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 16, 2009 

Via Email 

Water Docket 

Environmental Protection Agency 

Mailcode: 4101T 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

 

RE: Comments on Federal Requirements Under the Underground Injection 

Control Program for Carbon Dioxide Geological Sequestration Wells; 

Notice of Data Availability and Request for Comment; 

 Docket ID No. EPA-HQ-OW-2008-0390-0001 

Dear Environmental Protection Agency, 

Thank you for the opportunity to review the Notice of Data Availability 

(“NODA”) regarding the proposed regulations concerning the Underground 

Injection Control (“UIC”) Program for carbon dioxide (“CO2”) geological 

sequestration wells. Please accept the following comments submitted on behalf of 

the Sierra Club including chapters, groups and its members throughout the nation. 

Sierra Club continues to believe that that Carbon Capture and Sequestration 

(“CCS”) could play an important role in allowing deep greenhouse gas emission 

reductions from electric generation and industrial facilities. Scientists agree that in 

order to avoid the worst consequences of climate change, the United States must cut 

greenhouse gas emissions at least 80 percent below 2000 levels by 2050.1 The scale 

of CCS projects necessary in the electricity sector to achieve this objective is 

enormous. 

However, to have any meaningful role in curbing greenhouse gas emissions, 

CCS projects must proceed quickly while cognizant that there is no room for 

missteps. A team of international experts recently explained that “a single major 

 

1 Luers, A.L. et al. 2007, How to Avoid Dangerous Climate Change: A target for U.S. emissions 

reductions. Union of Concerned Scientists, online at 

http://www.ucsusa.org/assets/documents/global_warming/emissions-target-report.pdf
 Page 2 of 9 

accident, resulting from inadequate regulatory oversight, anywhere in the world, 

could seriously endanger the future viability of GS [geologic sequestration].”2 In 

order to ensure that there are no missteps, Sierra Club recommends a few critical 

changes to the proposed rule and the changes specified in the NODA. 

I. Class VI Wells Should Be Permitted Only in Oil and Gas 

Reservoirs and Deep Saline Formations. 

EPA has not proposed changes, in the NODA, to any of the regulatory 

language included in the Notice of Proposed Rulemaking. Therefore, Sierra Club 

assumes that the “definitions” included in the NODA are meant for clarity only, and 

do not indicate any intention by the Agency to change those definitions. 

The proposed regulations allow for injection into unmineable coal seams, 

basalts, salt caverns, and shales. The proposed regulations define Class VI as one 

“used for geologic sequestration of carbon dioxide beneath the lowermost formation 

containing an underground source of drinking water (“USDW”).” 73 Fed. Reg. 

43,492, 43,535 (July 25, 2008). As basalts and coal seams are found in areas 

beneath the lowermost USDW, or in areas where there is no USDW, this definition 

allows injection into basalts or coal seams, shallow or otherwise. 

In the NODA, EPA erroneously claims that the definition of a Class VI well 

“[a]s proposed, ... would ... preclude the injection of CO2 into shallow formations 

such as coal seams and basalts.” 74 Fed. Reg. 44,802, 44,808 (Aug. 31, 2009). As we 

noted in our December comments: EPA should revise this definition section to 

prohibit injection into unmineable coal seams, basalts, salt caverns, and shales 

until further studies are completed and CCS potential in these formations is better 

understood. EPA lacks an adequate scientific basis to develop regulations for 

commercial-scale sequestration projects in these formations because “the process of 

CO2 adsorption to coal has not been proven and the chemical reactions of 

supercritical CO2 within coal formations are not well understood.” 73 Fed. Reg. 

43,492, 43,503. Sequestration in coal seams is “an emerging technology that is in 

the demonstration phase.” Id. As far as basalts, shales and salt caverns, EPA has 

noted that their “technical or economic viability as GS sites have not been 

demonstrated.” Id. 

The IPCC CCS report supports EPA’s conclusions and goes a step further, 

concluding that “basalts appear unlikely to be suitable for CO2 storage.”3 The IPCC 

agrees that coalbed storage technology “is not well developed and a better 

understanding of injection and storage processes in coals is needed.”4 

 

2 Wilson, E., Morgan, M. et al., Regulating the Geological Sequestration of CO2, Environmental 

Science & Technology, Apr. 15, 2008, at p. 5. 

3

 IPCC CCS § 5.3.5.1. 4

 IPCC CCS Chapt. 5 Exec. Summary; see also § 5.3.4.
 Page 3 of 9 

Precautionary principles demand that the first Class VI permits are issued 

for injection into geological formations with the greatest degree of scientific 

certainty, where any damages would be minimal – namely, depleted oil and gas 

reservoirs and deep saline formations. Accordingly, initial Class VI wells should not 

include coal seams, basalts, shales, and salt caverns regardless of whether they are 

above or below the deepest USDW. Continued research is appropriate for geological 

sequestration projects in these formations. 

Finally, due to this fundamentally different nature of geological 

sequestration in these formations, if EPA decides not to explicitly prohibit Class VI 

wells in such formations, it must provide substantial evidence of the scientific basis 

on which it bases its belief that the physical processes, operational engineering, and 

risks involved are similar to and/or equally mature as those in saline formations or 

oil/gas reservoirs. Sierra Club believes that such a demonstration is important both 

as a policy matter and a legal matter. 

II. EPA Should Establish a More Comprehensive Regulatory 

Framework. 

 

In the NODA, EPA stated that it had “received a number of comments 

indicating that the Agency should further explore environmental and regulatory 

issues beyond the scope of the proposed SDWA requirements for underground 

injection of CO2 for GS [“geological sequestration”]. EPA recognizes that a more 

comprehensive framework may be needed and that some stakeholders remain 

uncertain with respect to the potential applicability of other Federal environmental 

statutes such as the Clean Air Act, the Resource Conservation and Recovery Act, 

and the Comprehensive Environmental Response, Compensation, and Liability Act 

to various aspects of geologic sequestration of CO2. The Agency is currently 

evaluating the need for a more comprehensive regulatory framework to provide 

legal guidance regarding this emerging technology.” 74 Fed. Reg. 44,805. 

The Sierra Club strongly reiterates the point raised in its December 

comments that it is critical that the agency develop a comprehensive regulatory 

structure for CCS. Given the myriad of risks associated with CCS, Sierra Club 

believes that the Safe Drinking Water Act is not of sufficient scope and 

enforceability to handle a regulatory field as broad as CCS. Specifically, the Safe 

Drinking Water Act only protects “underground sources of drinking of water” and 

any CCS program raises many potential issues other than groundwater impacts. 

EPA acknowledges in the rule:

[t]he SDWA does not provide authority to develop regulations for all areas 

related to GS. These areas include, but are not limited to, capture and 

transport of CO2; determining property rights (i.e., to permit its use for GS 
 Page 4 of 9 

and for possible storage credits); transfer of liability from one entity to 

another; and accounting or certification for greenhouse gas (“GHG”) 

reductions. 

73 Fed. Reg. 43,492, 43,495 (July 25, 2008). 

Sierra Club cannot emphasize strongly enough the absolute need that the 

government regulates CCS in a comprehensive and inclusive manner that accounts 

for all potential environmental and health impacts, and the universe of issues 

involved with large-scale CCS implementation such as capture, transportation and 

pipeline standards, interstate boundary issues, and liability. Moreover, it is simply 

not possible for the government to adequately regulate such a complex process 

through piecemeal regulations. A comprehensive regime, as opposed to a patchwork 

of regulations under different statutes, would be more adaptive to emergent 

information on this budding program as it becomes available. 

Moreover, the Agency should clarify that the rule should specify that an 

intrusion into a USDW is not a “federally permitted release” under CERCLA. EPA 

notes in the preamble to the proposed rule, 73 Fed. Reg. 43,504, that CERCLA 

exempts from liability certain “federally permitted releases, including releases in 

compliance in a UIC permit under the Safe Drinking Water Act.” EPA further notes 

that “Class VI requirements and permits will need to be carefully structured to 

ensure that they do not ‘authorize’ inappropriate hazardous releases.” EPA should 

go further and effectively prohibit Class VI permit conditions that would make the 

“federally permitted release” defense available should injected fluids or displaced 

formation fluids enter or endanger USDWs. This prohibition should be added to 

Subpart E – Permit Conditions, or to any other appropriate section of the rule. 

 

III. Research, Data Analysis and Findings 

A. The Lawrence Berkeley National Laboratory Study of Ground Water 

Quality Changes Related to the Mobilization of Trace Elements 

Demonstrates the Need that EPA model the Regulations on the 

Precautionary Principle. 

The Lawrence Berkeley National Lab (“LBNL”) used a comprehensive 

computational model to evaluate the potential impact of CO2 leaking from deep 

geologic sequestration sites on the concentrations of trace elements in potable 

ground waters. 74 Fed. Reg. at 44,807. “Results of this modeling obtained for typical 

aquifers under reducing conditions indicate that arsenic could potentially exceed 

Federal drinking water standards at elevated CO2 concentrations (40 CFR 141.62 

(b)(16)).” Id. 
 Page 5 of 9 

The results of this study stress the need for continuous monitoring and 

reporting, as is currently required under the proposed rules. The purpose of the 

Safe Drinking Water Act is to protect “underground sources of drinking of water.” 

Since it is documented that CO2 leakages could lead to a violation of the drinking 

water standards and threaten public health, the EPA should ensure that the final 

rules continue to require continuous monitoring and reporting to ensure that 

USDWs are protected. 

B. LBNL Study of Basin-Scale Hydrologic Impacts of CO2 Sequestration 

Demonstrates the Need that EPA Administer this Regulatory Program

because of Interstate Basin Issues. 

In addition, the LBNL studied a hypothetical, future scenario of geological 

sequestration in a sedimentary basin as an illustrative example to demonstrate the 

potential for basin-scale hydrologic impacts of CO2 storage. 74 Fed. Reg. 44,808. The 

LBNL study indicated that “far-field pressure changes could propagate as far away 

as 200 km (124 miles) from the core injection area where the geologic sequestration 

projects are located.” Id. “After CO2 injection ended in the simulation, pressure 

buildup in the injection zone began to dissipate while the far-field pressure response 

continued to increase and expand. For this simulation example, a pressure increase 

of 0.5 bar existed at an areal extent of nearly 400 km by 400 km (249 miles by 249 

miles) after 50 years. These model results indicate that basin-wide pressure 

influences can be large and may have intersecting pressure perturbations in a 

multiple-site scenario.” Id. 

The results of the LBNL study of basin-scale hydrologic impacts of CO2

sequestration highlighted in the NODA demonstrate the potential for interference 

of far-field pressures in large-scale geological sequestration deployment. The results 

of this study underscore the need to have one central agency, the EPA, administer 

this program. Basin boundaries do not line up with state boundaries. Under the 

proposed regulations, if a basin covers multiple states, numerous state agencies 

would have authority to permit injections into the same basin. However, the 

proposed regulations do not require any interstate collaboration to account for 

interstate basin issues, such as basin wide pressure changes. The best way to 

ensure that interstate boundary issues, such as far-field pressure changes in a 

basin, are taken into account is to have one central agency issue all CCS permits. 

IV. EPA Should Not Provide States with the Discretion to Allow CO2 

Injection Above the Lowermost Formation Containing a USDW 

and Other Issues. 

 

A. Injection into coal seams and basalts 
 Page 6 of 9 

In the original proposed rule, EPA required that injection of CO2 must occur 

beneath the lowermost formation containing a USDW. In the NODA, EPA proposes 

possibly creating a waiver process so that injection could occur above or between 

USDWs. 74 Fed. Reg. at 44,810. One of the reasons provided by the EPA regarding 

why this waiver process is appropriate is because “as proposed, the definition would 

also preclude injection of CO2 into shallow formations such as coal seams and 

basalts.” 74 Fed. Reg, at 44,808. 

First, as noted above, the EPA’s statement that the current regulations 

prohibit injection into coal seams and basalts is wrong because the currently 

proposed definition of a Class VI wells allows injection unmineable coal seams, 

basalts, salt caverns, and shales. See proposed 40 C.F.R. §§ 144.6(f), 144.80(f) 

146.5(f) at 73 Fed. Reg. 43,534-43,535. 

Second, the EPA should not create a waiver process that allows injection 

above or between USDWs to promote injection into coal seams and basalts as these 

formations are not appropriate injection formations. As discussed above and in our 

previous comments there is no significant prior experience or consensus on how to 

assess and manage risks, what data is needed to characterize sites, how to select 

sites, how to conduct and manage injection operations, how to model the behavior of 

CO2, and how to monitor project performance of CO2 sequestration in basalts, coal 

seams, salt caverns and shales. The trapping mechanisms of CO2 and/or the 

operational engineering involved in such operations is significantly different from 

those in deep saline formations and hydrocarbon reservoirs. We simply do not know 

at this time whether sequestration (or even injection in some cases) can even be 

done at scale in such formations. Therefore, the EPA should not change the 

prohibition on injections above USDWs to promote use of these sites. 

B. If the EPA Allows Injection Above the Lowermost USDW, then EPA

Should Not Provide States Waiver Discretion and Should Require 

Public Participation.

In the NODA, EPA states that it may be appropriate to create a waiver 

process that would allow injection above the lowermost USDW. 74 Fed. Reg. at 

44,810. At this time, Sierra Club takes no position regarding whether it is 

appropriate to allow injection above USDWs. However, Sierra Club notes two 

problems with the proposed inclusion of the waiver. 

First, if the EPA decides to allow for a waiver process, it should not allow 

states the discretion to issue a waiver. Instead, the EPA itself should administer 

any waiver program with the assistance of a CCS technical advisory committee, a 

proposal the Sierra Club discussed in depth in our December comments. 
 Page 7 of 9 

In the NODA, EPA states that the “owner or operator would be required to 

demonstrate to regulatory authorities that such injection can be undertaken and 

completed in a manner that prevents fluid movement into overlying (and 

underlying) USDWs.” 74 Fed. Reg. at 44,810. State regulatory authorities are not 

properly equipped to demonstrate that injection will not lead to fluid movement into 

USDWs. Permit decisions require evaluation of many complicated technical issues 

that demand a high level of expertise and there are scores of uncertainties at this 

early stage of CCS development. There is also cause for concern over the capacity 

and competency of some state regulatory agencies to properly regulate a CCS 

program. State permitting decisions can contradict science and logic and produce 

dangerous results for local health and welfare. For instance, the Florida 

Department of Environmental Protection approved the construction and operation 

of a facility designed to inject more than 112 million gallons of treated sewage a 

day, erroneously believing that the subsurface geology would prevent the injected 

sewage from migrating into the overlying Floridan Aquifer. Most experts agreed 

that the injection program should not have been permitted, and eventually the 

injected sewage migrated upward into the Floridan Aquifer. Even after evidence of 

contamination was well-established, Florida continued to expand its injection 

program. The Florida program was supposed to prevent the migration of sewage 

into overlying USDWs. Given such track records, states should not have the 

discretion to issue waivers for injection above the lowermost USDWs. 

Second, if the EPA allows for a waiver process, the EPA should ensure that 

waiver decisions are subject to public notice and comment. EPA should ensure that 

the final rule includes ample public involvement at the earliest possible stage of a 

waiver decision to gain public trust and acceptance of its decisions. This gives the 

community time to process the complicated and voluminous information involved in 

a siting and waiver decision. It also will mitigate some controversial issues and 

potentially avoid litigation and other delays. 

As Sierra Club noted in its December comments, public acceptance of CCS is 

a major issue. Innumerable reports and recommendations from the federal 

government and top scientists, institutions and workgroups stress that the success 

of a CCS program will depend heavily on public acceptance. The National Academy 

of Sciences cautioned “the storage program cannot be successful if a significant 

fraction of the public views it as dangerous or unacceptable. Thus, CCS technologies 

must not only be safe and effective, it must be explainable to the public in such as 

way as to instill confidence that they are in fact safe and effective.”5 The 

International Risk Governance Council recommends that regulatory frameworks 

must include “effective risk communication to engage and educate the public, 

involve all stakeholders in risk-related decisions, and build confidence in the 

 

5

 U.S. GAO Report. CLIMATE CHANGE: Federal Actions will Greatly Affect the Viability of Carbon Capture and 

Storage As a Key Mitigation Option, GAO-08-1080, September 2008 (quoting National Academy of Sciences, 

Prospective Evaluation). 
 Page 8 of 9 

institutions governing CCS.”6 The Clean Air Act Advisory Committee’s Advanced 

Coal Technology Work Group’s January 2008 report similarly highlighted the need 

for public outreach.7 The need to gain public acceptance will be especially crucial 

with early projects. Since injection above USDWs are likely to be more 

controversial, EPA should mitigate anticipated controversy by requiring that draft 

waiver decisions are subject to public notice and comment. 

V. EPA Should Administer the CCS Program Rather than States. 

In the NODA, EPA stated that “The EPA has honored a commitment to 

working with State co-regulators to address regulatory issues related to GS through 

a series of stakeholder and technical workshops, public hearings, and EPA 

participation with national organizations including the Ground Water Protection 

Council, the Interstate Oil and Gas Compact Commission, and the American 

Association of State Geologists. EPA values coordination with States and State coregulators and will continue an open dialogue as the Agency moves forward in the 

regulatory development process.” 

Sierra Club wants to reiterate the point that it raised in its previous 

comments that, at least at the early stages, EPA should administer the program 

with the help of a technical advisory board that would ensure the initial 

implementation of a national CCS program will be based on the best science, 

insulate decisions from profit and political motives, facilitate good public perception 

of CCS and would ensure the long-term integrity of the program. The International 

Risk Governance Council stressed that “[a]ssignment of regulatory responsibility to 

competent and trustworthy bodies or agencies will be paramount in assuring the 

public that the technology is deployed with adequate oversight and safeguards.”8 A 

nationally administered program will also enable federal coordination of 

information for this young program, ensure information-sharing to other states and 

developing nations, and help manage regional issues that transcend state lines. 

Finally, federal administration is appropriate because CCS permit decisions 

require evaluation of many complicated technical issues that demand a high level of 

expertise, which state regulatory authorities are not currently equipped to handle. 

In fact, the first state permit issued to a CCS project demonstrates that there is 

cause for concern over the capacity and competency of some state regulatory 

agencies to properly regulate a CCS program. The state of West Virginia issued a 

carbon sequestration permit to American Electric Power for the Mountaineer Power 

Station. This permit has a number of problematic provisions. For instance, the 

 

6

 IRGC, Regulation of Carbon Capture and Storage, p. 24, available at 

http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf (last visited December 17, 2008). 7

 January 29, 2008 Final Report, available at http://www.epa.gov/air/caaac/coaltech/2008_01_final_report.pdf (last 

visited December 17, 2008). 

8

 IRGC, Regulation of Carbon Capture and Storage, p. 24, available at 

http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf (last visited December 17, 2008). 
 Page 9 of 9 

permit allows hydraulic fracturing of the rock strata in the injection zone. In 

addition the permit does not contain adequate operating and monitoring 

requirements. The permit is written on the assumption that the agency can already 

predict what will happen, rather than from the standpoint that this is an 

experimental project, and the agency needs to verify all assumptions. 

The success or failure of CCS cannot rest on the decisions of state 

administrators like the ones in Florida responsible for the sewage injection debacle. 

“[A] single major accident, resulting from inadequate regulatory oversight, 

anywhere in the world, could seriously endanger the future viability of GS [geologic 

sequestration].” EPA must take responsibility for administration of the nation’s 

CCS program, at least for the first few years until the task becomes less 

extraordinary. 

Respectfully Submitted, 

__s/Kristin Henry____________________ 

 SIERRA CLUB 

 Kristin Henry 

Andrea Issod 

Sierra Club Environmental Law Program 

85 Second Street, 2d Floor 

San Francisco, CA 94105-3441 

Phone: (415) 977-5544 

Fax: (415) 977-5793 

kristin.henry@sierraclub.org 

andrea.issod@sierraclub.org 
Letter ID: 0388  

Commenter: Kristin Henry  

Organization: Sierra Club, Environmental Law Program  

Letter ID: 0388 Comment ID: 28295 Letter Lines: 40 to 63  

Comment Code: 6000 6. Other Comments that are Out of Scope for the NODA  

Comment: Sierra Club continues to believe that that Carbon Capture and Sequestration  

(CCS) could play an important role in allowing deep greenhouse gas emission  

reductions from electric generation and industrial facilities. Scientists agree  

that in order to avoid the worst consequences of climate change, the United  

States must cut greenhouse gas emissions at least 80 percent below 2000 levels  

by 2050.[FOOTNOTE 1] The scale of CCS projects necessary in the electricity sector to  

achieve this objective is enormous.  

However, to have any meaningful role in curbing greenhouse gas emissions, CCS  

projects must proceed quickly while cognizant that there is no room for  

missteps. A team of international experts recently explained that "a single  

major accident, resulting from inadequate regulatory oversight, anywhere in the  

world, could seriously endanger the future viability of GS [geologic  

sequestration]." [FOOTNOTE 2] In order to ensure that there are no missteps,  

Sierra Club recommends a few critical changes to the proposed rule and the  

changes specified in the NODA.  

[FOOTNOTE 1]: Luers, A.L. et al. 2007, How to Avoid Dangerous Climate Change: A  

target for U.S. emissions reductions. Union of Concerned Scientists, online at  

http://www.ucsusa.org/assets/documents/global_warming/emissions‐target‐  

report.pdf  

[FOOTNOTE 2]: Wilson, E., Morgan, M. et al., Regulating the Geological  

Sequestration of CO2, Environmental Science & Technology, Apr. 15, 2008, at p. 5  

Individual Response: This comment is outside the scope of the Notice of Data Availability and the UIC

Program’s authority under the GS rulemaking.  

Letter ID: 0388 Comment ID: 28296 Letter Lines: 65 to 120  
Comment Code: 3410 3.4.1. Applicability of Waiver Process to Deep Saline and Other Types of

Formations (seeking comment)  

Comment: I. Class VI Wells Should Be Permitted Only in Oil and Gas Reservoirs and Deep  

Saline Formations.  

EPA has not proposed changes, in the NODA, to any of the regulatory language  

included in the Notice of Proposed Rulemaking. Therefore, Sierra Club assumes  

that the "definitions" included in the NODA are meant for clarity only, and do  

not indicate any intention by the Agency to change those definitions.  

The proposed regulations allow for injection into unmineable coal seams,  

basalts, salt caverns, and shales. The proposed regulations define Class VI as  

one "used for geologic sequestration of carbon dioxide beneath the lowermost  

formation containing an underground source of drinking water (USDW)." 73 Fed.  

Reg. 43,492, 43,535 (July 25, 2008). As basalts and coal seams are found in  

areas beneath the lowermost USDW, or in areas where there is no USDW, this  

definition allows injection into basalts or coal seams, shallow or otherwise.  

In the NODA, EPA erroneously claims that the definition of a Class VI well "[a]s  

proposed, ... would ... preclude the injection of CO2 into shallow formations  

such as coal seams and basalts." 74 Fed. Reg. 44,802, 44,808 (Aug. 31, 2009). As  

we noted in our December comments: EPA should revise this definition section to  

prohibit injection into unmineable coal seams, basalts, salt caverns, and shales  

until further studies are completed and CCS potential in these formations is  

better understood. EPA lacks an adequate scientific basis to develop regulations  

for commercial‐scale sequestration projects in these formations because "the  

process of CO2 adsorption to coal has not been proven and the chemical reactions  

of supercritical CO2 within coal formations are not well understood." 73 Fed.  

Reg. 43,492, 43,503. Sequestration in coal seams is "an emerging technology that  

is in the demonstration phase." Id. As far as basalts, shales and salt caverns,  

EPA has noted that their "technical or economic viability as GS sites have not  

been demonstrated." Id.  

The IPCC CCS report supports EPA’s conclusions and goes a step further,  

concluding that "basalts appear unlikely to be suitable for CO2 storage."  

[FOOTNOTE 3] The IPCC agrees that coalbed storage technology "is not well  

developed and a better understanding of injection and storage processes in coals  

is needed." [FOOTNOTE 4]  

[FOOTNOTE 3]: IPCC CCS § 5.3.5.1.  
[FOOTNOTE 4]: IPCC CCS Chapt. 5 Exec. Summary; see also § 5.3.4.  

Precautionary principles demand that the first Class VI permits are issued for  

injection into geological formations with the greatest degree of scientific  

certainty, where any damages would be minimal ‐ namely, depleted oil and gas  

reservoirs and deep saline formations. Accordingly, initial Class VI wells  

should not include coal seams, basalts, shales, and salt caverns regardless of  

whether they are above or below the deepest USDW. Continued research is  

appropriate for geological sequestration projects in these formations.  

Finally, due to this fundamentally different nature of geological sequestration  

in these formations, if EPA decides not to explicitly prohibit Class VI wells in  

such formations, it must provide substantial evidence of the scientific basis on  

which it bases its belief that the physical processes, operational engineering,  

and risks involved are similar to and/or equally mature as those in saline  

formations or oil/gas reservoirs. Sierra Club believes that such a demonstration  

is important both as a policy matter and a legal matter.  

Individual Response: EPA disagrees that categorically precluding or prohibiting injection into any type of

formation is appropriate. Instead, construction and operation of a Class VI well for injection into

shallower formations can be permitted if an owner or operator can demonstrate, pursuant to the

requirements at §146.95, that injection can be performed in a manner that protects USDWs and if the

owner or operator meets the other protective requirements at §146.82 through §146.94. EPA believes

that the injection depth waiver 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 injection into basalts, coal seams, salt caverns, and shales have been the subject of

limited experimental projects in the past. However, EPA believes that the GS rule provides safeguards to

allow, on a site‐specific basis, GS in other formation types, provided the owner or operator

demonstrates to the Director's satisfaction that the formations are suitable for receiving and confining

injected CO2 as specified in §146.83. The siting, well construction, operational, and other requirements

in the GS rule are designed to ensure that injected CO2 remains within the target formation.  

EPA adds that it has revised the definition of a Class VI well to read as follows: “Wells that are not

experimental in nature that are used for geologic sequestration of carbon dioxide beneath the

lowermost formation containing a USDW; or, wells used for geologic sequestration of carbon dioxide

that have been granted a waiver of the injection depth requirements pursuant to requirements at

§146.95 of this chapter; or, wells used for geologic sequestration of carbon dioxide that have received

an expansion to the areal extent of an existing Class II enhanced oil recovery or enhanced gas recovery

aquifer exemption pursuant to §§146.4 of this chapter and 144.7(d).”  
Letter ID: 0388 Comment ID: 28297 Letter Lines: 122 to 173  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: II. EPA Should Establish a More Comprehensive Regulatory Framework.  

In the NODA, EPA stated that it had "received a number of comments indicating  

that the Agency should further explore environmental and regulatory issues  

beyond the scope of the proposed SDWA requirements for underground injection of  

CO2 for GS [geological sequestration]. EPA recognizes that a more  

comprehensive framework may be needed and that some stakeholders remain  

uncertain with respect to the potential applicability of other Federal  

environmental statutes such as the Clean Air Act, the Resource Conservation and  

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

Liability Act to various aspects of geologic sequestration of CO2. The Agency is  

currently evaluating the need for a more comprehensive regulatory framework to  

provide legal guidance regarding this emerging technology." 74 Fed. Reg. 44,805.  

The Sierra Club strongly reiterates the point raised in its December comments  

that it is critical that the agency develop a comprehensive regulatory structure  

for CCS. Given the myriad of risks associated with CCS, Sierra Club believes  

that the Safe Drinking Water Act is not of sufficient scope and enforceability  

to handle a regulatory field as broad as CCS. Specifically, the Safe Drinking  

Water Act only protects "underground sources of drinking of water" and any CCS  

program raises many potential issues other than groundwater impacts.  

EPA acknowledges in the rule:  

[t]he SDWA does not provide authority to develop regulations for all  

areas related to GS. These areas include, but are not limited to,  

capture and transport of CO2; determining property rights (i.e., to  

permit its use for GS and for possible storage credits); transfer of  

liability from one entity to another; and accounting or certification  

for greenhouse gas (GHG) reductions.  

73 Fed. Reg. 43,492, 43,495 (July 25, 2008).  

Sierra Club cannot emphasize strongly enough the absolute need that the  

government regulates CCS in a comprehensive and inclusive manner that accounts  

for all potential environmental and health impacts, and the universe of issues  

involved with large‐scale CCS implementation such as capture, transportation and  

pipeline standards, interstate boundary issues, and liability. Moreover, it is  

simply not possible for the government to adequately regulate such a complex  
process through piecemeal regulations. A comprehensive regime, as opposed to a  

patchwork of regulations under different statutes, would be more adaptive to  

emergent information on this budding program as it becomes available.  

Moreover, the Agency should clarify that the rule should specify that an  

intrusion into a USDW is not a "federally permitted release" under CERCLA. EPA  

notes in the preamble to the proposed rule, 73 Fed. Reg. 43,504, that CERCLA  

exempts from liability certain "federally permitted releases, including releases  

in compliance in a UIC permit under the Safe Drinking Water Act." EPA further  

notes that "Class VI requirements and permits will need to be carefully  

structured to ensure that they do not ‘authorize’ inappropriate hazardous  

releases." EPA should go further and effectively prohibit Class VI permit  

conditions that would make the "federally permitted release" defense available  

should injected fluids or displaced formation fluids enter or endanger USDWs.  

This prohibition should be added to Subpart E ‐ Permit Conditions, or to any  

other appropriate section of the rule.  

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.  

Regarding CERCLA, EPA clarifies that a determination as to whether the presence of hazardous

substances in CO2 results 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). For additional information, see the preamble to the final rule and the responses to

comments on the proposed GS rule.  

Letter ID: 0388 Comment ID: 28298 Letter Lines: 175 to 195  

Comment Code: 2210 2.2.1. Groundwater Quality and Mobilization of Trace Elements (seeking
comment)  

Comment: III. Research, Data Analysis and Findings  

A. The Lawrence Berkeley National Laboratory Study of Ground Water Quality  

Changes Related to the Mobilization of Trace Elements Demonstrates the Need that  

EPA model the Regulations on the Precautionary Principle.  

The Lawrence Berkeley National Lab (LBNL) used a comprehensive computational  

model to evaluate the potential impact of CO2 leaking from deep geologic  

sequestration sites on the concentrations of trace elements in potable ground  

waters. 74 Fed. Reg. at 44,807. "Results of this modeling obtained for typical  

aquifers under reducing conditions indicate that arsenic could potentially  

exceed Federal drinking water standards at elevated CO2 concentrations (40 CFR  

141.62 (b)(16))." Id.  

The results of this study stress the need for continuous monitoring and  

reporting, as is currently required under the proposed rules. The purpose of the  

Safe Drinking Water Act is to protect "underground sources of drinking of  

water." Since it is documented that CO2 leakages could lead to a violation of  

the drinking water standards and threaten public health, the EPA should ensure  

that the final rules continue to require continuous monitoring and reporting to  

ensure that USDWs are protected.  

Individual Response: EPA agrees that monitoring is an important component of the UIC program and

the final GS regulation contains comprehensive site characterization, construction, monitoring (e.g.,

ground water monitoring and CO2 plume and pressure front to verify that the injectate is safely

confined in the target formation) and site closure requirements to ensure that USDWs are not

endangered. For additional information about EPA’s approach to monitoring and reporting for GS

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

Letter ID: 0388 Comment ID: 28299 Letter Lines: 197 to 225  

Comment Code: 2220 2.2.2. Basin‐Scale Hydrologic Impacts of CO2 Storage (seeking comment)  

Comment: B. LBNL Study of Basin‐Scale Hydrologic Impacts of CO2 Sequestration  

Demonstrates the Need that EPA Administer this Regulatory Program because of  

Interstate Basin Issues.  

In addition, the LBNL studied a hypothetical, future scenario of geological  
sequestration in a sedimentary basin as an illustrative example to demonstrate  

the potential for basin‐scale hydrologic impacts of CO2 storage. 74 Fed. Reg.  

44,808. The LBNL study indicated that "far‐field pressure changes could  

propagate as far away as 200 km (124 miles) from the core injection area where  

the geologic sequestration projects are located." Id. "After CO2 injection ended  

in the simulation, pressure buildup in the injection zone began to dissipate  

while the far‐field pressure response continued to increase and expand. For this  

simulation example, a pressure increase of 0.5 bar existed at an areal extent of  

nearly 400 km by 400 km (249 miles by 249 miles) after 50 years. These model  

results indicate that basin‐wide pressure influences can be large and may have  

intersecting pressure perturbations in a multiple‐site scenario." Id.  

The results of the LBNL study of basin‐scale hydrologic impacts of CO2  

sequestration highlighted in the NODA demonstrate the potential for interference  

of far‐field pressures in large‐scale geological sequestration deployment. The  

results of this study underscore the need to have one central agency, the EPA,  

administer this program. Basin boundaries do not line up with state boundaries.  

Under the proposed regulations, if a basin covers multiple states, numerous  

state agencies would have authority to permit injections into the same basin.  

However, the proposed regulations do not require any interstate collaboration to  

account for interstate basin issues, such as basin wide pressure changes. The  

best way to ensure that interstate boundary issues, such as far‐field pressure  

changes in a basin, are taken into account is to have one central agency issue  

all CCS permits.  

Individual Response: The final GS rule focuses on permitting of individual GS wells and therefore does

not include requirements for basin‐scale evaluations. However, EPA agrees that proactive management

of basin scale concerns to maintain pressures within acceptable ranges is important, and encourages

owners or operators and permitting authorities to communicate planned GS activities to maximize

coordination and minimize pressure interference. If a permit applicant (or the permitting authority) is

aware of pending GS projects near a proposed well, the AoR delineation performed pursuant to 146.84

should account for the impacts of multiple owners and operators injecting within a single basin. EPA

anticipates that, where multiple operators are involved, the Director would not approve modeling that

does not account for changes that may result from all injection operations. The proximity of injection

sites to each other and the relative timing of each injection operation might indicate a possible increase

in risk for the containment of the total CO2 and/or the effects of hydraulic perturbations and brine

displacement.  

EPA adds that if any new GS projects are permitted within the AoR of a GS project between AoR

evaluations, the AoR reevaluation would need to address such projects. EPA also expects that the

permitting of the newer GS project would have considered the presence of an existing GS project. For

additional information regarding EPA’s requirements for AoR delineation for GS projects, see the
responses to comments on the proposed rule in the rulemaking docket.

EPA recognizes that inter‐state and even international cooperation may be necessary where multiple

injection operations may interact, but has no plans or authority to develop a basin‐wide regulatory

process. EPA notes, however that the GS rule, at §146.82(b), requires that the Director notify

representatives of all states, tribes, and territories in the AoR to inform them of the permit application

and offer them an opportunity to be involved in any relevant activities, such as development of the

required project‐specific plans. The Agency will work with the appropriate entities to facilitate

communication among States and Tribes interested in obtaining Primacy during the implementation

phase of the GS regulation. EPA clarifies that issuance and oversight of a GS permit is the responsibility

of the primacy (State or Tribal) or regional DI program in the state where the injection well is located.  

Letter ID: 0388 Comment ID: 28300 Letter Lines: 230 to 259  

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

Formations (seeking comment)  

Comment: A. Injection into coal seams and basalts  

In the original proposed rule, EPA required that injection of CO2 must occur  

beneath the lowermost formation containing a USDW. In the NODA, EPA proposes  

possibly creating a waiver process so that injection could occur above or  

between USDWs. 74 Fed. Reg. at 44,810. One of the reasons provided by the EPA  

regarding why this waiver process is appropriate is because "as proposed, the  

definition would also preclude injection of CO2 into shallow formations such as  

coal seams and basalts." 74 Fed. Reg, at 44,808.  

First, as noted above, the EPA’s statement that the current regulations prohibit  

injection into coal seams and basalts is wrong because the currently proposed  

definition of a Class VI wells allows injection unmineable coal seams, basalts,  

salt caverns, and shales. See proposed 40 C.F.R. §§ 144.6(f), 144.80(f) 146.5(f)  

at 73 Fed. Reg. 43,534‐43,535.  

Second, the EPA should not create a waiver process that allows injection above  

or between USDWs to promote injection into coal seams and basalts as these  

formations are not appropriate injection formations. As discussed above and in  

our previous comments there is no significant prior experience or consensus on  

how to assess and manage risks, what data is needed to characterize sites, how  

to select sites, how to conduct and manage injection operations, how to model  

the behavior of CO2, and how to monitor project performance of CO2 sequestration  
in basalts, coal seams, salt caverns and shales. The trapping mechanisms of CO2  

and/or the operational engineering involved in such operations is significantly  

different from those in deep saline formations and hydrocarbon reservoirs. We  

simply do not know at this time whether sequestration (or even injection in some  

cases) can even be done at scale in such formations. Therefore, the EPA should  

not change the prohibition on injections above USDWs to promote use of these  

sites.  

Individual Response: As described above, the GS rule does not categorically preclude or prohibit

injection into any type of formation. Instead, construction and operation of a Class VI well for injection

into shallower formations can be permitted if an owner or operator can demonstrate, pursuant to the

requirements at §146.95, that injection can be performed in a manner that protects USDWs and if the

owner or operator meets the other protective requirements at §146.82 through §146.94.  

EPA believes it may be appropriate to conduct small‐scale, experimental injection into shallow basalts,

coal seams, salt caverns and shales; such wells would be permitted as Class V experimental technology

wells. To facilitate experimental injection for GS and to increase global understanding of injection into

these formation types, the Agency is preparing an addendum to the Class V experimental technology

guidance on wells that meet the criteria. For additional information on EPA's approach to injection into

various formation types, see the preamble to the final rule and the responses to comments on the

proposed GS rule.  

Letter ID: 0388 Comment ID: 28302 Letter Lines: 261 to 297  

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

Comment: B. If the EPA Allows Injection Above the Lowermost USDW, then EPA Should Not  

Provide States Waiver Discretion and Should Require Public Participation.  

In the NODA, EPA states that it may be appropriate to create a waiver process  

that would allow injection above the lowermost USDW. 74 Fed. Reg. at 44,810. At  

this time, Sierra Club takes no position regarding whether it is appropriate to  

allow injection above USDWs. However, Sierra Club notes two problems with the  

proposed inclusion of the waiver.  

First, if the EPA decides to allow for a waiver process, it should not allow  

states the discretion to issue a waiver. Instead, the EPA itself should  

administer any waiver program with the assistance of a CCS technical advisory  

committee, a proposal the Sierra Club discussed in depth in our December  

comments.  
In the NODA, EPA states that the "owner or operator would be required to  

demonstrate to regulatory authorities that such injection can be undertaken and  

completed in a manner that prevents fluid movement into overlying (and  

underlying) USDWs." 74 Fed. Reg. at 44,810. State regulatory authorities are not  

properly equipped to demonstrate that injection will not lead to fluid movement  

into USDWs. Permit decisions require evaluation of many complicated technical  

issues that demand a high level of expertise and there are scores of  

uncertainties at this early stage of CCS development. There is also cause for  

concern over the capacity and competency of some state regulatory agencies to  

properly regulate a CCS program. State permitting decisions can contradict  

science and logic and produce dangerous results for local health and welfare.  

For instance, the Florida Department of Environmental Protection approved the  

construction and operation of a facility designed to inject more than 112  

million gallons of treated sewage a day, erroneously believing that the  

subsurface geology would prevent the injected sewage from migrating into the  

overlying Floridan Aquifer. Most experts agreed that the injection program  

should not have been permitted, and eventually the injected sewage migrated  

upward into the Floridan Aquifer. Even after evidence of contamination was well‐  

established, Florida continued to expand its injection program. The Florida  

program was supposed to prevent the migration of sewage into overlying USDWs.  

Given such track records, states should not have the discretion to issue waivers  

for injection above the lowermost USDWs.  

Individual Response: As described above, EPA believes that there are some situations where injection

into non‐USDW formations above the lowermost USDW can be performed in a manner that protects

USDWs.

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, 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.  

Letter ID: 0388 Comment ID: 28303 Letter Lines: 299 to 337  

Comment Code: 3370 3.3.7. Notice and Hearing  

Comment: Second, if the EPA allows for a waiver process, the EPA should ensure that  

waiver decisions are subject to public notice and comment. EPA should ensure  

that the final rule includes ample public involvement at the earliest possible  

stage of a waiver decision to gain public trust and acceptance of its decisions.  

This gives the community time to process the complicated and voluminous  

information involved in a siting and waiver decision. It also will mitigate some  

controversial issues and potentially avoid litigation and other delays.  

As Sierra Club noted in its December comments, public acceptance of CCS is a  

major issue. Innumerable reports and recommendations from the federal government  

and top scientists, institutions and workgroups stress that the success of a CCS  

program will depend heavily on public acceptance. The National Academy of  

Sciences cautioned "the storage program cannot be successful if a significant  

fraction of the public views it as dangerous or unacceptable. Thus, CCS  

technologies must not only be safe and effective, it must be explainable to the  

public in such as way as to instill confidence that they are in fact safe and  

effective."[FOOTNOTE 5] The International Risk Governance Council recommends  

that regulatory frameworks must include "effective risk communication to engage  

and educate the public, involve all stakeholders in risk‐related decisions, and  

build confidence in the institutions governing CCS." [FOOTNOTE 6] The Clean Air  

Act Advisory Committee’s Advanced Coal Technology Work Group’s January 2008  

report similarly highlighted the need for public outreach.[FOOTNOTE 7] The need to gain  

public acceptance will be especially crucial with early projects. Since  

injection above USDWs are likely to be more controversial, EPA should mitigate  

anticipated controversy by requiring that draft waiver decisions are subject to  

public notice and comment.  

[FOOTNOTE 5]: U.S. GAO Report. CLIMATE CHANGE: Federal Actions will Greatly  

Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option,  

GAO‐08‐1080, September 2008 (quoting National Academy of Sciences, Prospective  
Evaluation).  

[FOOTNOTE 6]: IRGC, Regulation of Carbon Capture and Storage, p. 24, available  

at http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf (last visited December 17,  

2008).  

[FOOTNOTE 7]: January 29, 2008 Final Report, available at  

http://www.epa.gov/air/caaac/coaltech/2008_01_final_report.pdf (last visited  

December 17, 2008).  

Individual Response: EPA agrees that local drinking water entities should be consulted and provided an

opportunity to inform in the waiver application evaluation process. In addition to the requirement for

consultation 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), the public notification process

for the waiver must occur concurrently with the UIC permit notification as specified in §146.95(c). EPA

believes this requirement is necessary to ensure that appropriate information is disclosed to the public

for notice and comment and that the public understands that the site, if permitted, would be operating

under a waiver. EPA believes these requirements balance USDW protection and disclosure of PWSS

information with the GS permit application process requirements.  

EPA has also added a requirement at §124.10(c)(1)(xi) that state and local oil and gas regulatory

agencies and state agencies regulating mineral exploration and recovery, the PWSS program director,

and all agencies that oversee injection wells in the state must be notified as part of the public notice

process for all Class VI permits. For additional information on requirements for public notification

associated with GS permitting, see the preamble to the final rule and the responses to comments on the

proposed GS rule.  

Letter ID: 0388 Comment ID: 28304 Letter Lines: 339 to 388  

Comment Code: 5700 5.14. Comments on Other Aspects of the Proposed Rule  

Comment: V. EPA Should Administer the CCS Program Rather than States.  

In the NODA, EPA stated that "The EPA has honored a commitment to  

working with State co‐regulators to address regulatory issues related to GS through  

a series of stakeholder and technical workshops, public hearings, and EPA  

participation with national organizations including the Ground Water Protection  

Council, the Interstate Oil and Gas Compact Commission, and the American  

Association of State Geologists. EPA values coordination with States and State coregulators  

and will continue an open dialogue as the Agency moves forward in the  
regulatory development process."  

Sierra Club wants to reiterate the point that it raised in its previous comments  

that, at least at the early stages, EPA should administer the program with the  

help of a technical advisory board that would ensure the initial implementation  

of a national CCS program will be based on the best science, insulate decisions  

from profit and political motives, facilitate good public perception of CCS and  

would ensure the long‐term integrity of the program. The International Risk  

Governance Council stressed that "[a]ssignment of regulatory responsibility to  

competent and trustworthy bodies or agencies will be paramount in assuring the  

public that the technology is deployed with adequate oversight and safeguards."  

[FOOTNOTE 8] A nationally administered program will also enable federal  

coordination of information for this young program, ensure information‐sharing  

to other states and developing nations, and help manage regional issues that  

transcend state lines.  

[FOOTNOTE 8]: IRGC, Regulation of Carbon Capture and Storage, p. 24, available  

at http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf (last visited December 17,  

2008).  

Finally, federal administration is appropriate because CCS permit decisions  

require evaluation of many complicated technical issues that demand a high level  

of expertise, which state regulatory authorities are not currently equipped to  

handle. In fact, the first state permit issued to a CCS project demonstrates  

that there is cause for concern over the capacity and competency of some state  

regulatory agencies to properly regulate a CCS program. The state of West  

Virginia issued a carbon sequestration permit to American Electric Power for the  

Mountaineer Power Station. This permit has a number of problematic provisions.  

For instance, the permit allows hydraulic fracturing of the rock strata in the  

injection zone. In addition the permit does not contain adequate operating and  

monitoring requirements. The permit is written on the assumption that the agency  

can already predict what will happen, rather than from the standpoint that this  

is an experimental project, and the agency needs to verify all assumptions.  

The success or failure of CCS cannot rest on the decisions of state  

administrators like the ones in Florida responsible for the sewage injection  

debacle. "[A] single major accident, resulting from inadequate regulatory  

oversight, anywhere in the world, could seriously endanger the future viability  

of GS [geologic sequestration]." EPA must take responsibility for administration  

of the nation’s CCS program, at least for the first few years until the task  

becomes less extraordinary.  
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.