This comment letter response contains two parts:

(1) The original submittal from the commenter. (2) A data base printout of EPA’s response to each point raised by the commenter.

Notes about the response letters:

• The response letters were generated by a data base used to track the content of all public

comment submittals and ensure that the Agency responds to each. Each comment letter

was assigned a Letter ID that corresponds to the last four digits of the docket number of the
original comment (as posted on www.regulations.gov).

• Each response letter includes: comment text; an EPA

‐ assigned comment code; and an
individual response. These are described and explained below.

• The data base contains Comment text from the letters submitted by commenters.
Many hard copy letters were scanned into electronic format for inclusion in the data

base. As a result, there may be some typographical errors attributable to optical

character recognition issues. However, all original submittals were reviewed in the

process of drafting responses to ensure that the comment content was understood and
appropriately addressed.

• The content of each comment letter was divided into topic areas and assigned a unique

Comment ID. Additionally, one or more Comment Codes (i.e., unique topic area ID) was assigned to each discrete point raised by a commenter. This information was added to

the data base. To inform final rulemaking decisions, all comments and information

received on a given topic were reviewed by technical experts in each rule area (e.g., on

construction requirements).

• Following decisions on the final rule requirements, Individual responses were drafted
by topic area to ensure completeness and consistency of the responses with the final

rule and other responses to similar comments. Each discrete point made by a

commenter was given a unique response.

• Upon completion of comment responses, all information was entered into the data base.

Each letter response is a compilation of each comment and its individual response, compiled in the order of the original comment letter. As a result of this process, there is
repetition in the response text. The Agency believes this approach ensures completeness

and attention to each comment letter that was submitted.

• All comments in a topic area were reviewed, evaluated, and responded to concurrently.

Responses on each topic area are compiled and are also available in the rulemaking docket.

### Clean Coal Technology

Foundation of Texas

December 24, 2008

VIA OVERNIGHT DELIVER AND ELECTRONIC SUBMISSION



## u.s. Environmental Protection Agency

Water Docket-Mail Code: 2822T

1200 Pennsylvania Avenue NW Washington, DC 20460

RE: Docket ID No. EPA-HQ-OW-2008-0390; Proposed Federal Requirements under

the Underground Injection Control Program for Carbon Dioxide Geological Sequestration Wells

Introduction & Background

The Clean Coal Technology Foundation of Texas ("CCTF" or "Foundation") appreciates

the opportunity to submit comments to the U.S. Environmental Protection Agency ("EPA") regarding the proposed Federal requirements for underground injection of carbon dioxide ("C0 2 ") for the purpose of geologic sequestration ("GS"). The Foundation was founded in January, 2004, as a non-profit entity to support the mission of the Governor's Clean Coal Technology Council (Council). The Foundation exists to promote the use and development of

clean coal technologies that will result in reliable, low cost, and environmentally responsible

energy for Texas.

The Foundation views the regulatory framework that will govern CO 2 OS as one of the key bridges on the road to widespread carbon capture because project developers will not be willing to take the financial and technology risk associated with CO 2 capture if they do not see a storage option that is free of regulatory pitfalls. The regulatory regime governing C02 GS could

stand in the way of widespread carbon capture if it is perceived as confusing, too bureaucratic, or structured in a way that creates undue risk of statutory environmental liability. The comments
that follow are focused on the aspects of the proposed rules that the Foundation believes could impair our efforts to speed the commercialization of carbon capture technology.

We believe that EPA should make efforts to keep the final rules flexible and avoid

blanket prohibitions or absolute mandates. In several instances, EPA establishes default provisions that apply to all GS sites. Rather than imposing such a "one-size-fits-all" approach,

we believe that EPA should use performance-based standards and allow site-specific flexibility

in meeting those standards. Furthermore, the rules should be consistent with already known principles under the Underground Injection Control ("VIC") program, and care should be taken

823 Congress Ave

.. Suite 620

- Austin, Texas

- 78701- 800.965.4689

- www.cctft.org

5385244v.lU.S. Environmental Protection Agency

December 24. 2008 Page 2

to avoid overestimating the risks associated with GS in order to ensure that the rules are not overly burdensome.

The proposal sets forth a complex regulatory requirement that appears to start under the

framework of a Class 1 UIC well. rather than the more appropriate Class 2 UIC well framework.

and adds layers of additional regulatory requirements. While we understand that protection of

human health and the environment is the mission of EPA. EPA should strive to avoid overly stringent regulatory requirements that could have the impact of preventing the development of

carbon capture technology due to regulatory burdens associated with dealing with the carbon

once it is captured.

We believe that most of our concerns with the proposed rule would be resolved if EPA

would better recognize C02 as a unique substance that does not pose toxicological risk and. in
fact, is often managed as a commodity. As such, C02 should not be regulated under traditional principles applied by EPA to wastes and hazardous substances. It is likely that CO 2 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 C02 storage

in the same manner that EPA has historically regulated wastes and hazardous substances. We

understand the need to build in regulatory safeguards to ensure that CO 2 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 CO 2 which is being subjected to regulation due to climatological. not toxicological, concerns.

Discussion

Our remarks focus on the following areas: (1) location of C02 injection (a.k.a. "Siting"); (2) liability under RCRA and CERCLA; (3) post closure care; and (4) dual purpose wells and grandfathering of certain Class II wells.



### 1. Geologic Siting

Section 1421(b)(3)(A) of the Safe Drinking Water Act mandates that the UIC regulations developed by EPA "permit or provide for consideration of varying geologic, hydrological. or historical conditions in different States and in different areas within a State." Limiting C02 injection to geologic formations that lie below the lowermost USDW is inconsistent with Congress' mandate. and thus, CCTF believes that a blanket constraint that limits injection only to

reservoirs below the USDW is inappropriate. A performance based approach that would place

containment requirements on the acceptable reservoirs would be more sensible. Accordingly. we believe that the rule should allow a range of injection sites and methods provided that the

ultimate performance based objective of protecting USDWs is achieved.

5385244v.l

### V.S. Environmental Protection Agency

December 24, 2008 Page 3



### 2. Liability under RCRA and CERCLA

Despite the fact that EPA states in the preamble that it has not classified C02 as either a waste or commodity, the framework under which the proposed rules are drafted creates an implication

that the CO 2 stream is a waste. Every effort must be made to avoid labeling C02 as a waste, pollutant or contaminant, as such terms will act as deterrents to the development of carbon

capture and storage technology.

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 VIC permit under SDW A. 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 CO 2 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 CO 2

.

As for RCRA, EPA states that it "cannot make a categorical determination as to whether injected

CO 2 is hazardous under RCRA," and further states that "owners or operators will need to
characterize their CO 2 as hazardous under RCRA." These statements are inconsistent with

EPA's belief that the proposed rule does not address CO 2 as a commodity or pollutant.

Statements such as the one referenced, connote that the CO 2 stream is a waste. EPA should

create a categorical exemption under RCRA for CO 2 sequestration pursuant to the Class VI VIC

program under RCRA.



### 3. Post-Closure Care

The proposal includes a default monitoring period of 

### 50 years after closure of an injection well,

but fails to provide the necessary justification for setting the default monitoring period for this

time period. CCTF does not believe that there is a sufficient connection between this time period

and the relative risks associated with geologic sequestration of C02. Consistent with our previous

comments, we urge EPA to incorporate performance-based standards, so as to lead to site specific approaches. In this context, we believe that post-injection site care should be based on site and project specific characteristics rather than a prescribed and lengthy time period, especially a default time period that does not seem to be supported by relevant literature.

Although provision is made in the proposed rule for a potential shortening of the post-closure monitoring period, the reality under the existing program is that permitting authorities almost

without exception default to the maximum statutory monitoring period. Because there is no

reason to believe that permitting authorities will take a different approach here, the practical impact of including the 

### 50 year period in the rule will be that operators will be required to
monitor for that time period with only rare exceptions. There is simply no technical justification

5385244v.1U.S. Environmental Protection Agency

December 24, 2008 Page 4

for such an extended monitoring period, especially given the decades of experience showing the

30 year monitoring period to be fully protective of human health and the environment.



### 4. Dual Purpose Wells and Grandfathering of Certain Class II Wells

It is clear from the preamble to the proposed rule that EPA recognizes the valuable role that oil

and gas reservoirs can play in the GS of CO 2

. The issue that is not clear is how or whether a well

can be used for both enhanced oil recovery as well as sequestration of CO 2 • CO 2 that is injected

for EOR can, at the same time. be sequestered for long term storage, yet there is no recognition by EPA of such a concurrent dual role for a well. Existing Class 

## n regulations governing injection of C02 in oil and gas reservoirs have proven to be successful in protecting USDWs.

EPA should consider creating a regulatory system that authorizes a well to serve the dual

purpose of CO 2 sequestration as well as enhanced recovery of oil or natural gas. Furthermore,

EPA should propose regulations that would authorize the grandfathering of Class II wells,

without requiring technically unnecessary changes to equipment and monitoring procedures.



### Conclusion

The Foundation appreciates EPA's initiative to commence this rulemaking to provide regulatory clarity for GS of CO 2 and welcomes this and future opportunities to provide input on
the project. We respectfully request that EPA carefully consider the comments set out above as the final rule and preamble are prepared.

Respectfully submitted,

# t1.t1~ Attorney for Clean Coal Technology

Foundation of Texas



### c-c: Clean Coal Technology Foundation, See Attached List

5385244v.1Clean Coal Technology Foundation of Texas

Mr. Ben Harris Hydrogen Energy

Mr. Chuck McConnell

Praxair

Mr. David Fiorelli

Tenaska Power Services

Mr. Dennis Kearns

Northern & Santa Fe Railroad Company

Mr. Denny Kingsley

Texas Westmoreland Coal Company

Mr. Gary Gibbs

American Electric Power

Mr. Henry Eby

Lower Colorado River Authority

Mr. Jay Dauenhauer

Clean Coal Technology Foundation of Texas

Ms. Kelly A. Tomblin

International Power, PIc.

Ms. Kelly Mader Peabody Energy

Mr. Mark Russell

Russell and Sons Construction Co., Inc.

Mr. Mark Walker

NRG Energy

Mr. Michael R. Klein

Ambre Energy

Mr. Randy Eminger

American Coalition for Clean Coal Electricity

Mr. Wade Stansell

Luminant

5385244v.lLetter ID: 0254

Commenter: Mike Nasi Organization: Clean Coal Technology Foundation of Texas

Letter ID: 0254 Comment ID: 22358 Letter Lines: 50 to 58

Comment Code: 1250 1.1.1.4 Flexibility is needed (p erformance-based standards)

Comment: We believe that EPA should make efforts to keep the final ru les flexible and avoid blanket prohibitions or absolute mandates. In several instances, EPA establishes default provisions that apply to all GS sites. Rather than imposing such a "one-size-fits-all" approach, we be lieve that EPA should use performancebased standards and allow site-specific fl exibility in meeting those standards. Furthermore, the rules should be consiste nt with already know n principles under the Underground Injection Control ("UIC") program, and care should be taken to avoid overestimating the risks associated w ith GS in order to ensure that the rules are not overly burdensome.

Individual Response: The Agency believes that the Class VI requirements balance site-specific flexibility with USDW protection. Rather than setting performance or technology-based standards for GS projects, EPA is adopting a flex ible approach, where operators of GS projects would develop and implement site-specific plans for delineating the AoR, testing and monitoring the site, performing corrective actio n, and post-injection site care . EPA believes that the plans— which would be reviewed and approved by the Director and periodical ly updated throughout the life of the project—promote an ongoing dialogue between the operato r and the Director that will encourage use of the most appropriate t echnologies for a particular project.

Letter ID: 0254 Comment ID: 22359 Letter Lines: 60 to 67

Comment Code: 1210 1.1.1 Comments about the proposed rule

Comment: The proposal sets forth a complex regulator y requirement that appears to start under the framework of a Class 1 UIC well, rather than the more appropriate Class 2 UIC well framework, and adds layers of additional regulatory requirements. While we understand that protection of human health and the environment is the mission of EPA, EPA s hould strive to avoid overly stringent regulatory requirements that could have the impact of preventing the development of carbon capture technology due to regulatory burdens a ssociated with dealing with the carbon once it is captured.

Individual Response: EPA disagrees that any of the requirements in the GS rule are unnecessary. Rather, the GS regula tion tailors the UIC requirements to address the unique issues associated with large-scale GS including larg e 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.

1Please see the remainder of EPA's responses to this comment and the final rule and preamble for

further details.

Letter ID: 0254 Comment ID: 22360 Letter Lines: 69 to 82

Comment Code: 1680 1.3.8 Don't overstate ris k, don't stigmatize CO2

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 pr inciples applied by EPA to wastes and hazardous substances. It is likely that CO2 will ultimately be regulated in the United States to address global climat e 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 ha s historically regul ated wastes and

hazardous substances. We understand the need to build in regulatory safeguards

to 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.

Individual 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 ha ve other adverse impacts. However, with proper site sele ction, 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 expect s the tailored permitting, siting, construction, operation, monitoring, and post-injection site care re quirements in the GS rule to prevent leakage from injection formations and protect USDWs.

EPA adds that the requirements of the GS rule ar e tailored to the nature of the CO2 itself and risks associated with the injec tion of CO2, and do not address th e status of CO2 as either a pollutant or a commodity.

Letter ID: 0254 Comment ID: 22361 Letter Lines: 84 to 89

Comment Code: 1000 1. General and Administrative Comments

Comment: Discussion

Our remarks focus on the following areas: (1) location of CO2 injection (a.k.a. "Siting"); (2) liability under RCRA and CE RCLA; (3) post closure care; and (4) dual purpose wells and grandfatheri ng of certain Class II wells.

2Individual Response: EPA acknowledges the comment. Pleas e see the remainder of EPA's responses to this comment for further deta ils. For additional information on EPA's final regulatory approach (including si te characterization, post-injecti on site care, and the repermitting of Class II/EOR wells for GS), please see the final rule and preamble as well as the rulemaking

docket.

Letter ID: 0254 Comment ID: 22362 Letter Lines: 90 to 100

Comment Code: 1250 1.1.1.4 Flexibility is needed (p erformance-based standards)

Comment Code: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost

USDW

Comment: 1. Geologic Siting Section 1421(b)(3)(A) of the Safe Drinking Water Act mandates that the UIC regulations de veloped by EPA "permit or provide for consideration of varying geologic, hydrological, or hist orical conditions in different States

and in different areas within a State. " Limiting CO2 injection to geologic formations that lie below the lowermost USDW is inconsistent with Congress' mandate, and thus, CCTF believes that a bla nket constraint that limits injection only to reservoirs below the USDW is ina ppropriate. A performance based approach that would place containment requirements on the acceptable reservoirs would be more sensible. Accordingly, we believe th at the rule should allow a range of injection sites and methods provided th at the ultimate performance based objective of protecting USDWs is achieved.

Individual Response: EPA acknowledges that there are lim ited circumstances where injection above the lowermost USDW can be performe d in a manner that protects USDWs from endangerment, as long as appropriate protections are in place. The final GS rule at §146.95 establishes a process by which owne rs or operators can seek a waiv er of the Class VI injection depth requirements for inject ion into non-USDW formations above and/or between USDWs. Additionally, the final GS rule doe s not categorically preclude or prohibit injection into any type

of formation.

EPA believes that these requirements will ensure USDW protection while providing flexibility to UIC program Directors and owne rs or operators who undertak e CO2 injection for GS. The Agency believes this approach: 1) responds to co ncerns about local and re gional geologic storage capacity limitations imposed by th e proposed injection depth require ments; 2) allows for a more site-specific assessment of injection depth for GS projects; 3) accommodates injection into different formation types; 4) a llows 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 aqui fer exemptions for GS. Finally, EPA’s approach to addressing injection depth va riability through a waiver process responds to concerns about future drinking wa ter resource availability and the need to ensure that high quality water remains available in sufficient quantities to supply dr inking water needs.

3For additional information on the waiver approa ch, please see the final rule and preamble, as well as EPA's responses to comments on the No tice of Data Availability and Request for

Comment.

Letter ID: 0254 Comment ID: 22363 Letter Lines: 102 to 109

Comment Code: 1480 1.2.2.2.2 CO2 is not a pollutant

Comment: 2. Liability under RCRA and CERCLA

Despite the fact that EPA states in the preamble that it has not classified CO2 as either a waste or commodity, the fram ework under which the proposed rules are drafted creates an implicati on that the CO2 stream is a waste. Every effort must be made to avoid labeling CO2 as a waste, pollutant or contaminant, as such terms will act as deterrents to the development of carbon capture and storage technology.

Individual 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 natu re of the injectate, its corrosivity in the presence of water, and its mobility w ithin subsurface geologic formations.

In addition, although the requirement s were based on the existing regulatory framework for deep wells, including Class I wells, the GS rule does not address the stat us of CO2 as a pollutant or commodity. While the Class I requirements fo rmed the basis of many of the specific requirements for GS wells, EPA clarifies that the GS rule is tailored to th e unique nature of GS. EPA based many of the GS requirements on the Cla ss I regulations because, like Class VI wells, Class I wells are typically deep and involve wa ste streams that, if not properly managed, can

harm the well and lead to contamination.

EPA clarifies that under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part of their pe rmit application. If th e 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 additi on, owners or operators must periodically monitor th eir injectate througho ut injection operati ons under §146.90(a).

Letter ID: 0254 Comment ID: 22364 Letter Lines: 111 to 123

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: EPA must also mitigate the threat of pot ential RCRA and CERCLA liability to the extent possible. With respect to CERCLA liability, CERCLA exempts from liability certain "federally permitted releases" in cluding released in compliance with a

4UIC permit under SDWA. Because of this ex emption, in the proposed rules, EPA states that Class VI requirements and perm its must be carefully structured to ensure that they do not authorize inappr opriate hazardous releases. This is an issue of particular importance, as the pres ence of CERCLA liability could have a crippling effect on large scale commerci al 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 in jection of CO2.

Individual Response: EPA notes that the GS rule is no t promulgated under the RCRA or CERCLA statutes, and further, th e applicability of t hose 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 ex tent the commenter is seeking interpretations of CERCLA or RCRA, such interpretations are beyond the scope of this rulemaking.

EPA received many comments regarding the applicab ility of the RCRA regulations and statute to CO2 streams that are geologically sequestered under the final Cl ass VI UIC well requirements. As a result, EPA has decided to initiate a sepa rate proposed rulemaking specifically to examine the issue of RCRA applicability to CO2 stream s 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 pa rt 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 propose d 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 substan ce 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 th e composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or gr ound water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "f ederally 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 we ll 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

5issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in the unlikely event that a remedi al response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites wi ll be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be deve loped and updated to address such events and that owners or operators demonstr ate 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 regu latory requirements

under Part 146 for Class VI wells and the Dire ctor has approved site closure pursuant to requirements at §146.93, the owner or operato r will generally no longer be subject to enforcement for regulatory noncompliance. Furtherm ore, 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 ce rtain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even afte r site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provid ed by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regul atory compliance, an owner or operator may be subject to a §1431 response orde r even after proper site cl osure is approved under §146.93. Under §1431 the Administrator may require an ow ner 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 pres ent an imminent and s ubstantial endangerment to the health of persons, and the appropriate Stat e and local authorities ha ve not acted to protect the health of such persons. Th e action may include issuing admi nistrative orders or commencing a civil action for appropriate relief against the ow ner 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 ope rator may remain liable under tort and other remedies, or under other federal statutes includi ng, 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 SD WA 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: 0254 Comment ID: 22365 Letter Lines: 125 to 132

Comment Code: 1630 1.3.3 RCRA/hazardous waste i ssues (seeking comment)

Comment: As for RCRA, EPA states that it "cannot ma ke a categorical determination as to whether injected CO2 is h azardous under RCRA," and further states that "owners or operators will need to characterize their CO2 as h azardous 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 wast e. EPA should create a categorical

6exemption under RCRA for CO2 sequestration pu rsuant to the Cla ss VI VIC program

under RCRA.

Individual Response: First, EPA notes that the GS rule is not promulgated under either the RCRA or CERCLA statutes, and the applicability of those stat utes 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 re spect to RCRA, EPA has decided to initiate a separate proposed rulemaking spec ifically to examine the issue of RCRA applicability to CO2 streams being geologically sequestered, includin g the possible option of a conditional exemption from the RCRA requirements for CO2 GS in Cla ss 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, a nd 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 pe riod for that rule.

Letter ID: 0254 Comment ID: 22366 Letter Lines: 134 to 156

Comment Code: 1250 1.1.1.4 Flexibility is needed (p erformance-based standards)

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

Comment: 3. Post-Closure Care

The proposal includes a default monitoring period of 50 years after closure of an injection well, but fails to provide the necessary justification for setting the default monitoring period for this tim e period. CCTF does not believe that

there is a sufficient connection between this time period and the relative risks associated with geologic sequestration of CO2. Consistent with our previous comments, we urge EPA to incorporate perfor mance-based standards, so as to lead to site specific approaches. In this co ntext, we believe that post-injection site care should be based on site and pr oject specific characteristics rather than a prescribed and lengthy time period, especially a default time period that does not seem to be supported by relevant literature.

Although provision is made in the proposed rule for a potential shortening of the post-closure monitoring period, the re ality under the existing program is that permitting authorities almost wit hout exception default to the maximum statutory monitoring period. Because th ere is no reason to believe that permitting authorities will take a different approach here, the practical impact of including the 50 year period in the ru le will be that operators will be required to monitor for that time peri od with only rare exceptions. There is simply no technical justification for such an extended monitoring period, especially given the decades of experien ce showing the 30 year monitoring period to be fully protective of human health and the environment.

Individual Response: EPA disagrees with this comment. In determining the post-injection site care timeframe for the proposed regulation, EP A reviewed industry reports, existing

7environmental programs, and initial GS research studies. EPA provided a synthesis of pertinent results from GS modeling studies in the preambl e to the proposed regula tion. Further explanation of this analysis was included in an EPA-prep ared background document that is available in the federal docket, titled "Computa tional Modeling of Underground In jection of Carbon Dioxide for

Determination of Area-of-Review and Potentia l Risk to Underground Sources of Drinking Water." Based on review of these studies, m odeling results indicate that the CO2 plume stabilization may occur on the timeframe of 10- 100 years after the cessa tion of injection. EPA believes that a 50-year default post-injection si te care timeframe is a reasonable midpoint, and has retained this in the final regulation.

EPA disagrees that a post-injection site care timeframe of 50 years is excessive for most Class VI wells. While the 10- or 30-year timeframe suggested by some of these commenters may be within the timeframe suggested in some studi es, EPA believes that the potential risks of endangering USDWs will likely not decline within these timeframes and available data, including data submitted by commenters, do not s upport a different default timeframe. However, EPA recognizes that alternative timeframes may be appropriate under limited, specific

circumstances.

For this reason, the GS rule offers owners or op erators flexibility regarding the duration of the PISC timeframe by: (1) allowing the Director discretion to shorten or lengthen the PISC timeframe during the post-injecti on period based on site-specific da ta, pursuant to requirements at §146.93(b); or (2) affording the Director discretion to allow a Class VI well owner or operator to demonstrate, during the permitting process based on substantial data, that an alternative PISC timeframe may be appropriate if it ensu res non-endangerment of USDWs pursuant to requirements at §146.93(c).

EPA believes that a default post-injection site car e timeframe of 50 years, with flexibility to adjust the timeframe for a limited number of GS projects during the permitting process where

substantial data exists to demonstrate that an alternative timeframe would be protective of USDWs, or based on data collected during the PISC period, is appropriate to address the range of sites where GS is anticipated to occur, to ac commodate site-specific circumstances and various geologic conditions, and addre sses commenters’ concerns, wh ile ensuring USDW protection. Both approaches will utilize si te-specific data, and be based on pressure monitoring and USDW impacts.

EPA believes however, that to ensure USDW protection from enda ngerment, a default timeframe for post-injection site care will be necessary in al l but a limited number of cases. This default 50 year post-injection site care ti meframe represents a reasonable and protective monitoring period based on a review of research studies, industr y reports, and existing environmental programs, and evaluation of public comments.

Letter ID: 0254 Comment ID: 22367 Letter Lines: 158 to 172

Comment Code: 2064 1.5.3.2 Grandfathering construction of Class II wells (seeking comment)

8Comment: 4. Dual Purpose Wells and Grandfat hering of Certain Class II Wells

It is clear from the preamble to the proposed rule that EPA recognizes the

valuable role that oil and gas reservoirs can play in the GS of CO2. The issue

that is not clear is how or whether a well can be used for both enhanced oil recovery as well as sequestr ation of CO2. CO2 that is injected for EOR can, at the same time, be sequestered for long te rm storage, yet there is no recognition by EPA of such a concurrent dual role fo r a well. Existing Class II regulations governing injection of CO2 in oil and gas reservoirs have proven to be successful in protecting USDWs. EPA should consider creating a regulatory system

that authorizes a well to serve the dual purpose of CO2 sequestration as well as enhanced recovery of oil or natural gas. Furthermore, EPA should propose regulations that would authorize the gr andfathering of Class II wells, without requiring technically unnecessary cha nges to equipment and monitoring procedures.

Individual Response: EPA recognizes that the oil and gas industry has decades of experience injecting CO2 for the purpose of ER, and that site s used for ER may be suitable for GS and may be among the first GS sites. EPA agrees that ma ny Class II wells are desi gned and constructed to withstand exposure to CO2. The final GS rule provi des for the construction of these wells to be grandfathered per §146.81(c), provid ed the owner or operator can demonstrate to the Director that the wells were engineered and constructed to meet th e requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements at §146.86(b) and §146.87(a).

The final Class VI regulations re quire that any owner or operato r injecting CO2 for the primary purpose of long term storage obtain a Class VI pe rmit with some special consideration for the fact that they are transitioning from a well not or iginally designed to meet Class VI requirements. The Director has the authority to determine at wh at point a Class VI permit is required for those projects that are transitioning from the primar y purpose of EOR to long term storage of CO2. The final regulation provides a set of technical factors for the Direct or to evaluate in making this determination, at §144.19. EPA believes that this approach provides su fficient protection of

USDWs when there is an increased risk to USDWs as compared to traditi onal Class II operations while allowing for site-specific flexibility.

EPA is developing guidance on transitioning perm its from Class II to Class VI. The guidance will assist Directors in evaluating whether an in jection project should be transitioned from Class II where the primary purpose is oi l and gas production to Class VI where the primary purpose is long-term storage of large volumes of CO2. The guidance describes recommended methods the Director may use to determine changes in risk to USDWs from projects, and how the Director may determine whether a project should be regulated within the Class II or Class VI UIC program. This guidance will be available on EPA’s website at http://water.epa.gov/type/groundwater /uic/wells_sequestration.cfm.

Letter ID: 0254 Comment ID: 22368 Letter Lines: 174 to 180

Comment Code: 1000 1. General and Administrative Comments

9Comment: Conclusion

The Foundation appreciates EPA's initiative to commence this rulemaking to provide regulatory clarity for GS of CO2 and welcomes this and future opportunities to provide input on the project. We respectfully request that EPA carefully consider the comme nts set out above as the fi nal rule and preamble are prepared.

Individual Response: EPA acknowledges the comment. Pleas e see the remainder of EPA's responses to this comment for further deta ils. For additional information on EPA's final regulatory approach, please see the final rule and preamble as well as the rulemaking docket.

Letter ID: 0254 Comment ID: 24728 Letter Lines: 27 to 48

Comment Code: 1000 1. General and Administrative Comments

Comment: Introduction & Background

The Clean Coal Technology Foundation of Texas ("CCTF" or "Foundation") appreciates the opportunity to submit comments to the U.S. Environmental Protection Agency ("EPA") regarding th e proposed Federal requirements for underground injection of car bon dioxide ("CO2") for the purpose of geologic sequestration ("GS"). The Foundation wa s founded in January, 2004, as a nonprofit entity to support th e mission of the Governor's Clean Coal Technology Council (Council). The Foundati on exists to promote the use and development of clean coal technologies that will result in reliable, low cost, and environmentally responsible energy for Texas.

The Foundation views the regulatory framework that will govern CO2 GS as one of the key bridges on the road to widespr ead carbon capture because project developers will not be w illing to take the financial and technology risk associated with CO2 capture if they do not see a storage option that is free of regulatory pitfalls. The regulatory regime governing CO2 GS could stand in the way of widespread carbon capture if it is perceived as confusing, too bureaucratic, or structured in a way th at creates undue ri sk of statutory environmental liability. The comments that follow are focused on the aspects of the proposed rules that the Foundation be lieves could impair our efforts to speed the commercialization of carbon capture technology.

Individual Response: EPA acknowledges the comment. Pleas e see the remainder of EPA's responses to this comment for further deta ils. For additional information on EPA's final regulatory approach, please see the final rule and preamble as well as the rulemaking docket.

EPA clarifies that the intent of the GS rule is not to promote or encourag e the use of GS; rather, its purpose is to ensure consistency in permitting underground injection of CO2 at GS operations

1011 across the United States and pr ovide requirements to prevent endangerment of USDWs in anticipation of the eventual use of GS to reduce CO2 emissions.