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

("C02") 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 CO2 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 CO2 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.l
U.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 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 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 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.

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 CO2 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 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.

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.

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 ofC02. 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.1
U.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 CO2. 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 CO2• CO2 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 CO2 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 CO2 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.1
Clean 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.l
Letter 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 (performance-based standards) 

Comment: 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 performancebased 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 ("UIC") program, and care should be taken to 

avoid overestimating the risks associated with 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 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. 

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 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. 

Individual Response: EPA disagrees that any of the requirements in the GS rule are 

unnecessary. Rather, 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. 

1
Please 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 risk, 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 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 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 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. 

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 CERCLA; (3) post closure care; and (4) 

dual purpose wells and grandfathering of certain Class II wells. 

2
Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment for further details. For additional information on EPA's final 

regulatory approach (including site characterization, post-injection 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 (performance-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 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 CO2 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. 

Individual Response: EPA acknowledges that there are limited circumstances where injection 

above the lowermost USDW can be performed 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 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. 

Additionally, the final GS rule does 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 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. 

3
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. 

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 framework under which the proposed rules are 

drafted creates an implication 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 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. 

EPA clarifies that 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). 

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 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 

4
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. 

Individual 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, 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. 

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 

5
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. 

Letter ID: 0254 Comment ID: 22365 Letter Lines: 125 to 132 

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

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 

6
exemption under RCRA for CO2 sequestration pursuant to the Class 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 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. 

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

Comment Code: 1250 1.1.1.4 Flexibility is needed (performance-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 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 CO2. 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 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. 

Individual Response: EPA disagrees with this comment. In determining the post-injection site 

care timeframe for the proposed regulation, EPA reviewed industry reports, existing 

7
environmental programs, and initial GS research studies. EPA provided a synthesis of pertinent 

results from GS modeling studies in the preamble to the proposed regulation. Further explanation 

of this analysis was included in an EPA-prepared background document that is available in the 

federal docket, titled "Computational Modeling of Underground Injection of Carbon Dioxide for 

Determination of Area-of-Review and Potential Risk to Underground Sources of Drinking 

Water." Based on review of these studies, modeling results indicate that the CO2 plume 

stabilization may occur on the timeframe of 10-100 years after the cessation of injection. EPA 

believes that a 50-year default post-injection site 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 studies, 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 support 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 operators flexibility regarding the duration of the 

PISC timeframe by: (1) allowing the Director discretion to shorten or lengthen the PISC 

timeframe during the post-injection period based on site-specific data, 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 ensures non-endangerment of USDWs pursuant to 

requirements at §146.93(c). 

EPA believes that a default post-injection site care 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 accommodate site-specific circumstances and various 

geologic conditions, and addresses commenters’ concerns, while ensuring USDW protection. 

Both approaches will utilize site-specific data, and be based on pressure monitoring and USDW 

impacts. 

EPA believes however, that to ensure USDW protection from endangerment, a default timeframe 

for post-injection site care will be necessary in all but a limited number of cases. This default 50 

year post-injection site care timeframe represents a reasonable and protective monitoring period 

based on a review of research studies, industry 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) 

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Comment: 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 CO2. 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 CO2. CO2 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 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 grandfathering of Class II wells, without 

requiring technically unnecessary changes 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 sites used for ER may be suitable for GS and may 

be among the first GS sites. EPA agrees that many Class II wells are designed and constructed to 

withstand exposure to CO2. The final GS rule provides for the construction of these wells to be 

grandfathered per §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). 

The final Class VI regulations require that any owner or operator injecting CO2 for the primary 

purpose of long term storage obtain a Class VI permit with some special consideration for the 

fact that they are transitioning from a well not originally designed to meet Class VI requirements. 

The Director has the authority to determine at what point a Class VI permit is required for those 

projects that are transitioning from the primary purpose of EOR to long term storage of CO2. 

The final regulation provides a set of technical factors for the Director to evaluate in making this 

determination, at §144.19. EPA believes that this approach provides sufficient protection of 

USDWs when there is an increased risk to USDWs as compared to traditional Class II operations 

while allowing for site-specific flexibility. 

EPA is developing guidance on transitioning permits from Class II to Class VI. The guidance 

will assist Directors in evaluating whether an injection project should be transitioned from Class 

II where the primary purpose is oil 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 

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Comment: 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 comments set out above as the final rule and preamble are 

prepared. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment for further details. 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 the proposed Federal requirements for 

underground injection of carbon dioxide ("CO2") for the purpose of geologic 

sequestration ("GS"). The Foundation was founded in January, 2004, as a nonprofit 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 CO2 GS 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 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 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. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment for further details. 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 encourage the use of GS; rather, 

its purpose is to ensure consistency in permitting underground injection of CO2 at GS operations 

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across the United States and provide requirements to prevent endangerment of USDWs in 

anticipation of the eventual use of GS to reduce CO2 emissions.