This comment letter response contains two parts:

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

Notes about the response letters:

• The response letters were generated by a data base used to track the content of all public

comment submittals and ensure that the Agency responds to each. Each comment letter

was assigned a Letter ID that corresponds to the last four digits of the docket number of the
original comment (as posted on www.regulations.gov).

• Each response letter includes: comment text; an EPA

‐ assigned comment code; and an
individual response. These are described and explained below.

• The data base contains Comment text from the letters submitted by commenters.
Many hard copy letters were scanned into electronic format for inclusion in the data

base. As a result, there may be some typographical errors attributable to optical

character recognition issues. However, all original submittals were reviewed in the

process of drafting responses to ensure that the comment content was understood and
appropriately addressed.

• The content of each comment letter was divided into topic areas and assigned a unique

Comment ID. Additionally, one or more Comment Codes (i.e., unique topic area ID) was assigned to each discrete point raised by a commenter. This information was added to

the data base. To inform final rulemaking decisions, all comments and information

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

construction requirements).

• Following decisions on the final rule requirements, Individual responses were drafted
by topic area to ensure completeness and consistency of the responses with the final

rule and other responses to similar comments. Each discrete point made by a

commenter was given a unique response.

• Upon completion of comment responses, all information was entered into the data base.

Each letter response is a compilation of each comment and its individual response, compiled in the order of the original comment letter. As a result of this process, there is
repetition in the response text. The Agency believes this approach ensures completeness

and attention to each comment letter that was submitted.

• All comments in a topic area were reviewed, evaluated, and responded to concurrently.

Responses on each topic area are compiled and are also available in the rulemaking docket.1 Comments by the Coal Utilization Research Council to the Envi ronmental Protection Agency’s Proposed Rulemaking under the Safe Drinking Water Act’s Underground Injection Control Program for Carbon Dioxide Geologic Sequestration Wells Docket ID No. EPA-HQ-OW-2008-0390

The Coal Utilization Research Council (CURC) 1 submits these comments to

Docket ID No. EPA-HQ-OW-2008-0390, 73 Fed. Reg. 43492, the Environmental

Protection Agency (EPA or Agency)’s pr oposed regulations for the injection and

geologic sequestration (G S) of carbon dioxide (CO 2 ) issued pursuant to the underground

injection control (UIC ) program as authorized by the Safe Drinking Water Act (SDWA),

42 U.S.C. § 300f et seq. CURC and its members have been at the forefront of promoting

the demonstration and commercial deploym ent of carbon capture and storage (CCS)

technologies. 2 The widespread implementation of CCS will allow the nation to continue

to enjoy the economic and energy security benefits of using our vast domestic and

essential U.S. coal resources while promoting reduction of greenhouse gas emissions.

CURC has concerns about EPA’s proposed rule. CURC believes that the final

rule should be modified to provide: (a) greater regulatory certainty for CO 2 storage in

geologic formations, (b) balance between reducing the risk of potential impacts of

injected CO 2 on underground sources of drinking wa ter (or USDW), and increasing the

likelihood that overly stringent UIC rules could lead to delays in the commercial adoption

of CCS technology and ultimately less CO 2 mitigation, (c) a regulatory design that

accommodates greater flexibility in permitting CO 2 injection, (d) interim guidance for GS

1 CURC is an association of coal stakeholders which has the primary purpose of fostering programs of technology, research, development, demonstration, and deployment of technologies to enable the continued economic and energy security benefits that derive from coal use, in a manner that is consistent with the nation’s environmental policies and goals. CURC members include U.S. coal companies, coal-using electric utilities, manufacturers of power plants and power plant environmental control systems, major universities, and major coal-related associations and institutes.

2 See Carbon Sequestration: Risks, Opportunities, and Protection of Drinking Water, Subcomm. on Environment and Hazardous Materials, H. Comm. on Energy and Commerce , 110th Cong. (2008) (statement of Ben Yamagata, Executive Director, Coal Utilization Research Council).2 projects for the period that precedes promulgation of the final UIC rule, and (e) no

interference with ongoing regulatory programs that govern the commer cial injection of

CO 2 for enhanced oil or methane recovery.

A. Regulatory Uncertainty

GS projects need regulatory certainty in order to move forward as a meaningful

approach to reduce CO 2 emissions. While it is an important first step, the EPA proposed

rule addresses only one piece of the needed re gulatory framework: that is the protection

of USDW. CURC understands that the aut hority delegated to EPA in the SDWA does

not permit the EPA to develop a comprehensiv e regulatory framework that covers all of

the components needed to provide regulatory cer tainty, which are needed to facilitate the

widespread use of GS. This regulatory cer tainty is essential; a number of additional

issues must be addressed by the federal or state governments in order for carbon capture

and the enabling GS to move forwar d. Chief among these issues are:

1. the surface property rights a ssociated with GS wells;

2. subsurface and pore space rights associated with GS wells;

3. flexibility in the ruling that allows tr ansfer of geologic storage (GS) sites

and CO 2 ownership, monitoring and mitigation responsibility from one

entity to another; and

4. long-term liability.

EPA’s proposed rule includes a number of requirements that could create

significant uncertainty as CCS project developers initiate projects. These requirements

will serve as barriers to CCS project developers who will need a clear idea of their

environmental obligations and financial exposures before such projects are initiated. In3 general, we believe that the “adaptive” regulato ry approach, as set forth in Section III.B.

of the Preamble, will lead to regulatory un certainty. Specifically, the NOPR states that

“EPA will track implementation of the fina l GS rule to determine whether these

requirements continue to meet SDWA objectives and, if not, revise them as needed.”

Formulating regulations on the best availa ble scientific information available is

appropriate but these NOPR stat ements signal an intent th at the regulations could be

modified before, during or afte r the initial regulations are pr omulgated. This ability to

exercise such broad discretion will discourage entities considering CCS projects from

moving forward. It is important for EPA to re tain discretion to am end its rules, but to

limit such discretion to be exercised within stated criteria; to provide notice and

opportunity for comment; and to apply any modifications prospectively, allowing

projects already operating under valid permits to continue to operate pursuant to

regulations in place at the time such permits were issued.

Other areas of uncertainty in the proposed rule include:

- The unresolved issue of how much non-CO 2 material may be present

before exceeding the limit for a “C arbon dioxide stream” (§146.81(d)).

- The potential requirement for “buffer zones” in addition to a confining

zone (§146.83(b)).

- The open-ended requirement for post- injection site ca re (§146.93(b)).

- Prevention of “endangerment” of drinking water is a legislative

requirement. Moreover, as noted in Section II.B. of the Preamble,

Congress has defined endangerment to activities which “may result” in a

system not meeting drinking water re gulatory requirements, or otherwise4 affecting health. However, EPA appears to have defined the word “may”

to include an additional level of possibi lity in stating, for example, that the

post-injection site care period ends when there is “no potential threat of

endangerment.” Because “endangerment” is such a central theme

throughout this regulation, we recomme nd that the rule clearly state that

EPA interprets endangerment to mean “a reasonable likelihood” of

damage based upon an objective asse ssment of genuine risk and not

derived through any mathematically hypothesized possibility of damage.

B. The Need for Balanced Regulation

We agree that a regulatory structure fo r GS wells is urgently required for CO 2

injection outside of applications for enhan ced recovery of stranded oil and methane.

Most important, the final rules must insu re the primacy of protecting our nation’s

drinking water as we begin a program to sequester CO 2 . However, the UIC regulations

must not inadvertently create uncertainty or es tablish a regulatory program that actually

discourages the geologically and geographically diverse commercial de ployment of CCS.

We appreciate the level of certainty that th e proposed rule seek s to achieve for CCS

project developers in light of the need to protect drinking water, yet there are several

areas of the proposed rule that we believe require the EPA to document the need for the

level of proposed stringency, or to consider reducing that stringency. This need for

explanation or modification applies to th e following elements of the proposed rule:

Area of Review (AoR)

The proposed regulation does not actually de fine the AoR, it merely states that the

area will be determined by mathematical models . One of the concerns with the use of5 such complex models is that the site may not be fully characterized with respect to hydrogeologic properties. There may be signifi cant uncertainty in one or more hydraulic

process/parameters. Therefore, it is possibl e to obtain a wide-range of model outcomes

from different model parameters. The treatm ent of uncertainty in model parameters and

sensitivity of model results to parameter se lection should be addre ssed. Given that the

AoR will be periodically revisited, we recommend that the final rule make a pragmatic

determination of what will be necessary to protect groundwater, gi ven the requirement

for reevaluation over time, and that the Agen cy focus the requirements to rely upon the

mathematical models with the inherent differences noted above.

Well Construction

The requirement that injection be allo wed only beneath the lowermost formation

containing a USDW may exclude numerous formations that would otherwise make

excellent GS well candidates. It may be th at protection of USDWs is not a function of

whether the GS injection zone is above or below groundwater, especially since buoyant

CO 2 is more likely to rise upward than to seep downward. We recommend that the

regulation simply require that the permit applicant demonstrate that the CO 2 plume will

not result in contamin ation of an USDW.

Also, initial GS projects may utilize CO 2 for enhanced oil recovery (EOR) or

enhanced coal-bed methane recovery (ECGM) operations and then later convert to purely

CO 2 storage operations. Many of those operatio ns may be above the lowermost USDW.

Plume and Pressure Front Monitoring

EPA would require each Class VI well pe rmit application to contain a monitoring

plan to verify that a GS we ll is operating as intended a nd not endangering USDW. EPA6 should be aware that certain monitoring t echnology is currently under development and

not available as a tool in the near term to meet the proposed EPA requirements. Further,

the usefulness of available tec hnology is a function of site-sp ecific characterizations. The

EPA should not impose a one-size-fits-all a pproach. CURC recommends that the EPA

permit well owners and operators to propose th e use of available te chnology to meet the

proposed requirements and then to amend thei r tailored monitoring plans as technology

evolves.

Post-Injection Site Care

EPA’s proposed 50-years default timeframe for Class VI wells post-injection site

care (PISC) is not justifiable, and likely will rais e long-term uncertainty about liability

associated with a CO 2 injection project. Furthermore, the hybrid default/performancebased standard permits the agency to le ngthen this period, making it impossible for a

CCS project developer to understand the timefr ame of its regulatory obligation at project

inception. This long-term regulatory uncertainty presents an insurmountable risk. There

is documented data that the risk dr ops off considerably after ten years. 3 CURC endorses

the Interstate Oil and Gas Compact Comm ission (IOGCC)’s recommendation for a 10-

year post closure site care period. 4 The IOGCC proposed rules draw from two decades of

state regulatory and industry experience with compression tr ansport, and injection of CO 2

from enhanced oil recovery.

3 Sally M. Benson, “Monitoring Carbon Dioxide Sequestration in Deep Geological Formations for Inventory Verification and Carbon Credits” (2006).

4 The Interstate Oil and Gas Compact Commission Task Force on Carbon Capture and Geologic Storage, “Storage of Carbon Dioxide in Geologic Structur es: A Legal and Regulatory Guide for States and Provinces” (2007) [hereinafter IOGCC Model Rules].7 Financial Responsibility and Long-term Care Requirements

The proposed rule’s financial responsibil ity and long-term care requirements lead

to significant economic burdens without demons trating the environmental benefit of the

requirement. Alone and in combination, these requirements go well beyond the financial

assurance requirements currently in place for ex isting UIC well classes. Further, the rule

provides no guidance to accommodate transf er of owner or operator financial

responsibility to other entities, and there is no discussion of the creation of a third-party

financial mechanism whereby a government entit y, for example, could act as trustee to

execute or cause to be executed any long-term responsibilities or requirements. It is

recommended that such mechanisms be estab lished in order for GS projects to move

forward.

C. The Regulatory Design

Section III.A. of the Preamble presents several approaches for how the UIC rules

for CO 2 injection might be structured. EPA sel ected an approach described as “Tailored

Requirements,” based on the perceived ability of that approach to be “tailored” to the

volume, buoyancy, and corrosiveness of CO 2 from specific CCS opera tions. It rejected a

more flexible alternative, described as “General Requirements,” because it was not

“tailored.” A performance-based program w ith requirements that prescribe the required

outcomes of properly designing and operating a CCS project, rather than a program that

prescribes how to achieve those outcomes, is preferable. A performance-based approach

better accommodates changes in knowledge and technology over time, and would allow

implementing state permitting authorities the fl exibility to use their expertise to address

varying geologic and geographic situations. In many instances, retaining the primacy of8 state regulatory authority may better address such an approach, a nd in all instances a

performance-based approach would provide federal or state aut horities and the CCS

operators the flexibility to achieve required outcomes.

D. Interim Program Recommendations

CURC proposes that EPA consider issui ng guidance to create an interim program

that would provide a regulato ry framework for CCS projects prior to the promulgation of

a final rule. Our concern rests with the possibi lity that the final rules may not be issued

for some time in the future. For example, a section in the preamble to the NOPR states:

During the Deployment Phase (1008-1017) , the [RCSP] partnerships will conduct large volume carbon storage tests to demonstrate that large-scale

CO 2 injection and storage can be achie ved safely and economically. EPA

will use the data collected from these projects to support decisions in the

final GS rule.

This statement suggests that a final GS rule may not be issued until 2017 or that rules

issued earlier than that date could be modified and changed later. While we ascribe to a

belief that any final rule should be informed by the findings and da ta collected through

RCSP partnerships, we are concerned that re gulatory uncertainty will delay CCS project

development; hence the need for an interim program.

Projects issued permits under this guidan ce would collect data and technological

experience that could contribu te information necessary to establish a viable working

framework for a long term permitting and liability regime for geologic CO 2 storage

activities. The program might be limited to a maximum number of projects, or

cumulative amount of CO 2 injection, and it should be de signed to be compatible with

anticipated financial incentives for “earl y adopters” of CCS technology. Projects

permitted under this interim guidance should be grandfathered from the final UIC rule.9 Specific limiting provisions could be re quired in order to ease any concerns

regarding the endangerment of USDW under such an interim program. Since proper site

characterization is the most effective risk management tool fo r GS wells, EPA could

require applicants under this program to use geologically superior sites, or provide

alternative requirements for sites with signifi cantly superior characte ristics. The World

Resource Institute (WRI) CCS Guidelines 5 and IOGCC model rules include provisions

for selecting storage sites that have a high probability of retaining injected CO 2

. 6 An

interim program would recognize the same goals sought by EPA when it issued its

guidance for DOE Regional Partnership pilot pr ojects designed to evaluate the technical

issues associated with CO 2 injection as Class V e xperimental technology wells. 7

E. Conclusion

CURC understands EPA’s position that th e SDWA does not provide EPA with the

authority to develop regulations for all questio ns and issues related to GS. While a full

regulatory framework is necessary fo r CCS projects to move forward, CURC

recommends that EPA work within the UI C program to create necessary regulatory

certainty for early CCS projects. EPA should acknowledge that overly prescriptive

5 World Resource Institute, “CCS Guidelines: Guide lines for Carbon Capture, Transport and Storage” (2008). The WRI Guidelines also offer a comprehensive regulatory approach to CCS that goes beyond the regulation of GS wells. However, in the guideline’s discussion of site closure, the WRI acknowledges a need for proper incentives so as not to impede the deployment of CCS technology as private companies may be reluctant to engage in storage operations if required to carry a financial commitment and liability

out into the indefinite future. Id. at 104.

6 The IOGCC model rules premise approval of a GS storage site on four findings: (1) the facility and reservoir are suitable and feasible for injection and storage; (2) that a good faith effort has been made to obtain the consent of a majority of the owners having property interests affected by the storage facility, and that the operator intends to acquire any remaining interest by eminent domain or otherwise allowed by statute; (3) that the use of the storage facility will no t contaminate other formations containing fresh water, oil, gas, coal or other mineral deposits; and (4) that the proposed storage will not unduly endanger human health and the environment and is in the public interest. See IOGCC Model Rules, supra note 5 at Appendix I.

7 Envtl. Protection Agency, Office of Ground Water and Drinking Water, UIC Program Guidance #83, Using Class V Experimental Technology Well Classification for Pilot Geologic Sequestration Projects (2007).10 regulations can discourage technological development a nd commercial deployment.

Such an outcome can adversely impact the environment by impairing the design or

implementation of a CO 2 mitigation program and can also lead to costly and unnecessary

requirements. We also encourage EPA to r econsider the basic design of the UIC Class

VI program and create a more flexible perf ormance-based program given the fact that

CO 2 injections has been conducted safely in the U.S. for more than a decade, rather than

the more prescriptive program proposed. Lastly, CURC recommends that EPA issue

guidance for an interim Class VI program fo r CCS projects that predate the final UIC

rule.Letter ID: 0227 Commenter: Ben Yamagata Organization: Coal Utili zation Research Council

Letter ID: 0227 Comment ID: 21778

Comment: Individual Response:

Letter ID: 0227 Comment ID: 21779 Letter Lines: 48 to 58

Comment Code: 1200 1.1 General comments about the rulemaking

Comment: CURC has concerns about EPA’s proposed rule . CURC believes that the final rule should be modified to provide: (a) greater regulatory certainty for CO2 storage in geologic formations, (b) balance be tween reducing the ri sk of potential impacts of injected CO2 on underground sour ces of drinking water (or USDW), and increasing the likelihood that overly string ent UIC rules could lead to delays in the commercial adoption of CCS tec hnology and ultimately less CO2 mitigation, (c) a regulatory design that accommodates greater flexibility in permitting CO2 injection, (d) interim guidance for GS pr ojects for the period that precedes promulgation of the final UIC rule, and (e) no interference with ongoing regulatory programs that govern the commercia l injection of CO2 for enhanced oil or methane recovery.

Individual Response: EPA acknowledges the comment. Pleas e see the remainder of EPA's responses to this comment for further deta ils. For additional information on EPA's final regulatory approach, please see the final rule and preamble as well as the rulemaking docket.

EPA clarifies that the GS rule doe s not promote or encourage the use of GS; rather it is designed to ensure consistency in permitting underground injection of CO2 at GS operations across the United States and provide requirements to prev ent endangerment of USDWs in anticipation of

the eventual use of GS to reduce CO2 emissions . EPA adds that the final GS rule includes a balance of specific criteria to be met by the ow ner or operator and areas of Director discretion. The Agency believes this balance allows for GS projects to be designed and permitted to address the unique, site-specific aspects of each project, while providing consistency in permitting across

the United States.

Letter ID: 0227 Comment ID: 21780 Letter Lines: 60 to 78

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

1Comment: A. Regulatory Uncertainty

GS projects need regulatory certainty in order to move forward as a meaningful approach to reduce CO2 emissions. While it is an important first step, the EPA proposed rule addresses only one piece of the needed regulatory framework: that is the protection of USDW. CURC understand s that the authority delegated to EPA in the SDWA does not permit the EPA to develop a comprehensive regulatory

framework that covers all of the com ponents needed to provide regulatory certainty, which are needed to facilitate the widespread use of GS. This regulatory certainty is es sential; a number of add itional issues must be addressed by the federal or state governm ents in order for carbon capture and the enabling GS to move forward. Chief among these issues are:

1. the surface property rights a ssociated with GS wells; 2. subsurface and pore space rights associated with GS wells; 3. flexibility in the ruling that allows tr ansfer of geologic st orage (GS) sites and CO2 ownership, monitoring and mitigati on responsibility from one entity to another; and 4. long-term liability.

Individual Response: EPA clarifies that pore space ownership and surface and subsurface property and mineral rights are outside of the scope of the Class VI GS rulemaking. The purpose

of the Class VI GS rule is to ensure consis tency in permitting underground injection of CO2 at GS operations across the United States and provi de requirements to prevent endangerment of USDWs in anticipation of the ev entual use of GS to reduce CO 2 emissions. EPA recognizes the importance of providing clear, flexible, scalable , and appropriate regulations. EPA believes that the GS regulation will provide cert ainty to industry and the pub lic by providing consistency in requirements across the U.S. and transparency about what requirements apply to owners or

operators.

Regarding transfer of GS sites, the Agency ac knowledges that owners or operators of wells regulated under existing well classi fications may seek to re-permit their wells for GS. However,

the Class VI GS rule does not allow for automatic transfer of a Class VI permit to a new owner or operator; see §144.38(b). Given the unique nature of GS and the importance of interaction between GS project owners or operators and perm itting authorities, the Agen cy believes that the Director should have an opportuni ty to review the permit and determine whether any changes are necessary at the time of the permit transf er, pursuant to requirements at §146.38(a). If information about the GS project and existing pe rmit conditions are determined to be adequate, the permit review and transfer may entail a minimal amount of new information and

administrative effort.

Regarding long-term liability, once an owner or operator has met all requirements under Part 146 for Class VI wells and the Director has appr oved site closure pursuan t to requirements at §146.93, the owner or operator will generally no l onger be subject to enforcement for regulatory noncompliance. Furthermore, their financia l instrument as required under §146.85 will be released if it was not used. However, even if a site closure is appr oved under §146.93, an owner

2or operator may be held liable for regulator y 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 clos ure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provided by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regul atory compliance, an owner or operator may be subject to a §1431 response orde r even after proper site cl osure is approved under §146.93. Under §1431 the Administrator may require an ow ner 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 pres ent an imminent and s ubstantial endangerment to the health of persons, and the appropriate Stat e and local authorities ha ve not acted to protect the health of such persons. Th e action may include issuing admi nistrative orders or commencing a civil action for appropriate relief against the ow ner 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 ope rator may remain liable under tort and other remedies, or under other federal statutes includi ng, 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 to financial responsibility for Class VI wells.

Letter ID: 0227 Comment ID: 21781 Letter Lines: 80 to 98

Comment Code: 1200 1.1 General comments about the rulemaking

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

Comment: EPA’s proposed rule includes a number of requirements that could create significant uncertainty as CCS project de velopers initiate projects. These requirements will serve as barriers to CCS project developers who will need a clear idea of their environmental obliga tions and financial exposures before such projects are initiated. In genera l, we believe that the "adaptive" regulatory approach, as set forth in Sec tion III.B. of the Preamble, will lead to regulatory uncertainty. Specifically, the NOPR states that "EPA will track implementation of the final GS rule to determine whether these requirements continue to meet SDWA objectives and, if not, revise them as needed." Formulating regulations on the best availa ble scientific information available is appropriate but these NOPR statements signal an intent that the regulations could be modified before, during or after the initial regulations are promulgated. This ability to exercise su ch broad discretion will discourage entities considering CCS proj ects from moving forward. It is important for EPA to retain discretion to amend its rules, but to limit such discretion to be exercised within stated criteria; to pr ovide notice and opportunity for comment; and to apply any modifications prosp ectively, allowing pr ojects already

3operating under valid permits to continue to operate pursuant to regulations in place at the time such permits were issued.

Individual Response: EPA acknowledges that the UIC GS adaptive rulemaking approach introduces a degree of uncertaint y—given that the GS requirements may change in the future. However, the Agency believes that there is also a need to proceed with regulatory development at a pace that can meet the current and future demands for Class VI permits, and allow early projects to be permitted under the tail ored Class VI regul atory approach.

EPA believes that an adaptive approach to regu lating CO2 injection for GS will allow regulatory development to proceed and ensure USDW prot ection from endangerment while EPA continues to gather data from pilot projects and other re search as it becomes available. Additionally, the Agency believes that there is a need to have re gulations in place during th e earliest phases of GS deployment. Finalizing requirements at this time will allow early GS wells to be permitted in a manner that addresses the unique characteristics of CO2 injection for GS and allow early projects

to demonstrate successful confinement of CO2 in a manner that is protective of USDWs. EPA also believes that an adaptive ap proach enables the Agency to ma ke changes to the program as necessary to incorporate new research, data, and information about GS and associated technologies (e.g., modeling and well construc tion). This new information may increase protectiveness, streamline implementation, or othe rwise inform the requirements for GS injection of CO2. Any revisions that will be made to the GS requireme nts in the future will go through public notice and comment as required by the SDWA.

Regarding the comment that projects operating under valid permits should be able to continue to operate pursuant to regulations in place at the time of permit issu ance, EPA notes that changes to the GS regulation may trigger permit modifi cations under existing regulations at 40 CFR 144.39(c), which may trigger public notice and co mment procedures under Part 124. EPA adds

that the final GS rule allows the constructi on of existing Class I, Class II, or Class V experimental technology wells to be grandfathered, at §146.8 1(c), provided the owner or operator can demonstrate to the Director that the wells were engineered and constructed to meet the requirements at §146.86(a) and ensure prot ection of USDWs, in lieu of requirements at §§146.86(b) and 146.87(a).

Letter ID: 0227 Comment ID: 21782 Letter Lines: 100 to 103

Comment Code: 1614 1.3.1.2 Impurities in captured CO 2; purity standards for CO2

Comment: Other areas of uncertainty in the proposed rule include:

-The unresolved issue of how much non- CO2 material may be present before exceeding the limit for a "Carbon dioxide stream" (§146.81(d)).

Individual Response: EPA recognizes that many CO2 str eams may be relatively pure, and

research indicates that the estimated amounts of impurities in a CO2 stream are likely to be low. However, these estimates are based on limited in formation, and uncertainties remain about the expected concentrations of impurities from the va rious types of CO2 streams. The concentrations

4of minor and trace elements in CO2 streams for GS projects are likely to vary by facility, coal composition, plant operating conditions, and pollution removal technologies.

The GS rule does not set generic purity standa rds for CO2 injectate streams (e.g., a percent CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners or operators to submit information on the sour ce of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to subm it data about the site, including an analysis of the chemical and physical characteristics of the CO2 stream, as required at §146.82(a)(7)(iv), and information on the compatib ility of the CO2 stream with fluids in the injection zone and minerals in both the injection and the confini ng zones and the materials used to construct the well, per §146.82(c)(3). This info rmation can help the Director determine the potential for geochemical reactions between the injectate (CO2) and the host geologic formations, which could result in the plugging of pore spaces or the dissolution of formation

minerals.

Since the GS rule, at §146.81(d), prohibits CO2 st reams that meet the definition of a hazardous waste under 40 CFR part 261, injection of a CO2 str eam that is determined to be a hazardous waste may only occur in a Class I hazardous waste injection well.

Letter ID: 0227 Comment ID: 21783 Letter Lines: 104 to 105

Comment Code: 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83)

Comment: -The potential requirement for "buffer z ones" in addition to a confining zone (§146.83(b)).

Individual Response: EPA retains the requirement to iden tify additional containment/confining zones, if required by the Di rector, as proposed (§146.83(b)). EPA acknowledges that such additional zones may not be needed in all circumst ances, and clarifies that this requirement is at the Director's discretion, based on his or her understanding of a part icular site. EPA believes that, in some situations, the presence of additional confining and containment zones above the primary (i.e., lowermost) confining zone can improve USDW protecti on. These layers could further impede vertical fluid movement and al low for pressure dissipation, and also provide additional sites for monitoring, mitigation, and re mediation. The Agency's decision is supported by commenters representing states, water associati ons, and an electric utility who assert that these requirements promote a flexible, risk-base d, site-specific approach to characterizing and permitting a site for GS projects, and are intende d to improve understanding of the project as a whole and promote better modeling of the site.

Letter ID: 0227 Comment ID: 21784 Letter Lines: 106 to 106

Comment Code: 5200 2.8.2 Post injection site care (seeking comment) (40 CFR 146.93)

Comment: -The open-ended requirement for post- injection site ca re (§146.93(b)).

5Individual Response: Please see EPA’s response to the more detailed comment below.

Letter ID: 0227 Comment ID: 21785 Letter Lines: 107 to 118

Comment Code: 1240 1.1.1.3 Suggested changes/ed its to rule language

Comment: -Prevention of "endangerment" of drinki ng water is a legislative requirement. Moreover, as noted in Section II.B. of the Preamble, Congress has defined endangerment to activities which "may resu lt" in a system not meeting drinking water regulatory requirements, or otherw ise affecting health. However, EPA appears to have defined the word "may " to include an additional level of possibility in stating, for example, that the post-injection site care period ends when there is "no potential th reat of endangerment." Because "endangerment" is such a central theme throughout this regulation, we recommend that the rule clearly state that EPA interprets endangerment to mean "a reasonable likelihood" of damage based upon an objective assessment of genuine risk and not derived through any mathem atically hypothesized possibility of damage.

Individual Response: The primary goal of the UIC program under the SDWA is to protect USDWs from endangerment. The UIC program provide s that no injection shall be authorized if

it results in “the movement of fl uid containing any contaminant into [USDW]s, if the presence of that contaminant may cause a violation of a ny primary drinking water regulation under 40 CFR part 142 or may adversely affect the health of persons,” per §144.12.

The Class VI GS rule, as part of the UIC progr am regulations, continues the program’s goal of ensuring the protection of USDWs from enda ngerment. The permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the Class VI GS rule are built on a long-standing protective regul atory framework, tailored to the unique aspects of CO2 GS. Defining endangerment is outside the sc ope of the Class VI GS rulemaking.

Letter ID: 0227 Comment ID: 21786 Letter Lines: 120 to 133

Comment Code: 1200 1.1 General comments about the rulemaking

Comment: B. The Need for Balanced Regulation

We agree that a regulatory structure for GS wells is urgently required for CO2 injection outside of applications for enhanced recovery of stranded oil and methane. Most important, the final rules must insure the primacy of protecting our nation’s drinking water as we begin a program to se quester CO2. However, the UIC regulations must not inadvertently create uncertainty or establish a regulatory program that actually discourag es the geologically and geographically diverse commercial deployment of CCS. We appreciate the level of certainty that

6the proposed rule seeks to achieve for CCS project developers in light of the need to protect drinking wate r, yet there are several ar eas of the proposed rule that we believe require the EPA to documen t the need for the level of proposed stringency, or to consider reducing that stringency. Th is need for explanation or modification applies to the followi ng elements of the proposed rule:

Individual Response: EPA clarifies that the GS rule does not promote or encourage the use of GS; rather it is designed to ensure consistenc y in permitting underground in jection of CO2 at GS operations across the United States and provide requirements to prevent endangerment of USDWs in anticipation of the eventual use of GS to reduce CO2 emissions. EPA believes that the GS regulation will provide regu latory certainty and oversight that operators have requested, and allow for the deployment of this key clim ate change mitigation technology that could be deployed to reduce CO2 emissions. EPA adds that the GS regulation builds upon the longstanding protective framework of the UIC Program , which has been regula ting the injection of billions of gallons of fluids for decades, incl uding wells used for enhanced oil recovery.

Letter ID: 0227 Comment ID: 21787 Letter Lines: 135 to 149

Comment Code: 3300 2.2.1 Delineating the AoR/M odeling CO2 movement

Comment Code: 3330 2.2.1.3 Applicability /adequacy of computational models (seeking comment)

Comment: Area of Review (AoR)

The proposed regulation does not actually de fine the AoR, it merely states that the area will be determined by mathematical models. One of the concerns with the use of such complex models is that the site may not be fully characterized with respect to hydro-geologic properties. There may be significant uncertainty in one or more hydraulic process/parame ters. Therefore, it is possible to obtain a wide-range of model outcomes from different model parameters. The treatment of uncertainty in model paramete rs and sensitivity of model results to parameter selection should be addr essed. Given that the AoR will be periodically revisited, we recommend that the final rule make a pragmatic

determination of what will be necessa ry to protect groundwater, given the requirement for reevaluation over time, and that the Agency focus the requirements to rely upon the mathematical models with the inherent differences

noted above.

Individual Response: EPA agrees that modeling results are prone to varied degrees of uncertainty. As discussed in the preamble to the proposed GS regulati on and the associated background document "Computationa l Modeling of Underground In jection of Carbon Dioxide

for Determination of Area-of-Review and Poten tial Risk to Undergroun d Sources of Drinking Water" (cited in the proposed rule preambl e as USEPA, 2008d), model predictions depend largely on the values of key parameters. Often th ese parameter values are estimated or averaged from several data sources. EPA also agrees that sensitivity analyses and "worst case scenario" modeling runs should be presented by the owner or operator and evaluated by the Director. If

7during the permit review, the Director determin es that modeling results are too wide-ranging, further information will be required of the owner or operator.

EPA clarifies that models are to ols to help predict the movement of a CO2 plume over long time frames. However, EPA recognizes that it cannot be expected that modeling something as complex as a CO2 plume can be done with comple te certainty; therefore EPA is also requiring that the AoR be reevaluated to verify the CO2 plume is moving as predicted and to allow for model calibration and necessary revisions to the required GS project plans (e.g., AoR and corrective action, test ing and monitoring, injection well plugging, post-injection site care and site closure, and emergency and reme dial response). EPA believes th at near-term predictions (e.g., over the subsequent 5 years) would have the highest degree of certainty. Periodic model

calibration would allow refinement to the AoR delineation based on real-world conditions and operating data and monitoring results, and thus increase confidence in the modeled predictions. EPA adds that the final GS regulation include s a requirement at 146.84( e) that the AoR be reevaluated every 5 years (an adjustment from the ten year interval in the proposal), which

should further address the commenter’s c oncerns regarding m odel uncertainty.

Letter ID: 0227 Comment ID: 21788 Letter Lines: 151 to 165

Comment Code: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost

USDW

Comment: Well Construction

The requirement that injection be allowe d only beneath the lowermost formation containing a USDW may exclude numerous fo rmations that would otherwise make excellent GS well candidates. It may be that protection of USDWs is not a function of whether the GS injection zone is above or below groundwater, especially since buoyant CO2 is more lik ely to rise upward than to seep downward. We recommend that the regula tion simply require that the permit applicant demonstrate that the CO2 plume will not result in contamination of an

USDW.

Also, initial GS projects may utilize CO2 for enhanced oil recovery (EOR) or enhanced coal-bed methane recovery (ECGM) operations and then later convert to purely CO2 storage operations. Many of those operations may be above the

lowermost USDW.

Individual Response: EPA acknowledges that there are lim ited circumstances where injection above the lowermost USDW can be performe d in a manner that protects USDWs from endangerment, as long as appropriate protections are in place. The final GS rule at §146.95 establishes a process by which owne rs or operators can seek a waiv er of the Class VI injection depth requirements for inject ion into non-USDW formations above and/or between USDWs. Additionally, the final GS rule doe s not categorically preclude or prohibit injection into any type

of formation.

8The rule establishes: 1) requirements specifyi ng information that owners or operators must submit, and Directors must consider, in consul tation with PWSS Directors; 2) procedures for public notice of a waiver application and for Di rector-Regional Administ rator communication; 3) the waiver issuance process; and, 4) additional requirements that a pply to owners or operators of Class VI wells granted a waiver of the injecti on depth requirements to ensure USDW protection above and below the injection zone.

EPA believes that these requirements will ensure USDW protection while providing flexibility to UIC program Directors and owne rs or operators who undertak e CO2 injection for GS. The Agency believes this approach: 1) responds to co ncerns about local and re gional geologic storage capacity limitations imposed by th e proposed injection depth require ments; 2) allows for a more site-specific assessment of injection depth for GS projects; 3) accommodates injection into different formation types; 4) a llows for injection of CO2 for GS into non-USDWs above and/or between USDWs when appropriate and where it can be demonstrated that USDWs will be protected; and 5) responds to concerns about the use of aqui fer exemptions for GS. Finally, EPA’s approach to addressing injection depth va riability through a waiver process responds to concerns about future drinking wa ter resource availability and the need to ensure that high quality water remains available in sufficient qua ntities to supply drinking water needs. For additional information on the waiver approach, pleas e see the final rule and preamble, as well as EPA's responses to comments on the Notice of Data Availability and Request for Comment.

Letter ID: 0227 Comment ID: 21789 Letter Lines: 167 to 177

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

Comment Code: 4610 2.6.1 Testing and monitoring plan requirement (seeking comment)

Comment: Plume and Pressure Front Monitoring

EPA would require each Class VI well perm it application to contain a monitoring plan to verify that a GS well is operating as intended and not endangering USDW.

EPA should be aware that certain m onitoring technology is currently under development and not available as a tool in the near term to meet the proposed EPA requirements. Further, the usefulness of available technology is a function of site-specific characte rizations. The EPA should not impose a one-size-fitsall approach. CURC recommends that the EPA permit well owners and operators to propose the use of availabl e technology to meet the proposed requirements and

then to amend their tailored monito ring plans as technology evolves.

Individual Response: EPA agrees that prescribing specific technologies to be used in all cases for GS would not be appropriate given the variability in sites, and believes that the rule provides flexibility to owners or operators to develop site-specific testing a nd monitoring plans that employ appropriate technologies provided th ey meet the requirements at §146.90. EPA is developing guidance on testing and monitoring to assist owners or operators and Directors in evaluating requirements under §146.90, including proposed monitoring plans. The guidance describes available technologies and recommen ded approaches for implementing a testing and monitoring plan, including pre-ope rational geophysical logging and testing of injection wells,

9MITs, injection well testing during operation, gr oundwater quality monitoring, tracking the CO2 plume and pressure front, and soil gas and surf ace air monitoring which may be required by the UIC Director for specific GS projects. The guidance can be found on EPA’s website at http://water.epa.gov/type/groundwat er/uic/wells_sequestration.cfm. In addition, in January 2009, DOE published a best practices manual entitled "Monitoring, Verificat ion, and Accounting of CO2 Stored in Deep Geologic Formations" (DOE/NETL-311/081508); this manual is included in

the docket for the for the final GS rule.

Letter ID: 0227 Comment ID: 21790 Letter Lines: 179 to 199

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

Comment: Post-Injection Site Care

EPA’s proposed 50-years default timeframe fo r Class VI wells post-injection site care (PISC) is not justifia ble, and likely will rais e long-term uncertainty about liability associated with a CO2 inje ction project. Furtherm ore, the hybrid default/performancebased standard permits the agency to lengthen this period, making it impossible for a CCS project deve loper to understand the timeframe of its regulatory obligation at project inception. This long-term regulatory uncertainty presents an insurmountable ri sk. There is documented data that the risk drops off considerably after ten years. [FN3] CURC endorses the Interstate Oil and Gas Compact Commission (IOGCC )’s recommendation for a 10year post closure site care period. [FN4 ] The IOGCC proposed rules draw from two decades of state regulatory and industry experience with co mpression transport, and injection of CO2 from e nhanced oil recovery.

[FN3: Sally M. Benson, "Monitoring Carbon Dioxide Sequestration in Deep Geological Formations for Inventory Ve rification and Carbon Credits" (2006). [FN4: The Interstate Oil and Gas Compact Commission Task For ce on Carbon Capture and Geologic Storage, "Storage of Carbon Di oxide in Geologic Structures: A Legal and Regulatory Guide for States and Provi nces" (2007) [hereinafter IOGCC Model Rules].]

Individual Response: EPA disagrees that a post-injection si te care timeframe of 50 years is excessive. EPA proposed a default post-injectio n site care timeframe of 50 years based on a review of research studies, indus try reports, and existing environm ental programs. This analysis was included in an EPA-prepared background docume nt 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 th at EPA shorten the monitoring timeframe, none of the commenters provided sufficie nt data or other evidence to warrant a change in the proposed timeframe. Wh ile the 10- or 30-year timeframe suggested by some of these commenters may be within the timeframe suggested in some studies, there are circumstances (e.g., little development of mine ral trapping of CO2) under which the potential

10risks of endangering USDWs will likely not declin e within these timeframes. EPA believes that a 50 year post-injection site care timeframe repr esents a reasonable and protective monitoring period and available data do not support a different timeframe. Furthermore, EPA believes that a 50-year default post-injection s ite care timeframe, as required at §146.93(b)(1), is not overly burdensome, does not exaggerate the risks asso ciated with GS, is consistent with other environmental programs, and sufficiently protects USDWs from endangerment.

To the comment expressing concern about financia l responsibility, EPA rec ognizes that there are challenges associated with assuring funding for activities that will occur far in the future. However, the Agency believes that in order to protect USDWs from endangerment under the SDWA operators must demonstrate under §146.85 that financial resources are available to plug the injection well and provide post-injection site care at the point in time that the first CO2 is injected. EPA is developing guidance on financial re sponsibility to assist owners or operators in evaluating the requirements of §146.85 and to as sist Directors in evaluating financial responsibility demonstrations. The guidance descri bes the types of financial mechanisms that operators can use to meet the financial responsi bility requirements for GS wells and it will also

include a section on how 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.

EPA adds 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.

EPA acknowledges the concerns of some commenters that there will be circumstances where it can be demonstrated in less than 50 years that the plume and pressure front no longer pose a risk of endangerment to USDWs. For this reason, the final GS regulation includes a provision that the Director may, at his/her discreti on, shorten the post-injection site care timeframe if the owner or operator can demonstrate that the GS project does not pose a risk to USDWs, as specified in §146.93(b)(2). Such a demonstration will be site-s pecific, and based on pressure monitoring and USDW impacts.

Letter ID: 0227 Comment ID: 21791 Letter Lines: 201 to 207

Comment Code: 5430 2.9.1 Comments on proposed financia l responsibility requirements (40 CFR 146.85)

Comment: Financial Responsibility and L ong-term Care Requirements

The proposed rule’s financial responsibi lity and long-term care requirements lead to significant economic burdens wit hout demonstrating the environmental benefit of the requirement. Alone and in combination, these requirements go well beyond the financial assurance require ments currently in place for existing UIC well classes. Further, the rule provides no guidance to accommodate

Individual Response: EPA disagrees that the requirements on financial responsibility are overly

11stringent. The goal of financial re sponsibility is to ensure that resources are available to prevent the endangerment of USDWs from improper plugging, remediation, and management of wells in the event that the owner or ope rator experiences financial di fficulties. EPA believes that minimum financial responsibility requirements are necessary to prevent endangerment of USDWs by holding well owners or operators accountable for the safe operation and closure of the well while avoiding expense and risk to the public. See the fina l rule and preamble for further discussion of EPA's final approach to financial responsibility. EP A adds that the purpose of the GS rule is not to encourage 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.

Letter ID: 0227 Comment ID: 21792 Letter Lines: 207 to 213

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

Comment: UIC well classes. Further, the rule provides no guidance to accommodate transfer of owner or operator financial responsibility to other entities, and

there is no discussion of the creation of a third-party financial mechanism whereby a government entity, for example, could act as trustee to execute or cause to be executed any long-term res ponsibilities or requirements. It is

recommended that such mechanisms be estab lished in order for GS projects to move

forward.

Individual Response: Under the final GS rule, once an owne r 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 opera tor will generally no longer be subject to enforcement for regulatory noncompliance. Furtherm ore, 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 ce rtain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even afte r site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provid ed by the owner or operator when approving site closure.

Separate from EPA’s authority to enforce regul atory compliance, an owner or operator may be subject to a §1431 response orde r even after proper site cl osure is approved under §146.93. Under §1431 the Administrator may require an ow ner 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 pres ent an imminent and s ubstantial endangerment to the health of persons, and the appropriate Stat e and local authorities ha ve not acted to protect the health of such persons. Th e action may include issuing admi nistrative orders or commencing a civil action for appropriate relief against the ow ner 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 ope rator may remain liable under tort and other remedies, or under other federal statutes includi ng, but not limited to, Clean Air Act, 42 U.S.C.

12§§ 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. Furt hermore, EPA does not have the authority under the SDWA to create a financial mechanism for Class VI wells. See the final rule preamble for further discussion of EPA's final approach.

Letter ID: 0227 Comment ID: 21793 Letter Lines: 215 to 231

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

Comment: C. The Regulatory Design

Section III.A. of the Preamble presents se veral approaches for how the UIC rules for CO2 injection might be structured. EP A selected an approach described as "Tailored Requirements," based on the percei ved ability of that approach to be "tailored" to the volume, buoyancy, and co rrosiveness of CO2 from specific CCS operations. It rejected a more flexible alternative, described as "General Requirements," because it was not "tailore d." A performance-based program with requirements that prescribe the require d outcomes of properly designing and operating a CCS project, rather than a progr am that prescribes how to achieve those outcomes, is preferable. A perfor mance-based approach better accommodates changes in knowledge and technology ove r time, and would allow implementing state permitting authorities the flexibility to use their expertise to address varying geologic and geographic situations . In many instances, retaining the primacy of state regulatory authority may better address such an approach, and in all instances a performance-based appr oach would provide federal or state authorities and the CCS operators the flexibility to achieve required outcomes.

Individual Response: The Agency believes that the Class VI requirements balance site-specific flexibility with USDW protection. Rather than setting performance or technology-based standards for GS projects, EPA is adopting a flex ible approach, where operators of GS projects would develop and implement site-specific plans for delineating the AoR, testing and monitoring the site, performing corrective actio n, and post-injection site care . EPA believes that the plans— which would be reviewed and approved by the Director and periodical ly updated throughout the life of the project—promote an ongoing dialogue between the operato r and the Director that will encourage use of the most appropriate t echnologies for a particular project.

In response to the comment that States with primacy be able to develop “performance-based standards,” the Agency clarifies that States, Trib es, and Territories can develop requirements for Class VI and submit primacy applications (unde r Section 1422 of the SDWA) for review and approval by EPA as long as the requirements are as stringent as or more stringent than the Federal minimum requirements.

Letter ID: 0227 Comment ID: 21794 Letter Lines: 233 to 295

13Comment Code: 1200 1.1 General comments about the rulemaking

Comment Code: 1435 1.2.1.3 EPA should develop guidance

Comment: D. Interim Program Recommendations

CURC proposes that EPA consider issuing guidance to create an interim program that would provide a regulatory fram ework for CCS projects prior to the promulgation of a final rule. Our concern rests with the possibility that the final rules may not be issued for some time in the future. For example, a section in the preamble to the NOPR states:

During the Deployment Phase (1008-1017) , the [RCSP] partnerships will conduct large volume carbon storage tests to demonstrate that large-scale CO2 injection and storage can be achi eved safely and economically. EPA

will use the data collected from these projects to support decisions in the

final GS rule.

This statement suggests that a final GS rule may not be issued until 2017 or

that rules issued earlier than that date could be modified and changed later. While we ascribe to a belief that any final rule should be informed by the findings and data collected through RCSP pa rtnerships, we are concerned that regulatory uncertainty will delay CCS project development; hence the need for an interim program.

Projects issued permits under this guidan ce would collect data and technological experience that could contri bute information necessary to establish a viable working framework for a long term permitti ng and liability regime for geologic CO2 storage activities. The program might be limited to a maximum number of projects, or cumulative amount of CO2 inject ion, and it should be designed to be compatible with anticipated financial in centives for "early adopters" of CCS technology. Projects permitted under th is interim guidance should be grandfathered from the final UIC rule.

Specific limiting provisions could be requi red in order to ease any concerns regarding the endangerment of USDW under such an interim program. Since proper

site characterization is the most effectiv e risk management tool for GS wells, EPA could require applicants under this pr ogram to use geologically superior sites, or provide alternative requirements for sites with significantly superior

characteristics. The World Resource Inst itute (WRI) CCS Guidelines [FN5] and IOGCC model rules include pr ovisions for selecting stor age sites that have a high probability of retaining injected CO2. [FN6] An interim program would recognize the same goals sought by EPA wh en it issued its guidance for DOE Regional Partnership pilot projects designe d to evaluate the technical issues associated with CO2 injection as Class V experimental tec hnology wells. [FN7]

[FN5: World Resource Institute, "CCS Guide lines: Guidelines for Carbon Capture,

14Transport and Storage" (2008). The WRI Gu idelines also offer a comprehensive regulatory approach to CCS that goe s beyond the regulation of GS wells. However, in the guideline’s discussion of site closure, the WRI acknowledges a need for proper incentives so as not to impede the deployment of CCS technology as private companies may be reluctant to engage in storage operations if required to carry a financial commitment and liability out into the indefinite future. Id. at 104.] [FN6: The IOGCC model rules premise appr oval of a GS storage site on four findings: (1) the facility a nd reservoir are suitable a nd feasible for injection and storage; (2) that a good faith effort has been made to obtain the consent of a majority of the owners having proper ty interests affect ed by the storage facility, and that the operator intends to acquire any remaining interest by eminent domain or otherwise allowed by stat ute; (3) that the us e of the storage facility will not contaminate other formati ons containing fresh water, oil, gas, coal or other mineral deposits; and (4) that the proposed storage will not unduly endanger human health and the envir onment and is in the public interest. See IOGCC Model Rules, supra note 5 at Appendix I.] [FN7: Envtl. Protection Agency, Office of Ground Water and Drinking Water, UIC Program Guidance #83, Using Class V Experi mental Technology Well Classification for Pilot Geologic Sequestr ation Projects (2007).]

Individual Response: EPA disagrees that an interim program is necessary. EPA believes that

sufficient data have been collected to inform the final GS rule. In addition to laboratory studies and modeling research that provide relevant in formation on GS, the Agency is also collecting and analyzing GS project data and permit inform ation from a variety of sources. Most notably, EPA has evaluated permits and reviewed operationa l data and information associated with the seven regional carbon sequestrati on partnerships funded by the U. S. Department of Energy and coordinated through the Nationa l Energy Technology Laboratory. EPA believes that these projects form a solid basis for finalizing the GS requirements, and there is no reason to wait until all phases of the DOE demonstrat ion tests are complete. Nevertheless, EPA anticipates that future experimental and full-scale projects w ill continue to inform the technology, and is therefore using an adaptive rulemaking approach. The Agency plans to, every six years, collect and review data on GS projects to determin e whether the appropriate amount and types of information and appropriate documentation are being collected, and to determine if modifications to the requirements are appropriate or necessary. EPA believes that the completion of the DOE pilots in 2017 will allow the incorpora tion of results of these projects into the first

review of the rule.

EPA clarifies that this rule does not allow grandfathering. However, under §146.81 owners or operators seeking to convert existing Class I, Class II, or Class V experime ntal wells to Class VI geologic sequestration wells must demonstrate to the Dire ctor that the wells were engineered and constructed to meet the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements at §146.86(b) and §146.87(a).

Letter ID: 0227 Comment ID: 21795 Letter Lines: 297 to 303

15Comment Code: 1200 1.1 General comments about the rulemaking

Comment: E. Conclusion

CURC understands EPA’s position that the SDWA does not provide EPA with the authority to develop regulations for all questions and issues related to GS. While a full regulatory framework is necessa ry for CCS projects to move forward,

CURC recommends that EPA work within the UIC program to create necessary regulatory certainty for early CCS projects. EPA should acknowledge that overly

Individual Response: EPA clarifies that the GS rule does not promote or encourage the use of GS; rather it is designed to ensure consistenc y in permitting underground in jection of CO2 at GS operations across the United States and provide requirements to prevent endangerment of USDWs in anticipation of the eventual use of GS to reduce CO2 emissions. EPA believes that the GS regulation will provide regu latory certainty and oversight that operators have requested, and allow for the deployment of this key clim ate change mitigation technology that could be deployed to reduce CO2 emissions. Please see the re mainder of EPA's responses to this comment

for further details.

Letter ID: 0227 Comment ID: 21800 Letter Lines: 303 to 311

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

Comment: regulatory certainty for early CCS projects. EPA should acknowledge that overly prescriptive regulations can discourage technological de velopment and commercial deployment. Such an outcome can advers ely impact the environment by impairing the design or implementation of a CO2 mitigation program and can also lead to costly and unnecessary requirements. We also encourage EPA to reconsider the basic design of the UIC Class VI program and create a more flexible performancebased program given the fact that CO2 in jections has been conducted safely in the U.S. for more than a decade, rather than the more prescriptive program proposed. Lastly, CURC recommends that EPA issue guidance for an interim Class

Individual Response: As described above, EPA believes that the Class VI requirements balance site-specific flexibility with USDW protection. EPA adds that it is using an adaptive approach to regulating GS under the UIC Program. Even after finalization of the GS regulation, EPA plans, every six years, to collect and review project data on GS resear ch projects to determine whether the appropriate amount and types of information and appropriate documentation are being collected, and to determine if modifications to the requirements are appr opriate or necessary.

Letter ID: 0227 Comment ID: 21801 Letter Lines: 311 to 312

Comment Code: 1200 1.1 General comments about the rulemaking

Comment Code: 1435 1.2.1.3 EPA should develop guidance

1617 Comment: proposed. Lastly, CURC recommends that EPA issue guidance for an interim Class VI program for CCS projects that predate the final UIC rule.

Individual Response: In advance of the GS rulema king, EPA developed UIC Program Guidance # 83: Using the Class V Experimental Technology Well Classification for Pilot Carbon GS Projects (USEPA, 2007), whic h provides recommendations for permit writers regarding the use of the UIC Class V experime ntal technology well classification at demonstration GS projects while ensuring USDW protection.

EPA disagrees that an interim program is necessar y. EPA believes that sufficient data have been

collected to inform the final GS rule. In addition to laboratory st udies and modeling research that provide relevant information on GS, the Agency is also collecting and anal yzing 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. De partment of Energy and coordinated through the National Energy Technology Laboratory. EPA believes that these projects form a solid basis for finalizing the GS requirements, and there is no reason to wait until all phases of the DOE demonstration tests are complete. Nevertheless, EPA anticipates that future experimental and full-scale projects will continue to inform the technology, and is therefore using an adaptive rulemaking approach. The Agency plans to, every six years, collect and review data on GS projects to determine whether the appropriate amount and types of information and appropriate documentation are being collected, and to determ ine if modifications to the requirements are appropriate or necessary. EPA believes that the completion of the DOE pilots in 2017 will allow the incorporation of results of these projects into the first review of the rule.

EPA clarifies that this rule does not allow grandfathering. However, under §146.81 owners or operators seeking to convert existing Class I, Class II, or Class V experime ntal wells to Class VI geologic sequestration wells must demonstrate to the Director that the wells were engineered and constructed to meet the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements at §146.86(b) and §146.87(a).

EPA clarifies that following finalization of th e GS rule, all GS proj ects that are not for experimental purposes must be re-permitted as Class VI wells and be subject to the final GS rule requirements.