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.
Representing the Interests of America’s Industrial Energy Users since 1978

Council Of Industrial Boiler Owners

 6035 Burke Centre Parkway, Suite 360, Burke, VA 22015-3757• Phone: 703-250-9042 Fax: 703-239-9042 

E-Mail: cibo@cibo.org

November 26, 2008 

VIA E-DOCKET

U.S. Environmental Protection Agency 

Water Docket 

1200 Pennsylvania Ave. NW, Mail Code 2822T 

Washington, DC 20460 

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

Re: Proposed Rule "Federal Requirements Under the Underground Injection Control 

(UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells" 

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

Dear Sir or Madam: 

The Council of Industrial Boiler Owners (CIBO) appreciates the opportunity to comment on 

proposed requirements under the Safe Drinking Water Act (SDWA) for geologic 

sequestration (GS) of CO2, as well as EPA's newly proposed class of well and minimum 

technical criteria established to protect underground sources of drinking water. 

CIBO is a broad-based association of industrial boiler owners, architect-engineers, related 

equipment manufacturers, and University affiliates with over 100 members representing 20 

major industrial sectors. CIBO members have facilities in every region of the country and a 

representative distribution of almost every type of boiler and fuel combination currently in 

operation. CIBO was formed in 1978 to promote the exchange of information within the 

industry and between industry and government relating to energy and environmental 

equipment, technology, operations, policies, law and regulations affecting industrial boilers. 

Since its formation, CIBO has been active in the development of technically sound, 

reasonable, cost-effective energy and environmental regulations for industrial boilers. CIBO 

supports regulatory programs that provide industry with enough flexibility to modernize – 

effectively and without penalty – the nation's aging energy infrastructure, as modernization is 

the key to cost-effective environmental protection. 
November 26, 2008 Page 2 of 6 

I. GENERAL COMMENTS 

 

CIBO notes generally that the proposed rule raises many questions for facilities that are 

potentially regulated under this rule. In fact, it is unclear from the proposal what facilities 

may be regulated directly and even more unclear what facilities may ultimately shoulder 

some liability for the obligations outlined in the proposal. Throughout the proposal EPA 

identifies significant areas needing basic research. Risks are not sufficiently defined and 

therefore not adequately quantified. Costs are outright unquantifiable, based in part on the 

unquantified risk. EPA notes that it intends to finalize a rule in 2010 or 2011.1 Given the 

high degree of uncertainty on significant elements of this regulation, and the long period of 

time before EPA expects to finalize a rule, CIBO strongly urges EPA to seek additional 

notice and comment on subsequent developments in its data collection, analysis and 

decisions on this proposed approach. CIBO does believe, however, that rules covering 

underground injection of CO2 need to be implemented prior to significant demonstration 

project activity. 

II. SPECIFIC COMMENTS 

A. Owner/Operator Liability 

The proposed regulations affect owners and operators of injection wells that will be used to 

inject CO2 into the subsurface for purposes of geological sequestration. Owners and 

operators will be responsible for numerous siting, construction, testing, and monitoring 

requirements enumerated in the regulations, as well as long-term maintenance and financial 

requirements not yet wholly defined by the proposed regulations. The current regulations 

define "owner or operator" as "the owner or operator of any 'facility or activity' subject to 

regulation under the UIC program."2 The current definitions are insufficient to provide 

certainty on the key question of what activities are subject to regulation, or could impose 

some future liability. For example, does "activity" include any pipelines, pumps, or other 

infrastructure used to deliver CO2 to the injection well? 

In this new field of technology, the role of the initial CO2 source is not yet fully understood.

A September 2008 GAO report identifies the technological barriers to the CCS approach 

proposed here, which must be addressed for any such program to become a reality.3 For 

example, an emission source that chooses to engage in carbon capture and sequestration may 

contract with a third party to construct and operate its well, thus separating the owner and 

operator functions. Under the proposed regulations, it is unclear which of the parties would 

 

1

 Carbon Sequestration: Risks, Opportunities, and Protection of Drinking Water: Hearing Before the 

Subcomm. on Environment and Hazardous Materials of the H. Comm. on Energy and Commerce, 

110th Cong. (2008) (statement of Benjamin H. Grumbles, Assistant Administrator for the U.S. 

Environmental Protection Agency). 

2

 40 C.F.R. §144.3 

3

 U.S. Government Accountability Office, Climate Change: Federal Actions Will Greaty Affect the 

Viability of Carbon Capture and Storage as a Key Mitigation Option, GAO-08-1080, Sep. 30, 2008, 

at 15.
November 26, 2008 Page 3 of 6 

be responsible for meeting the new requirements, and therefore would also be liable if the 

requirements were not met. Given the extent of the responsibilities and potential liability 

imposed on potentially liable CO2 sources, the regulations should define this term with much 

greater precision. Precisely defined liabilities are especially important in a rulemaking 

regarding gas injection into storage fields. Compared to wastewater or other liquid injection 

and storage, gas has the capability of migrating more easily, quickly and farther, and risks of 

leakage are not only potentially greater, but also well documented. 

Practical considerations must guide the regulation of these activities. For example, the rules 

must be set up in such a way as to not preclude 3rd party ownership and operation of a field 

and associated wells for underground sequestration. Generators are not likely to own 

pipelines, compressor stations, injection wells, properties, and the CO2 itself for any extended 

period of time. Far superior would be the existence of a pipeline system (similar to the 

natural gas pipeline system) that would be owned by others. CO2 from many different 

sources would be piped to appropriate disposal sites (for a fee, of course). At the 

sequestration site, there would likely be two entities. One of these is the operator and well 

superintendent (a company that provides field services). The other entity will be the owner 

(or owners) that would be much like wildcat drillers. These owners would offer the service 

to take the CO2 and properly inject it underground and adhere to the various safety and 

regulatory requirements (much like existing waste management companies). There would 

have to be a means for monetizing this service and a means for handling issues such as 

leakage, etc. There would probably have to be a reserve of CO2 allowances set up to cover 

events such as a pipeline break or an unexpected fault in the cap rock that allowed some CO2

to escape. This is a possible approach that would address the practical realities for 

generators, and ensure that generators can shift those liabilities to companies experienced in 

handling them. 

B. Flexibility in Materials Selection 

In the carbon capture and sequestration process, accompanying impurities will likely be 

incorporated into the carbon dioxide stream and injected in the geologic sequestration zone. 

As EPA notes, these accompanying particles may have a corrosive effect on the tubing and 

casing used to contain the carbon dioxide, compromising the safety and security of the 

sequestration zone. CIBO supports the proposed regulations allowing for variability in 

setting standards for casing, cementing, and tubing of the Class VI wells. Under the 

regulations, the Director will determine the standards for these materials on a case-by-case 

basis, taking into consideration the chemical composition of the carbon dioxide stream.4

CIBO supports this provision is imperative to the safety and security of the carbon capture 

and sequestration process. 

 

4

 Proposed Rule, Federal Requirements Under the Underground Injection Control Program for Carbon 

Dioxide Geologic Sequestration Wells, 73 Fed. Reg. 43492, 43509-10 (July 25, 2008) (to be codified 

at 40 C.F.R. §46.86). 
November 26, 2008 Page 4 of 6 

C. Long-term Stewardship and Liability 

The proposed regulations impose a default care period of 50 years, subject to the discretion of 

the Director and demonstration of non-endangerment of US drinking waters.5 The proposed 

regulations do not extend the financial responsibilities of the owners or operators after this 

point. SDWA authorizes the EPA to impose liability for the site only to the extent that it 

endangers drinking water. After the EPA determines the site is no longer a danger to 

drinking water and "closes" the site, it cannot assign liability for the site. In short, the owners 

and operators are no longer responsible for the injection site once it is closed, which by 

default is fifty years after the injection period. However, the sites do not disappear after fifty 

years; the risks inherent in long-term carbon storage remain, including risks of leakage into 

air, and other non-drinking water impacts. 

Given the potential for lawsuits to arise after site closure, the regulations must address which 

party takes over responsibility for the site from the owner/operator post-closure. Because the 

EPA lacks the authority under SDWA to enforce regulation of these sites after a default fiftyyear period, other enforcement mechanisms such as RCRA and Superfund may attach. EPA 

attempts to address these concerns, but states that it "cannot make a categorical determination 

as to whether injected CO2 is hazardous under RCRA."6

 CIBO disagrees that EPA cannot 

make such a determination, or provide some regulatory mechanism to rule out potential 

RCRA liability for actions that under other regulations parties will be required to undertake. 

Again, practical considerations demand clear answers to basic questions. These injection 

aquifers will be several thousand feet underground. They may run for miles in any direction. 

It is entirely possible that the CO2 could be injected in one state and carried underground to 

another state by the course of the aquifer. There must be some consistent regulatory policy 

about this. 

EPA should expect little or no CO2 to be stored if states can sue other States because 

somewhere underground there is CO2 entrapped. Gases have been trapped underground, 

including CO2, for hundreds of millions of years. We wouldn't be able to use natural gas 

today if they were not. The key to this proposed rule is to set it up so that these undesirable 

possibilities do not arise and that the potentially more reasonable structures are not precluded. 

If the rule is written such that the generator owns the CO2 until the government takes over the 

liability 50 to 100 years later, there will be no CO2 sequestration. That is not a desirable 

outcome. Additionally, EPA attempts to preclude Superfund liability through permitting 

requirements, but this issue must be addressed clearly and unequivocally. Emission sources 

are hesitant to take responsibility for such a project with these unknowns. 

The 50-year post-closure period for continuing liability, from a practical perspective, is not 

workable. For example, some CIBO members generate power for a range of applications. It 

is difficult to imagine a generator taking on liability that would include the construction of a 

generating plant, the long term operation of that plant, and then the 50-year period after 

closing the well site. Compounding that difficulty is the possibility that the closure of the 

 

5

 73 Fed. Reg. 43519-20. 

6

 73 Fed. Reg. 43503. 
November 26, 2008 Page 5 of 6 

well does not coincide with the shut down of the power plant, potentially extending liability 

to 100 years or beyond, per the discretion of the Director.7

 This raises the question of why a 

company would take on a 100-year liability that is essentially out of their control and not 

really a part of their business. The insurance issue is also a major concern. Nothing will be 

done without some kind of insurance. It will likely be necessary to set up an insurance pool 

in advance so that there is time to gain adequate experience to allow insurance companies to 

assess the proper risks. This concern of public acceptance and other related concerns are the 

focus of an NAS report, which concludes that they must be addressed before the CCS 

strategy can be fully developed. 

The high degree of uncertainty regarding any liability makes insurance companies unwilling 

to insure these projects. For example, there is potential for problems to exist thousands of 

years into the future when these owners/operators no longer exist. Any regulations must 

address liability issues to be effective. 

D. Cost Prohibitive Requirements 

Owners and operators will be responsible for numerous requirements under the proposed 

regulations. Specifically, they must provide financial assurances that they will be responsible 

for any corrective action, well plugging, emergency and remedial responses, and the postinjection site closure. These assurances will be cost-prohibitive for all but the most 

financially sound owners and operators. Moreover, the true cost of owning and operating an 

injection well is incalculable because the liability remains unknown and, consequently, 

insurers are unwilling to take the risk of backing the project. The probability that costs will 

balloon out of control make carbon capture and sequestration infeasible, even for the most 

dedicated of owners and operators. In January 2008, the Department of Energy cancelled its 

$1.8 billion in funding for the FutureGen CCS project because costs had soared to almost 

double the estimate provided in 2004. The proposed regulations place too high a financial 

burden on potential owners and operators and will actually discourage new projects. 

E. Other Areas of Concern 

The proposed UIC regulations raise many other questions, creating additional uncertainty. 

These concerns include but are not limited to the following: 

• Economic liability related to selling carbon credits, and how it relates to this 

regulation. 

• Impact on underground coal mines, conflicts regarding mineral ownership, and 

possible mineral takings. 

• Development of geological horizons below the carbon sequestration horizon but in 

the same area. EPA should retain the flexibility currently available in the other UIC 

programs. EPA's Class VI program should not interfere with mineral extraction (oil 

and gas specifically) through the imposition of restrictions in CO2 storage fields. 

• Potential liability of landowner with CO2 storage area beneath the property. 

 

7 73 Fed. Reg. 43519-20. 
November 26, 2008 Page 6 of 6 

If you have any questions concerning our comments or require clarification, please contact 

me at 703.250.9042. Thank you for your consideration. 

 Sincerely yours, 

/s/ Robert D. Bessette

Robert D. Bessette 

President 
Letter ID: 0139 

Commenter: Robert Bessette 

Organization: Council of Industrial Boiler Owners (CIBO) 

Letter ID: 0139 Comment ID: 23079 Letter Lines: 54 to 58 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment: CIBO notes generally that the proposed rule raises many questions for facilities 

that are potentially regulated under this rule. In fact, it is unclear from the 

proposal what facilities may be regulated directly and even more unclear what 

facilities may ultimately shoulder some liability for the obligations outlined 

in the proposal. Throughout the proposal EPA identifies significant areas 

Individual Response: EPA clarifies that the GS rule applies to owners or operators of wells that 

will be used to inject CO2 into the subsurface for the purpose of long-term storage. 

Please see the remainder of EPA's responses to this comment for further details. For additional 

information on EPA's final regulatory approach, please see the final rule and preamble as well as 

the rulemaking docket. 

Letter ID: 0139 Comment ID: 23080 Letter Lines: 58 to 61 

Comment Code: 1810 1.4.1 Research on identifying risks to USDWs 

Comment: in the proposal. Throughout the proposal EPA identifies significant areas 

needing basic research. Risks are not sufficiently defined and therefore not 

adequately quantified. Costs are outright unquantifiable, based in part on the 

unquantified risk. EPA notes that it intends to finalize a rule in 2010 or 

Individual Response: EPA is working with DOE, national laboratories (such as Lawrence 

Berkeley National Laboratories), the USGS, and internal Agency Offices (e.g., Office of 

Research and Development) on research on various aspects of GS, including potential risks to 

USDWs. EPA published a Notice of Data Availability and Request for Comment on August 31, 

2009 (74 FR 44802), in which the Agency described two studies by the Lawrence Berkeley 

National Laboratory on the potential effects of CO2 injection on USDWs and human health in 

the event that a GS project is not properly sited, operated, or managed. These studies are in the 

rulemaking docket and on LBNL's website at 

http://esd.lbl.gov/GCS/projects/CO2/index_CO2.html. 

The Agency will continue to track GS project developments and evaluate new and ongoing 

research and information to ensure USDW protection. EPA is using an adaptive approach to 

regulating GS under the UIC Program. Even after finalization of the GS regulation, the Agency 

plans to collect and review data every six years on GS projects to determine whether the 

appropriate amount and types of information and appropriate documentation are being collected, 

1
and to determine if modifications to the requirements are appropriate or necessary. 

Letter ID: 0139 Comment ID: 23081 Letter Lines: 61 to 70 

Comment Code: 2400 1.8 Comments on EPA's adaptive rulemaking process 

Comment: unquantified risk. EPA notes that it intends to finalize a rule in 2010 or 

2011.[FN1 1 Carbon Sequestration: Risks, Opportunities, and Protection of 

Drinking Water: Hearing Before the Subcomm. on Environment and Hazardous 

Materials of the H. Comm. on Energy and Commerce, 110th Cong. (2008) (statement 

of Benjamin H. Grumbles, Assistant Administrator for the U.S. Environmental 

Protection Agency).] Given the high degree of uncertainty on significant 

elements of this regulation, and the long period of time before EPA expects to 

finalize a rule, CIBO strongly urges EPA to seek additional notice and comment 

on subsequent developments in its data collection, analysis and decisions on 

this proposed approach. CIBO does believe, however, that rules covering 

Individual Response: If EPA determines that changes to the regulations are appropriate based 

on its review of GS project data, the Agency will provide an opportunity for the public to 

comment on the proposed changes as well as any data on which the changes were based. EPA 

did provide more opportunity for public notice and comment when it presented new data in its 

Notice of Data Availability and Request for Comment. 

EPA disagrees that there is a high degree of uncertainty associated with GS. EPA considered 

information from laboratory, modeling, and field research as it developed the requirements for 

GS wells. In addition to laboratory studies and modeling research that provide relevant 

information on GS, the Agency is also involved in collecting and analyzing GS project data and 

permit information from a variety of sources. Most notably, EPA has evaluated permits and 

reviewed operational data and information associated with the seven regional carbon 

sequestration partnerships funded by the U.S. Department of Energy and coordinated through the 

National Energy Technology Laboratory (NETL), and several international projects. In addition 

to the information cited in the preamble to the proposed rule, EPA published a Notice of Data 

Availability and Request for Comment (NODA) on August 31, 2009 (74 FR 44802), in which 

the Agency described the preliminary results of research at three DOE partnership sites (in 

Escatawpa, Mississippi; the Aneth Field in Paradox Basin, Southeast Utah; and the Pump 

Canyon Site, New Mexico). EPA sought comment on this data and used it to inform the final 

rule. 

Letter ID: 0139 Comment ID: 23082 Letter Lines: 76 to 129 

Comment Code: 5400 2.9 Proposed Financial Responsibility and Long-Term Care 

Requirements 

2
Comment: A. Owner/Operator Liability 

The proposed regulations affect owners and operators of injection wells that 

will be used to inject CO2 into the subsurface for purposes of geological 

sequestration. Owners and operators will be responsible for numerous siting, 

construction, testing, and monitoring requirements enumerated in the 

regulations, as well as long-term maintenance and financial requirements not yet 

wholly defined by the proposed regulations. The current regulations define 

"owner or operator" as "the owner or operator of any 'facility or activity' 

subject to regulation under the UIC program." [FN2 40 C.F.R. §144.3] The current 

definitions are insufficient to provide certainty on the key question of what 

activities are subject to regulation, or could impose some future liability. For 

example, does "activity" include any pipelines, pumps, or other infrastructure 

used to deliver CO2 to the injection well? 

In this new field of technology, the role of the initial CO2 source is not yet 

fully understood. A September 2008 GAO report identifies the technological 

barriers to the CCS approach proposed here, which must be addressed for any such 

program to become a reality.[FN3 U.S. Government Accountability Office, Climate 

Change: Federal Actions Will Greaty Affect the Viability of Carbon Capture and 

Storage as a Key Mitigation Option, GAO-08-1080, Sep. 30, 2008, at 15.] For 

example, an emission source that chooses to engage in carbon capture and 

sequestration may contract with a third party to construct and operate its well, 

thus separating the owner and operator functions. Under the proposed 

regulations, it is unclear which of the parties would be responsible for meeting 

the new requirements, and therefore would also be liable if the requirements 

were not met. Given the extent of the responsibilities and potential liability 

imposed on potentially liable CO2 sources, the regulations should define this 

term with much greater precision. Precisely defined liabilities are especially 

important in a rulemaking regarding gas injection into storage fields. Compared 

to wastewater or other liquid injection and storage, gas has the capability of 

migrating more easily, quickly and farther, and risks of leakage are not only 

potentially greater, but also well documented. 

Practical considerations must guide the regulation of these activities. For 

example, the rules must be set up in such a way as to not preclude 3rd party 

ownership and operation of a field and associated wells for underground 

sequestration. Generators are not likely to own pipelines, compressor stations, 

injection wells, properties, and the CO2 itself for any extended period of time. 

Far superior would be the existence of a pipeline system (similar to the natural 

gas pipeline system) that would be owned by others. CO2 from many different 

sources would be piped to appropriate disposal sites (for a fee, of course). At 

the sequestration site, there would likely be two entities. One of these is the 

operator and well superintendent (a company that provides field services). The 

other entity will be the owner (or owners) that would be much like wildcat 

drillers. These owners would offer the service to take the CO2 and properly 

3
inject it underground and adhere to the various safety and regulatory 

requirements (much like existing waste management companies). There would have 

to be a means for monetizing this service and a means for handling issues such 

as leakage, etc. There would probably have to be a reserve of CO2 allowances set 

up to cover events such as a pipeline break or an unexpected fault in the cap 

rock that allowed some CO2 to escape. This is a possible approach that would 

address the practical realities for generators, and ensure that generators can 

shift those liabilities to companies experienced in handling them. 

Individual Response: EPA clarifies that the GS requirements, including the financial 

responsibility requirements at §146.85, apply to the owner or operator of a GS project, which 

includes the Class VI injection well or wells, and includes the subsurface three-dimensional 

extent of the carbon dioxide plume, associated pressure front, and displaced brine, as well as the 

surface area above that delineated region. EPA adds that regulation of CO2 generators and 

transportation/pipelines is outside the scope of EPA’s authority under the SDWA and the GS 

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

financial responsibility. 

Once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells 

and the Director has approved site closure pursuant to requirements at §146.93, the owner or 

operator will generally no longer be subject to enforcement for regulatory noncompliance. 

Furthermore, their financial instrument as required under §146.85 will be released if it was not 

used. However, even if a site closure is approved under §146.93, an owner or operator may be 

held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain 

circumstances. For example, an owner or operator may be held liable for regulatory 

noncompliance even after site closure was approved if the Director relied on erroneous 

information (e.g., erroneous modeling data) provided by the owner or operator when approving 

site closure. 

Additionally, an owner or operator may always be subject to any action the Administrator deems 

necessary to protect the health of persons under §1431 of the SDWA after site closure if there is 

unanticipated migration towards or into a USDW that causes or threatens imminent and 

substantial endangerment to public health. The action may include issuing administrative orders 

or commencing a civil action for appropriate relief. If the owner or operator fails to comply with 

the order, they may be subject to a civil penalty for each day in which such violation occurs or 

failure to comply continues. 

The Agency clarifies that Class VI well permits may be transferred to another owner or operator 

pursuant to §144.38 whereby generally all other regulatory responsibilities are transferred to that 

new owner and operator, which includes all potential liabilities associated with meeting the 

requirements of that permit. Please see further clarification on the issue of long term liability in 

the preamble of the final rule. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA 

4
does not have authority to transfer SDWA or other legal liability for Class VI wells to the State 

or federal government or a third-party fund. See the final rule preamble for further discussion of 

EPA's final approach. 

Letter ID: 0139 Comment ID: 23083 Letter Lines: 131 to 146 

Comment Code: 3862 2.3.3.1 Use of corrosion-resistant construction materials (seeking 

comment) 

Comment Code: 3864 2.3.3.2 Use of corrosion-resistant cements (seeking comment) 

Comment: B. Flexibility in Materials Selection 

In the carbon capture and sequestration process, accompanying impurities will 

likely be incorporated into the carbon dioxide stream and injected in the 

geologic sequestration zone. As EPA notes, these accompanying particles may have 

a corrosive effect on the tubing and casing used to contain the carbon dioxide, 

compromising the safety and security of the sequestration zone. CIBO supports 

the proposed regulations allowing for variability in setting standards for 

casing, cementing, and tubing of the Class VI wells. Under the regulations, the 

Director will determine the standards for these materials on a case-by-case 

basis, taking into consideration the chemical composition of the carbon dioxide 

stream.[FN4 Proposed Rule, Federal Requirements Under the Underground Injection 

Control Program for Carbon Dioxide Geologic Sequestration Wells, 73 Fed. Reg. 

43492, 43509-10 (July 25, 2008) (to be codified at 40 C.F.R. §46.86).] CIBO 

supports this provision is imperative to the safety and security of the carbon 

capture and sequestration process. 

Individual Response: EPA agrees that cement that is compatible with the CO2 and formation 

fluids will enhance Class VI well integrity. EPA also agrees that developing technology in the 

field of acid-resistant cement will provide the industry with future benefits. In the interest of 

USDW protection, the Agency requires that the materials used in Class VI wells must be 

compatible with fluids with which they may come in contact, as specified in §146.86(b)(1). 

EPA adds that the requirements at §146.86(b)(1) state that materials must meet or exceed 

standards developed for such materials by the American Petroleum Institute, ASTM 

International, or comparable standards acceptable to the Director. This requirement invokes the 

expertise of these bodies and allows the use of technologies that are yet to be developed. 

See the discussion of Class VI well construction requirements in the preamble to the final GS 

rule for additional information. Additionally, EPA is developing guidance on the construction of 

Class VI wells. This guidance will be available on EPA’s website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0139 Comment ID: 23084 Letter Lines: 148 to 190 

5
Comment Code: 5460 2.9.2 Comments on transfer of liability for long-term care 

Comment: C. Long-term Stewardship and Liability 

The proposed regulations impose a default care period of 50 years, subject to 

the discretion of the Director and demonstration of non-endangerment of US 

drinking waters.[FN5 73 Fed. Reg. 43519-20.] The proposed regulations do not 

extend the financial responsibilities of the owners or operators after this 

point. SDWA authorizes the EPA to impose liability for the site only to the 

extent that it endangers drinking water. After the EPA determines the site is no 

longer a danger to drinking water and "closes" the site, it cannot assign 

liability for the site. In short, the owners and operators are no longer 

responsible for the injection site once it is closed, which by default is fifty 

years after the injection period. However, the sites do not disappear after 

fifty years; the risks inherent in long-term carbon storage remain, including 

risks of leakage into air, and other non-drinking water impacts. 

Given the potential for lawsuits to arise after site closure, the regulations 

must address which party takes over responsibility for the site from the 

owner/operator post-closure. Because the EPA lacks the authority under SDWA to 

enforce regulation of these sites after a default fiftyyear period, other 

enforcement mechanisms such as RCRA and Superfund may attach. EPA attempts to 

address these concerns, but states that it "cannot make a categorical 

determination as to whether injected CO2 is hazardous under RCRA." [FN6 73 Fed. 

Reg. 43503.] CIBO disagrees that EPA cannot make such a determination, or 

provide some regulatory mechanism to rule out potential RCRA liability for 

actions that under other regulations parties will be required to undertake. 

Again, practical considerations demand clear answers to basic questions. These 

injection aquifers will be several thousand feet underground. They may run for 

miles in any direction. It is entirely possible that the CO2 could be injected 

in one state and carried underground to another state by the course of the 

aquifer. There must be some consistent regulatory policy about this. 

EPA should expect little or no CO2 to be stored if states can sue other States 

because somewhere underground there is CO2 entrapped. Gases have been trapped 

underground, including CO2, for hundreds of millions of years. We wouldn't be 

able to use natural gas today if they were not. The key to this proposed rule is 

to set it up so that these undesirable possibilities do not arise and that the 

potentially more reasonable structures are not precluded. If the rule is written 

such that the generator owns the CO2 until the government takes over the 

liability 50 to 100 years later, there will be no CO2 sequestration. That is not 

a desirable outcome. Additionally, EPA attempts to preclude Superfund liability 

through permitting requirements, but this issue must be addressed clearly and 

unequivocally. Emission sources are hesitant to take responsibility for such a 

project with these unknowns. 

6
Individual Response: Under the final GS rule, once an owner or operator has met all regulatory 

requirements under Part 146 for Class VI wells and the Director has approved site closure 

pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to 

enforcement for regulatory noncompliance. Furthermore, their financial instrument as required 

under §146.85 will be released if it was not used. However, even if a site closure is approved 

under §146.93, an owner or operator may be held liable for regulatory noncompliance (including 

violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be 

held liable for regulatory noncompliance even after site closure was approved if the Director 

relied on erroneous information (e.g., erroneous modeling data) provided by the owner or 

operator when approving site closure. With regard to commenter’s statement about non-USDW 

impacts related to long term liability, EPA clarifies that its authority under the SDWA is to 

protect USDWs from endangerment, which does not include other risks associated with air 

emissions and non-drinking water impacts. 

Additionally, EPA clarifies that the 50 year timeframe for PISC is based on review of research 

studies, industry reports, and existing environmental programs. Under the approach that is part of 

the final rule it is possible that the PISC may be extended beyond 50 years if the owner or 

operator is unable to demonstrate that USDWs will not be endangered by the CO2 plume and/or 

pressure front at site closure. 

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be 

subject to a §1431 response order even after proper site closure is approved under §146.93. 

Under §1431 the Administrator may require an owner or operator to take necessary response 

measures if he or she receives information that a contaminant is present or is likely to enter a 

public water system or an USDW, which may present an imminent and substantial endangerment 

to the health of persons, and the appropriate State and local authorities have not acted to protect 

the health of such persons. The action may include issuing administrative orders or commencing 

a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner 

or operator fails to comply with the order, they may be subject to a civil penalty for each day in 

which such violation occurs or failure to comply continues. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. Please 

note that EPA does not have authority to transfer SDWA or other legal liability for Class VI 

wells to the State or federal government or a third-party fund. See the final rule preamble for 

further discussion of EPA's final approach. 

Letter ID: 0139 Comment ID: 23085 Letter Lines: 191 to 202 

Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment Code: 5400 2.9 Proposed Financial Responsibility and Long-Term Care 

Requirements 

Comment: 

The 50-year post-closure period for continuing liability, from a practical 

7
perspective, is not workable. For example, some CIBO members generate power for 

a range of applications. It is difficult to imagine a generator taking on 

liability that would include the construction of a generating plant, the long 

term operation of that plant, and then the 50-year period after closing the well 

site. Compounding that difficulty is the possibility that the closure of the 

well does not coincide with the shut down of the power plant, potentially 

extending liability to 100 years or beyond, per the discretion of the 

Director.[FN7 73 Fed. Reg. 43519-20.] This raises the question of why a company 

would take on a 100-year liability that is essentially out of their control and 

not really a part of their business. The insurance issue is also a major 

Individual Response: EPA disagrees that a post-injection site care timeframe of 50 years is 

excessive for most Class VI wells. EPA proposed a default post-injection site care timeframe of 

50 years based on a review of research studies, industry reports, and existing environmental 

programs. This analysis was included in an EPA-prepared background document that is available 

in the federal docket, titled "Computational Modeling of Underground Injection of Carbon 

Dioxide for Determination of Area-of-Review and Potential Risk to Underground Sources of 

Drinking Water." EPA assessed various default timeframes based on additional review of 

research studies and evaluation of public comments. While numerous commenters suggested that 

EPA shorten the monitoring timeframe, none of the commenters provided sufficient data or other 

evidence to warrant a change in the proposed timeframe. While the 10- or 30-year timeframe 

suggested by some of these commenters may be within the timeframe suggested in some studies, 

EPA believes that the potential risks of endangering USDWs will likely not decline within these 

timeframes and available data, including data submitted by commenters, do not support a 

different default timeframe. 

However, EPA recognizes that there may be sites where the 50 year post injection site care 

timeframe may be either not appropriate or more burdensome than necessary based on sitespecific conditions. For this reason, the GS rule offers owners or operators flexibility regarding 

the duration of the PISC timeframe by: (1) allowing the Director discretion to shorten or 

lengthen the PISC timeframe during the post-injection period based on site-specific data, 

pursuant to requirements at §146.93(b); or (2) affording the Director discretion to allow a Class 

VI well owner or operator to demonstrate, during the permitting process based on substantial 

data, that an alternative PISC timeframe may be appropriate if it ensures non-endangerment of 

USDWs pursuant to requirements at §146.93(c). 

EPA believes that a default post-injection site care timeframe of 50 years, with flexibility to 

adjust the timeframe for a limited number of GS projects during the permitting process where 

substantial data exists to demonstrate that an alternative timeframe would be protective of 

USDWs, or based on data collected during the PISC period, is appropriate to address the range of 

sites where GS is anticipated to occur, to accommodate site-specific circumstances and various 

geologic conditions, and addresses commenters’ concerns, while ensuring USDW protection. 

Both approaches will utilize site-specific data, and be based on pressure monitoring and USDW 

impacts. 

EPA believes however, that to ensure USDW protection from endangerment, a default timeframe 

for post-injection site care will be necessary in all but a limited number of cases. This default 50 

8
year post-injection site care timeframe represents a reasonable and protective monitoring period 

based on a review of research studies, industry reports, and existing environmental programs, 

and evaluation of public comments. 

EPA also recognizes the concerns associated with ensuring financial responsibility for the long 

time frames over which post-injection site care will be conducted. EPA is developing guidance 

on financial responsibility to assist owners or operators in evaluating the requirements of 

§146.85 and to assist Directors in evaluating financial responsibility demonstrations. The 

guidance describes the types of financial mechanisms that operators may choose to use when 

evaluating the financial responsibility requirements for GS wells and it will also include a section 

on recommended approaches to estimate costs to support accurate financial responsibility 

demonstrations. The guidance will be available at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

As described above, the GS regulation applies to the owner or operator of the GS project, not the 

generator of the CO2. 

Letter ID: 0139 Comment ID: 23086 Letter Lines: 202 to 213 

Comment Code: 5434 2.9.1.2 Need for additional instruments (seeking comment) 

Comment: not really a part of their business. The insurance issue is also a major 

concern. Nothing will be done without some kind of insurance. It will likely be 

necessary to set up an insurance pool in advance so that there is time to gain 

adequate experience to allow insurance companies to assess the proper risks. 

This concern of public acceptance and other related concerns are the focus of an 

NAS report, which concludes that they must be addressed before the CCS strategy 

can be fully developed. 

The high degree of uncertainty regarding any liability makes insurance companies 

unwilling to insure these projects. For example, there is potential for problems 

to exist thousands of years into the future when these owners/operators no 

longer exist. Any regulations must address liability issues to be effective. 

Individual Response: EPA recognizes the commenter's concern over the availability of funds to 

cover the costs of financial responsibility. However, EPA does not have authority under SDWA 

to require insurance companies to set up an insurance "pool" of resources. EPA anticipates that, 

as GS is deployed, insurers will refine their products to meet the needs of these projects. 

EPA is developing guidance that describes the types of financial instruments, including 

insurance, which owners or operators can use to meet financial responsibility requirements for 

GS wells; this guidance document will be available to insurance providers as well. This guidance 

will be available on EPA's website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

9
Under SDWA authority, owners or operators of injection wells must ensure protection of 

USDWs from endangerment and are subject to liability for enforcement under the Act. The final 

rule requires that an owner or operator must conduct monitoring as specified in the Directorapproved PISC and site closure plan following the cessation of injection until the owner or 

operator can demonstrate to the Director that the geologic sequestration project no longer poses 

an endangerment to USDWs. For additional information about the PISC and site closure 

requirements, see the preamble to the final GS rule. 

Once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells 

and the Director has approved site closure pursuant to requirements at §146.93, the owner or 

operator will generally no longer be subject to enforcement for regulatory noncompliance. 

Furthermore, their financial instrument as required under §146.85 will be released if it was not 

used. However, even if a site closure is approved under §146.93, an owner or operator may be 

held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain 

circumstances. For example, an owner or operator may be held liable for regulatory 

noncompliance even after site closure was approved if the Director relied on erroneous 

information (e.g., erroneous modeling data) provided by the owner or operator when approving 

site closure. 

Additionally, an owner or operator may always be subject to any action the Administrator deems 

necessary to protect the health of persons under §1431 of the SDWA after site closure if there is 

unanticipated migration towards or into a USDW that causes or threatens imminent and 

substantial endangerment to public health. The action may include issuing administrative orders 

or commencing a civil action for appropriate relief. If the owner or operator fails to comply with 

the order, they may be subject to a civil penalty for each day in which such violation occurs or 

failure to comply continues. 

The Agency clarifies that Class VI well permits may be transferred to another owner or operator 

pursuant to §144.38 whereby generally all other regulatory responsibilities are transferred to that 

new owner and operator, which includes all potential liabilities associated with meeting the 

requirements of that permit. Please see further clarification on the issue of long term liability in 

the preamble of the final rule. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA 

does not have authority to transfer SDWA or other legal liability for Class VI wells to the State 

or federal government or a third-party fund. See the final rule preamble for further discussion of 

EPA's final approach. 

EPA clarifies that the financial instrument the owner or operator provided to meet the 

requirements under §146.85 will be released when the phase of the project for which the 

instrument was required is complete and all financial obligations for that instrument have been 

met. 

10
Letter ID: 0139 Comment ID: 23087 Letter Lines: 215 to 230 

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

CFR 146.85) 

Comment Code: 6100 3.1 Comments on the cost estimates 

Comment: D. Cost Prohibitive Requirements 

Owners and operators will be responsible for numerous requirements under the 

proposed regulations. Specifically, they must provide financial assurances that 

they will be responsible for any corrective action, well plugging, emergency and 

remedial responses, and the postinjection site closure. These assurances will be 

cost-prohibitive for all but the most financially sound owners and operators. 

Moreover, the true cost of owning and operating an injection well is 

incalculable because the liability remains unknown and, consequently, insurers 

are unwilling to take the risk of backing the project. The probability that 

costs will balloon out of control make carbon capture and sequestration 

infeasible, even for the most dedicated of owners and operators. In January 

2008, the Department of Energy cancelled its $1.8 billion in funding for the 

FutureGen CCS project because costs had soared to almost double the estimate 

provided in 2004. The proposed regulations place too high a financial burden on 

potential owners and operators and will actually discourage new projects. 

Individual Response: EPA notes that the purpose of the GS rule is not to incentivize the use of 

GS; rather, the purpose of the GS rule is to ensure that, where GS is deployed, it is conducted in 

a manner that protects USDWs from endangerment. 

The goal of financial responsibility is to assure that resources are available to prevent 

endangerment of USDWs from improper plugging, remediation, and management of wells in the 

event that the owner or operator experiences financial difficulties. EPA believes that assuring 

financial responsibility for corrective action on wells in the AoR, injection well plugging, PISC 

and site closure, and emergency and remedial response at GS sites is an important component of 

ensuring that USDWs are protected. EPA has specified acceptable financial responsibility 

instruments in the final regulation. 

EPA anticipates that the availability of third-party GS financial instruments will grow in 

response to demand for such instruments as deployment of GS technology increases in the 

future. In addition, EPA plans to allow owners or operators to choose from a variety of financial 

instruments to meet their financial responsibility needs, allowing them to select instruments they 

find easiest to obtain. See the final rule and preamble for further discussion of EPA's final 

approach to financial responsibility. 

Once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells 

and the Director has approved site closure pursuant to requirements at §146.93, the owner or 

operator will generally no longer be subject to enforcement for regulatory noncompliance. 

Furthermore, the financial instrument required under §146.85 will be released if it was not used. 

11
However, even if a site closure is approved under §146.93, an owner or operator may be held 

liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain 

circumstances. For example, an owner or operator may be held liable for regulatory 

noncompliance even after site closure was approved if the Director relied on erroneous 

information (e.g., erroneous modeling data) provided by the owner or operator when approving 

site closure. 

Additionally, an owner or operator may always be subject to any action the Administrator deems 

necessary to protect the health of persons under §1431 of the SDWA after site closure if there is 

unanticipated migration towards or into a USDW that causes or threatens imminent and 

substantial endangerment to public health. The action may include issuing administrative orders 

or commencing a civil action for appropriate relief. If the owner or operator fails to comply with 

the order, they may be subject to a civil penalty for each day in which such violation occurs or 

failure to comply continues. 

The Agency clarifies that Class VI well permits may be transferred to another owner or operator 

pursuant to §144.38, along with all potential liabilities associated with meeting the requirements 

of that permit. Please see further clarification on the issue of long term liability in the preamble 

of the final rule. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA 

does not have authority to transfer SDWA or other legal liability for Class VI wells to the State 

or federal government or a third-party fund. See the final rule preamble for further discussion of 

EPA's final approach. 

The Agency clarifies that sequestration costs are expected to be a small component of total CCS 

project costs. EPA estimates that the GS rule requirements amount to approximately 2 percent of 

the total CCS project costs, according to the cost analysis for the final GS rule, which is in the 

rulemaking docket. 

Letter ID: 0139 Comment ID: 23088 Letter Lines: 232 to 245 

Comment Code: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space 

ownership 

Comment: E. Other Areas of Concern 

The proposed UIC regulations raise many other questions, creating additional 

uncertainty. These concerns include but are not limited to the following: 

- Economic liability related to selling carbon credits, and how it relates to this 

regulation. 

- Impact on underground coal mines, conflicts regarding mineral ownership, and 

possible mineral takings. 

12
- Development of geological horizons below the carbon sequestration horizon but in 

the same area. EPA should retain the flexibility currently available in the other UIC 

programs. EPA's Class VI program should not interfere with mineral extraction (oil 

and gas specifically) through the imposition of restrictions in CO2 storage fields. 

- Potential liability of landowner with CO2 storage area beneath the property. 

Individual Response: The purpose of the Class VI GS rule is to ensure consistency in 

permitting underground injection of CO2 at GS operations across the US and prevent 

endangerment of USDWs in anticipation of the eventual use of GS to reduce CO2 emissions. 

EPA clarifies that carbon crediting, mining, pore space ownership, and surface and subsurface 

property and mineral rights are outside the scope of the GS rulemaking. EPA clarifies that many 

of these issues are under the purview of states, and any of these issues as they relate to GS will 

need to be addressed though state regulations. 

However, the Agency acknowledges that these issues are important and is addressing them using 

other regulatory authorities. For example, in a separate rulemaking under authority of the Clean 

Air Act, EPA is amending the GHG Reporting Program at 40 CFR Part 98 to add reporting 

requirements for CO2 injection and GS. The greenhouse gas reporting requirements build on the 

requirements outlined in the GS rule with the additional goals of verifying the amount of CO2 

sequestered and collecting data on any CO2 emissions to the surface from GS facilities. 

With regard to whether CO2 is considered a commodity, EPA clarifies that the GS rule does not 

address the status of CO2 as a pollutant or commodity and that EPA regulates both pollutants 

and commodities under the UIC provisions. In addition, whether or not a fluid could be sold on 

the market as a commodity is outside the scope of EPA’s authority under the SDWA to protect 

USDWs. The Class VI GS rulemaking is promulgated under Safe Drinking Water Act authority 

and does not relate to any endangerment and cause or contribute findings under the Clean Air 

Act. The Class VI GS requirements do not depend upon, and are unaffected by, Clean Air Act 

endangerment and cause or contribute findings. 

The Agency clarifies that the final GS rule does not require owners or operators to use GS 

technologies, nor does it impact business as usual for Class II owners or operators that are 

injecting CO2 to enhance production of oil or gas. Owners or operators that choose to transition 

from EOR to GS may do so, provided they meet the requirements for Class VI wells. 

Regarding long-term liability, once an owner or operator has met all regulatory requirements 

under Part 146 for Class VI wells and the Director has approved site closure pursuant to 

requirements at §146.93, the owner or operator will generally no longer be subject to 

enforcement for regulatory noncompliance. Furthermore, their financial instrument as required 

under §146.85 will be released if it was not used. However, even if a site closure is approved 

under §146.93, an owner or operator may be held liable for regulatory noncompliance (including 

violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be 

held liable for regulatory noncompliance even after site closure was approved if the Director 

relied on erroneous information (e.g., erroneous modeling data) provided by the owner or 

operator when approving site closure. 

13
Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be 

subject to a §1431 response order even after proper site closure is approved under §146.93. 

Under §1431 the Administrator may require an owner or operator to take necessary response 

measures if he or she receives information that a contaminant is present or is likely to enter a 

public water system or an USDW, which may present an imminent and substantial endangerment 

to the health of persons, and the appropriate State and local authorities have not acted to protect 

the health of such persons. The action may include issuing administrative orders or commencing 

a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner 

or operator fails to comply with the order, they may be subject to a civil penalty for each day in 

which such violation occurs or failure to comply continues. 

Letter ID: 0139 Comment ID: 23979 Letter Lines: 76 to 89 

Comment Code: 1220 1.1.1.1 Terminology and definitions 

Comment: A. Owner/Operator Liability 

The proposed regulations affect owners and operators of injection wells that 

will be used to inject CO2 into the subsurface for purposes of geological 

sequestration. Owners and operators will be responsible for numerous siting, 

construction, testing, and monitoring requirements enumerated in the 

regulations, as well as long-term maintenance and financial requirements not yet 

wholly defined by the proposed regulations. The current regulations define 

"owner or operator" as "the owner or operator of any 'facility or activity' 

subject to regulation under the UIC program." [FN2 40 C.F.R. §144.3] The current 

definitions are insufficient to provide certainty on the key question of what 

activities are subject to regulation, or could impose some future liability. For 

example, does "activity" include any pipelines, pumps, or other infrastructure 

used to deliver CO2 to the injection well? 

Individual Response: The final Class VI GS regulations apply to owners or operators of 

injection wells that will be used to inject CO2 into the subsurface for the purposes of GS. 

Generators and transporters of CO2 are not affected by the Class VI GS rule. The UIC program’s 

authority under the SDWA focuses on ensuring that GS projects are permitted, sited, constructed, 

operated, monitored, and closed in a manner that protects USDWs from endangerment. 

Based on its evaluation of all public comments and input on the proposed rule and the NODA 

and Request for Comment, EPA has made many revisions to the Class VI GS rule. Please see the 

final rule and preamble for additional information. 

14