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 Federal Requirements Under 

the Underground Injection Control (UIC) Program for Carbon Dioxide 

(CO2) Geologic Sequestration (GS) Wells (74 Fed. Reg. 44802 (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 Injection Control (“UIC”) Program for Carbon 

Dioxide (“CO2”) Geologic Sequestration Wells. 74 Fed. Reg. 44802 (Aug. 31, 2009). USWAG, 

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

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

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

leading utility organization responsible for interacting with EPA and other federal and state 

agencies concerning the management of materials from 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 CO2 GS under the UIC program. See 73 Fed. Reg. 43492 (July 25, 2008). 

USWAG also supports the comments of EEI in response to the CO2 GS NODA. 

USWAG recognizes that the development of a viable carbon capture and sequestration 

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

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

 

1

 EEI is the principal national association of investor-owned electric power and light companies. NRECA is the 

national association of rural electric cooperatives. AGA is the principal national association of natural 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 electricity and over 93% of the nation’s consumers of natural gas. 
Water Docket 

October 15, 2009 

Page 2 

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

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

lead to CO2 reductions of approximately 80-90% at a single plant. 73 Fed. Reg. 44354, 44492 

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

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

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

input on the development of EPA’s UIC regulations for CO2 GS. 

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 performancebased standards in order to allow for site-tailored requirements that will reflect the vast 

differences among various potential CO2 GS sites. 

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 original proposal 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 sitespecific 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. 

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 
Water Docket 

October 15, 2009 

Page 3 

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. 

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. 

* * * * * 

We appreciate the opportunity to comment on these new 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 Director 
Letter 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 original  
proposal 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 Approach  
Comment: 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.