### 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.

### October 15, 2009

VIA ELECTRONIC AND HAND DELIVERY

Water Docket

EPA Docket Center (EPA/DC)

Public Reading Room 3334

EPA West

1301 Constitution Avenue, N.W.

Washington, D.C.

Attn: Docket ID No. EPA-HQ-OW-2008-0390

Re: Comments on Notice of Data Availability for Fed eral Requirements Under

the Underground Injection Control (UIC) Program for Carbon Dioxide

(CO 2 

### ) Geologic Sequestration (GS) Wells (74 Fed. Reg. 4 4802 (Aug. 31,

2009)), Docket ID EPA-HQ-OW -2008-0390

To whom it may concern:

The Utility Solid Waste Activities Group (“USWAG”) submits these comments on the

Notice of Data Availability and Request for Comment (“NODA”) relating to the proposed

Federal Requirements Under the Underground Injectio n Control (“UIC”) Program for Carbon

Dioxide (“CO 2 

### ”) Geologic Sequestration Wells. 74 Fed. Reg. 4480 2 (Aug. 31, 2009). USWAG,

formed in 1978, is an association of approximately 80 energy industry operating companies and

associations including the Edison Electric Institut e (“EEI”), the National Rural Electric

Cooperative Association (“NRECA”), and the American Gas Association (“AGA”). 1 

### As the

leading utility organization responsible for intera cting with EPA and other federal and state

agencies concerning the management of materials fro m the combustion of coal and other fossil

fuels ( e.g. , fly ash and bottom ash), USWAG submitted comments last December on EPA’s

proposal to regulate CO 2 

### GS under the UIC program. See 73 Fed. Reg. 43492 (July 25, 2008).

USWAG also supports the comments of EEI in response to the CO 2 

### GS NODA.

USWAG recognizes that the development of a viable c arbon capture and sequestration

(“CCS”) regulatory program has been cited by many a s a prerequisite to the implementation of

energy reform initiatives involving carbon reductio n measures on both the federal and state level.

1 EEI is the principal national association of inves tor-owned electric power and light companies. NREC A is the

national association of rural electric cooperatives . AGA is the principal national association of nat ural gas utilities.

Together, USWAG members represent more than 85% of the total electric generating capacity of the U.S., servicing

more than 95% of the nation’s consumers of electric ity and over 93% of the nation’s consumers of natur al gas.

### Water Docket

October 15, 2009

Page 2

EPA predicts that the electric power sector, includ ing USWAG members, “will most likely be

the largest potential market for [CCS] technologies ,” and predicts that CCS technology could

lead to CO 2 

### reductions of approximately 80-90% at a single pla nt. 73 Fed. Reg. 44354, 44492

(July 30, 2008). USWAG believes that the organizat ion’s decades of involvement with the

management of fossil fuel combustion materials as w ell as our members’ experiences in the field

provide us with a valuable knowledge base and persp ective from which to provide meaningful

input on the development of EPA’s UIC regulations f or CO 2 

### GS.

At the outset, USWAG applauds EPA’s careful approac h to the development of CO 2 

### GS

regulations, including this most recent release of additional data. As USWAG’s comments on

the proposed rule emphasized, it is essential the F inal Rule be flexible enough to accommodate

developments in information and technology related to carbon sequestration, particularly because

the technology contemplated in the proposal will no t be commercially deployed for many years.

USWAG’s comments urged EPA to develop a regulatory regime incorporating performancebased standards in order to allow for site-tailored requirements that will reflect the vast

differences among various potential CO 2 

### GS sites.

Specifically, USWAG supports EPA’s suggestion to ad opt a flexible waiver process to

allow for CO 2 

### GS injection above and between underground sources of drinking water

(USDWs). 74 Fed. Reg. at 44810. As stated in the NODA, EPA’s original proposal to define

Class VI injection wells as those used for injectio n of CO 2 

### beneath the lowermost formation

containing a USDW (73 Fed. Reg. at 43511) would pre clude injection of CO 2 

### into zones

between and above USDWs, thereby restricting or ren dering impossible CO 2 

### GS sites in large

areas of the country with deep USDWs. 74 Fed. Reg. at 44808. The proposal would also

prohibit CO 2 

### injection into many shallow formations such as coa l seams and basalts. 73 Fed.

Reg. at 43512. As the NODA observes, a number of s tates have indicated that regions with very

deep and layered USDWs could not undertake CO 2 

### GS projects because injectors could not

comply with the proposed injection depth and well c onstruction requirements. 74 Fed. Reg. at

44809.

EPA addresses these concerns by the proposal set fo rth in the NODA to keep the

originally proposed injection depth requirement but allow owners or operators to apply for a sitespecific waiver from those injection depth requirem ents upon making a demonstration that such

injection can be undertaken in a manner that preven ts the endangerment of public health from

USDW contamination. Id . at 44810. USWAG believes that such a flexible ap proach would

ensure adequate protection of USDWs while recognizi ng the vast geographic and topographic

differences between potential CO 2 

### GS sites throughout the country, allowing for maxi mization of

safe CO 2 

### storage capacity nationwide.

While USWAG supports the flexible injection depth w aiver proposal described above,

USWAG urges EPA to consider requiring the inclusion of such a waiver provision, rather than

leaving the adoption of an injection depth waiver p rocess to the discretion of the individual UIC

Program Directors. Id . at 44811. While it is true that deep USDWs do no t exist in every state

and that states without USDWs may choose not to gra nt waivers, inclusion of a waiver provision

would still leave UIC Program Directors free to dec line to grant any waivers where not necessary

or appropriate. See id . As USWAG noted in our original comments in respo nse to the proposed

### Water Docket

October 15, 2009

Page 3

rule, CO 2 

### GS technology remains in the nascent stage; becaus e this experience with and

information regarding this technology is growing ra pidly, it is prudent to structure a regulatory

framework that is flexible enough to respond to dev elopments in the field.

Finally, as EPA acknowledges in the NODA, the Depar tment of Energy ("DOE") is

developing and/or operating a number of CO2 GS pilo t projects throughout the country. These

pilot projects share a common purpose: in EPA's own words, to "help determine the best

approaches for capturing and permanently storing" g ases such as CO2, as well as to determine

"the most suitable technologies, regulations, and i nfrastructure needs for carbon capture, storage,

and sequestration in different parts of the country ." 74 Fed. Reg. At 44805.

USWAG appreciates EPA's effort to broaden their bas e of knowledge by drawing on the

experiences of these pilot projects prior to issuin g a final rule. We are concerned, however, that

this NODA may be premature, as it reflects data fro m only a handful of the approximately thirty

pilot projects affiliated with DOE. For example, t he Plains CO2 Reduction Partnership

("PCOR") has only recently completed and submitted information regarding their Phase II

findings; these data, as well as similar data from other pilot projects, are not reflected in the

NODA. This information will provide valuable insig ht into the advantages, limitations, and

challenges associated with CO2 GS in different part s of the country. USWAG urges EPA to

consider the results of all DOE pilot projects prio r to drafting a final CO2 GS rule, and to make

this information available for public review and co mment in a subsequent NODA prior to

promulgation of a final rule.

* * * * *

We appreciate the opportunity to comment on these n ew data and EPA’s new proposal

for an injection depth waiver process. If you have any questions regarding these comments,

please contact USWAG counsel Douglas Green (202-344 -4483).

Sincerely,

James R. Roewer

Executive DirectorLetter ID: 0349

Commenter: James R. Roewer

Organization: Utility Solid Waste Activities Group (USWAG)

Letter ID: 0349 Comment ID: 28033 Letter Lines: 72 to 80

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

Comment: At the outset, USWAG applauds EPA's careful approach to the development of CO2

GS regulations, including this most recent release of additional data. As

USWAG's comments on the proposed rule emphasized, it is essential the Final Rule

be flexible enough to accommodate developments in information and technology

related to carbon sequestration, particularly because the technology

contemplated in the proposal will not be commercially deployed for many years.

USWAG's comments urged EPA to develop a regulatory regime incorporating

performance

‐ based standards in order to allow for site

‐ tailored requirements

that will reflect the vast differences among various potential CO2 GS sites.

Individual Response: EPA believes that the final rule is based on the most recent GS

‐ related data,

information, and scientific research available. EPA intends to continue to collect data on GS and to

incorporate such data as it implements its adaptive approach to GS rulemaking to incorporate new

research, data, and information about GS. The Agency believes that an adaptive approach provides Class

VI owners or operators the flexibility to use and apply newly developed technologies for GS as they

become available in the future.

EPA agrees with the commenter that a site

‐ specific approach to permitting GS sites is important. The

final rule provides Class VI owners or operators the flexibility to select technologies appropriate for a

specific site and affords the Director flexibility to establish permit requirements on the basis of site

‐

specific characteristics. For additional information on the adaptive approach and site

‐ specific

requirements, see the responses to comments on the proposed rule in the rulemaking docket.

Letter ID: 0349 Comment ID: 28034 Letter Lines: 82 to 104

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

Comment: Specifically, USWAG supports EPA's suggestion to adopt a flexible waiver process

to allow for CO2 GS injection above and between underground sources of drinking

water (USDWs). 74 Fed. Reg. at 44810. As stated in the NODA, EPA's originalproposal to define Class VI injection wells as those used for injection of CO2

beneath the lowermost formation containing a USDW (73 Fed. Reg. at 43511) would

preclude injection of CO2 into zones between and above USDWs, thereby

restricting or rendering impossible CO2 GS sites in large areas of the country

with deep USDWs. 74 Fed. Reg. at 44808. The proposal would also prohibit CO2

injection into many shallow formations such as coal seams and basalts. 73 Fed.

Reg. at 43512. As the NODA observes, a number of states have indicated that

regions with very deep and layered USDWs could not undertake CO2 GS projects

because injectors could not comply with the proposed injection depth and well

construction requirements. 74 Fed. Reg. at 44809.

EPA addresses these concerns by the proposal set forth in the NODA to keep the

originally proposed injection depth requirement but allow owners or operators to

apply for a site

‐ specific waiver from those injection depth requirements upon

making a demonstration that such injection can be undertaken in a manner that

prevents the endangerment of public health from USDW contamination. Id. at

44810. USWAG believes that such a flexible approach would ensure adequate

protection of USDWs while recognizing the vast geographic and topographic

differences between potential CO2 GS sites throughout the country, allowing for

maximization of safe CO2 storage capacity nationwide.

Individual Response: EPA acknowledges the commenter's support of the waiver approach and site

‐

specific flexibility in regulatory development and permitting as described in the NODA and Request for

Comment. The Agency acknowledges that there are some situations where injection into non

‐ USDW

formations above the lowermost USDW can be performed in a manner that protects USDWs. The final

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

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

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

requirements; 2) allows for a more site

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

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

‐

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

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

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

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

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

Letter ID: 0349 Comment ID: 28035 Letter Lines: 106 to 117

Comment Code: 3390 3.3.9. Comments Regarding State Discretion to Adopt the Waiver ApproachComment: While USWAG supports the flexible injection depth waiver proposal described

above, USWAG urges EPA to consider requiring the inclusion of such a waiver

provision, rather than leaving the adoption of an injection depth waiver process

to the discretion of the individual UIC Program Directors. Id. at 44811. While

it is true that deep USDWs do not exist in every state and that states without

USDWs may choose not to grant waivers, inclusion of a waiver provision would

still leave UIC Program Directors free to decline to grant any waivers where not

necessary or appropriate. See id. As USWAG noted in our original comments in

response to the proposed rule, CO2 GS technology remains in the nascent stage;

because this experience with and information regarding this technology is

growing rapidly, it is prudent to structure a regulatory framework that is

flexible enough to respond to developments in the field.

Individual Response: EPA clarifies that adoption of the waiver process remains at the discretion of

individual UIC programs. Therefore, States, Territories, and Tribes seeking primacy for Class VI wells are

not required to provide for injection depth waivers in their UIC regulations and may choose not to make

this process available to Class VI wells under their jurisdiction. Although some commenters asked EPA to

require that waivers be applied nationally, the Agency believes that the decision about whether a waiver

program is appropriate in a specific State, Tribe, or Territory should be made by each program. This

approach allows flexibility for individual program Directors to determine the appropriateness of allowing

for waivers based on regional or state

‐ specific conditions, such as the predominant geologic settings

anticipated to be used for GS or other land uses in the state while ensuring maximum protection of

USDWs. The final approach for injection depth waivers represents minimum Federal requirements. UIC

program Directors may adopt GS requirements that do not allow injection above or between USDWs if

they determine this to be appropriate (for conditions in their State, territory, Tribe, or Region) and

protective.

EPA recognizes that GS technologies are rapidly developing. For this reason, the Agency is adopting an

adaptive rulemaking approach. EPA plans, every six years, to collect and review data on GS projects,

including information on any Class VI wells granted a waiver of the injection depth requirements, to

determine whether the appropriate amount and types of information and appropriate documentation

are being collected, and to determine if modifications to the requirements are appropriate or necessary.

Letter ID: 0349 Comment ID: 28036 Letter Lines: 119 to 139

Comment Code: 2100 2.1 DOE Regional Carbon Sequestration Partnership Projects

Comment: Finally, as EPA acknowledges in the NODA, the Department of Energy ("DOE") is

developing and/or operating a number of CO2 GS pilot projects throughout the

country. These pilot projects share a common purpose: in EPA's own words, to"help determine the best approaches for capturing and permanently storing" gases

such as CO2, as well as to determine "the most suitable technologies,

regulations, and infrastructure needs for carbon capture, storage, and

sequestration in different parts of the country." 74 Fed. Reg. At 44805.

USWAG appreciates EPA's effort to broaden their base of knowledge by drawing on

the experiences of these pilot projects prior to issuing a final rule. We are

concerned, however, that this NODA may be premature, as it reflects data from

only a handful of the approximately thirty pilot projects affiliated with DOE.

For example, the Plains CO2 Reduction Partnership ("PCOR") has only recently

completed and submitted information regarding their Phase II findings; these

data, as well as similar data from other pilot projects, are not reflected in

the NODA. This information will provide valuable insight into the advantages,

limitations, and challenges associated with CO2 GS in different parts of the

country. USWAG urges EPA to consider the results of all DOE pilot projects

prior to drafting a final CO2 GS rule, and to make this information available

for public review and comment in a subsequent NODA prior to promulgation of a

final rule.

Individual Response: EPA acknowledges that the projects listed in the NODA are all in their initial stages.

In the short time that GS has been a viable technology it would not have been feasible to run a project

through the closing and monitoring stages. EPA does believe, however, that the projects have provided

new and beneficial information. Topics such as site characterization, plume monitoring, leak detection,

and plume modeling have all been advanced because of these studies.

EPA also believes it is necessary not to delay the regulations as a common nationwide approach is

needed to oversee this growing activity. Instead, EPA intends to use an adaptive approach to the GS

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

the appropriate amount and types of information and appropriate documentation are being collected,

and to determine if modifications to the requirements are appropriate or necessary.

EPA adds that in addition to monitoring the DOE pilot projects, it is also tracking the progress of several

large international projects, including the Sleipner Field in the North Sea and In Salah, Algeria, where

millions of tons of CO2 have been injected.