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

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was assigned a Letter ID that corresponds to the last four digits of the docket number of the

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individual response. These are described and explained below.  

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

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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.
Comments of 

Oglethorpe Power Corporation 

To The 

Federal Requirements Under the 

Underground Injection Control Program 

for Carbon Dioxide Geologic Sequestration Wells 

Docket No. EPA-HQ-OW-2008-0390 

73 Fed. Reg. 43492 (July 25, 2008) 

JONES DAY 

G. Graham Holden 

1420 Peachtree Street, N.E. 

Suite 800 

Atlanta, GA 30309 

(404) 581-8220 

Counsel for Oglethorpe 

Power Corporation 

December 24, 2008
I. Introduction

Oglethorpe Power Corporation1 (“Oglethorpe Power” or “Oglethorpe”) submits these comments on 

the Proposal of the Environmental Protection Agency ("EPA" or "the Agency") to establish the 

regulatory framework for geologic sequestration (“GS”) of carbon dioxide (“CO2”) under the 

Underground Injection Control (“UIC”) Program, to be promulgated pursuant to the Safe Drinking 

Water Act ("SDWA"), found at 42 U.S.C. §§ 300f, et seq.

2

As an owner (or co-owner) and/or operator of a number of fossil-fuel fired electric generation 

facilities, Oglethorpe Power has a keen interest in any action EPA may take on issues raised in this 

rulemaking. Oglethorpe Power is a member of the National Rural Electric Cooperative Association 

(“NRECA”). NRECA will also be submitting comments on the proposed UIC rules. Oglethorpe 

Power supports NRECA’s comments, and through this document incorporates those comments by 

reference. 

 

II. Background 

It appears that GS of CO2 from fossil-fueled power plants will be a critical part of any national 

strategy to control greenhouse gas emissions. Oglethorpe appreciates EPA's work toward developing 

a regulatory framework for underground injection of CO2. EPA's decision to develop regulations 

under the UIC program and to develop a new class of injection wells (Class VI) for CO2 GS seems 

appropriate. We also support EPA's recognition that while the new regulations at hand must be within 

the scope of the SDWA, there are a number of very important issues (such as long term liability) that 

are outside the scope of the act, but that are critical to developing a viable GS program for CO2

injection and storage. 

Oglethorpe Power is encouraged by the efforts EPA has taken thus far to instill "certainty" and 

"transparency" into the future Class VI CO2 regulatory regime.3 The challenge EPA faces is to craft a 

Final Rule for commercial CO2 injection appropriate for activities that will largely be conducted in the 

future. EPA has had to confront many technical uncertainties regarding the establishment and 

operation of GS wells. Because many of the technical aspects are unknown, it is also very difficult to 

develop a clear understanding of project risks and liabilities. As long as risks and liabilities are largely 

unknown and open-ended, private companies will not step forward to offer insurance and other risk 

management products, and it will not be possible to obtain the level of financing needed to undertake a 

costly GS operation. The pilot carbon capture and storage (“CCS”) projects conducted by DOE and 

other entities should help resolve some of these uncertainties. 

 

1 Oglethorpe Power is the largest generation cooperative in the United States, in terms of kilowatt-hour 

(“kW-hr”) sales. Through its Electric Membership Corporation (“EMC”) member - owners, Oglethorpe 

Power provides power to approximately 70% of the land area of the State of Georgia, providing power on a 

wholesale basis to 38 of the 42 EMCs in Georgia, which in turn provide electricity to approximately 4.0 

million Georgians. 

2

 The proposal can be found at 73 Fed. Reg. 43492 (July 25, 2008). 

3

 73 Fed. Reg. at 43496. 
2 

III. Comments Regarding UIC Regulations 

The following are Oglethorpe Power’s general comments to the proposed rule. 

1. Because of the difficulty of regulating future activities, Oglethorpe urges EPA to 

continue to use a "performance based" approach in developing the requirements for 

Class VI UIC wells. This way, rules can be readily adjusted and fine-tuned as industry 

and regulators alike gain experience with large-scale CO2 sequestration. 

2. Because information and technology related to carbon sequestration will evolve as 

industry and regulators gain experience with CCS, Oglethorpe Power strongly 

encourages EPA to resist placing blanket prohibitions or detailed operational 

specifications in the Final Rule. 

3. EPA should not automatically exclude placement of wells in particular geologic 

structures. The Final Rule should leave the door open for a range of injection sites and 

methods, provided the owner or operator can show that the injection and storage will be 

protective of Underground Sources of Drinking Water (“USDWs”). 

4. Oglethorpe Power believes that the states will have the best knowledge of regional 

geology, existing projects, areas in need of special protection, etc. and that states should 

be allowed to assume primacy for administration of the UIC Class VI well program. 

5. EPA should be careful not to stigmatize GS operations and to take positive measures to 

build public acceptance. EPA should avoid characterizing stored CO2 as a waste. 

6. EPA should define the way GS activities will relate to the Resource Conservation and 

Recovery Act (“RCRA”) and the Comprehensive Environmental Response, 

Compensation and Liability Act (“CERCLA”) 42 U.S. §§ 9601, et seq. RCRA is 

simply the wrong tool to use to regulate GS of CO2 and EPA needs to find a way to 

insure that the onerous requirements of CERCLA (never intended for GS of CO2) are 

not applied to this highly specialized storage operation. 

7. Appropriately defining the relationship of GS activities with RCRA and CERCLA is 

critical to the commercial deployment of full scale GS projects and may require 

Congressional action. 

IV. Comments Regarding Liability and Risk Management 

Oglethorpe Power supports the comments of the Carbon Capture and Storage Alliance ( the “CCS 

Alliance”) on the proposed UIC regulations. The CCS Alliance is a coalition of entities, spanning a 

number of economic sectors, that share a common interest in removing impediments to investment in 

and development of carbon capture and storage (CCS), as well as mitigating the potential risks 
3 

associated with the deployment of this technology.4

 Its purpose is to promote development of policy 

by the states and the federal government to appropriately address risks and potential liabilities, thereby 

enabling the further development and increased deployment of CCS. The CCS Alliance believes these 

technologies can be developed while protecting underground water resources, significantly reducing 

global and U.S. greenhouse gas emissions, and enhancing U.S. energy security. The Alliance’s 

purpose is to consider ways of promoting the development and use of CCS technologies and to support 

efforts by the private sector, states, the federal government, non-governmental organizations and 

others, to help ensure that these technologies can be developed and widely, efficiently and costeffectively deployed. 

We support the comments of the CCS Alliance and incorporate them here by reference. In addition, 

Oglethorpe Power defers to NRECA and the CCS Alliance to provide EPA with specific comments on 

the Financial Assurance and Long Term Liability issues discussed in the proposal. 

************************************** 

 

4

 MidAmerican Energy Holdings Company, National Mining Association, National Rural Electric Cooperative 

Association, NRG Energy, Inc., PacifiCorp and Zurich North America are all members of the CCS Alliance. 
Letter ID: 0189 

Commenter: G. Graham Holden 

Organization: Oglethorpe Power Corporation 

Letter ID: 0189 Comment ID: 25241 Letter Lines: 51 to 53 ; 142 to 145 

Comment Code: 1000 1. General and Administrative Comments 

Comment: will also be submitting comments on the proposed UIC rules. Oglethorpe Power 

supports NRECA’s comments, and through this document incorporates those comments 

by reference. 

We support the comments of the CCS Alliance and incorporate them here by 

reference. In addition, Oglethorpe Power defers to NRECA and the CCS Alliance to 

provide EPA with specific comments on the Financial Assurance and Long Term 

Liability issues discussed in the proposal. 

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

responses to this comment, CCS Alliance’s comment, and NRECA’s 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: 0189 Comment ID: 25242 Letter Lines: 57 to 62 

Comment Code: 1410 1.2.1 Comments in support of EPA/rulemaking 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment: It appears that GS of CO2 from fossil-fueled power plants will be a critical 

part of any national strategy to control greenhouse gas emissions. Oglethorpe 

appreciates EPA's work toward developing a regulatory framework for underground 

injection of CO2. EPA's decision to develop regulations under the UIC program 

and to develop a new class of injection wells (Class VI) for CO2 GS seems 

appropriate. We also support EPA's recognition that while the new regulations at 

Individual Response: EPA acknowledges the comment and believes that the creation of a new 

injection well class (VI) under the existing UIC Program is necessary to deployment of GS as a 

climate change mitigation technology in a manner that protects USDWs from endangerment. 

EPA agrees that the UIC Program, under the authority of the SDWA, provides a strong 

framework for regulating injection of CO2 for GS and adds that the GS regulation tailors the 

UIC requirements to address the unique issues associated with large-scale GS including large 

injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the 

potential presence of impurities in captured CO2, and its mobility within subsurface geologic 

formations. 

1
Letter ID: 0189 Comment ID: 25243 Letter Lines: 62 to 66 

Comment Code: 5460 2.9.2 Comments on transfer of liability for long-term care 

Comment: appropriate. We also support EPA's recognition that while the new regulations at 

hand must be within the scope of the SDWA, there are a number of very important 

issues (such as long term liability) that are outside the scope of the act, but 

that are critical to developing a viable GS program for CO2 injection and 

storage. 

Individual Response: EPA acknowledges the commenter’s concern regarding the applicability 

of multiple statutes to GS projects and the need for a single clear liability regime for owners or 

operators. EPA is working to create a nationally consistent financial responsibility regime within 

its authority to ensure that financial resources are available to protect USDWs throughout the life 

of the GS project. However, the authority under the SDWA does not extend to release owners or 

operators from long-term responsibility for the potential economic costs of impacts unrelated to 

USDWs. EPA does not have authority to transfer liability from one entity to another and SDWA 

does not provide for the creation of a third party financial instrument where EPA is the trustee. In 

the UIC program, liability under SDWA §1423 remains with the owner or operator for all well 

classes until all regulatory requirements have been met. EPA understands that Congress is 

considering legislation that may address the liability issue. 

See the final rule preamble for further discussion of EPA's approach. 

Letter ID: 0189 Comment ID: 25244 Letter Lines: 68 to 70 ; 158 to 158 

Comment Code: 1410 1.2.1 Comments in support of EPA/rulemaking 

Comment: Oglethorpe Power is encouraged by the efforts EPA has taken thus far to instill 

"certainty" and "transparency" into the future Class VI CO2 regulatory 

regime.(Footnote 3) The challenge EPA faces is to craft a Final Rule for 

Footnote 3: 73 Fed. Reg. at 43496. 

Individual Response: As described above, EPA believes that the creation of a new injection 

well class (VI) under the existing UIC Program is necessary to enable the use of GS as a climate 

change mitigation technology in a manner that protects USDWs from endangerment. 

Letter ID: 0189 Comment ID: 25245 Letter Lines: 70 to 80 

Comment Code: 5430 2.9.1 Comments on proposed financial responsibility requirements (40 

CFR 146.85) 

Comment: regime.(Footnote 3) The challenge EPA faces is to craft a Final Rule for 

commercial CO2 injection appropriate for activities that will largely be 

2
conducted in the future. EPA has had to confront many technical uncertainties 

regarding the establishment and operation of GS wells. Because many of the 

technical aspects are unknown, it is also very difficult to develop a clear 

understanding of project risks and liabilities. As long as risks and liabilities 

are largely unknown and open-ended, private companies will not step forward to 

offer insurance and other risk management products, and it will not be possible 

to obtain the level of financing needed to undertake a costly GS operation. The 

pilot carbon capture and storage ("CCS") projects conducted by DOE and other 

entities should help resolve some of these uncertainties. 

Individual Response: EPA anticipates that the availability of a variety of financial responsibility 

providers and third-party GS financial instruments will grow in response to demand. In addition, 

EPA plans to allow owners or operators to choose from a variety of financial instruments, 

allowing them to select instruments they find easiest to obtain. See the final rule and preamble 

for further discussion of EPA's final approach to financial responsibility. EPA agrees that the 

results of the DOE pilot projects will provide some reassurance and certainty about the degree of 

risk involved in GS projects. 

Given that the practice of GS is fairly new and EPA does not have enough information in 

supporting future prediction, 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. 

Letter ID: 0189 Comment ID: 25246 Letter Lines: 86 to 95 

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

Comment: 1. Because of the difficulty of regulating future activities, Oglethorpe urges 

EPA to continue to use a "performance based" approach in developing the 

requirements for Class VI UIC wells. This way, rules can be readily adjusted and 

fine-tuned as industry and regulators alike gain experience with large-scale CO2 

sequestration. 

2. Because information and technology related to carbon sequestration will 

evolve as industry and regulators gain experience with CCS, Oglethorpe Power 

strongly encourages EPA to resist placing blanket prohibitions or detailed 

operational specifications in the Final Rule. 

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 

3
encourage use of the most appropriate technologies for a particular project. 

To address the comment that the rule should accommodate future technological developments 

related to GS, EPA adds that it is using an adaptive approach to regulating GS under the UIC 

Program. Even after finalization of the GS regulation, EPA plans, every six years, to collect and 

review project data on GS research 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. 

Letter ID: 0189 Comment ID: 25247 Letter Lines: 97 to 101 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

Comment: 3. EPA should not automatically exclude placement of wells in particular 

geologic structures. The Final Rule should leave the door open for a range of 

injection sites and methods, provided the owner or operator can show that the 

injection and storage will be protective of Underground Sources of Drinking 

Water ("USDWs"). 

Individual Response: EPA clarifies that the GS rule does not categorically preclude injection of 

CO2 into any non-USDW formation types. The purpose of the GS rule is to ensure protection of 

USDWs from endangerment, and the rule requires that owners or operators demonstrate that 

wells are sited in suitable systems with geologic formations to receive and confine injected CO2, 

required at §146.83 of the GS rule. The Class VI siting, well construction and operation, 

monitoring and testing, and post-injection site care and site closure requirements are designed to 

ensure that injected CO2 remains within the target formation. If an owner or operator can 

demonstrate to the Director's satisfaction that GS in coal seams, basalts, salt domes, or shales can 

be accomplished in a manner that protects USDWs and meets all of the requirements of the GS 

rule, the project may be permitted as a Class VI well. 

Letter ID: 0189 Comment ID: 25248 Letter Lines: 103 to 106 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

Comment: 4. Oglethorpe Power believes that the states will have the best knowledge of 

regional geology, existing projects, areas in need of special protection, etc. 

and that states should be allowed to assume primacy for administration of the 

UIC Class VI well program. 

Individual Response: EPA agrees with commenters on the importance of states having primacy 

for GS wells given the variety of geologic settings in which GS will be applied. EPA recognizes 

that State, Tribal, Territorial and DI UIC Program Directors are in the best position to evaluate 

the unique issues related to well depth, geology, and hydrogeology that are posed by a Class VI 

well. Some degree of flexibility is needed for Class VI wells because each decision made will be 

site-specific and conditions will differ from state to state. The GS rule balances the need for 

4
these site-specific decisions with the need for minimum standards to ensure national consistency. 

The Agency believes that it is important for states to use their unique efficiencies to promote 

adoption of this burgeoning and important technology, while assuring that USDWs are protected 

from endangerment through the UIC regulatory framework. EPA encourages states to accept 

primacy for Class VI, and believes that, due to the importance of implementing an effective, 

comprehensive, and seamless CCS program, States should be provided the flexibility to obtain 

primacy for Class VI only. 

Given the potential for CCS (encompassing capture, transportation, and geologic sequestration) 

to be an important part of a national priority to address climate change, EPA believes that 

providing states the flexibility to obtain primacy for Class VI wells independently of other well 

classes can help foster effective management of CCS. EPA believes that allowing independent 

Class VI primacy may encourage states to take responsibility for implementation of Class VI 

regulations and provide for a more comprehensive approach to managing CCS projects by 

promoting the integration of GS activities under SDWA into a broader framework for managing 

CCS. The Agency will allow independent primacy for Class VI wells under §145.1(i) of the final 

GS rule. Furthermore, GS operations involve ancillary activities (e.g., pipeline operations, pore 

space ownership, land use rights, and surface access) for which states can call upon other 

authorities that exist at the state level (but outside UIC authority) to provide a more 

comprehensive CCS management approach. 

Letter ID: 0189 Comment ID: 25249 Letter Lines: 108 to 110 

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

Comment: 5. EPA should be careful not to stigmatize GS operations and to take positive 

measures to build public acceptance. EPA should avoid characterizing stored CO2 

as a waste. 

Individual Response: EPA does not believe that the tailored requirements will create a negative 

public perception of GS. The Agency believes that a demonstration to the public that GS projects 

are meeting the GS rule's tailored requirements would likely improve confidence in the project 

and help address public questions and concerns. 

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and 

risks associated with the injection of CO2, and do not address the status of CO2 as either a 

pollutant, commodity, or waste. 

Letter ID: 0189 Comment ID: 25250 Letter Lines: 112 to 121 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

5
6

Comment: 6. EPA should define the way GS activities will relate to the Resource 

Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental 

Response, Compensation and Liability Act ("CERCLA") 42 U.S. §§ 9601, et seq. 

RCRA is simply the wrong tool to use to regulate GS of CO2 and EPA needs to find 

a way to insure that the onerous requirements of CERCLA (never intended for GS 

of CO2) are not applied to this highly specialized storage operation. 

7. Appropriately defining the relationship of GS activities with RCRA and CERCLA 

is critical to the commercial deployment of full scale GS projects and may 

require Congressional action. 

Individual Response: EPA agrees that any requirements applicable to CO2 injectate should be 

clearly identified to the public and to the regulated community. EPA received many comments 

regarding the applicability of the RCRA regulations and statute to CO2 streams that are 

geologically sequestered under the final Class VI UIC well requirements. As a result, EPA has 

decided to initiate a separate proposed rulemaking specifically to examine the issue of RCRA 

applicability to CO2 streams being geologically sequestered, including the possible option of a 

conditional exemption from the RCRA requirements for CO2 GS in Class VI wells. EPA will 

consider these comments as part of its development of that proposal. The Agency will consider 

issues particular to RCRA in the context of that separate rulemaking, and recommends that the 

commenter read that proposed rule when it is published. The Agency notes that commenters who 

wish to submit comments on the RCRA proposal will need to do so during the comment period 

for that rule. Finally, EPA also notes that the final GS rule, which adds new regulations for Class 

VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to the RCRA 

regulations. 

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may 

contain a listed hazardous substance (such as mercury) or may mobilize substances in the 

subsurface that could react with ground water to produce listed hazardous substances (such as 

sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration 

facility depends entirely on the composition of the specific CO2 stream and the environmental 

media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under 

CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in 

CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure 

that they prevent potential releases from the well which are outside the scope of the Class VI 

permit.