with well construction and operation. For example, the oil and gas industry has experience drilling and cementing wells in very deep formations, in a variety of environments (e.g., high-pressure and low-pressure formations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class

VI wells.

EPA adds that, in the process of developing the GS rule, it consulted with tribal representatives to facilitate ongoing communication throughout the rulemaking process. Please see the next response for additional information. EPA is committed to protecting USDWs on tribal lands through implementation of the GS rule.

Commenter Name: Dwight Lockwood, PE, QEP Letter ID: 0141 Commenter Organization: Global Energy, Inc. Comment ID: 23095

Comment: 1.Global concurs with the EPA view that the risk of asphyxiation and acute or chronic health effects is minimal. Pipeline leaks are rare and readily managed by existing authorities. Similarly wellhead and well leaks are uncommon and arereadily managed with current technologies. EPA proposals for surface and downResponse: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs. EPA adds that pipeline leaks and risk of asphyxiation are outside the scope of the GS rulemaking.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23663 Other EPA Comment Codes and Descriptions: 1610 1.3.1 Risks to USDWs

Comment: EPA should also consider the risk associated with the potential exposure of anycontaminants that are released to the surface. While we recognize that a gradual leak may have little impact, the potential of a catastrophic leak is always present. EPA should be mindful during the rulemaking process of not only the risk to drinking water, but also of other potential risks from exposure to other constituents such as pH, lead and copper, iron, hardness, silica and boron. These are compound for which no MCLs have been developed but still impact drinking water quality and increase the necessary treatment costs. There could be potential health impacts due to long-term exposure to contaminant levels below the established MCLs. Also, beneficial uses of groundwater could also be impacted by increases of these compounds in the aquifers. Owners/operators could be in compliance with the regulation, but could be degrading an aquifer by contaminating it with compounds for which MCLs do not exist.

Response: EPA acknowledges that there are potential risks associated with GS, including the potential for leakage of CO2 into USDWs, which could result in the mobilization of substances that could pose threats to USDWs or human health or could increase treatment costs. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure. The mandate of the UIC Program, and the GS rule, is to protect USDWs from endangerment that may be caused by underground injection. The GS rule accomplishes this through requirements tailored to address the unique nature of GS, including the large volumes of CO2 injected, its buoyancy and potential corrosivity in the presence of water, and impurities in the CO2 stream. Many of these requirements specifically address the potential for mobilized substances to affect USDWs. The GS rule is concerned with the migration of CO2 and displacement of native fluids that may result in endangerment of USDWs.

For example, the owner or operator must submit data about the site, including information on the porosity, permeability, mineralogy, and geochemistry of the targeted injection and confining zones. Operators must also present information on the compatibility of the CO2 stream with fluids in the injection zone and minerals in both the injection and confining zones as specified in §146.82(c)(3). The data will help identify potential geochemical reactions between the injected CO2 and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation minerals. During injection operations, operators must extensively monitor ground water quality to provide early detection of any unacceptable movement of fluids or impurities in the subsurface as specified in §146.90. Operators must develop and follow an emergency and remedial response plan to address any adverse effects associated with the GS operation as specified in §146.94 and provide financial responsibility to address contamination as specified in §146.85.

Recent research has focused on addressing this concern. EPA is funding research at the Lawrence Berkeley National Laboratory (LBNL) on potential USDW impacts associated with mobilization of trace elements. In the August 31, 2009, Notice of Data Availability and Request for Comment (74 FR 44802), EPA published the results of the study, which evaluated the potential for GS to cause changes in ground water quality as a result of CO2 leakage and subsequent mobilization of trace elements such as arsenic, barium, cadmium, mercury, lead, antimony, selenium, zinc, and uranium (Birkholzer et al., 2008a). In the study, LBNL estimated the amount of trace elements from native mineral species that could potentially be mobilized by the intrusion of CO2 and the potential ground water concentrations that could result, to determine the potential for drinking water standards to be exceeded. Results from this model simulation suggest that if CO2 were to leak into a shallow aquifer, the potential for mobilization of lead and arsenic could be enhanced, causing increases in the concentration of these trace elements in ground water. The Agency continues to monitor researchrelated to CO2 confinement, potential for CO2 leakage, and mobilization of trace elements.

EPA adds that concerns about contaminants that cause health effects but do not have maximum contaminant levels should be addressed as part of the review process for the national primary drinking water regulations; such concerns are outside the scope of this rulemaking. EPA has also examined potential methods for conducting treatment of water affected by a CO2 leak; this study is presented in the final rulemaking docket.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23712 Other EPA Comment Codes and Descriptions: 1530 1.2.3.1 State regulatory efforts on GS (seeking comment)

Comment: Category: State Capacity

EPA Request for Comment: EPA seeks comment on any aspects of the ongoing State efforts to regulate the GS of CO2 and how these efforts might be used to better inform a final Federal rulemaking. EPA Notice 43497.

AWWA Response: From our perspective, EPA’s proposed rule appears to be focused on preventing brine from formations where carbon dioxide was stored from reaching USDWs and/or from preventing carbon dioxide that reaches USDWs from causing primary MCLs to be exceeded. This focus may not be adequate from the standpoint of protecting source water and beneficial use aquifers from detrimental changes in water quality other than the exceedance of primary MCLs. Other water quality impacts could be observed such as increased concentrations of iron, manganese and TDS, as well as lowered pH, all of which have secondary MCLs. Increases in the concentrations of silica and boron, which do not currently have MCLs but can significantly degrade water quality, are also likely

to occur.

This past year, the State of Washington adopted carbon sequestration regulations which AWWA recommends that EPA review and incorporate some of the language into the final regulation. The Washington regulations require that the owner or operator must demonstrate that the "design and construction standards of all facility structures and wells are sufficient to prevent migration of carbon dioxide or nonpotable water that will degrade water quality or impact beneficial uses outside the geologic containment system." The language in this regulation provides protection mechanisms for groundwater sources that may not be used as USDWs but have other beneficial uses, such use as industrial applications or agriculture. Given the stresses that the drinking water industry is facing with respect to water resources, AWWA recommends that the monitoring requirements in the final rule be extended to protect against aquifer contamination beyond that which is associated with compounds that have primary MCLs.

Response: EPA recognizes the complexity and importance of states' approaches to managing GS and is aware that states are currently in various stages of developing statutory frameworks, regulations, workgroups, technical guidance, and strategies for addressing CCS and GS.

Throughout the regulatory development process for the Class VI regulation, EPA monitored states'regulatory and legislative development efforts and approaches. In EPA's August 31, 2009, Notice of Data Availability (NODA) and Request for Comment, the Agency described its ongoing monitoring of states' regulatory efforts and approaches and how the Agency is considering this information as it develops guidance on the primacy application and approval process for Class VI wells. Information about these state activities may be found in the docket for the GS rule.

EPA clarifies that the UIC program’s authority applies to protection of USDWs from endangerment. SDWA §1421(d)(2) states that “underground injection endangers drinking water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to supply any public water system of any contaminant, and if the presence of such contaminant may result in such system’s not complying with any primary drinking water regulation or may otherwise adversely affect the health of person.” EPA disagrees that the GS rule is only focused on MCL contamination as it relates to endangerment; rather the rule also focuses on “adverse effects on the health of person[s].” This does not necessarily require a showing of non-compliance

with an MCL.

EPA clarifies that the UIC regulations apply only to underground injection wells and injection activities, and not to "facility structures” that are not considered to be wells under §144.3.

Under §146.94, if the owner or operator obtains evidence that injection may cause endangerment to a USDW, he or she must stop injection and implement the emergency and remedial response plan for that well. With proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule are intended to prevent leakage from injection formations and protect USDWs.

Commenter Name: M. Granger Morgan Letter ID: 0233 Commenter Organization: Carnegie Mellon University on behalf of the CCS Reg Project Comment ID:

21906 Other EPA Comment Codes and Descriptions: 1500 1.2.2.2.4 Some other agency should regulate GS; 1660 1.3.6 Ecosystem impacts (soil, air, surface water)

Comment: 15. Potential Health or Environmental Impacts other than to Groundwater: While we believe that the risk of health or environmental impacts other than togroundwater is very slight for sites that are well-characterized and welloperated, we understand that this is a topic of concern to the public. The inability of the proposed UIC Class VI rules to address these concerns carries the potential to undermine public acceptance of CCS. Should such impacts occur under the proposed UIC Class VI rules, some other regulator would need to intervene. It would be preferable, and more efficient, to have site permitting conducted by a program with the authority to manage all potential risks from CO2 injection comprehensively.

Response: EPA agrees that properly managed GS projects present lower risk. EPA believes that the GS requirements, which are based on the long-standing UIC regulatory framework and tailored to meet the unique nature of CO2 injection for GS, appropriately address endangerment risks to USDWs. The GS rule contains minimum technical criteria for the permitting, geologic site characterization, AoR and corrective action, well construction, operation, mechanical integrity testing, monitoring, financial responsibility, injection well plugging, post-injection site care, and siteclosure of GS wells, which will ensure that USDWs are protected from endangerment.

EPA acknowledges that the issue of GS falls within the broader context of CCS, but clarifies that the scope of the GS regulation is limited to injection of CO2, and that all requirements in the GS rule are designed for the purpose of protecting USDWs from endangerment. The SDWA does not provide the UIC Program with the authority to develop regulations for all areas related to GS, such as releases to the atmosphere.

EPA believes that the creation of a new injection well class (VI) under the existing UIC Program is necessary to enable deployment of GS as a climate change mitigation technology in a manner that protects USDWs from endangerment. EPA agrees that the UIC Program, under the authority of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the unique issues associated with large-scale GS including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations.

To the comment that the geologic siting requirements could create a negative public perception, EPA believes that a demonstration to the public, through the promulgation of the GS rule, that extensive data have been collected and evaluated will likely improve confidence in the project and help address public questions and concerns.

Regarding the suggestion to develop an integrated permitting process that addresses the entire CCS process, EPA clarifies that the UIC Program's authority is limited to ensuring that GS projects protect USDWs from endangerment. Oversight of the capture and transport of CO2 is outside of SDWA authority. EPA acknowledges that GS falls within the broader context of CCS and the need for regulatory clarity to ensure that USDWs are protected from endangerment. In developing the final GS rule, the Office of Water coordinated with other Agency program offices and across federal agencies (e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the Minerals Management Service; and the Bureau of Land Management). The Agency continues to evaluate areas of potential applicability of other Federal environmental statutes including, but not limited to: the Clean Air Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the Marine Protection, Research and Sanctuaries Act to various aspects of GS and CCS. The Agency will continue to coordinate on GS- and CCS-related issues to minimize redundancy and maximize efficiencies for owners or operators. For additional information, please see the discussion entitled "How Does This Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to the final GS rule.

Commenter Name: Lori Mathieu Letter ID: 0283 Commenter Organization: Connecticut Department of Health Comment ID: 25296

Comment: 1. In order to ensure long term drinking water quality for the state of Connecticut's numerous sources of public drinking water, more information needs to be obtained prior to implementation of the proposed rule. Given the state's small size, density of population and distribution of existing and potential public drinking water sources, implementation of the proposed rule without further evaluation of potential public health and drinking water quality impacts would not be recommended at this time.Response: EPA believes that sufficient data and experience currently exist to develop regulations for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices regulated by the UIC Program. While developing the GS regulation, EPA has evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects.

In response to the commenter’s concerns about injection in their state, EPA notes that if a state has primacy for the Class VI program it may choose to ban Class VI wells altogether or put additional limitations or constraints on its usage.

Comment Code: 1655 1.3.5.1 Concerns about Lake Nyos and Mammoth Mountain-type events



### Individual Comments

Commenter Name: Emily Rochon Letter ID: 0129 Commenter Organization: Greenpeace International Comment ID: 23062

Comment: Beyond these problems inherent with any attempt at carbon capture and storage, there is a high potential for catastrophic results from a flawed CCS program. The greatest risk from CCS is for a leak to occur and the integrity of the storage space to be compromised. This is not only a highly dangerous risk, but a highly likely one as well. A natural example of the danger of CO2 leakage occurred at Lake Nyos, Cameroon in 1986. Following a volcanic eruption, large quantities of CO2 that had accumulated on the bottom of the lake were suddenly released, killing 1700 people and thousands of cattle over a range of 15 miles.[FN6 6 Diesendorf, M, 2006. Can geosequestration save the coal industry?, in J Byrne, L Glvoer & N Toly (eds), Transforming power: Energy as a social project, Energy and Environmental Policy Series vol. 9, 2006, pp. 223-248.]

Response: EPA disagrees that the CO2 releases at Lake Nyos is a valid analogue for GS. GS sites have little in common with the physical setting or mechanism that resulted in the release of naturally-occurring CO2 trapped at the bottom of Lake Nyos, a stratified tropical lake that suddenly overturned through a process known as "limnic eruption." No injection was associated with this event, and this site would not have been considered sufficiently geologically stable to be issued a Class VI permit based on the rigorous site characterization requirements at §146.82 (e.g., including lack of confining units).

GS takes places thousands of feet below the Earth’s surface within porous spaces in deep rock formations. CO2 is injected for GS through technically engineered wells with multiple barriers designed to isolate the injectate in the well and protect formations outside the well materials. The injected CO2 is stored in geologic formations underneath confining layers of rock that act as natural barriers to leakage. It is unlikely that CO2 would escape from a GS site that is properly characterized, operated, monitored, and closed. During the site selection process, operators of Class VI wells identify and evaluate the appropriateness of a site for GS of CO2. The evaluation includes the identification of surface and subsurface features such as deep stratified lakes and other naturally occurring pockets of CO2. Furthermore, during GS operation, injection pressures and formation conditions are monitored to avoid overpressuring the storage formation.Commenter Name: Carl Carlsson Letter ID: 0131 Commenter Organization: SUEZ Energy Generation NA, LLC Comment ID: 21526 Other EPA Comment Codes and Descriptions: 1680 1.3.8 Don't overstate risk, don't stigmatize

CO2

Comment: Risks Associated with CO2 GS SEGNA agrees that all potential risks associated with geological sequestration of CO2 should be addressed, and that the public must be adequately informed. However, references to the large and rapid releases of CO2 from volcanic lakes, as occurred in Cameroon in the 1980's, must be presented carefully to more clearly demonstrate that geological sequestration--deep underground and under confining strata--is a completely different process and does not represent a risk to human health and the environment comparable to the referenced incident in Cameroon. The language in any subsequent documents issued by EPA should make this point more forcefully to avoid public confusion regarding the actual risk.

Response: The Agency believes it appropriately characterized the limnic eruption at Lake Nyos as a rare and naturally-occurring lake turnover event that is characteristic of stratified lakes in warm climates. The event at Lake Nyos, during which naturally-occurring CO2 trapped at the bottom of the Lake was released to the atmosphere, is not a valid analogue for GS. The preamble highlighted differences between the lithologic reservoirs that may serve as storage formations for CO2 and the processes occurring at Lake Nyos and other stratified tropical lakes (73 FR 43498).

Commenter Name: James Dooley Letter ID: 0156 Commenter Organization: Joint Global Change Research Institute, Pacific Northwest National Laboratory Comment ID:

22657

Comment: - Page 43498. The USEPA is to be commended for the passage here on Lake Nyos and Lake Monoun and in particular for the forcefulness with which the draft Class VI rule makes it clear that these are not analogous to CO2 injected into a deep geologic formation.

Response: EPA acknowledges the comment.

Commenter Name: Edward Steadman Letter ID: 0220 Commenter Organization: The Energy and Environmental Research Center at the University of North Dakota Comment ID:

21588

Comment: Page 43498. This page includes a very good and reasonable description of the relative inapplicability of the Lake Nyos incident as an analog for possible negative consequences of a large CO2 leak from a geologic storage site.

Response: EPA acknowledges the comment.

Commenter Name: Dave Bufalo Letter ID: 0522

Comment ID: 21467

Comment: With respect to the injection of CO2 and its affect on water quality, I am most concerned about a potential catastrophic failure of the environment system.

There is a lake in Africa that somehow or another evolved a tremendous amount of

carbon dioxide in one massive instantaneous release and it killed all thevillagers within some radius of that. So the issue is, do we have fault systems that may allow this to happen and what then is the proximity of the local population base? That is my primary concern.

If we have a gradual leak of CO2 from a containment system, I do not see that as catastrophic. It was once in the atmosphere, it has under gone sequestration and

now it comes back out. So be it.

Response: EPA disagrees that the CO2 releases at Lake Nyos is a valid analogue for GS. GS sites have little in common with the physical setting or mechanism that resulted in the release of naturally-occurring CO2 trapped at the bottom of Lake Nyos, a stratified tropical lake that suddenly overturned through a process known as "limnic eruption." No injection was associated with this event, and this site would not have been considered sufficiently geologically stable to be issued a Class VI permit based on the rigorous site characterization requirements at §146.82 (e.g., including lack of confining units).

GS takes places thousands of feet below the Earth’s surface within porous spaces in deep rock formations. CO2 is injected for GS through technically engineered wells with multiple barriers designed to isolate the injectate in the well and protect formations outside the well materials. The injected CO2 is stored in geologic formations underneath confining layers of rock that act as natural barriers to leakage. It is unlikely that CO2 would escape from a GS site that is properly characterized, operated, monitored, and closed. During the site selection process, operators of Class VI wells identify and evaluate the appropriateness of a site for GS of CO2. The evaluation includes the identification of surface and subsurface features such as deep stratified lakes and other naturally occurring pockets of CO2. Furthermore, during GS operation, injection pressures and formation conditions are monitored to avoid overpressuring the storage formation.

This evaluation must also identify the presence of faults. Suitable GS sites must have confining zones that are free of transmissive faults or fractures and are of sufficient areal extent and integrity to contain the injected CO2 stream and displaced formation fluids. The formations must allow injection at proposed maximum pressures and volumes without initiating or propagating fractures in the confining zone(s), as required at§146.83(a)(2).

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



### Individual Comments

Commenter Name: Sam Kitto Letter ID: 0126 Commenter Organization: National Tribal Air Association Comment ID: 23047 Other EPA Comment Codes and Descriptions: 1650 1.3.5 Human health impacts

Comment: Environmental Impacts

The EPA is proposing to do something of a significant magnitude for the first time which is the injection of substantial amounts of carbon dioxide into the ground at high pressures. The EPA is seeking to control a pollutant that is very buoyant and corrosive, and with a technology that has to be fully tested. As such, the NTAA is concerned about the potential environmental impacts ofgeologic sequestration to the nation’s Indian tribes.

While geologic sequestration could likely affect tribal property rights - i.e., the diminishment of mineral rights values and cause property damage, it is its potential harm to humans and the environment which most concern the NTAA. The World Resources Institute recently communicated in its report Guidelines for Carbon Dioxide Capture, Transport and Storage, that "risks to people and ecosystems [can] arise from the potential for CO2 to accumulate in low-lying areas or areas with poor ventilation. If CO2 leaks to the surface in areas with poor ventilation, such as basements or shallow dips in the ground, it can accumulate to levels that could cause stress or even asphyxiation in humans and animals." Unfortunately, owners and operations of geologic sequestration operations will not be held liable for such injuries as the GS rule solely focuses on the protection of USDWs (e.g., prevention of CO2 migration into USDWs). While the EPA might be correct in its understanding that geologic sequestration impacts to air, human health and ecosystems are outside the scope of the Safe Drinking Water Act, this does not negate the Agency’s trust responsibility to best manage and preserve tribal lands from any undue outside influences, and in this case, CO2 leakage as a result of geologic sequestration.

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. EPA believes that the measures in the GS rule that directly mitigate the possibility of CO2 leakage out of the injection zone will also indirectly mitigate the risks to receptors mentioned by the commenters, including fresh water, wildlife, ecosystems, and agriculture.

EPA adds that Class VI well owners and operators must site, construct, operate, monitor, and close their wells in a manner that protects USDWs, and Class VI permits will set forth rigorous technical requirements to ensure careful planning, operation, and closure of GS projects. Failure to meet these requirements would be considered a violation of the permit and would be subject to applicable civil, criminal, or administrative penalties.

EPA also notes that owners or operators of Class VI wells must ensure that resources are available to prevent endangerment of USDWs from improper plugging, remediation, and management of wells. The GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. In the event of contamination or other adverse event associated with GS, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions.

EPA believes that sufficient data and experience currently exist to develop regulations for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices regulated by the UIC Program. While developing the GS regulation, EPA has evaluated relevant GS research, including projects conducted by the seven Regional Carbon Sequestration Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology Laboratory (NETL), and several international projects.

Industry also has decades of experience with well construction and operation. For example, the oiland gas industry has experience drilling and cementing wells in very deep formations, in a variety of environments (e.g., high-pressure and low-pressure formations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class

VI wells.

EPA adds that, in the process of developing the GS rule, it consulted with tribal representatives to facilitate ongoing communication throughout the rulemaking process. Please see the next response for additional information. EPA is committed to protecting USDWs on tribal lands through implementation of the GS rule.

Commenter Name: Emily Rochon Letter ID: 0129 Commenter Organization: Greenpeace International Comment ID: 23064

Comment: contaminating fresh water reservoirs in their path. Infiltration of saline water into groundwater or the shallow subsurface impacts wildlife habitats, restricts or eliminates agricultural uses of land, and pollutes aquifers and surface water bodies.[FN7 7 Kharaka Y K, Cole D R, Hovorka S D, Gunter W D, Knauss K G & Freifeld B M, ‘Gas-water-rock interactions in frio formation following CO2 injection: Implications for the storage of greenhouse gases in sedimentary basins’, Geology, vol., 34, no. 7, 2006, pp. 577-580.] The efficiency of

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. EPA believes that the measures in the GS rule that directly mitigate the possibility of CO2 leakage out of the injection zone will also indirectly mitigate the risks to receptors mentioned by the commenters, including fresh water, wildlife, ecosystems, and agriculture.

Commenter Name: Dwight Lockwood, PE, QEP Letter ID: 0141 Commenter Organization: Global Energy, Inc. Comment ID: 23097

Comment: 2.Global also agrees that, adverse impacts to ecosystems from CO2 injection activities, is similarly minimal. Leaks will be small and flora do benefit from CO2 for growth.

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. EPA believes that the measures in the GS rule that directly mitigate the possibility of CO2 leakage out of the injection zone will also indirectly mitigate the risks to receptors mentioned by the commenters, including fresh water, wildlife, ecosystems, and agriculture.

Commenter Name: Thomas Curtis Letter ID: 0181 Commenter Organization: American Water Works Association (AWWA) Comment ID: 23668

Comment: AWWA recommends that EPA not ignore the potential impacts outside of the scope

of the SDWA such as those to air and human health if there is a massive leak. Could there be any conflicts or overlaps with the Clean Air Act or the CleanWater Act? Are other Program Offices within EPA planning on looking at this proposal? This review by other EPA Program Offices would seem to be necessary given the potential impacts that could arise if there is a failure of the confining layer.

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. EPA believes that the measures in the GS rule that directly mitigate the possibility of CO2 leakage out of the injection zone will also indirectly mitigate the risks to receptors mentioned by the commenters, including fresh water, wildlife, ecosystems, and agriculture.

EPA acknowledges that GS falls within the broader context of CCS and acknowledges that regulatory clarity is essential for enabling GS to move forward in a manner that protects human health and the environment. The Agency is working to identify areas related to GS that could be addressed under other statutes to ensure that GS is conducted in a manner that is protective of human health and the environment. Additionally, the Agency is and will continue to coordinate internally and with other Federal agencies involved in GS and CCS, including the Minerals Management Service, Bureau of Land Management, and the United States Geological Survey, to promote consistency in existing and future GS initiatives.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22709

Comment: With respect to releases from the well itself, the primary source of such releases could occur during injection operation through failure of well seals, flanges and gaskets, piping breaches, liners, valve packing and other mechanical components or failure to follow operational and safety procedures. Such releases will likely be confined to the injection period. During operation and the measurement, monitoring, and validation (MMV) period, the injection facility (metering, distribution and injection systems), should be classified as a production facility where industrial safety standards, design and operating procedures (e.g., - HAZOPS reviews) will apply. Appropriate regulation will be derived from permits under the Clean Air Act that are issued to the facility along with protection of operating personal as required by OSHA.

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. The Agency clarifies that, under SDWA authority, the requirements do not explicitly protect against CO2 leakage to the surface. However, the GS rule requires that CO2 injected for GS remain confined in the injection zone. Leakage outside of the injection zone/to the surface would be a permit violation.

The Agency clarifies that compliance with OSHA guidelines for GS is outside of the scope of the GS rule. However, EPA believes that the measures in the GS rule that mitigate the possibility of CO2 leakage out of the injection zone will also mitigate the risks to humans, both on-site and off-site.Commenter Name: M. Granger Morgan Letter ID: 0233 Commenter Organization: Carnegie Mellon University on behalf of the CCS Reg Project Comment ID:

21906 Other EPA Comment Codes and Descriptions: 1500 1.2.2.2.4 Some other agency should regulate GS; 1650 1.3.5 Human health impacts

Comment: 15. Potential Health or Environmental Impacts other than to Groundwater: While we believe that the risk of health or environmental impacts other than togroundwater is very slight for sites that are well-characterized and welloperated, we understand that this is a topic of concern to the public. The inability of the proposed UIC Class VI rules to address these concerns carries the potential to undermine public acceptance of CCS. Should such impacts occur under the proposed UIC Class VI rules, some other regulator would need to intervene. It would be preferable, and more efficient, to have site permitting conducted by a program with the authority to manage all potential risks from CO2 injection comprehensively.

Response: EPA agrees that properly managed GS projects present lower risk. EPA believes that the GS requirements, which are based on the long-standing UIC regulatory framework and tailored to meet the unique nature of CO2 injection for GS, appropriately address endangerment risks to USDWs. The GS rule contains minimum technical criteria for the permitting, geologic site characterization, AoR and corrective action, well construction, operation, mechanical integrity testing, monitoring, financial responsibility, injection well plugging, post-injection site care, and site closure of GS wells, which will ensure that USDWs are protected from endangerment.

EPA acknowledges that the issue of GS falls within the broader context of CCS, but clarifies that the scope of the GS regulation is limited to injection of CO2, and that all requirements in the GS rule are designed for the purpose of protecting USDWs from endangerment. The SDWA does not provide the UIC Program with the authority to develop regulations for all areas related to GS, such as releases to the atmosphere.

EPA believes that the creation of a new injection well class (VI) under the existing UIC Program is necessary to enable deployment of GS as a climate change mitigation technology in a manner that protects USDWs from endangerment. EPA agrees that the UIC Program, under the authority of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the unique issues associated with large-scale GS including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations.

To the comment that the geologic siting requirements could create a negative public perception, EPA believes that a demonstration to the public, through the promulgation of the GS rule, that extensive data have been collected and evaluated will likely improve confidence in the project and help address public questions and concerns.

Regarding the suggestion to develop an integrated permitting process that addresses the entire CCS process, EPA clarifies that the UIC Program's authority is limited to ensuring that GS projects protect USDWs from endangerment. Oversight of the capture and transport of CO2 is outside of SDWA authority. 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 federalagencies (e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the Minerals Management Service; and the Bureau of Land Management). The Agency continues to evaluate areas of potential applicability of other Federal environmental statutes including, but not limited to: the Clean Air Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the Marine Protection, Research and Sanctuaries Act to various aspects of GS and CCS. The Agency will continue to coordinate on GS- and CCS-related issues to minimize redundancy and maximize efficiencies for owners or operators. For additional information, please see the discussion entitled "How Does This Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to the final GS rule.

Commenter Name: Dag Nummedal Letter ID: 0533 Commenter Organization: Colorado Energy Resource Institute Comment ID: 21479 Other EPA Comment Codes and Descriptions: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space ownership

Comment: The last part then gets at the biosphere. A lot of people think I believe that the subsurface beneath our feet consists mostly of rocks only. It does not. Turns out that we have a very extensive community of microorganisms that go deep down. In the deepest gold mines in South Africa, people are recovering microbes. And these microbes play a fundamental roles in the geochemical and radiological reactions. In fact in all different rocks, whether they be hard rocks where we get gold and silver and copper and whatnot, there are organisms related and are present in both deep hard rock mines, those organisms that are found on limestones. We can look at that as potentially large carbon sequestration. Reservoirs contain a lot of bacteria, microbes in coal. Coal seams potentially are great places to store CO2 partly because some of the microbes will actually use the hydrogen as in the electron donor and then reduce the CO2 into methane. And we add hydrogen to the C and the O's and it produces methane and oxygen and water. And then if you can get that reaction to work in commercial and industrial settings in the subsurface, then you can actually use CO2 in the subsurface, in the coal seams, the same way that we are increasingly using CO2 in algal farms. Algal biofuels which most people are strongly in favor of. Environmentally algal biofuels are probably very good and what you do of course, algae have to eat something, they eat CO2. Now if you can get the microbes in this subsurface, in the coal seams, to do the same thing basically converting that CO2 into methane and regenerate the methane, you can have a sustained production of methane which can be trapped and captured and used as it leaves a much cleaner fuel than coal and oils for a long time while you are storing CO2 in the process. I think it is a very encouraging future technology.

And that will then also be a significant part of the research that we are attracted, that we are here proposing.

Response: EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. The Agency clarifies that, under SDWA authority, the requirements do not explicitly protect against CO2 leakage to the surface. However, the GS rule requires that CO2 injected for GS remain confined in the injection zone. Leakage outside of theinjection zone/to the surface would be a permit violation.

In response to the comment suggesting "harnessing biological activity"—such as underground microbes—to consume CO2, the Agency clarifies that the GS rule does not preclude or endorse the use of specific technologies (e.g., microbes) for GS provided they are used in conjunction with appropriately sited, constructed, operated, and monitored injection wells to ensure protection of

USDWs.

Comment Code: 1670 1.3.7 Other/miscellaneous risks



### Individual Comments

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22517

Comment: The Environmental Protection Agency at 73 FR 43492-43541 requests comments regarding the proposal to prepare regulations for an unknown number of Class VI wells. Class VI wells are in reality, manmade explosive devices storing buoyant carbon dioxide sequestered deep in the earth under supercritical pressure conditions. Many persons designing these wells are of unknown technical ability, e.g., not professional Engineers (P.E.). There are no safe guards to prevent organizations from simply seeking monetary rewards, without being required to see the project to completion. Further, the well designs and

Response: EPA disagrees that injection wells are dangerous devices. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect

USDWs.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a foundation for protecting USDWs based on success, field experience, and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well

understood.

EPA disagrees that the people designing and regulating wells lack technical training for effective oversight of Class VI wells. Most permitting authorities’ staff have years of experience with the current UIC injection well classes and have relevant specialties in geology, engineering, and related disciplines. Injection well owners and operators represent industries with decades of experience injecting a variety of fluids, including CO2. Industry also has decades of experience with well construction and operation. For example, the oil and gas industry has experience drilling andcementing wells in very deep formations, in a variety of environments (e.g., high-pressure and lowpressure formations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class VI wells.

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22518 Other EPA Comment Codes and Descriptions: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: required to see the project to completion. Further, the well designs and operations would be approved by Agency technically untrained employees, who are not Professional Engineers and supervised by a Regional Director who is neither an engineer nor a Professional Engineer.

The Agency proposes using untrained EPA employees who are not required to demonstrate their CO2 sequestration technical knowledge by completing and passing a written examination. Further, the Agency proposes to sequester

Response: As described above, EPA disagrees that the people designing and regulating wells lack technical training for effective oversight of Class VI wells. Most permitting authority staff have years of experience with the current UIC injection well classes and have relevant specialties in geology, engineering, and related disciplines. Injection well owners and operators represent industries with decades of experience injecting a variety of fluids, including CO2. EPA believes that this experience has led to the development of well materials and construction and operating procedures that are applicable to Class VI wells.

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22521 Other EPA Comment Codes and Descriptions: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: The sequestration of CO2 represents a money-making scheme for a "political" pollutant, which will encourage unqualified organizations and speculators to seek Class VI injection permits. These unqualified organizations will find unqualified consultants to prepare documents supporting the permit applications. EPA, in the instant proposed rule, suggests several financial responsibility schemes to avoid unqualified organizations and speculators from creating a disaster, but EPA and states do not know how to assure financial responsibility as demonstrated by the lack specificity within the proposed rule. Rules proposed with this lack of specificity, typically result in EPA selecting final rule wording, which received no comments during the proposal stage. This gives EPA free rein to select regulation wording not reviewed by the commenting public, and not alluded to during the proposal.

One of the most frightening aspects of the proposed rule is EPA imposes no technical qualification requirements on EPA review personnel. Thus, a well written, but inaccurate document, can easily be accepted by EPA, when technically unqualified reviewers are used. If qualified reviewers were used, the application would be rejected.Response: As described above, EPA disagrees with the assertion that the staff reviewing permit applications does not have adequate technical knowledge to review and approve Class VI permits. EPA will be facilitating training on the GS rule requirements for states and Regional staff in addition to providing guidance on implementation of the Class VI UIC program.

EPA clarifies that the person who signs a permit application must certify that the application is accurate and that data was collected in accordance with a system designed to ensure that qualified personnel evaluate the data. EPA believes that assigning this responsibility to the signatories will ensure that the work has been properly supervised. Failure to meet this requirement would subject the owner or operator of the well to applicable civil, criminal, or administrative penalties under SDWA §1423.

EPA adds that owners or operators of Class VI wells must ensure that resources are available to prevent endangerment of USDWs from improper plugging, remediation, and management of wells. For this reason, the GS rule requires that owners or operators demonstrate and maintain financial responsibility for corrective action on wells in the AoR, injection well plugging, post-injection site care and site closure, and emergency and remedial response at GS sites as specified in §146.85. EPA has revised the requirements in the final rule to provide more specifics. In the event of contamination or other adverse event that endangers a USDW during the life of the GS project, the financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover necessary response actions.

EPA adds that Class VI well owners and operators must site, construct, operate, monitor, and close their wells in a manner that protects USDWs, and Class VI permits will set forth rigorous technical requirements to ensure careful planning, operation, and closure of GS projects.

EPA adds that the requirements in the final GS rule, including all changes from the proposed rule, are based on consideration of public comments received in response to the proposed rule and its subsequent Notice of data Availability and Request for Comment issued on August 31, 2009 (74 FR 44802).

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22529 Other EPA Comment Codes and Descriptions: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: LACK OF QUALIFIED EPA PERSONNEL

EPA requests comments on many aspects of CO2. For example at 73 FR 43514, col. 2, EPA request help learning to track CO2 underground plumes. I have worked

with the UIC rules as a commenter since 1979. At no time did EPA use an EPA Professional Engineer (P.E.) for developing the UIC rules. During the initial stages of writing the 1979 draft rules, EPA used an Ancient English graduate as the Agency lead technical supervisor. Ancient English is not considered a technical background.

I have not found any of the current EPA UIC Regional employees to be professional engineers. When I requested the information in writing from EPA, I was told privacy laws prohibited providing such information. Reviewing and understanding CO2 sequestration projects is a technically exacting task.Assigning an EPA non-Professional Engineer to this review task exposes the U.S. public to severe risk. Placing the final approval in the hands of a Regional Administrator, who traditionally is not an engineer, means the EPA is disregarding public safety. At a minimum, the reviewing engineer and Regional Administrator must be Professional Engineers. EPA at 40 CFR Part 112 requires a Professional Engineer certify a Spill Prevention, Control and Countermeasure (SPCC) Plan, which typically is intrinsically a simple non-technical document, but EPA does not rely on EPA Professional Engineers to review high pressure, corrosive fluid injection projects, that are highly technical and intrinsically

unsafe.

EPA has likened Class VI projects to Class I hazardous waste injection wells and Class II CO2 enhanced recovery wells. It is true Class I disposal wells sequester hazardous waste, but these wastes are not buoyant and typically are combined with other waste to make them non-corrosive. FURTHER, THE AGENCY HAS

BEEN REVIEWING CLASS II WELL PLANS SUBMITTED BY EXPERIENCED OIL AND GAS

COMPANY ENGINEERS. An anticipated shortage of trained oil and gas industry engineers (Bryant, 2007) and the political nature of CO2 sequestration projects ( www.wecansolveit.org) will attract spectators, who do not intend to see the project through to completion. Thus, the Agency may be forced to correct many problems caused by poor review and oversight on the part of the untrained EPA employees

Bryant, S., 2007. Geologic CO2 Storage - Can the Oil and Gas Industry Help Save the Planet? J Pet. Tech (JPT), p 98-105, September

Response: As described previously, most permitting authority staff have years of experience with the current UIC injection well classes and have relevant specialties in geology, engineering, and related disciplines. Additionally, EPA will coordinate with and assist states, e.g., through guidance and on-line and in-person training, to help them address problematic technical and policy issues.

Commenter Name: George Holliday, PhD, PE, BCEE Letter ID: 0114 Commenter Organization: Holliday Environmental Services, Inc. Comment ID: 22530 Other EPA Comment Codes and Descriptions: 3800 2.3 Proposed Injection Well Construction Requirements (40 CFR 146.86)

Comment: The mixture of hazardous wastes associated with Class I injection wells do not aggressively attack carbon steel or cement. Also, hazardous waste will not change phase, as supercritical CO2 does when the pressure is decreased. The change in fluid phase results in formation of a gas, which is large in volume and more redily able to find its way to the surface of the earth through minute cracks. The earth’s surface is full of examples of oil seeps, e.g., the underwater seeks at Santa Barbara, California, and oil seeps in and around the Pennsylvania oil fields, to name a few areas where leaks are known to occur.

The hazardous wastes stored in Class I wells are retained underground because, the column of waste formed when a leak occurs, provides a controlling head of weighted fluid. In the case of CO2 the hydraulic head, in the event of a leak, becomes less as the over burden pressure reduces. This is a much more dangerouscondition than experienced with Class I wells.

Class II enhanced oil recovery (EOR) wells are not abandoned with a high residual head of buoyant gas. Typically, the well is produced until the field becomes un-economical (too depleted) to produce. This, unlike the CO2 sequestration wells is not under high supercritical pressure (2200 psig pressure) at the time of abandonment. Also, a Class II CO2 injection well is associated with oil producing operations, which can be protected from corrosion by injecting corrosion inhibitor into the producing well during the producing phase.

Response: EPA believes that the construction requirements at §146.86 provide an appropriate level of protection from endangerment to USDWs that is based upon the existing UIC framework for deep wells. The new tailored approach was designed to address the general risks deep injection may pose to USDWs and was tailored specifically to address the unique nature of CO2 GS (i.e., including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations).

EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a foundation for protecting USDWs based on success, field experience, and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well

understood.

Commenter Name: Edward Steadman Letter ID: 0220 Commenter Organization: The Energy and Environmental Research Center at the University of North Dakota Comment ID:

21589 Other EPA Comment Codes and Descriptions: 5280 2.8.2.4 USDW non-endangerment

demonstrations

Comment: Page 43498. Regarding the statement, "the measures outlined in today’s proposed rulemaking to prevent endangerment of USDWs may also prevent migration of CO2 to

the subsurface."

This statement is fine, as long as protecting leakage to the atmosphere does not lead to stricter measures than would be required to protect USDWs. For example, regulations should be driven by a desire to maintain a leakage rate below a certain percentage of the injected volume, unless that percentage can bedemonstrated to adversely affect USDWs. Another way to state it is this: a 1% leakage rate may or may not adversely affect USDWs; therefore, a 1% rate should not necessarily be unacceptable.

Response: EPA clarifies that all requirements in the GS rule are for the purpose of preventing endangerment to USDWs, and that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule are intended to prevent leakage from injection formations and protect USDWs.

EPA acknowledges that there are potential risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well construction, operation, monitoring, post-injection site care, and site closure and to ensure protection of USDWs. The Agency clarifies that, under SDWA, EPA does not have the authority to directly regulate air emissions via CO2 leakage to the surface. However, the GS rule requires that CO2 injected for GS remain confined in the injection zone. Leakage outside of the injection zone as defined in a Class VI permit, which may be evidenced by leakage to the surface, would be a permit violation if a USDW is endangered.

Commenter Name: Mary Munn Letter ID: 0273 Commenter Organization: Fond du Lac Reservation Comment ID: 24089

Comment: · Fond du Lac will defer to the experts in the case of pipeline and well integrity and the long term safety of geologic sequestration of carbon dioxide. However, the skill of deep drilling brings to mind the mudflow disaster of Sidoarjo Porong, East-Java Indonesia, which began in May 2006 and is still flowing to this day.

Response: EPA disagrees that the CO2 release at Sidoarjo is a valid analogue for GS. The situation at Sidoarjo is not analogous to GS because the eruption of the naturally-occurring CO2 at Sidoarjo was due to the highly over-pressurized natural geologic conditions in the region (and associated lack of an impermeable and extensive confining zone). No injection was associated with this event, and this site would not have been considered sufficiently geologically stable to be issued a Class VI permit based on the rigorous site characterization requirements at §146.82 (e.g., including lack of confining units).

GS takes places thousands of feet below the Earth’s surface within porous spaces in deep rock formations. CO2 is injected for GS through technically engineered wells with multiple barriers designed to isolate the injectate in the well and protect formations outside the well materials. The injected CO2 is stored in geologic formations underneath confining layers of rock that act as natural barriers to leakage. It is unlikely that CO2 would escape from a GS site that is properly characterized, operated, monitored, and closed. During the site selection process, operators of Class VI wells identify and evaluate the appropriateness of a site for GS of CO2. The evaluation includes the identification of surface and subsurface features such as deep stratified lakes and other naturally occurring pockets of CO2. Furthermore, during GS operation, injection pressures and formation conditions are monitored to avoid overpressuring the storage formation.

Commenter Name: Brad Kallio Letter ID: 0502

Comment ID: 21231

Comment: Everybody's kind of heard of Murphy's Law, I tend to live by it being a --various things that I repair in my world. But typically, anytime you do anything like this where you're putting yourself into a potential to, let's say something does go wrong, there is a crack or a movement, or something that happens geologically that stresses it, where does this gooey carbon dioxide go? And in my world it finds its way.

And you get it in the water, I don't know, what is it, 20 percent of the world's fresh water is in Michigan and around the, the lakes around here. That concerns me because it's a time bomb just waiting to go off. Instead, maybe a hundred years, so far they've got it where it looks like it might be all right. But, okay, that would be my grandkids that have to deal with the problem.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA acknowledges the importance of protecting drinking water supplies and adds that all of the requirements in the GS rule are for the purposes of protecting underground sources of drinking water from endangerment.

Commenter Name: Scott Anderson Letter ID: 0520 Commenter Organization: Environmental Defense Fund Comment ID: 21429 Other EPA Comment Codes and Descriptions: 1270 1.1.2 Comments on other rules/issues

Comment: The rule I believe, I believe the preamble does mention the possibility of interference among projects, but whether or not that is the case, we think it is important that the rule contain a provision to head off potential interference among projects. The idea that seems to make sense to us is to flatly say that a project cannot interfere with the effectiveness of a preexisting project and anytime there is an overlap in the pressure fronts or footprint or however else you might define it, we think there ought to be inquiry made as to whether that would constitute interference. A rule like that would force projects in a single basin or brine formation to space themselves at least somewhat properly.

Response: EPA anticipates that the impacts of multiple operators injecting into hydraulically

connected formations will be accounted for in the initial AoR calculation. EPA adds that the owner or operator must demonstrate, in the proposed AoR and corrective action plan, to the satisfaction of the Director that the modeled AoR will be based on detailed geologic data collected on the site and includes consideration of existing conditions such as the presence of multiple operators. EPA adds that if any new GS projects are permitted within the AoR of a GS project between AoR evaluations, the AoR reevaluation must address such projects. EPA also expects that the permitting of the newer GS project will have considered the presence of an existing GS project.

Comment Code: 1680 1.3.8 Don't overstate risk, don't stigmatize CO2

### Individual Comments

Commenter Name: Karl R. Moor Letter ID: 0109 Commenter Organization: Southern Company, on behalf of Edison Electric Institute (EEI) Comment ID:

21992 Other EPA Comment Codes and Descriptions: 1330 1.1.3.1 Support use of GS in general

Comment: Key Messages

We have two key messages for EPA today:

First, the regulations can and should promote the development and deployment of carbon capture and storage while protecting underground sources of drinking water without unduly stigmatizing carbon dioxide injection and storage. Carbon dioxide has been injected for years for enhanced oil recovery and enhanced gas recovery without incident.

Response: EPA does not believe that the GS regulation stigmatizes CO2 injection. However, EPA believes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. The final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well requirements) to develop the Class VI GS regulation provides a foundation for protecting USDWs based on success, field experience, and lessons learned about CO2 injection in other applications. Class I well owners or operators have experience with site characterization, well construction, and monitoring procedures and technologies that are applicable to Class VI wells. Class II ER well operators have experience with managing the unique properties of CO2. To successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of injected CO2 must be well

understood.

Commenter Name: Karl R. Moor Letter ID: 0109 Commenter Organization: Southern Company, on behalf of Edison Electric Institute (EEI) Comment ID:

21994

Comment: EEI urges EPA to work to ensure the regulations do not stigmatize carbon geologic storage, which would create public confusion and hamper development of a critical carbon reduction technology.

As I noted, EPA has recognized that it has two goals for the proposed rules for geologic storage of carbon dioxide: the protection of underground sources of drinking water and the promotion of carbon capture and storage. EEI urges EPA to keep both of these goals in mind and to work to ensure that the regulatory regime that is ultimately adopted is designed to facilitate - not delay or discourage - the successful commercial-scale development of carbon capture and storage. The potential emissions benefits of commercial-scale carbon storage are too large and too important to ignore in the context of these regulations.While our written comments will discuss some of the specific ways that the proposed regulations can support the development of appropriately sited storage projects, I would also like to bring to your attention today the importance of creating an accurate public perception of the risks and rewards of carbon geologic storage.

In its laudable efforts to protect sources of drinking water - an important goal, as we all agree - EPA has inadvertently stigmatized carbon dioxide injection and storage. In reviewing the proposal, EEI and its members became very concerned that the proposed regulations repeatedly mischaracterized the possible risks posed by carbon dioxide injection and storage.

Indeed, while carbon dioxide is not a hazardous waste and is, in fact, found in the ambient air in abundance, the proposed rules for CO2 storage are, in many ways, stricter than those for underground injection of hazardous wastes under Class I of the UIC program. Many of the construction, mechanical integrity, monitoring and financial assurance provisions for Class VI wells are more comprehensive and more strict than those for Class I wells.

However, carbon dioxide is not a hazardous waste and does not warrant treatment akin to or more stringent than given to hazardous wastes. The increased regulatory burden placed on Class VI wells by the proposed regulation is of concern to EEI and its members, who are potential owners and operators of CCS projects. We are also concerned that by imposing such stringent measures EPA would be unduly stigmatizing carbon geologic storage.

Our industry knows first-hand the importance of accurate public perceptions when it comes to the siting and permitting of needed infrastructure expansions or improvements. In the preamble to its proposal, EPA finds that the public should participate in the permitting process for carbon dioxide storage projects. Today we ask EPA to ensure that the public fully understands that it is very unlikely carbon geologic storage projects will harm underground sources of drinking water or human health, so that its participation in the permitting process is appropriately informed. EPA can help create accurate public perceptions about carbon capture and storage by retooling the proposed regulations to tie requirements to actual risks more closely. In addition, EPA should remove elements that serve only to fan the flames of fear without offering increased protection to underground sources of drinking water.

Response: EPA disagrees that the GS regulation overstates or mischaracterizes the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA acknowledges the comment about flexibility, and believes that the Class VI requirementsbalance site-specific flexibility with USDW protection. Rather than setting performance or technology-based standards for GS projects, EPA is adopting a flexible approach, where operators of GS projects would develop and implement site-specific plans for delineating the AoR, testing and monitoring the site, performing corrective action, and post-injection site care. EPA believes that the plans—which would be reviewed and approved by the Director and periodically updated throughout the life of the project—promote an ongoing dialogue between the operator and the Director that will encourage use of the most appropriate technologies for a particular project.

EPA agrees that informing the public on all aspects of GS projects is important. The Agency believes that a demonstration to the public that extensive data have been collected and evaluated would likely improve confidence in the project and help address public questions and concerns.

Commenter Name: Karl R. Moor Letter ID: 0109 Commenter Organization: Southern Company, on behalf of Edison Electric Institute (EEI) Comment ID:

22001

Comment: EEI and its members urge EPA encouragement of carbon capture and storage to be reflected in the final regulations, and recommend that the final regulations serve this purpose by appropriately characterizing carbon dioxide and its risks. The final regulations should be carefully crafted, therefore, to avoid creating a public stigma around this critical GHG emissions control technology.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Commenter Name: Leslie Savage Letter ID: 0122 Commenter Organization: Railroad Commission of Texas (RRC) Comment ID: 24731

Comment: The Proposal fails to promote and encourage geosequestration of CO2. EPA’s stated goals for this proposal are to protect Underground Sources of Drinking Water (USDWs) while promoting carbon capture and storage. As the proposal stands, the regulations would succeed in protecting USDWs, but would fail to successfully promote carbon capture and storage in any significant way. Therefore, under the current regulatory scenario, CO2 will continue to be released to the atmosphere in greater amounts than would ever leak from a properly sited, constructed, and operated CO2 storage facility. One reason for the failure is that the proposal overestimates the risk of CO2 sequestration and, as a result, creates an overestimated implied liability. Another reason is that the Proposal taints the technology by implying that CO2 is a waste. Finally, the proposal includes insufficient flexibility to account for the geographic variability of potential sites across the country. In summary, the RRC is concerned that the Proposal overestimates the risks of CO2 geologic sequestration, and creating barriers to rapid implementation of the technology rather than encouraging or providing incentives to mobilize large-scale projects.The Proposal treats CO2 as a waste. The EPA states in the preamble that it has not classified CO2 as a waste or a commodity. However, by using the Class I waste injection well requirements as the framework for the Class VI requirements, the Proposal implies that the CO2 stream is a waste. This implication increases not only the potential liability for carbon dioxide sequestration, but also the potential liability for anthropogenic CO2 injection for the purpose of enhanced recovery of oil and/or natural gas.

Many provisions of the Proposal address Class VI wells from a waste based perspective. With respect to construction, area of review (AoR) and monitoring, the Proposal begins with the regulatory framework for Class I non-hazardous industrial waste injection well requirements and then adds numerous layers of requirements to prevent or detect the escape of CO2 from the injection zone.

The Proposal excludes CO2 that is a hazardous waste from regulation under the Class VI program, but has proposed requirements for Class VI injection wells that are more stringent than those for wells used for the injection of hazardous waste. RRC strongly disagrees that CO2 buoyancy, corrosivity, and high injection volumes for a Class VI project justify a Class I approach.

Response: EPA clarifies that the purpose of the GS rule is not to promote GS in specific settings, nor does it limit injection activities to any specific type of formation, geographic region, or depth. The focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that is protective of USDWs.

EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs. EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself, and do not address or imply anything regarding the status of CO2 as a pollutant, commodity, or waste. EPA does not believe the GS rule creates any implication for an increase in potential liability for GS or CO2 injection related to EOR.

EPA disagrees that the GS rule has “tainted” technology by using the Class I regulations as a baseline for the Class VI regulations. Additionally, EPA disagrees that the GS rule provides insufficient flexibility to account for geographic variability. EPA has taken a regulatory approach that promotes USDW protection, incorporates flexibility or the discretion of the permitting authority when appropriate, seeks to limit burden on owners or operators and permitting agencies, and provides a foundation for national consistency in permitting of GS projects. For example, under the final rule, many of the permit requirements must be established through site-specific plans (e.g., AoR and corrective action plan, testing and monitoring plan, etc.) developed by the owner or operator and approved by the Director.

Furthermore, EPA recognizes that technologies will evolve and improve over time, and for these reasons, the Agency is using an adaptive approach to regulate GS injection. The Agency plans, everysix 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.

Commenter Name: Leslie Savage Letter ID: 0122 Commenter Organization: Railroad Commission of Texas (RRC) Comment ID: 24734

Comment: The Proposal overestimates the risks of CO2 injection and sequestration. As noted in the preamble, naturally occurring CO2 has been trapped in subsurface formations for eons. Texas and numerous other states have over 35 years of experience in injection of large amounts of CO2 into geologic formations to enhanced oil recovery. Over 35 million tons of CO2 are injected annually in more than 70 projects in the United States.

In most cases, with appropriate site selection, construction, monitoring, and testing, the risks of CO2 geologic sequestration would be comparable to the risks of current activities such as natural gas storage, EOR and deep underground disposal of acid gas. In those instances any regulations for Class VI wells should reflect more closely UIC Class II standards instead of the more stringent Class I well standards.

Both the Class VI and the Class II programs have the same goals - protection of USDWs. Yet, EPA’s proposal implies that when the purpose of the injection switches from enhanced recovery to sequestration, the risks to USDWs are significantly magnified. The RRC does not agree that the volume and duration of CO2 injection and placement are sufficiently different in measurable effect on the underground to justify the extra layers of requirements.

However, rather than beginning its CO2 geologic sequestration framework with the Class II well program, EPA begins with the framework of Class I non-hazardous industrial waste injection well requirements and adds then numerous layers of overly redundant requirements to prevent or detect the escape of CO2 from the injection zone. The implication seems to be that EPA believes that the Class II program is not sufficiently stringent. This implication is a major concern for

the RRC.

In addition, the heightened stringency in the proposed requirements for Class VI injection wells suggests that geological sequestration of CO2 is as much or more dangerous than underground injection of other substances. The Proposal includes numerous examples of this heightened stringency:

Response: As described above, EPA disagrees that the GS rule overstates the risk of CO2 injection. While EPA recognizes that industry has decades of experience injecting CO2 for EOR and EGR, EPA believes that injection for the primary purpose of long term storage is sufficiently different from Class II ER operations and warrants tailored requirements, which is why the GS rule used the Class I regulations as its baseline. For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressure conditions will also be different, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects.EPA disagrees that the tailored requirements of the GS rule suggest that GS of CO2 is any more risky or dangerous than underground injection of other substances. EPA expects that the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule will prevent leakage from injection formations and protect USDWs.

Commenter Name: Carl Carlsson Letter ID: 0131 Commenter Organization: SUEZ Energy Generation NA, LLC Comment ID: 21526 Other EPA Comment Codes and Descriptions: 1655 1.3.5.1 Concerns about Lake Nyos and Mammoth Mountain-type events

Comment: Risks Associated with CO2 GS SEGNA agrees that all potential risks associated with geological sequestration of CO2 should be addressed, and that the public must be adequately informed. However, references to the large and rapid releases of CO2 from volcanic lakes, as occurred in Cameroon in the 1980's, must be presented carefully to more clearly demonstrate that geological sequestration--deep underground and under confining strata--is a completely different process and does not represent a risk to human health and the environment comparable to the referenced incident in Cameroon. The language in any subsequent documents issued by EPA should make this point more forcefully to avoid public confusion regarding the actual risk.

Response: The Agency believes it appropriately characterized the limnic eruption at Lake Nyos as a rare and naturally-occurring lake turnover event that is characteristic of stratified lakes in warm climates. The event at Lake Nyos, during which naturally-occurring CO2 trapped at the bottom of the Lake was released to the atmosphere, is not a valid analogue for GS. The preamble highlighted differences between the lithologic reservoirs that may serve as storage formations for CO2 and the processes occurring at Lake Nyos and other stratified tropical lakes (73 FR 43498).

Commenter Name: Anonymous2 Letter

ID: 0133 Commenter Organization: Sierra Club National Global Warming and Energy Committee and Sierra Club California-Nevada Regional Conservation Committee on Energy and Climate Change Comment

ID: 21599

Comment: CO2 as a Valuable Commodity: Re-frame public perceptions of CO2 as a hazardous waste material by funding CCS demonstration projects which biologically or chemically transform CO2 into valuable products.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule are intended to prevent leakage from injection formations and protect USDWs.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself, and do not address the status of CO2 as either a pollutant, commodity, or waste. The comment regarding funding of CCS demonstration projects is outside the scope of this rulemaking.Commenter Name: Patrick Nugent Letter ID: 0143 Commenter Organization: Texas Pipeline Association (TPA) Comment ID: 23125

Comment: The importance of protecting drinking water is obvious, and no one in the oil and gas industry is seeking to cut regulatory corners. TPA is simply urging EPA to recognize both the need for flexibility in the regulatory regime and the importance of fostering public confidence in the safety of geologic sequestration technology.

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs. Thus, EPA believes that the GS rule will foster public confidence in the safety of GS.

EPA agrees that flexibility is important. EPA notes that, under the final rule, many of the permit requirements will be established through site-specific plans developed by the owner or operator and approved by the Director. Consequently, EPA anticipates that owners or operators will consult with the Director as they develop, implement, and update these plans. The final GS regulation gives the Director discretion to set permit criteria that are appropriate to site-specific conditions. The regulation provides flexibility to select appropriate sites and target formations (under §146.82), well construction specifics (under §146.86), and testing and monitoring regimes (under §146.90), provided the owner or operator can demonstrate that the injection and storage will not endanger USDWs and that minimum requirements for the site are met.

In addition, the final rule affords the Director flexibility to approve alternatives to the requirementsin some cases. For example, the Director may in certain situations modify the length of the postinjection site care period, allow the use of alternate methods for mechanical integrity testing (if approved by EPA), and waive the requirement that wells be designed to inject below the lowermost

USDW.

Commenter Name: Kenneth Alexander Letter ID: 0146 Commenter Organization: Old Dominion Electric Cooperative (ODEC) Comment ID: 21724 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 5.EPA should be careful not to stigmatize as operations and to take positive measures to build public acceptance. EPA should avoid characterizing stored CO2

as a waste.

Response: EPA clarifies that the GS rule, being issued only under the SDWA, does not affect whether CO2 is considered a solid waste under RCRA or EPA’s RCRA regulations.

EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA willconsider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for

that rule.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21772 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: 4. Why Does the Proposed Rule Treat CO2 like a Hazardous Waste?

Carbon dioxide is not a hazardous waste; yet the proposed rules for CO2 storage are, in many ways, far more strict than those for underground injection of hazardous wastes under Class I of the UIC program. Many of the construction, mechanical integrity, monitoring and financial assurance provisions for Class VI wells are more comprehensive and more onerous than those for Class I wells.

The Chamber does not believe that CO2 should be treated more stringently than hazardous waste because it distorts public perception about the safety of carbon capture and storage, and it may make securing financial backing for CCS more

difficult.

Response: EPA disagrees that the requirements in the GS rule are too stringent or overstate the risk associated with GS. The requirements for Class VI wells are tailored to address the unique nature of full-scale CO2 GS, including the injection volumes anticipated for long-term storage, the buoyant and viscous nature of the injectate, and its corrosivity in the presence of water.

While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well and lead to

contamination.

Commenter Name: William Kovacs Letter ID: 0148 Commenter Organization: U.S. Chamber of Commerce Comment ID: 21773 Other EPA Comment Codes and Descriptions: 1250 1.1.1.4 Flexibility is needed (performancebased standards)

Comment: a. Distorts Public Perception

By making the proposed rule so strict, the public may unduly perceive CCS as a dangerous activity. Consider that the proposed rule requires a secondary containment field for CO2 storage. Such a requirement is unprecedented both domestically, in the UIC program (including for storage of hazardous wastes in Class I wells), as well as internationally. [FN10 Countries such as Norway, Canada, and Australia, which have carbon capture and storage projects currently underway, do not require secondary containment zones, and in fact, those countries regulate CCS using existing petroleum laws.] Singling out carboncapture and storage for this heightened and substantially more rigorous requirement would suggest to the public that EPA thinks geologic storage of carbon dioxide is more dangerous than the underground injection of other substances. Since EPA is the agency charged with protecting the environment, the public could be easily swayed by EPA’s apparent apprehension of carbon capture and storage as currently embodied in the proposed regulations. In order to create a regulatory scheme that fosters carbon capture and storage development and deployment, EPA should reconsider how it has characterized carbon dioxide injection -- both explicitly and implicitly -- in its final regulations.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA also disagrees that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements will likely improve confidence in the project and help address public questions and

concerns.

Regarding secondary containment, EPA retains the requirement to identify additional containment/confining zones, if required by the Director, as proposed, at §146.83(b). EPA acknowledges that such additional zones may not be needed in all circumstances, and clarifies that this requirement is at the Director's discretion, based on his or her understanding of a particular site. EPA believes that, in some situations, the presence of additional confining and containment zones above the primary (i.e., lowermost) confining zone can improve USDW protection. These layers could further impede vertical fluid movement and allow for pressure dissipation, and also provide additional sites for monitoring, mitigation, and remediation. The Agency's decision is supported by commenters representing states, water associations, and an electric utility who assert that these requirements promote a flexible, risk-based, site-specific approach to characterizing and permitting a site for GS projects, and are intended to improve understanding of the project as a whole and promote better modeling of the site. While other countries may not require such additional protection, EPA believes that providing the Director this additional discretion is an important element of assuring that GS activities will not endanger USDWs.

Commenter Name: Skiles Boyd Letter ID: 0160 Commenter Organization: DTE Energy Comment ID: 21275

Comment: the long term obligations and risks associated with a GS project. " As a regulated entity, wanting to deploy this technology, it would help with securing financial support for the project and with public acceptance if the risks of this technology were more accurately reflected by the regulations. We are concerned that imposing such strict regulations would unduly stigmatize geologic

storage.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPArecognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

Commenter Name: Joseph Eutizi Letter ID: 0161 Commenter Organization: San Miguel Electric Cooperative, Inc Comment ID: 21288

Comment: 5. EPA should be careful not to stigmatize GS operations and to take positive measures to build public acceptance. EPA should avoid characterizing stored CO2

as a waste.

Response: EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21316

Comment: § EPA should be careful not to stigmatize GS operations and to take positive measures to build public acceptance. EPA should avoid characterizing stored CO2

as a waste.

Response: EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21328 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: 7. EPA should view CCS as a resource, not a waste. NRECA endorses the view of the Interstate Oil and Gas Compact Commission ("IOGCC") that CO2 should be treated in any regulatory regime as a resource and not as a waste. As an initial matter, CO2 has a commercial value for EOR operators. A number of commercial operations exist solely for the extraction and sale of natural CO2. Moreover, anthropogenic CO2 may have a commercial value for traders in carbon emissionsreduction credits, once the CO2 is captured and stored. While the reason for capturing the CO2 may be to prevent it from entering the earth’s atmosphere, it nonetheless will have a commercial value when stored. Also, states that currently regulate CO2 injections for EOR operations do so under a resource management framework. Surface Transportation Boards, which are responsible for the economic regulation of CO2 interstate pipelines, also view CO2 as a commodity. Characterization as a waste would have a chilling effect on the development of CCS projects.

Response: EPA clarifies that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity or waste. In addition, whether or not a fluid could be sold on the market as a commodity does not override EPA's authority under the SDWA to protect USDWs from endangerment.

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and it includes liquids, gases, and semisolids (i.e., slurries) injected into the subsurface.

EPA stresses that the focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that protects USDWs.

Commenter Name: James Stine Letter ID: 0163 Commenter Organization: National Rural Electric Cooperative Association (NRECA) Comment ID:

21329 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: 8. The General Accounting Office ("GAO") recently issued a report entitled "Climate Change -- Federal Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option" (GAO-08-1080, September 2008) ("GAO Report"). GAO cites a National Academy of Sciences ("NAS") report emphasizing that a largescale CO2 UIC program cannot be successful "if a significant fraction of the public views it as dangerous or unacceptable" and, therefore, CO2 storage technologies must not only be safe and effective, they must be presented "to the public and the regulatory community in such a way as to instill confidence that they are in fact safe and effective." Id. at 49 (citing NAS, Prospective Evaluation). This is another reason EPA should not

characterize CO2 as a waste. *********

Response: As described above, EPA clarifies that the GS rule does not address the status of CO2 as either a pollutant or a commodity or a waste.

EPA believes that the creation of a new injection well class (VI) under the existing UIC Program is necessary to enable deployment of GS as a climate change mitigation technology in a manner that protects USDWs from endangerment. EPA agrees that the UIC Program, under the authority of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the unique issues associated with large-scale GS including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurfacegeologic formations.

Commenter Name: Erik Silvola Letter ID: 0171 Commenter Organization: Great River Energy Comment ID: 23444

Comment: 5. EPA should be careful not to stigmatize GS operations and to take positive measures to build public acceptance. EPA should avoid characterizing stored CO2

as a waste.

Response: EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: James Rower Letter ID: 0173 Commenter Organization: Utility Solid Waste Activities Group (USWAG) Comment ID: 23471

Comment: at 42-23. Finally, GAO cites a National Academy of Sciences ("NAS") report emphasizing that a large-scale CO2 UIC program cannot be successful "if a significant fraction of the public views it as dangerous or unacceptable," concluding that CO2 storage technologies must not only be safe and effective, they must be presented "to the public and the regulatory community in such a way as to instill confidence that they are in fact safe and effective." Id. at 49 (quoting National Research Council, NAS, Prospective Evaluation of Applied Energy Research and Development at DOE (Phase Two) (2007)).

Response: EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.

Commenter Name: Lee O. Fuller Letter ID: 0179 Commenter Organization: Independent Petroleum Association of America et

al. Comment ID:

23612 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: Second, these concerns similarly arise regarding the characterization of CO2 in the GS process. Currently, for EOR operations, CO2 is essentially treated as a commercial chemical. This characterization is significant because of the connotation that characterization as a pollutant or a hazardous waste implies. CO2 has not been declared either a pollutant or a hazardous substance under any federal law. Suggesting that it should be so classified (or even a treatment in policy that would indirectly point to it as such) as a part of this rulemaking implies a risk that is not consistent with its use in EOR. Indeed, implicit in such an implication is a liability threat that would chill further development of CO2 EOR with no incremental environmental benefit. However, we do recognize that compositional controls over what is injected may be necessary. This doesnot seem to be addressed in the draft rules.

Response: Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part of their permit application. If the injectate is determined to meet the definition of a hazardous waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into Class VI wells is prohibited. In addition, owners or operators must periodically monitor their injectate throughout injection operations under §146.90(a).

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks imposed by the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: G. Graham Holden Letter ID: 0189 Commenter Organization: Oglethorpe Power Corporation Comment ID: 25249

Comment: 5. EPA should be careful not to stigmatize GS operations and to take positive measures to build public acceptance. EPA should avoid characterizing stored CO2

as a waste.

Response: EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: Robert F. Van Voorhees Letter ID: 0190 Commenter Organization: Carbon Sequestration Council Comment ID: 24328 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking

Comment: 2. Rules that Stigmatize GS or Burden it Excessively Would Not be in the Public

Interest.

The magnitude of the regulatory burdens imposed by the proposed Class VI requirements are of concern for several reasons. First, unnecessary regulatory burdens would act as a direct impediment and disincentive to the development of GS projects. Less directly, the imposition of unreasonably stringent regulatory requirements - particularly requirements for multiple layers of requirements addressing the same basic risks - inherently magnify the impression of risk and could thus stigmatize GS and discourage investment in GS projects. EPA should recognize that "more regulation" - particularly the "belt-and-suspenders plus more belts and more suspenders" approach reflected in the proposed rule - is not "better regulation" in the GS context. To the contrary, overly-burdensome regulation - to the extent it effectively impedes or deters use of a promising technology - could prove counterproductive.

We understand the importance of public perception when it comes to the sitingand permitting of needed infrastructure, and believe strongly in the need to ensure that the public has accurate information. To facilitate the public’s appreciation of the merits of GS, we urge EPA to ensure that it does not overstate the risks associated with CO2 injection or understate the justified confidence with which many potential issues and concerns can be addressed. Similarly, we urge EPA to avoid the imposition of regulatory requirements that are so disproportionate to the risks involved that they may do more to incite than address public concerns. To this end, EPA should scale back its regulatory requirements to more accurately reflect the magnitude of actual risks and to ensure that any requirements imposed are truly necessary for the protection of

USDWs.

EPA should also consider the effect its regulations might have on the ability to secure critical financial backing for GS projects. Any exaggerated impression of the risks involved in GS could adversely influence financial institutions and impede efforts to obtain financing. The recent turmoil in the financial markets highlights how challenging the financing of new technologies may become. In a credit-constrained world, investors will be wary of putting their limited funds behind GS projects if they believe they are likely to endanger the environment or public health. Accordingly, EPA should recognize the importance of the messages that it sends the financial world through the regulations it imposes.

Permanent storage of CO2 can be accomplished safely and without harm to the environment as long as we apply the right knowledge base, detailed site-specific information, technical expertise, and sound management practices. However, we cannot implement an effective regulatory program for sequestering CO2 if the rules are based on the erroneous premise that CO2 represents an extreme hazard. It is therefore important that EPA send accurate messages about the nature of CO2 and the actual magnitude of the risks associated with GS. It is also critical that EPA strike an appropriate balance by addressing the risks associated with GS without creating a regime that effectively hinders or deters use of this key technology for reduction of carbon emissions.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements will likely improve confidence in the project and help address public questions

and concerns.

Regarding the ability of owners or operators to secure financial backing for GS projects, EPA believes that, like the public, financing entities will have improved confidence in projects that incorporate multiple protective requirements. Please see the discussion of financial responsibility inthe preamble to the final GS rule.

Commenter Name: Richard Guinn Letter ID: 0210 Commenter Organization: Eastman Chemical Company Comment ID: 22701

Comment: 10. EPA should not stigmatize geological storage of CO2 such as can be inferred by having requirements for Class VI wells that are more restrictive than for

Class II wells.

Response: EPA disagrees that the requirements in the GS regulation will stigmatize GS. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that injection for the primary purpose of long term storage is sufficiently different from Class II ER operations and warrants tailored requirements. For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressure conditions will also be different, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects.

Commenter Name: John King Letter ID: 0211 Commenter Organization: Shell Exploration and Production Company (SEPCo) Comment ID:

22760

Comment: D. Rules that Stigmatize GS or Burden it Excessively Would Not be in the Public

Interest.

The magnitude of the regulatory burdens imposed by the proposed Class VI requirements is of concern for several reasons. First, unnecessary regulatory burdens would act as a direct impediment and disincentive to the development of GS projects. Less directly, the imposition of unreasonably stringent regulatory requirements - particularly requirements for multiple layers of protections addressing the same basic risk - inherently magnify the impression of risk and could thus stigmatize GS and deter investment in GS projects.

SEPCo understands the importance of public perception when it comes to the siting and permitting of needed infrastructure, and believes strongly in the need to ensure that the public has accurate information to inform it. To facilitate the public’s appreciation of the merits of GS, SEPCo urges EPA to ensure that it does not overstate the risks associated with CO2 injection or understate the justified confidence with which many potential issues and concerns can be addressed Similarly, SEPCo urges EPA to avoid the imposition of regulatory requirements that are so disproportionate to the risks involved that they may do more to amplify than address public concerns. To this end, EPA should scale back its regulatory requirements to more accurately reflect the magnitude of actual risks and to ensure that the requirements imposed arenecessary for the protection of USDWs.

SEPCo believes that permanent storage of CO2 can be accomplished safely and without harm to the environment by utilizing the appropriate knowledge base, detailed site-specific information, technical expertise, and sound management practices. It is therefore important that EPA send accurate messages about the nature of CO2 and the actual magnitude of the risks associated with GS. It is also critical that EPA strike an appropriate balance by addressing the risks associated with GS without creating a regime that effectively hinders or deters use of this key technology for reduction of CO2 emissions to the atmosphere.

Recommendations:

EPA should consider that overly-burdensome regulation - to the extent it effectively impedes or deters use of a "promising technology" for the reduction of greenhouse gas emissions - could prove environmentally counterproductive, given potential operators inability to deploy GS projects.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection or that it is “overly burdensome.” EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements will likely improve confidence in the project and help address public questions

and concerns.

Commenter Name: Paul L. Carpinone Letter ID: 0212 Commenter Organization: Tampa Electric Company Comment ID: 22904 Other EPA Comment Codes and Descriptions: 1210 1.1.1 Comments about the proposed rule

Comment: - In many instances the proposed requirements for Class VI CO2 GS wells are unnecessarily more stringent than existing requirements for other well classes under the UIC Program. While it is essential that the Final Rule be protective of USDWs, many of the more rigorous requirements proposed for Class VI wells are not warranted by findings of unique risks posed by CO2 GS wells. The Final Rule should craft requirements that protect USDWs while avoiding the imposition of unnecessary costs or the inappropriate creation of a negative public perception of CO2 GS projects.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection or that it is unnecessarily stringent. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence ofwater, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA does not believe that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements will likely improve confidence in the project and help address public questions

and concerns.

Commenter Name: Barbara Walz Letter ID: 0216 Commenter Organization: Tri-State Generation and Transmission Association,

Inc. Comment ID:

22968 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: C. EPA should view CO2 as a resource, not a waste. CO2 has a commercial value for enhanced oil recovery operators. A number of commercial operations exist solely for the extraction and sale of natural CO2. Moreover, anthropogenic CO2 may have a commercial value for traders in carbon emissions reduction credits, once the CO2 is captured and stored. While the reason for capturing the CO2 may be to prevent it from entering the earth's atmosphere, it nonetheless will have a commercial value when stored. Also, states that currently regulate CO2 injections for enhanced oil recovery operations do so under a resource management framework. Surface Transportation Boards, which are responsible for the economic regulation of CO2 interstate pipelines, also view CO2 as a commodity. Characterization as a waste would have a chilling effect on the development of carbon capture and storage projects.

Response: EPA clarifies that the GS rule does not address the status of CO2 as either a pollutant, waste, or a commodity. In addition, whether or not a fluid could be sold on the market as a commodity does not override EPA's authority under the SDWA to protect USDWs from endangerment. EPA stresses that the focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that protects USDWs.

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and it includes liquids, gases, and semisolids (i.e., slurries) injected into the subsurface.

Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part of their permit application. If the injectate is determined to meet the definition of a hazardous waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into Class VI wells is prohibited. In addition, owners or operators must periodically monitor their injectate throughout injection operations under §146.90(a).

Commenter Name: Barbara Walz Letter ID: 0216 Commenter Organization: Tri-State Generation and Transmission Association,

Inc. Comment ID:

22973

Comment: E. The General Accounting Office (GAO) issued in September 2008 a reportentitled Climate Change Federal Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option (GAO-08-1080). GAO cites a National Academy of Sciences report emphasizing that a large-scale CO2 UIC program cannot be successful "if a significant fraction of the public views it as dangerous or unacceptable" and, therefore, CO2 storage technologies must not only be safe and effective, they must be presented "to the public and the regulatory community in such a way as to instill confidence that they are in

fact safe and effective."

Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule are intended to prevent leakage from injection formations and protect USDWs.

EPA does not agree that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.

Commenter Name: Olon Plunk Letter ID: 0217 Commenter Organization: Xcel Energy, Inc. Comment ID: 21551 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: CO2 Characterization

CO2 is produced continually by natural process throughout the natural world and poses no significant hazard to human health when properly managed. EPA is correct to note in the proposed rule that a potential barrier to CCS and geologic storage involves how the captured CO2 is treated within existing regulatory frameworks. EPA is incorrect, however, to suggest or presume that captured CO2 is a waste, or that geologic storage via a Class VI well constitutes disposal. In several instances, the proposed rule refers to CO2 as a potential hazardous waste and suggests the need for regulatory requirements for Class VI wells that exceed those deemed necessary for Class I hazardous waste injection wells. Creating such a regulatory framework that implies an undue level of risk associated with geologic storage is misleading and could stigmatize proposed projects in the eyes of both the public and investors.

Response: EPA clarifies that the GS rule does not address the status of CO2 as either a pollutant or a commodity. In addition, whether or not a fluid could be sold on the market as a commodity does not override EPA's authority under the SDWA to protect USDWs from endangerment. EPA stresses that the focus of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that protects USDWs.

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gas or other form or state, and it includes liquids, gases, andsemisolids (i.e., slurries) injected into the subsurface.

Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part of their permit application. If the injectate is determined to meet the definition of a hazardous waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into Class VI wells is prohibited. In addition, owners or operators must periodically monitor their injectate throughout injection operations under §146.90(a).

EPA disagrees that the GS regulation overstates the risk of CO2 injection or implies an undue level of risk. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA does not agree that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements will likely improve confidence in the project and help address public questions

and concerns.

Regarding the ability of owners or operators to secure investment in GS projects, EPA believes that financing entities will have improved confidence in projects that incorporate multiple protective requirements.

Commenter Name: Edward Steadman Letter ID: 0220 Commenter Organization: The Energy and Environmental Research Center at the University of North Dakota Comment ID:

21574 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: It is important to be mindful that CO2, relative to other common and not-socommon injectates, is relatively innocuous. Increasing concentrations are easily detected in groundwater through simple monitoring of pH. Carbon dioxide in groundwater poses minimal acute or chronic threat to human health or the environment, especially when compared to other materials that have been classified as hazardous. As long as potential injection sites are appropriately characterized and judiciously selected and injection operations are designed and conducted according to longstanding engineering and regulatory standards, the leakage of CO2 into underground sources of drinking water (USDW) is likely to be a preventable and infrequent occurrence. In the rare event that CO2 should leak into USDWs, it is also important to note that its primary effect on groundwater will be to form a weak acid (carbonic acid) and lower pH, which can be relatively easily mitigated by a variety of commonly used, simple remediation practices.

Response: In response to the comment that CO2 is relatively innocuous and that the primary effect of a leak to groundwater will be to form a weak acid and lower pH, EPA clarifies that the mission of the UIC Program is to protect USDWs from injection activity that may endanger USDWs. Reductionin pH may also lead to mobilization of contaminants (e.g., arsenic, lead, and organic compounds), which can degrade water quality. In addition, the migration of formation fluids containing mobilized contaminants could cause endangerment of USDWs (Birkholzer et al., 2008a).

EPA believes that the creation of a new injection well class (VI) under the existing UIC Program is necessary to enable deployment of GS as a climate change mitigation technology in a manner that protects USDWs from endangerment. EPA agrees that the UIC Program, under the authority of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the unique issues associated with large-scale GS including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations.

EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: Pamela A. Lacey Letter ID: 0228 Commenter Organization: American Gas Association Comment ID: 21807

Comment: policymakers can be achieved. GAO Report at 3-5. A National Academy of Sciences ("NAS") report emphasized that a large-scale CO2 UIC program cannot be successful "if a significant fraction of the public views it as dangerous or unacceptable" and, therefore, CO2 storage technologies must not only be safe and effective, they must be presented "to the public and the regulatory community in such a way as to instill confidence that they are in fact safe and effective." Id. at 49 (citing NAS, Prospective Evaluation). We offer the foregoing comments

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA does not agree that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and concerns.Commenter Name: A. James Mayer Letter ID: 0230 Commenter Organization: A. J. Mayer International on behalf of the American Energy Security Initiative Comment ID:

21872 Other EPA Comment Codes and Descriptions: 1450 1.2.2.1 Oppose the GS rulemaking

Comment: GENERAL COMMENTS AND CONCERNS ABOUT THE PROPOSED UIC RULE

1. It is strongly recommended that the EPA promote and encourage, not block anderect barriers to, geosequestration of CO2 for both productive and nonproductive uses of CO2.

EPA’s stated goals for this proposal are to protect Underground Sources of Drinking Water (USDWs) while promoting carbon capture and storage. The proposed regulations would succeed in protecting USDWs, but would fails to promote carbon capture and storage. The Proposed Rule overestimates the risks of CO2 geologic sequestration and creates barriers to rapid technology development and commercial scale deployment projects that will greatly benefit American (as noted in the preceding narrative).

Response: EPA disagrees that the requirements in the GS rule overstate the risk associated with GS. The requirements for Class VI wells are tailored to address the unique nature of full-scale CO2 GS, including the volumes of CO2 being anticipated for long-term storage, the buoyant nature of the injectate, its mobility within subsurface geologic formations, and its corrosivity in the presence of

water.

EPA believes that the creation of a new injection well class (VI) under the existing UIC Program is necessary to enable deployment of GS as a climate change mitigation technology in a manner that protects USDWs from endangerment. EPA agrees that the UIC Program, under the authority of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the unique issues associated with large-scale GS including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, and its mobility within subsurface geologic formations.

In response to comments that the GS rule could impede technology, EPA stresses that the purpose of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that protects USDWs from endangerment.

Commenter Name: A. James Mayer Letter ID: 0230 Commenter Organization: A. J. Mayer International on behalf of the American Energy Security Initiative Comment ID:

21883

Comment: 6. The Proposed Rule overestimates the risks of CO2 injection.

The Proposal Rule implies that when the purpose of the injection switches from enhanced recovery to sequestration, the risks to USDWs are significantly magnified. With appropriate site selection, construction, monitoring, and testing, the risks of CO2 geologic sequestration would be comparable to the risks of current activities such as natural gas storage and enhanced recovery of

oil.EPA begins with the framework of Class I non-hazardous industrial waste injection well requirements and adds additional layers of redundant requirements to prevent or detect the escape of CO2 from the injection zone. EPA apparently believes that the Class II program is not sufficiently protective.

Response: EPA disagrees that the GS regulation overstates or overestimates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA believes that injection for the primary purpose of long-term storage is sufficiently different from Class II ER operations and warrants tailored requirements. For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressure conditions will also be different, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects.

Commenter Name: Robert E. Carter Jr. Letter ID: 0236 Commenter Organization: Indiana Department of Natural Resources (IDNR) Comment ID: 23204 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: Section II-What Is EPA Proposing? Subsection I -Is Injected CO2 Considered a Hazardous Waste Under RCRA ?

Comment: EPA has attempted to address this very important consideration by defining "carbon dioxide stream" in the proposed rule in such a way that those CO2 streams which exhibit hazardous characteristics would not be permitted under the proposed Class VI well classification but rather must be permitted and regulated as Class I wells instead. We are in agreement with those who believe that although captured C02 will contain some impurities, in those rare instances where concentrations could potentially be viewed as exhibiting RCRA hazardous characteristics, such impurities should be able to be removed by appropriate treatment methods prior to their storage in underground formations. While it is not possible to ignore the obligations and liabilities of waste generators under RCRA, any perception that CO2 streams could exhibit these characteristics and therefore require their management as hazardous wastes would have a very chilling effect on the widespread deployment of CCS and GS operations. We would prefer that instead of referring to CO2 streams as "waste", they should be viewed as an important resource to be managed accordingly.

Response: The final GS rule retains the definition of a CO2 stream as proposed. The GS regulation applies to injection of CO2 for the purpose of GS, regardless of the source of the CO2. It is beyond the scope of the GS rule and the UIC Program’s authority to require or set standards for upstream generators of CO2 or purification facilities.With respect to RCRA, EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA regulations.

Commenter Name: Angie Burckhalter Letter ID: 0239 Commenter Organization: Oklahoma Independent Petroleum Association Comment ID: 23214 Other EPA Comment Codes and Descriptions: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment)

Comment: EPA has proposed to regulate CO2 as a waste and has proposed regulations that are as stringent as or more stringent than EPA’s requirements for Class I hazardous waste wells. We think treating CO2 as a waste is the wrong approach as it will unnecessarily open up unwarranted concerns, increased burdens and costs, and liability issues associated with the use of CO2 in EOR projects. In addition, it will prevent or discourage entities from proceeding with projects to store CO2 in underground formations or convert depleted Class II EOR wells to Class VI CO2 storage wells. We encourage EPA to not consider CO2 as a waste product.

Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any implementing regulations that may apply. Secondly, EPA disagrees that the Class VI requirements themselves, or EPA’s consideration of the Class I requirements, necessarily have any implications for whether a particular material is a RCRA “solid waste” or implicates CERCLA liability, as EPA understands the comment to suggest. EPA received many comments regarding the applicability of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, including the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its development of that proposal. The Agency will consider issues particular to RCRA in the context of that separate rulemaking, and recommends that the commenter read that proposed rule when it is published. The Agency notes that commenters who wish to submit comments on the RCRA proposal will need to do so during the comment period

for that rule.

EPA adds that encouraging the use of GS is outside the scope of the GS rule. Rather, the purpose of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects USDWs from endangerment.Commenter Name: Robert F. Voorhees Letter ID: 0243 Commenter Organization: Underground Injection Technology Group (UIT Group) Comment ID:

23340

Comment: sequestration projects. However, the UIT Group’s specific concern is that the proposed Class VI regulations are so excessive in some respects that they could effectively undermine public confidence in the UIC program for other classes of injection wells, including Class I injection wells.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection or that it is excessive. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA also disagrees that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and

concerns.

Commenter Name: James T. Sims Letter ID: 0249 Commenter Organization: Western Business Roundtable Comment ID: 22260 Other EPA Comment Codes and Descriptions: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: 2. Appropriately Characterize CO2 - We strongly urge EPA to be very careful in its characterization of CO2 under the UIC program. As has been previously noted, a successful climate change control program will necessarily be predicated on development of -- and public support for -- CCS. EPA could inadvertently, and inappropriately, stigmatize CCS, if it veers into an unwarranted categorization of CO2 as a pollutant or a hazardous waste. Such suggestions would imply a liability risk that would chill further development of both CCS and Enhanced Oil Recovery (EOR) operations.

Response: EPA disagrees that the requirements in the GS rule overstate the risk associated with GS or imply that CO2 is a waste. The requirements for Class VI wells are tailored to address the unique nature of full-scale CO2 GS, including the injection volumes anticipated for long-term storage, the buoyant nature of the injectate, its corrosivity in the presence of water, and its mobility within subsurface geologic formations.

In addition, although the requirements were based on the existing regulatory framework for deep wells, including Class I wells, the GS rule does not address the status of CO2 as a pollutant or commodity. While the Class I requirements formed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are typically deep and involve waste streams that, if not properly managed, can harm the well and lead

to contamination.

Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part oftheir permit application. If the injectate is determined to meet the definition of a hazardous waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into Class VI wells is prohibited. In addition, owners or operators must periodically monitor their injectate throughout injection operations under §146.90(a).

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Commenter Name: James T. Sims Letter ID: 0249 Commenter Organization: Western Business Roundtable Comment ID: 22262

Comment: 4. Characterize Carefully Risks of the Geologic Sequestration of CO2 - It is, of course, crucial that the final rule meet EPA’s objective of protecting drinking water supplies. We are concerned, however, that some of the more stringent requirements being proposed for Class VI wells are not supported by findings of unique risks actually posed by CCS wells. EPA’s regulations should be based upon an accurate characterization of the potential risks posed by the geologic sequestration of CO2 and be specifically tailored accordingly to address those identified risks. This will ensure that EPA meets its obligation to provide appropriate protection of underground sources of drinking water, while avoiding unnecessary regulations that may hamper CCS or EOR projects from going forward or call into question the general safety of CO2 storage.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection or that the requirements are not supported by findings associated with CO2’s unique risks. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA adds that the intent of the GS rule is not to promote CCS; rather, the purpose of the rule is to ensure that, where deployed, GS is performed in a manner that protects USDWs from endangerment.

Commenter Name: Mike Nasi Letter ID: 0254 Commenter Organization: Clean Coal Technology Foundation of Texas Comment ID: 22360

Comment: We believe that most of our concerns with the proposed rule would be resolved if EPA would better recognize CO2 as a unique substance that does not pose toxicological risk and, in fact, is often managed as a commodity. As such, CO2 should not be regulated under traditional principles applied by EPA to wastes and hazardous substances. It is likely that CO2 will ultimately be regulated in the United States to address global climate change issues, but that regulatory regime will not and should not create a legal or technical basis to regulate CO2 storage in the same manner that EPA has historically regulated wastes and hazardous substances. We understand the need to build in regulatory safeguardsto ensure that CO2 is not released into the atmosphere. We recommend, however, that EPA not lose sight of the fact that the toxicological basis for much of the regulatory regime governing the injection of wastes does not justify the same approach for CO2 which is being subjected to regulation due to climatological, not toxicological, concerns.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant or a commodity.

Commenter Name: Ken Miller Letter ID: 0257 Commenter Organization: ExxonMobil Production Company Comment ID: 22369 Other EPA Comment Codes and Descriptions: 1200 1.1 General comments about the rulemaking

Comment: ExxonMobil has participated extensively in the preparation of the comments submitted by the American Petroleum Institute (API) on this proposed rule and endorses their comments. We share the concerns raised by the API in their comments. Specific concerns are with use of the Class I UIC (Industrial/Hazardous Waste) program as the basis for the proposed rules, the proposed prohibition of injection above the lowermost underground source of drinking water, and the proposed 50 year post closure monitoring period. In each of these cases, the EPA has not fully leveraged on industry's successful experience with the Class II EOR program and instead, by building on the Class I program, is proposing requirements that are overly restrictive and could have a significant chilling effect on the commercial scale implementation of GS. It is our position Ihat ExxonMobil's and industry's experience with CO2 based EOR provides a sound basis from which to form an environmentally sound regulatory framework for GS.

Response: EPA disagrees that the GS regulation is overly restrictive. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect

USDWs.

While EPA recognizes that industry has decades of experience injecting CO2 for ER, EPA believes that injection for the primary purpose of long term storage is sufficiently different from Class II ER operations and warrants tailored requirements. For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressureconditions will also be different, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects.

EPA adds that the intent of the GS rule is not to promote CCS; rather, the purpose of the rule is to ensure that, where deployed, GS performed in a manner that protects USDWs from endangerment.

Commenter Name: Claire Olson Letter ID: 0260 Commenter Organization: Basin Electric Power Cooperative Comment ID: 22386

Comment: III. General Comments

EPA must be careful to avoid labeling sequestered CO2 as a waste, pollutant or contaminant. Regulations should require storage operators to properly characterize the CO2 they intend to store and protocols for storage should be based on that characterization. Broad sweeping characterizations of sequestered CO2 as hazardous waste, however, should be avoided due to the potential deterrent such characterizations will have on entities attempting to develop carbon capture and sequestration (CCS) projects.

Response: EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and risks associated with the injection of CO2, and do not address the status of CO2 as either a pollutant, commodity, or waste.

Finally, EPA notes that the intent of the GS rule is not to promote CCS; rather, the purpose of the rule is to ensure that, where deployed, GS performed in a manner that protects USDWs from endangerment.

Commenter Name: Karl R. Moor Letter ID: 0501 Commenter Organization: Southern Company Comment ID: 21158

Comment: Carbon dioxide has been injected for years in enhanced oil recovery, and that's been done largely without incident.

And second, we believe that the regulation should be sufficiently flexible to take into consideration the site-specific characteristics and performance based measures. It should be sufficiently adaptable to incorporate lessons learned from ongoing pilot and demonstration projects like that at our Plant Daniel.

To elaborate on these points I would say that EEI urges the agency to ensure that the regulations do not stigmatize storage, which, and the reason for that is we, it's a very fine line between appropriate regulatory guidance and sending this to the public that says that this technology is inherently dangerous, and that storage projects themselves are, make bad neighbors. As I've noted, EPA has stated these two goals themselves, that it simultaneously wants to protect drinking water and promote CCS.

That in keeping, keeping these two goals from working against each other we believe that the emphasis should be placed in the regulations and all that follows, that CO2 is not a hazardous waste, a hazardous waste, and it's found in the ambient air. And as a result CO2, taking a regulatory approach to CO2, thatin many ways is stricter than the underground injection of hazardous waste is, is in some small sense regulatory overkill.

Many of the construction, mechanical integrity, monitoring, and financial responsibility provisions for Class VI Wells are more comprehensive in this proposal than they are for Class I Wells. The increased regulatory burden that this will place on the industry and upon those who want to undertake CCS projects would be substantial.

Our industry knows firsthand, unfortunately, what, why it is so important that the public have an accurate perception of the risks and the rewards behind technologies, particular in their early stages of development. And in the preamble to this proposal EPA finds that the public should participate in the permitting process, in fact, have taken some innovative approaches to encouraging greater public participation.

And we ask today that EPA help communicate to the public that it'd be very unlikely, and I would stress that, very unlikely that carbon geological storage would harm underground sources of water, or for that matter affect human health adversely.

EPA can, I think, help do that by retooling the proposed regulations and to tie the requirements to the actual risks more closely. In addition, the EPA should remove the elements that serve only to fan the claims of public misperception, but having increased the protection of underground sources of ground water.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

While EPA recognizes that industry has decades of experience injecting CO2 for ER, EPA believes that injection for the primary purpose of long term storage is sufficiently different from Class II ER operations and warrants tailored requirements. For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressure conditions will also be different, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects.

EPA has taken a regulatory approach that promotes USDW protection, incorporates flexibility or the discretion of the permitting authority when appropriate, seeks to limit burden on owners or operators and permitting agencies, and provides a foundation for national consistency in permitting of GS projects. For example, under the final rule, many Class VI permit requirements must be established through site-specific plans (e.g., AoR and corrective action plan, testing and monitoring plan, etc.) developed by the owner or operator and approved by the Director. Consequently EPA expects that owners or operators will consult with the Director as they develop, implement, and update these plans. Additionally, the Director has the discretion to approve alternatives to the requirements insome cases. For example, the Director may in certain situations modify the length of the postinjection site care period or approve an alternative post-injection site care timeframe as part of the permitting process under §146.93, allow the use of alternate methods for mechanical integrity testing (if approved by EPA) under §146.89, and waive the requirement that wells be designed to inject below the lowermost USDW under §146.95.

EPA also disagrees that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and

concerns.

Commenter Name: Olon Plunk Letter ID: 0536 Commenter Organization: Xcel Energy Comment ID: 21379

Comment: If we as a nation want CO2 sequestration to become a viable and near term option for dealing with carbon emissions, we cannot make obtaining approval for sequestration projects so difficult, time consuming or expensive that it recreates the very barrier that the lack of clear regulatory requirements presented in the first place. We cannot implement an effective regulatory program for sequestering CO2 if the rules are based on the erroneous premise that CO2 represents an extreme hazard. It is important in these rules that we send the right message to the public about the nature of the CO2 gas we are dealing with.

It is likewise critical in these new rules that we strike the right balance between addressing realistic risks associated with storing CO2 versus creating a regime that effectively hinders rather than facilitates a key climate mitigation

strategy.

We know that more and larger sequestration demonstration projects should be funded and undertaken. We agree that careful monitoring of well integrity, plume migration and the like is necessary. On the other hand, we already have decades of experience in the underground injection of CO2 and other much more hazardous materials. Tens of millions of dollars have been spent doing measurements and monitoring studies at large sequestration projects like Weyburn and Sleipner and DOE is in the process of spending many millions more on projects sponsored by the various regional sequestration partnerships.

Other countries are doing their own sequestration demonstrations and related research. The real goal is to strike a reasonable balance between how much is required and would have to be spent in the way of well and ground water monitoring, plume tracking and all the rest versus the level of risk presented by a given project. Considering what we have already learned about the characteristics of CO2 geologic storage and the effecticy of various monitoring and management practices.

Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, could endanger drinking water sources and have other adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements address the large volumes of CO2injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in the CO2 stream. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA also disagrees that the tailored requirements will create a negative public perception of GS. The Agency believes that a demonstration to the public that GS projects are meeting the GS rule's tailored requirements would likely improve confidence in the project and help address public questions and

concerns.

EPA adds that the intent of the GS rule is not to promote CCS; rather, the purpose of the rule is to ensure that, where deployed, GS performed in a manner that protects USDWs from endangerment.