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 

Water Docket 

Environmental Protection Agency 

Mailcode: 4101T 

1200 Pennsylvania Ave., NW 

Washington DC 20460 

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

The Nebraska Oil and Gas Conservation Commission (NOGCC) 

offers the following comments on EPA’s Proposed Federal 

Requirements under the Underground Injection Control (UIC) 

Program for Carbon Dioxide (CO2) Geologic Sequestration 

(GS) wells; Notice of Data Availability (NODA). 

The NOGCC is strongly supportive of the increased 

flexibility to UIC Program Directors in this proposal. 

This will promote a common sense approach which allows 

consideration of local and regional geologic conditions for 

more site-specific assessment and allows for injection into 

appropriate formation types, based on quality of a 

particular geologic basin. 

NOGCC houses what we believe is the most encompassing 

library of sub-surface geologic data in the state of 

Nebraska, base on our knowledge of the geology of Nebraska, 

without regulatory flexibility, GS would not be possible in 

most of state, as USDWs are present through the entire 

geological stratigraphic column to the pre-Cambrian 

basement. 

The injection of CO2 above the lowermost formation 

containing a USDW can be done safely where determined 

appropriate while protecting all USDWs. This is currently 

being done in enhanced oil recovery projects in Nebraska 

and throughout the United States. In fact due to the 

buoyancy of CO2, there is less risk to USDWs below the 

injection zone. 

Injection of CO2 above the lowermost formation containing a 

USDW allows for injection into multiple stratified 

formations which allows for greater cumulative capacity. 

This may further reduce risk by maximizing the storage of 

each well and minimizing the number of wells penetrating 
confining zones or USDWs; these penetrations are one of the 

biggest risk factors. 

Accessing USDWs below a GS site is not technically 

challenging. Industry has developed the ability to safely 

drill through over-pressured reservoirs which may be 

analogous to GS sites. 

Based on our experience we disagree with the NODA on 

“placing distance between the injection formation and USDWs 

decreases risks to USDWs. Distance may help but is not the 

definitive factor. It will not compensate for poor site 

characteristics. Neither does lack of distance defeat a 

site that is properly designed and sited. The ability of 

the confining zones to sequester the injection stream must 

be taken into account, along with distance, in determining 

whether the site is suitable. Site selection must focus on 

the trapping and confinement characteristics without giving 

undue deference to distance. 

To address Nebraska’s lack of non-USDWs we applaud EPAs 

proposal of a waiver system. However, for the waiver system 

to work effectively, the final decision making authority 

for a waiver should be with the agency holding primacy for 

the proposed Class VI UIC program. In Nebraska, UIC primacy 

lays with NDEQ and NOGCC, any requirement that would 

provide for non-UIC delegated programs to have the same 

authority over a single permitting process is inefficient 

and duplicative. EPA’s current proposal would appear to 

give the Public Water Supply Supervision (PWSS) Program 

Director essentially veto power over the waiver. NOGCC 

feels this is not appropriate due to the fact that the PWSS 

Program Director is not as knowledgeable regarding 

underground injection does not have the technical expertise 

as the UIC Program Director. In addition, NOGCC would 

question what authority the EPA has to dictate to those 

states with primacy which agencies must approve a permit. 

Instead, APC would recommend that the PWSS, like all other 

interested agencies, be included in the comment period 

making sure that they have the opportunity to raise any 

concerns they may have with the project. 

Thank you for the opportunity to provide comments on this 

important document. 
Further, as a member of the Board of Directors of the 

Ground Water Protection Council (GWPC), I endorse the 

comments provided by the GWPC CO2 Committee. 

Respectfully submitted, 

NEBASKA OIL AND GAS CONSERVATION COMMISSION 

Stan Belieu 

UIC Director/Staff Petroleum Engineer 

 
Letter ID: 0378  

Commenter: Stan Belieu  

Organization: Nebraska Oil and Gas Conservation Commission (NOGCC)  

Letter ID: 0378 Comment ID: 28182 Letter Lines: 32 to 58  

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

Comment: The NOGCC is strongly supportive of the increased flexibility to UIC Program  

Directors in this proposal. This will promote a common sense approach which  

allows consideration of local and regional geologic conditions for more site‐  

specific assessment and allows for injection into appropriate formation types,  

based on quality of a particular geologic basin.  

NOGCC houses what we believe is the most encompassing library of sub‐surface  

geologic data in the state of Nebraska, base on our knowledge of the geology of  

Nebraska, without regulatory flexibility, GS would not be possible in most of  

state, as USDWs are present through the entire geological stratigraphic column  

to the pre‐Cambrian basement.  

The injection of CO2 above the lowermost formation containing a USDW can be done  

safely where determined appropriate while protecting all USDWs. This is  

currently being done in enhanced oil recovery projects in Nebraska and  

throughout the United States. In fact due to the buoyancy of CO2, there is less  

risk to USDWs below the injection zone.  

Injection of CO2 above the lowermost formation containing a USDW allows for  

injection into multiple stratified formations which allows for greater  

cumulative capacity. This may further reduce risk by maximizing the storage of  

each well and minimizing the number of wells penetrating confining zones or  

USDWs; these penetrations are one of the biggest risk factors.  

Accessing USDWs below a GS site is not technically challenging. Industry has  

developed the ability to safely drill through over‐pressured reservoirs which  

may be analogous to GS sites.  

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.  

EPA also agrees that technologies exist to address the challenges associated with GS and injection that

will be conducted under the waiver approach, e.g., to inject through over‐pressurized reservoirs.

However, EPA also believes that additional considerations are necessary when permitting such wells to

ensure protection of all USDWs and that the additional requirements that apply to owners or operators

of Class VI wells granted a waiver of the injection depth requirements at §146.95 will provide this

protection.  

Furthermore, EPA believes that the requirements at §146.95 address potential risks associated with

injection into non‐USDW formations above the lowermost USDW. These may include the risk of

downward migration of fluids if there is no lower confining layer or inadequate confinement. In

addition, there is the potential that wells will be drilled through the injection zone in the future to reach

the USDW. EPA believes that the additional requirements that apply to owners or operators of Class VI

wells granted a waiver of the injection depth requirements at §146.95 will provide additional

considerations for owners or operators and Directors when permitting such wells to ensure protection

of all USDWs.

Regarding the comment on consideration of distance, EPA believes that suitable confining layers (e.g.,

low‐permeability, low‐porosity formations identified through proper site characterization process) along

with proper well construction, operation, monitoring, and post‐injection site care are key to protecting

USDWs from endangerment. Additionally, the Agency believes that distance between the injection zone

and USDWs can impede vertical fluid movement, allow for pressure dissipation, and provide additional

sites for monitoring, mitigation, and remediation if conditions warrant.  

Letter ID: 0378 Comment ID: 28183 Letter Lines: 72 to 84  

Comment Code: 3350 3.3.5. Requirement to Submit Waiver Application to UIC and PWSS Program

Directors  

Comment: proposed Class VI UIC program. In Nebraska, UIC primacy lays with NDEQ and  

NOGCC, any requirement that would provide for non‐UIC delegated programs to have  

the same authority over a single permitting process is inefficient and  

duplicative. EPA’s current proposal would appear to give the Public Water Supply  

Supervision (PWSS) Program Director essentially veto power over the waiver.  

NOGCC feels this is not appropriate due to the fact that the PWSS Program  

Director is not as knowledgeable regarding underground injection does not have  

the technical expertise as the UIC Program Director. In addition, NOGCC would  
question what authority the EPA has to dictate to those states with primacy  

which agencies must approve a permit. Instead, APC would recommend that the  

PWSS, like all other interested agencies, be included in the comment period  

making sure that they have the opportunity to raise any concerns they may have  

with the project.  

Individual Response: EPA disagrees that consultation with the PWSS Director is duplicative: the

communication with the PWSS Director is consultative and does not constitute a final decision making.

The final GS rule includes a requirement that the UIC Program Director consult with the PWSS Directors

of all states, Territories, and Tribes having jurisdiction within the AoR of a well for which a waiver is

sought as specified in §146.95(b)(2). EPA believes this process is necessary and appropriate to ensure

that water system concerns are considered when evaluating a waiver application.  

EPA clarifies that the PWSS director does not have "veto power" over a UIC permitting decision; instead,

the role of the PWSS Director is to ensure consideration of water system and water resource issues

where injection into non‐USDW formations above the lowermost USDW is being considered. EPA

clarifies that the final determination regarding waiver issuance will be made by the Director, following

evaluation of all site‐specific information, public notice, and receipt of written concurrence or non‐

concurrence from the Regional Administrator. EPA believes that UIC Program staff are in the appropriate

position to evaluate the technical details of the waiver application, in concert with the UIC permit

application, and the final requirements retain decision‐making authority with the UIC Program.  

EPA adds that adoption of the waiver process will remain at the discretion of individual UIC programs,

and states can opt to not adopt the waiver process if this is deemed too burdensome.  

Letter ID: 0378 Comment ID: 28568 Letter Lines: 56 to 58  

Comment Code: 3420 3.4.2. Request for Information on Areas Where Injection Depth and USDWs Are a

Concern (seeking comment)  

Comment: Accessing USDWs below a GS site is not technically challenging. Industry has  

developed the ability to safely drill through over‐pressured reservoirs which  

may be analogous to GS sites.  

Individual Response: EPA acknowledges that technologies and past experience exist to inject through

over‐pressured formations while maintaining zonal isolation (e.g., oil and gas industry experience in

drilling through shallow pockets of gas or other zones that have higher pressures). EPA has reviewed

information on these types of projects and has determined that, if properly constructed, wells can be

drilled through pressurized zones without causing fluid movement. However, to provide additional

USDW protection and ensure that any planned drilling is conducted appropriately, the final GS rule
requires the Director to consider planned or permitted water, hydrocarbon, or mineral resource

exploitation potential of the proposed injection formation and other formations both above and below

the injection zone to determine if there are any plans to drill through the formation to access resources

in or beneath the proposed injection zone/formation as specified in §146.95(b)(1)(vii).  

Letter ID: 0378 Comment ID: 28569 Letter Lines: 60 to 67  

Comment Code: 3100 3.1. Comments on Concerns About Injection Depth for Class VI Wells  

Comment: Based on our experience we disagree with the NODA on "placing distance between  

the injection formation and USDWs decreases risks to USDWs. Distance may help  

but is not the definitive factor. It will not compensate for poor site  

characteristics. Neither does lack of distance defeat a site that is properly  

designed and sited. The ability of the confining zones to sequester the  

injection stream must be taken into account, along with distance, in determining  

whether the site is suitable. Site selection must focus on the trapping and  

confinement characteristics without giving undue deference to distance.  

Individual Response: EPA believes that suitable confining layers (e.g., low‐permeability, low‐porosity

formations identified through proper site characterization process) along with proper well construction,

operation, monitoring, and post‐injection site care are key to protecting USDWs from endangerment.  

Additionally, the Agency believes that distance between the injection zone and USDWs can impede

vertical fluid movement, allow for pressure dissipation, and provide additional sites for monitoring,

mitigation, and remediation if conditions warrant.  

However, EPA acknowledges that there are situations where injection into non‐USDW formations above

the lowermost USDW can be performed in a manner that protects USDWs, as long as appropriate

protections are in place. 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.  

Letter ID: 0378 Comment ID: 28570 Letter Lines: 69 to 72  

Comment Code: 3390 3.3.9. Comments Regarding State Discretion to Adopt the Waiver Approach  

Comment: To address Nebraska’s lack of non‐USDWs we applaud EPAs proposal of a waiver  

system. However, for the waiver system to work effectively, the final decision  

making authority for a waiver should be with the agency holding primacy for the  

proposed Class VI UIC program. In Nebraska, UIC primacy lays with NDEQ and  
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 clarifies that, under the injection depth waiver approach, owners or operators may only inject into

non‐USDWs.  

Regarding decisions on granting of injection depth waivers, EPA clarifies that, pursuant to §146.95(d),

the Regional Administrator will make the final determination whether to issue an injection depth

waiver. However, prior to a final decision, the Director must provide the Regional Administrator with the

information collected during the waiver application and the public notice processes. Based on this

information and pursuant to requirements at §146.95(d), the Regional Administrator will provide

written concurrence or non‐concurrence regarding waiver issuance. The Agency clarifies that these

requirements are within the authority of the Safe Drinking Water Act.