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.
- 1 -

DRAF

COMMENTS OF THE

NORTH AMERICAN CARBON CAPTURE AND STORAGE ASSOCIATION

ON THE ENVIRONMENTAL PROTECTION AGENCY’S

FEDERAL REQUIREMENTS UNDER THE UNDERGROUND INJECTION CONTROL

(UIC) PROGRAM FOR CARBON DIOXIDE (CO2) GEOLOGIC SEQUESTRATION

WELLS; NOTICE OF DATA AVAILABILITY AND REQUEST FOR COMMENT

DOCKET ID NO. EPA-HQ-OW-2008-0390

October 15, 2009

The North American Carbon Capture and Storage Association (NACCSA) submits these

comments on the Environmental Protection Agency (EPA or Agency)’s Notice of Data

Availability and Request for Comment related to the Agency’s proposed regulations for injection

and geologic storage (GS) of CO2 under the authority of the Safe Drinking Water Act (SDWA)’s

UIC program, issued in July 2008 (Docket ID No. EPA-HQ-OW-2008-0390), 73 Fed. Reg.

43492 (July 25, 2008) (“NODA”). NACCSA previously provided oral and written comments on

the proposed regulations as originally issued on September 30, 2008 and submitted written

comments on December 24, 2008, which are incorporated by reference herein.

I. About NACCSA

NACCSA is a nonprofit organization of companies in North America that support the

development of a sustainable carbon dioxide capture and storage (CCS) industry in the United

The Atlantic Building • 950 F Street, NW • Washington, D.C. 20004

202.654.4860 • 202.756.3333 fax • www.naccsa.org
- 2 -

States and Canada. The members of NACCSA include companies1involved in developing

commercial processes to mitigate greenhouse gas emissions through CCS, and specialists

engaged in the technical, commercial, financial and developmental aspects of CCS activities in

both the U.S. and Canada. As we noted in our oral and written comments at the September 30,

2008 public hearing on the proposed rules, policymakers and companies are, and should be, like

the members of NACCSA, interested in CCS technology because it holds significant promise as

a tool to manage CO2 emissions as well as to maximize energy recovery. EPA’s proposed

regulations are a needed first step toward establishing a stable, predictable, and workable

regulatory framework that appropriately encourages the development of a CCS industry to both

safely mitigate GHG emissions and maximize energy production.

II. General Principles and Summary of Key Points

NACCSA applauds the Agency’s initiative and continued efforts to bring regulatory certainty to

the GS context as evidenced by the Agency’s proposed UIC rules. As noted in the Preamble to

the proposed rules, CCS holds the promise of storing large volumes of carbon dioxide in

geologic formations such as deep saline formations, depleting and depleted oil & natural gas

reservoirs, unmineable coal seams and similar geologic structures, and thus can play a central

role as an emissions mitigation tool. Additionally, NACCSA members view carbon dioxide as a

central component in the enhanced recovery of oil and natural gas and recognize that it is capable

of being responsibly stored as part of this process.

1 NACCSA members are the American Petroleum Institute; Arch Coal Inc.; Blue Source LLC; Halliburton;

International Paper; Keener Oil & Gas Company; Kinder Morgan; Occidental Petroleum Corporation; Peabody

Energy; SandRidge Energy; Schlumberger Carbon Services; Shell; and Tenaska.
- 3 -

The realization of CCS’s full potential depends upon development of clear, yet flexible,

regulations. In particular, appropriate provisions related to project siting are important to

achieve the twin goals of facilitating development of commercial CCS projects, including EOR

projects, and simultaneously protecting against threats to underground sources of drinking water

(USDW). The NODA’s contemplated changes to the proposed rules’ ban on injection above the

lowermost USDW, which would allow such injection where a waiver is obtained, mark a step in

the direction of this needed flexibility. While NACCSA would prefer individualized siting

decisions that include no predetermined limitations on receiving formations, NACCSA

commends the Agency’s efforts to allow for consideration of site- and project-specific factors in

siting GS projects through this concept of a waiver. NACCSA also submits specific comments

regarding how flexibility and clarity may best be achieved and suggested improvements to the

waiver concept, in particular improvements needed to provide support for EOR projects, should

the Agency decide to retain the prohibition on injection above the lowermost USDW as a default

concept.

In addition to specific comments on the Agency’s proposed revisions to the siting provisions,

NACCSA offers specific comments on the Agency’s project and research updates. NACCSA

further offers support for the concept of a comprehensive regulatory framework for CO2 capture

and storage and for recognizing and rewarding state efforts to move forward with bringing

regulatory certainty to CCS.
- 4 -

III. Specific Comments

a. Project Siting

The proposed regulations as originally issued would not permit project operators to inject and

store CO2 above the lowermost formation containing a USDW. As explained in its prior

comments, NACCSA believes that a categorical elimination of receiving formations is

unnecessary and undesirable. Rather, the appropriateness of any given receiving formation—as

with the bulk of issues related to the siting of projects—should be considered on a case-by-case

basis in light of the geologic characteristics of a given project and based on the application of

clear and appropriate parameters set forth in the rules.

Categorically eliminating a set of potential receiving formations is simply unnecessary in light of

the overall function of the UIC rules. As a general proposition, permit applicants must

demonstrate that projects will not endanger USDW; permit applicants for CO2 injection and

storage projects would be held to the same standard. The proposed rules would require permit

applicants to demonstrate that the project will be sited in areas with a “suitable geologic system,”

consisting of an injection zone of sufficient areal extent, thickness, porosity, and permeability to

receive the total anticipated volume of injectate, as well as a confining zone free of transmissive

faults or fractures and sufficient to contain the injected stream and any displaced fluids,

considering the proposed maximum pressures and volumes of injection, without fracturing. It is

NACCSA’s view that if the “suitable geologic system” contains confining zones above and

below the injection formation that will not allow the endangerment of USDW, injection above a

USDW should be allowed because the system will still meet the groundwater protection

requirements of the UIC program. The fact that permit applications would be considered based
- 5 -

on site specific information would mean that the regulator could evaluate whether individual

projects would be protective of groundwater regardless of their depth with respect to USDW.

Further, a blanket exclusion will hinder the ability of existing and possibly future Class I, II, and

V projects to convert to Class VI projects. The proposed “grandfathering” provision for existing

wells, as currently drafted, is limited to well construction and does not include any provision for

projects to be grandfathered in to new siting provisions for Class VI wells. Thus, the regulations

would exclude from the scope of potential grandfathering all projects that do not inject below the

lowermost USDW. Such projects would have no ability to convert to Class VI GS projects.

NACCSA believes that, in particular, EOR operations using CO2 should be allowed to transition

to dedicated storage-only operations, if desired, where certain requirements are met. Regulations

that essentially prevent them from doing so where injection has occurred above the lowermost

USDW would greatly disincentivize many projects that would otherwise be likely to go forward

and hamper commercialization of CCS. And creation of such a disincentive is unnecessary

because the wells at issue would have been designed and constructed specifically with injection

of CO2 and the protection of USDW in mind.

Finally, a complete ban on injections to only those formations below the lowermost USDW—

currently in place only for Class I hazardous waste injection wells—is likely to create a public

misimpression that CO2 injection wells are analogous to hazardous waste injection wells and

carry analogous risks.

The Agency noted in the NODA several specific comments made in favor of an outright

prohibition on injection above the lowermost USDW. One comment in particular stated that
- 6 -

injection below the lowermost USDW is a long-standing principle of UIC deep well injection

and that, as a result, injection under the proposed Class VI regulations should be so limited. This

comment fails to take into account the decades of experience with injection above the lowermost

USDW in the context of Class II wells which have been specifically designed to inject CO2 for

purposes of enhanced oil recovery. Further, as explained in NACCSA’s prior comments, CO2

injection and storage projects are not analogous to the injection of hazardous wastes. Injection

limitations that may be appropriate for such substances do not necessarily translate (if at all) to

the GS context. A second comment noted that given the relatively untested nature of

commercial-scale GS, injection limitations are prudent during the early years and may be relaxed

later should experience warrant. While NACCSA does not disagree that GS rules may

appropriately be tailored as expertise is gained through experience, imposing injection depth

limitations across the board is unnecessary and counterproductive, particularly when the EOR

context is considered. EOR projects are likely to be among the “first movers” of CCS projects,

and also perhaps the projects most likely to be sited above the lowermost USDW. Essentially

eliminating them by virtue of blanket prohibitions on receiving formations will prevent the

Agency and the CCS industry as a whole from taking advantage of the experience and

knowledge they will provide.

After consideration of such comments and others, the Agency now proposes an approach that

would retain the prohibition on injection and storage above the lowermost USDW, but provide

for a waiver process to allow injection above the lowermost USDW in circumstances in which

there are “deep USDWs.” NACCSA believes that making siting determinations on a case-bycase basis without any default prohibition would achieve the same level protection for USDW as
- 7 -

imposition of a waiver process without introduction of additional regulatory obstacles for

potential permitees. Nonetheless, NACCSA commends the Agency’s revised proposal for

recognizing that a total ban on injection above the lowermost USDW is not warranted and for

moving in the direction of site-specific analysis. Appropriately crafted, a waiver concept may

allay many concerns associated with a total ban and allow for site- and project-specific

flexibility.

NACCSA encourages the Agency to ensure that any waiver provisions include specific

guidelines for evaluation of and decisions on waiver applications. The NODA includes a list of

topics decision makers could be required to consider, as well as a description of the types of

additional information that may be sought from waiver applicants. While NACCSA understands

that not all decision points at issue in every situation can be specifically catalogued in a

regulation, and that some discretion is appropriately vested in program directors, providing clear

guidelines regarding the waiver process will bring needed certainty and predictability to the

process.

One topic the NODA does not discuss is how the waiver concept might apply to existing (or

future) projects permitted outside of Class VI, in particular Class II CO2-EOR projects, with

injection above the lowermost USDW. As noted above, as originally proposed, the coupling of a

ban on injection above the lowermost USDW with an extremely narrow provision allowing for

“grandfathering” of existing wells (including EOR wells) into the Class VI category only insofar

as well construction requirements are concerned essentially meant that CO2-EOR projects storing

CO2 above the lowermost USDW would have no ability to convert to Class VI status if so

desired. Obtaining a waiver from the deep injection requirement would be absolutely critical for
- 8 -

such a project to achieve Class VI status. NACCSA submits that a preferred approach would be

to provide for “automatic” waivers for these projects, unless the project at issue can be shown to

pose a threat to USDW. Notably, the project would have demonstrated the absence of USDW

endangerment in the original permitting context.

b. Summary of Recent Field Data and Research Studies

The NODA contains discussion of data gathered through three experimental GS projects, as well

as research regarding the potential impacts of CO2 on USDW should CO2 migrate from the

receiving formation (which application of the UIC rules should prevent).2 NACCSA agrees with

the Agency that data gathered through experimental projects and research may properly be used

to shape the course of GS regulation.

NACCSA further submits that in evaluating the techniques employed in these projects and the

data gathered from them, the Agency should retain the context in mind. The NODA’s discussion

of the three regional partnership projects, for example, emphasizes their use of tracers and/or

surface air/soil gas monitoring to detect CO2 movement (or lack thereof). While testing of these

technologies is undoubtedly beneficial, the NODA’s language seems to imply that the Agency

favors employing requirements for their use in Class VI projects. The proposed regulations

likewise proposed granting discretion to the program director to require the use of tracers and/or

surface air/soil gas monitoring. As detailed in NACCSA’s prior comments, this proposal is

problematic for several reasons, even where discretion is retained in the program director. While

the use of many technologies, including tracers and surface air/soil gas monitoring, may be

2

It is notable that even assuming that the UIC rules would fail to protect against impacts to USDW, the majority of

results showed USDW within acceptable drinking water standards.
- 9 -

appropriate and useful in the context of an experimental project, such use does not militate in

favor of a requirement to use the technologies in a commercial context. NACCSA encourages

the Agency to give full consideration to the numerous other provisions proposed for the

protection of USDW.

c. Comprehensive Regulatory Framework for GS

As noted in NACCSA’s prior comments, issues related to long-term liability and property rights

potentially associated with CCS projects will remain to be resolved despite the Agency’s UIC

rulemaking efforts, and resolution of those issues may be critical to initiation of CCS progress.

The NODA’s recognition of these and other issues related to CCS projects, including potential

issues arising under the Clean Air Act, RCRA, and CERCLA,3and its statement that the Agency

“is currently evaluating the need for a more comprehensive regulatory framework,” is notable

and appreciated in this regard. EPA’s efforts will raise stakeholder and policy maker awareness

on these critical issues so necessary to the successful commercial deployment of CCS.

NACCSA also notes the importance of a single framework, to the extent possible, for CCS.

While separate regulatory structures for CCS are to some extent necessary—and the UIC

context, in which the Agency’s authority is statutorily limited, provides a good example—the

Agency is encouraged to approach regulation holistically and avoid piecemeal regulation. We

note that Agency’s final rule on Mandatory Reporting of Greenhouse Gases (Docket ID No.

EPA-HQ-ORA-2008-0508), released on September 22, 2009, references the Agency’s intent to

“issue a new proposal” on GS, and that its proposed changes to the Renewable Fuel Standard

3 NACCSA’s previous comments include a discussion of regulatory and liability issues related to potential

application of CERCLA and RCRA to the GS context and the need for their separate treatment by the Agency.
- 10 -

(RFS) Program (Docket ID No. EPA-HQ-OAR-2005-0161), 74 Fed. Reg. 24904 (May 26,

2009), also implicates potential regulatory requirements for CCS, bringing these concerns of

piecemeal regulation closer to reality. NACCSA would welcome the opportunity to work with

EPA in crafting comprehensive provisions for CCS.

The NODA also states that should the Agency decide to pursue a comprehensive regulatory

framework for CCS, it will “endeavor to issue a more comprehensive rule in the same time frame

as it had planned for the stand-alone UIC GS rulemaking.” NACCSA agrees with the Agency

that providing regulatory clarity on all possible issues at the outset is ideal.

d. State Progress

The NODA seeks comment on “current State activities addressing GS,” recognizing their pacesetting progress on CCS issues and its desire not to “unduly hinder” such progress. The NODA

also mentions the “expertise and infrastructure” currently embodied in state programs. Of

course, states have decades of experience and expertise dealing with the underground injection of

CO2 in the EOR context, and, as NACCSA has previously commented, this experience and

expertise should be maximized in the CCS context by allowing states substantial authority

through delegated programs.4 Beyond the EOR context, however, and as the NODA notes,

numerous states have made great progress in addressing the gamut of issues related to CCS,

including issues related to property rights and long term assumption of/release from liability.

4 As previously noted, states should be given the option of obtaining primacy for only those well classes desired. A

state with a history of primacy for Class II wells, for example, may want to parlay its experience and expertise into a

Class VI program, but may not gain similar efficiencies if required to also accept primacy for other well classes with

which it has little or no experience. Further, allowing primacy for Class VI wells alone would reward states for their

foresight and action on CCS-related issues.
- 11 -

NACCSA encourages the Agency to consider the states’ solutions to these key issues in

developing any comprehensive regulatory framework.

IV. Conclusion

NACCSA appreciates the opportunity to participate in this vital rulemaking process. Should the

Agency have any questions regarding these comments, please contact:

Michael Moore

Executive Director, NACCSA

c/o BlueSource

3165 East Millrock Drive

Suite 340

Holladay, Utah 84121

801.322.4750

mmoore@bluesource.com
Letter ID: 0362  

Commenter: Michael Moore  

Organization: North American Carbon Capture and Storage Association (NACCSA)  

Letter ID: 0362 Comment ID: 28257 Letter Lines: 57 to 68  

Comment Code: 5000 5. Comments on the Proposed Rule (out of NODA Scope)  

Comment: II. General Principles and Summary of Key Points  

NACCSA applauds the Agency's initiative and continued efforts to bring  

regulatory certainty to the GS context as evidenced by the Agency's proposed UIC  

rules. As noted in the Preamble to the proposed rules, CCS holds the promise of  

storing large volumes of carbon dioxide in geologic formations such as deep  

saline formations, depleting and depleted oil & natural gas reservoirs,  

unmineable coal seams and similar geologic structures, and thus can play a  

central role as an emissions mitigation tool. Additionally, NACCSA members view  

carbon dioxide as a central component in the enhanced recovery of oil and  

natural gas and recognize that it is capable of being responsibly stored as part  

of this process.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is outside the

scope of the Notice of Data Availability. Please see responses to comments on the proposed rule for

EPA’s response to similar comments.  

Letter ID: 0362 Comment ID: 28258 Letter Lines: 69 to 84  

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

Comment: The realization of CCS's full potential depends upon development of clear, yet  

flexible, regulations. In particular, appropriate provisions related to project  

siting are important to achieve the twin goals of facilitating development of  

commercial CCS projects, including EOR projects, and simultaneously protecting  

against threats to underground sources of drinking water (USDW). The NODA's  

contemplated changes to the proposed rules' ban on injection above the lowermost  

USDW, which would allow such injection where a waiver is obtained, mark a step  

in the direction of this needed flexibility. While NACCSA would prefer  

individualized siting decisions that include no predetermined limitations on  
receiving formations, NACCSA commends the Agency's efforts to allow for  

consideration of site‐ and project‐specific factors in siting GS projects  

through this concept of a waiver. NACCSA also submits specific comments  

regarding how flexibility and clarity may best be achieved and suggested  

improvements to the waiver concept, in particular improvements needed to provide  

support for EOR projects, should the Agency decide to retain the prohibition on  

injection above the lowermost USDW as a default concept.  

Individual Response: 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 agrees that a flexible, site‐specific

approach to waiver determinations (and all Class VI permitting decisions) is appropriate. Site‐specific

demonstrations of injection zone integrity along with proper well construction, operation, monitoring,

and post closure site care are the best way to ensure USDW safety while allowing flexibility for GS above

or between USDWs. EPA believes that the additional requirements that apply to owners or operators of

Class VI wells granted a waiver of the injection depth requirements will provide additional

considerations for the owner or operator and Director when permitting such wells to ensure protection

of all USDWs.  

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.  

For additional information on transitioning Class II wells for GS, see the preamble to the final rule and

the responses to comments on the proposed GS rule.  

Letter ID: 0362 Comment ID: 28259 Letter Lines: 86 to 91  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: In addition to specific comments on the Agency's proposed revisions to the  

siting provisions, NACCSA offers specific comments on the Agency's project and  

research updates. NACCSA further offers support for the concept of a  

comprehensive regulatory framework for CO2 capture and storage and for  

recognizing and rewarding state efforts to move forward with bringing regulatory  
certainty to CCS.  

Individual Response: EPA acknowledges that GS falls within the broader context of CCS and the need for

regulatory clarity to ensure that USDWs are protected from endangerment. In developing the final GS

rule, the Office of Water coordinated with other Agency program offices and across federal agencies

(e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy

Management, Regulation, and Enforcement, formerly the Minerals Management Service; Bureau of

Land Management). The Agency continues to evaluate areas of potential applicability of other Federal

environmental statutes including, but not limited to: the Clean Air Act; the Resource Conservation and

Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the

Marine Protection, Research and Sanctuaries Act to various aspects of GS and CCS. The Agency will

continue to coordinate on GS and CCS related issues to minimize redundancy and maximize efficiencies

for owners or operators. For additional information, please see the discussion entitled "How Does This

Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to the final

GS rule.  

Letter ID: 0362 Comment ID: 28260 Letter Lines: 93 to 121  

Comment Code: 3410 3.4.1. Applicability of Waiver Process to Deep Saline and Other Types of

Formations (seeking comment)  

Comment: III. Specific Comments  

a. Project Siting  

The proposed regulations as originally issued would not permit project operators  

to inject and store CO2 above the lowermost formation containing a USDW. As  

explained in its prior comments, NACCSA believes that a categorical elimination  

of receiving formations is unnecessary and undesirable. Rather, the  

appropriateness of any given receiving formation ‐ as with the bulk of issues  

related to the siting of projects ‐ should be considered on a case‐by‐case basis  

in light of the geologic characteristics of a given project and based on the  

application of clear and appropriate parameters set forth in the rules.  

Categorically eliminating a set of potential receiving formations is simply  

unnecessary in light of the overall function of the UIC rules. As a general  

proposition, permit applicants must demonstrate that projects will not endanger  

USDW; permit applicants for CO2 injection and storage projects would be held to  

the same standard. The proposed rules would require permit applicants to  

demonstrate that the project will be sited in areas with a "suitable geologic  

system," consisting of an injection zone of sufficient areal extent, thickness,  

porosity, and permeability to receive the total anticipated volume of injectate,  
as well as a confining zone free of transmissive faults or fractures and  

sufficient to contain the injected stream and any displaced fluids, considering  

the proposed maximum pressures and volumes of injection, without fracturing. It  

is NACCSA's view that if the "suitable geologic system" contains confining zones  

above and below the injection formation that will not allow the endangerment of  

USDW, injection above a USDW should be allowed because the system will still  

meet the groundwater protection requirements of the UIC program. The fact that  

permit applications would be considered based on site specific information would  

mean that the regulator could evaluate whether individual projects would be  

protective of groundwater regardless of their depth with respect to USDW.  

Individual Response: EPA agrees and clarifies that the GS rule does not categorically preclude or

prohibit injection into any type of formation. EPA believes that the requirements that allow owners or

operators to seek waivers from the injection depth requirements at §146.95, along with proper siting,

well construction, operation, monitoring, and post‐injection site care pursuant to the GS rule

requirements will ensure USDW protection.

EPA recognizes that some types of formations, such as coal seams and basalts, are typically shallow and

above the lowermost USDW. The Agency expects that injection for GS into these shallow formations can

be issued waivers and permitted as Class VI wells, provided their owners or operators can meet all of the

requirements at §146.95 and demonstrate that such injection can be performed in a manner that

protects USDWs.  

Letter ID: 0362 Comment ID: 28261 Letter Lines: 123 to 143  

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

Comment: Further, a blanket exclusion will hinder the ability of existing and possibly  

future Class I, II, and V projects to convert to Class VI projects. The proposed  

"grandfathering" provision for existing wells, as currently drafted, is limited  

to well construction and does not include any provision for projects to be  

grandfathered in to new siting provisions for Class VI wells. Thus, the  

regulations would exclude from the scope of potential grandfathering all  

projects that do not inject below the lowermost USDW. Such projects would have  

no ability to convert to Class VI GS projects. NACCSA believes that, in  

particular, EOR operations using CO2 should be allowed to transition to  

dedicated storage‐only operations, if desired, where certain requirements are  

met. Regulations that essentially prevent them from doing so where injection has  

occurred above the lowermost USDW would greatly disincentivize many projects  

that would otherwise be likely to go forward and hamper commercialization of  
CCS. And creation of such a disincentive is unnecessary because the wells at  

issue would have been designed and constructed specifically with injection of  

CO2 and the protection of USDW in mind.  

Finally, a complete ban on injections to only those formations below the  

lowermost USDW‐ currently in place only for Class I hazardous waste injection  

wells‐is likely to create a public misimpression that CO2 injection wells are  

analogous to hazardous waste injection wells and carry analogous risks.  

Individual Response: EPA agrees 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 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. For additional

information on grandfathering of Class I and Class II wells, see the preamble to the final rule and the

responses to comments on the proposed GS rule.  

Letter ID: 0362 Comment ID: 28262 Letter Lines: 145 to 166  

Comment Code: 3130 3.1.3. Addressing the Differences Between Class II and Class VI Wells  

Comment: The Agency noted in the NODA several specific comments made in favor of an  

outright prohibition on injection above the lowermost USDW. One comment in  

particular stated that injection below the lowermost USDW is a long‐standing  

principle of UIC deep well injection and that, as a result, injection under the  

proposed Class VI regulations should be so limited. This comment fails to take  

into account the decades of experience with injection above the lowermost USDW  

in the context of Class II wells which have been specifically designed to inject  

CO2 for purposes of enhanced oil recovery. Further, as explained in NACCSA's  

prior comments, CO2 injection and storage projects are not analogous to the  

injection of hazardous wastes. Injection limitations that may be appropriate for  

such substances do not necessarily translate (if at all) to the GS context. A  

second comment noted that given the relatively untested nature of commercial‐  
scale GS, injection limitations are prudent during the early years and may be  

relaxed later should experience warrant. While NACCSA does not disagree that GS  

rules may appropriately be tailored as expertise is gained through experience,  

imposing injection depth limitations across the board is unnecessary and  

counterproductive, particularly when the EOR context is considered. EOR projects  

are likely to be among the "first movers" of CCS projects, and also perhaps the  

projects most likely to be sited above the lowermost USDW. Essentially  

eliminating them by virtue of blanket prohibitions on receiving formations will  

prevent the Agency and the CCS industry as a whole from taking advantage of the  

experience and knowledge they will provide.  

Individual Response: EPA agrees 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. The purpose of the injection

depth waiver requirements is to ensure protection of USDWs while allowing the use of GS capacity

above and between USDWs if a site is suitable and all Class VI requirements are met.  

The Agency believes the waiver approach accommodates injection into different formation types,

including depleting oil and gas fields where injection is above the lowermost USDW, and considers the

concept that CO2 injection for GS above and/or between USDWs could be as safe and effective as

injection below the lowermost USDW as evidenced by past experiences with Class II wells.

EPA acknowledges that Class II well operators have decades of experience injecting CO2. However, EPA

believes that significant operational differences between Class II wells and Class VI wells to warrant

tailored requirements for GS.  

Letter ID: 0362 Comment ID: 28263 Letter Lines: 168 to 179  

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

Comment: After consideration of such comments and others, the Agency now proposes an  

approach that would retain the prohibition on injection and storage above the  

lowermost USDW, but provide for a waiver process to allow injection above the  

lowermost USDW in circumstances in which there are "deep USDWs." NACCSA believes  

that making siting determinations on a case‐by‐ case basis without any default  

prohibition would achieve the same level protection for USDW as imposition of a  

waiver process without introduction of additional regulatory obstacles for  

potential permitees. Nonetheless, NACCSA commends the Agency's revised proposal  

for recognizing that a total ban on injection above the lowermost USDW is not  
warranted and for moving in the direction of site‐specific analysis.  

Appropriately crafted, a waiver concept may allay many concerns associated with  

a total ban and allow for site‐ and project‐specific flexibility.  

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 agrees that a flexible, site‐specific approach to waiver

determinations (and all Class VI permitting decisions) is appropriate. Site‐specific demonstrations of

injection zone integrity along with proper well construction, operation, monitoring, and post closure site

care are the best way to ensure USDW safety while allowing flexibility for GS above or between USDWs.

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

granted a waiver of the injection depth requirements will provide additional considerations for the

owner or operator and Director when permitting such wells to ensure protection of all USDWs.  

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: 0362 Comment ID: 28264 Letter Lines: 181 to 189  

Comment Code: 3300 3.3. Comments on Specific Elements of the Waiver Approach  

Comment: NACCSA encourages the Agency to ensure that any waiver provisions include  

specific guidelines for evaluation of and decisions on waiver applications. The  

NODA includes a list of topics decision makers could be required to consider, as  

well as a description of the types of additional information that may be sought  

from waiver applicants. While NACCSA understands that not all decision points at  

issue in every situation can be specifically catalogued in a regulation, and  

that some discretion is appropriately vested in program directors, providing  

clear guidelines regarding the waiver process will bring needed certainty and  

predictability to the process.  
Individual Response: EPA is developing guidance on the injection depth waiver process. The guidance

describes the recommended approach an owner or operator may follow when submitting a waiver

application, processing waiver applications by the UIC and PWSS Program Directors, and additional

considerations that may apply to projects that have been issued waivers. This guidance will be available

on EPA’s website at water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.  

Letter ID: 0362 Comment ID: 28265 Letter Lines: 191 to 204  

Comment Code: 3130 3.1.3. Addressing the Differences Between Class II and Class VI Wells  

Comment: One topic the NODA does not discuss is how the waiver concept might apply to  

existing (or future) projects permitted outside of Class VI, in particular Class  

II CO2‐EOR projects, with injection above the lowermost USDW. As noted above, as  

originally proposed, the coupling of a ban on injection above the lowermost USDW  

with an extremely narrow provision allowing for "grandfathering" of existing  

wells (including EOR wells) into the Class VI category only insofar as well  

construction requirements are concerned essentially meant that CO2‐EOR projects  

storing CO2 above the lowermost USDW would have no ability to convert to Class  

VI status if so desired. Obtaining a waiver from the deep injection requirement  

would be absolutely critical for such a project to achieve Class VI status.  

NACCSA submits that a preferred approach would be to provide for "automatic"  

waivers for these projects, unless the project at issue can be shown to pose a  

threat to USDW. Notably, the project would have demonstrated the absence of USDW  

endangerment in the original permitting context.  

Individual Response: EPA disagrees that an "automatic" waiver is appropriate where wells are

grandfathered. However, EPA agrees 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. The purpose of the

injection depth waiver requirements is to ensure protection of USDWs while allowing the use of GS

capacity above and between USDWs if a site is suitable and all Class VI requirements are met.  

EPA clarifies that owners or operators seeking waivers from the injection depth requirements must

provide additional information to ensure USDW protection. Specifically, they must submit a

supplemental report (the GS Class VI injection depth waiver application report) referenced at §146.82(d)

and outlined at §146.95(a) with additional, site‐specific information including: additional information

about the injection zone; identification of confining units above and below the injection zone; tailored

AoR modeling above and below the injection zone; a demonstration that well design is appropriate and
protective of USDWs, in lieu of specific requirements at §146.86; a description of how monitoring will be

tailored for injection above/between USDWs; and information about public water supplies in the AoR.

EPA clarifies that owners or operators of GS/ER projects that were formerly classified as Class II that

seek to be permitted as Class VI injection wells would also need to demonstrate to the Director that the

wells were engineered and constructed to achieve the goals of §§146.86(b) and 147.87(a) and ensure

protection of USDWs. This demonstration would be separate from the waiver application process at

§146.95. For additional information on grandfathering requirements, see the preamble to the final rule

and the responses to comments on the proposed GS rule.  

Letter ID: 0362 Comment ID: 28266 Letter Lines: 206 to 233  

Comment Code: 2100 2.1 DOE Regional Carbon Sequestration Partnership Projects  

Comment: b. Summary of Recent Field Data and Research Studies  

The NODA contains discussion of data gathered through three experimental GS  

projects, as well as research regarding the potential impacts of CO2 on USDW  

should CO2 migrate from the receiving formation (which application of the UIC  

rules should prevent) [FOOTNOTE 2]. NACCSA agrees with the Agency that data  

gathered through experimental projects and research may properly be used to  

shape the course of GS regulation.  

FOOTNOTE 2: It is notable that even assuming that the UIC rules would fail to  

protect against impacts to USDW, the majority of results showed USDW within  

acceptable drinking water standards.  

NACCSA further submits that in evaluating the techniques employed in these  

projects and the data gathered from them, the Agency should retain the context  

in mind. The NODA's discussion of the three regional partnership projects, for  

example, emphasizes their use of tracers and/or surface air/soil gas monitoring  

to detect CO2 movement (or lack thereof). While testing of these technologies is  

undoubtedly beneficial, the NODA's language seems to imply that the Agency  

favors employing requirements for their use in Class VI projects. The proposed  

regulations likewise proposed granting discretion to the program director to  

require the use of tracers and/or surface air/soil gas monitoring. As detailed  

in NACCSA's prior comments, this proposal is problematic for several reasons,  

even where discretion is retained in the program director. While the use of many  

technologies, including tracers and surface air/soil gas monitoring, may be  

appropriate and useful in the context of an experimental project, such use does  

not militate in favor of a requirement to use the technologies in a commercial  
context. NACCSA encourages the Agency to give full consideration to the numerous  

other provisions proposed for the protection of USDW.  

Individual Response: EPA acknowledges that the pilot sites studied involved extensive monitoring that

may not necessarily be appropriate for all GS sites. However, EPA believes that a robust monitoring

program is critical to ensuring protection of USDWs at GS projects from endangerment, but clarifies that

the use of any monitoring technique in the pilot projects does not amount to an endorsement by EPA or

an intent by EPA to require that particular method. By testing multiple technologies, the pilot sites

provide valuable data that demonstrate whether or not these technologies are viable and informed the

final GS rule about the appropriate use of monitoring technologies.

EPA acknowledges that the appropriate monitoring methods and technologies will be determined on a

site‐specific basis. Data from the projects presented supports the need for a site‐specific monitoring

plan that will allow use of a range of monitoring technologies suitable for each unique GS site.

EPA recognizes that certain monitoring technologies, particularly surface air and soil gas monitoring and

tracers are subject to variability and may not be appropriate or necessary in all settings. The GS rule at

146.90 gives the Director discretion to determine what methods are appropriate. All monitoring must be

performed according to the Director‐approved testing and monitoring plan. See the response to

comments document for the proposed rule for additional information on EPA’s final approach to

monitoring at GS sites.  

Letter ID: 0362 Comment ID: 28267 Letter Lines: 236 to 270  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: c. Comprehensive Regulatory Framework for GS  

As noted in NACCSA's prior comments, issues related to long‐term liability and  

property rights potentially associated with CCS projects will remain to be  

resolved despite the Agency's UIC rulemaking efforts, and resolution of those  

issues may be critical to initiation of CCS progress. The NODA's recognition of  

these and other issues related to CCS projects, including potential issues  

arising under the Clean Air Act, RCRA, and CERCLA,[FOOTNOTE 3] and its statement  

that the Agency "is currently evaluating the need for a more comprehensive  

regulatory framework, is notable and appreciated in this regard. EPA's efforts  

will raise stakeholder and policy maker awareness on these critical issues so  

necessary to the successful commercial deployment of CCS.  

FOOTNOTE 3 NACCSA's previous comments include a discussion of regulatory and  

liability issues related to potential application of CERCLA and RCRA to the GS  
context and the need for their separate treatment by the Agency.  

NACCSA also notes the importance of a single framework, to the extent possible,  

for CCS. While separate regulatory structures for CCS are to some extent  

necessary ‐ and the UIC context, in which the Agency's authority is statutorily  

limited, provides a good example ‐ the Agency is encouraged to approach  

regulation holistically and avoid piecemeal regulation. We note that Agency's  

final rule on Mandatory Reporting of Greenhouse Gases (Docket ID No. EPA‐HQ‐  

ORA‐2008‐0508), released on September 22, 2009, references the Agency's intent  

to "issue a new proposal" on GS, and that its proposed changes to the Renewable  

Fuel Standard (RFS) Program (Docket ID No. EPA‐HQ‐OAR‐2005‐0161), 74 Fed. Reg.  

24904 (May 26, 2009), also implicates potential regulatory requirements for CCS,  

bringing these concerns of piecemeal regulation closer to reality. NACCSA would  

welcome the opportunity to work with EPA in crafting comprehensive provisions  

for CCS.  

The NODA also states that should the Agency decide to pursue a comprehensive  

regulatory framework for CCS, it will "endeavor to issue a more comprehensive  

rule in the same time frame as it had planned for the stand‐alone UIC GS  

rulemaking." NACCSA agrees with the Agency that providing regulatory clarity on  

all possible issues at the outset is ideal.  

Individual Response: EPA acknowledges that GS falls within the broader context of CCS and the need for

regulatory clarity to ensure that USDWs are protected from endangerment. In developing the final GS

rule, the Office of Water coordinated with other Agency program offices and across federal agencies

(e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy

Management, Regulation, and Enforcement, formerly the Minerals Management Service; Bureau of

Land Management). The Agency continues to evaluate areas of potential applicability of other Federal

environmental statutes including, but not limited to: the Clean Air Act; the Resource Conservation and

Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the

Marine Protection, Research and Sanctuaries Act to various aspects of GS and CCS. The Agency will

continue to coordinate on GS and CCS related issues to minimize redundancy and maximize efficiencies

for owners or operators. For additional information, please see the discussion entitled "How Does This

Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to the final

GS rule.  

Letter ID: 0362 Comment ID: 28268 Letter Lines: 272 to 293  

Comment Code: 4000 4. Comments on Current State GS Activities (seeking comment)  
Comment: d. State Progress  

The NODA seeks comment on "current State activities addressing GS," recognizing  

their pace‐ setting progress on CCS issues and its desire not to "unduly hinder"  

such progress. The NODA also mentions the "expertise and infrastructure"  

currently embodied in state programs. Of course, states have decades of  

experience and expertise dealing with the underground injection of CO2 in the  

EOR context, and, as NACCSA has previously commented, this experience and  

expertise should be maximized in the CCS context by allowing states substantial  

authority through delegated programs.[FOOTNOTE 4] Beyond the EOR context,  

however, and as the NODA notes, numerous states have made great progress in  

addressing the gamut of issues related to CCS, including issues related to  

property rights and long term assumption of/release from liability.  

FOOTNOTE 4: As previously noted, states should be given the option of obtaining  

primacy for only those well classes desired. A state with a history of primacy  

for Class II wells, for example, may want to parlay its experience and expertise  

into a Class VI program, but may not gain similar efficiencies if required to  

also accept primacy for other well classes with which it has little or no  

experience. Further, allowing primacy for Class VI wells alone would reward  

states for their foresight and action on CCS‐related issues. NACCSA encourages  

the Agency to consider the states' solutions to these key issues in developing  

any comprehensive regulatory framework.  

Individual Response: EPA agrees that states should be allowed to obtain primacy for Class VI wells

independent of other well classes. 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. 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. For additional information on primacy, please see the

preamble to the final rule and responses to comments on the proposed GS rule.