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 Environmental 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 proposed regulations for the injection and 

geologic sequestration (GS) of carbon dioxide (CO2) 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 deployment 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 CO2 storage in 

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

injected CO2 on underground sources of drinking water (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 CO2 mitigation, (c) a regulatory design that 

accommodates greater flexibility in permitting CO2 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 commercial injection of 

CO2 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 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 understands 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 components needed to provide regulatory certainty, which are needed to facilitate the 

widespread use of GS. This regulatory certainty 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 forward. Chief among these issues are: 

1. the surface property rights associated with GS wells; 

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

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

and CO2 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. In 
3

general, we believe that the “adaptive” regulatory approach, as set forth in Section 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 available 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 such broad discretion will discourage entities considering CCS projects 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 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-CO2 material may be present 

before exceeding the limit for a “Carbon 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 care (§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 regulatory requirements, or otherwise 
4

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 threat 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 mathematically hypothesized possibility of damage. 

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 sequester CO2. However, the UIC regulations 

must not inadvertently create uncertainty or establish a regulatory program that actually 

discourages the geologically and geographically diverse commercial deployment of CCS. 

We appreciate the level of certainty that the proposed rule seeks 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 the following elements of the proposed rule: 

Area of Review (AoR)

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

area will be determined by mathematical models. One of the concerns with the use of 
5

such complex models is that the site may not be fully characterized with respect to hydrogeologic properties. There may be significant uncertainty in one or more hydraulic 

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

from different model parameters. The treatment of uncertainty in model parameters and 

sensitivity of model results to parameter selection should be addressed. 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, 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. 

Well Construction

 The requirement that injection be allowed only beneath the lowermost formation 

containing a USDW may exclude numerous formations 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 likely to rise upward than to seep downward. We recommend that the 

regulation 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. 

Plume and Pressure Front Monitoring

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

plan to verify that a GS well is operating as intended and not endangering USDW. EPA 
6

should be aware that certain monitoring 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 characterizations. The 

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

permit well owners and operators to propose the use of available technology to meet the 

proposed requirements and then to amend their 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 raise long-term uncertainty about liability 

associated with a CO2 injection project. Furthermore, the hybrid default/performancebased standard permits the agency to lengthen this period, making it impossible for a 

CCS project developer to understand the timeframe of its regulatory obligation at project 

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

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

the Interstate Oil and Gas Compact Commission (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 transport, and injection of CO2

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 Structures: 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 responsibility and long-term care requirements lead 

to significant economic burdens without demonstrating the environmental benefit of the 

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

assurance requirements currently in place for existing 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 responsibilities or requirements. It is 

recommended that such mechanisms be established 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 CO2 injection might be structured. EPA selected an approach described as “Tailored 

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

volume, buoyancy, and corrosiveness of CO2 from specific CCS operations. It rejected a 

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

“tailored.” A performance-based program with 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 flexibility to use their expertise to address 

varying geologic and geographic situations. In many instances, retaining the primacy of 
8

state regulatory authority may better address such an approach, and in all instances a 

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

operators the flexibility to achieve required outcomes. 

D. Interim Program Recommendations 

CURC proposes that EPA consider issuing guidance to create an interim program 

that would provide a regulatory framework 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 achieved 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 partnerships, we are concerned that regulatory uncertainty will delay CCS project 

development; hence the need for an interim program. 

Projects issued permits under this guidance would collect data and technological 

experience that could contribute information necessary to establish a viable working 

framework for a long term permitting and liability regime for geologic CO2 storage 

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

cumulative amount of CO2 injection, and it should be designed to be compatible with 

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

permitted under this interim guidance should be grandfathered from the final UIC rule. 
9

Specific limiting provisions could be required 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 for GS wells, EPA could 

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

alternative requirements for sites with significantly superior characteristics. The World 

Resource Institute (WRI) CCS Guidelines5 and IOGCC model rules include provisions 

for selecting storage sites that have a high probability of retaining injected CO2.

6

 An 

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

guidance for DOE Regional Partnership pilot projects designed to evaluate the technical 

issues associated with CO2 injection as Class V experimental technology wells.7 

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 necessary 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 prescriptive 

 

5

 World Resource Institute, “CCS Guidelines: Guidelines 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 not 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 and commercial deployment. 

Such an outcome can adversely 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 performance-based program given the fact that 

CO2 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 for CCS projects that predate the final UIC 

rule. 
Letter ID: 0227 

Commenter: Ben Yamagata 

Organization: Coal Utilization 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 between reducing the risk of potential 

impacts of injected CO2 on underground sources of drinking water (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 CO2 mitigation, 

(c) a regulatory design that accommodates greater flexibility in permitting CO2 

injection, (d) interim guidance for GS projects for the period that precedes 

promulgation of the final UIC rule, and (e) no interference with ongoing 

regulatory programs that govern the commercial injection of CO2 for enhanced oil 

or methane recovery. 

Individual Response: EPA acknowledges the comment. 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. 

EPA clarifies that the GS rule does 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 prevent 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 owner 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 

1
Comment: 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 understands 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 components needed to provide regulatory 

certainty, which are needed to facilitate the widespread use of GS. This 

regulatory certainty 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 forward. Chief among these issues are: 

1. the surface property rights associated with GS wells; 

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

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

and CO2 ownership, monitoring and mitigation 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 consistency in permitting underground injection 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 recognizes the 

importance of providing clear, flexible, scalable, and appropriate regulations. EPA believes that 

the GS regulation will provide certainty to industry and the public 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 acknowledges that owners or operators of wells 

regulated under existing well classifications 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 permitting authorities, the Agency believes that the 

Director should have an opportunity to review the permit and determine whether any changes are 

necessary at the time of the permit transfer, pursuant to requirements at §146.38(a). If 

information about the GS project and existing permit 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 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 

2
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. 

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. 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 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. In general, we believe that the "adaptive" 

regulatory approach, as set forth in Section 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 available 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 such broad discretion will discourage 

entities considering CCS projects 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 provide notice and opportunity for comment; 

and to apply any modifications prospectively, allowing projects already 

3
operating 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 uncertainty—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 tailored Class VI regulatory approach. 

EPA believes that an adaptive approach to regulating CO2 injection for GS will allow regulatory 

development to proceed and ensure USDW protection from endangerment while EPA continues 

to gather data from pilot projects and other research as it becomes available. Additionally, the 

Agency believes that there is a need to have regulations in place during the 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 approach enables the Agency to make changes to the program as 

necessary to incorporate new research, data, and information about GS and associated 

technologies (e.g., modeling and well construction). This new information may increase 

protectiveness, streamline implementation, or otherwise inform the requirements for GS injection 

of CO2. Any revisions that will be made to the GS requirements 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 issuance, EPA notes that changes to 

the GS regulation may trigger permit modifications under existing regulations at 40 CFR 

144.39(c), which may trigger public notice and comment procedures under Part 124. EPA adds 

that the final GS rule allows the construction of existing Class I, Class II, or Class V 

experimental technology wells to be grandfathered, at §146.81(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 protection 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 CO2; 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 streams 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 information, and uncertainties remain about the 

expected concentrations of impurities from the various types of CO2 streams. The concentrations 

4
of 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 standards 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 source of the CO2 and its physical and chemical 

properties. Specifically, the GS rule requires the owner or operator to submit 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 compatibility of the CO2 stream with fluids in the 

injection zone and minerals in both the injection and the confining zones and the materials used 

to construct the well, per §146.82(c)(3). This information 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 streams that meet the definition of a hazardous 

waste under 40 CFR part 261, injection of a CO2 stream 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 zones" in addition to a confining zone 

(§146.83(b)). 

Individual Response: EPA retains the requirement to identify additional containment/confining 

zones, if required by the Director, as proposed (§146.83(b)). EPA acknowledges that such 

additional zones may not be needed in all circumstances, and clarifies that this requirement is at 

the Director's discretion, based on his or her understanding of a particular 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 protection. These layers could 

further impede vertical fluid movement and allow for pressure dissipation, and also provide 

additional sites for monitoring, mitigation, and remediation. The Agency's decision is supported 

by commenters representing states, water associations, and an electric utility who assert that 

these requirements promote a flexible, risk-based, site-specific approach to characterizing and 

permitting a site for GS projects, and are intended 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 care (§146.93(b)). 

5
Individual 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/edits to rule language 

Comment: -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 regulatory requirements, or otherwise 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 threat 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 mathematically 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 provides that no injection shall be authorized if 

it results in “the movement of fluid containing any contaminant into [USDW]s, if the presence of 

that contaminant may cause a violation of any 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 program regulations, continues the program’s goal of 

ensuring the protection of USDWs from endangerment. 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 regulatory framework, tailored to the unique aspects of CO2 GS. 

Defining endangerment is outside the scope 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 sequester CO2. However, the 

UIC regulations must not inadvertently create uncertainty or establish a 

regulatory program that actually discourages the geologically and geographically 

diverse commercial deployment of CCS. We appreciate the level of certainty that 

6
the proposed rule seeks 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 the following 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 consistency in permitting underground injection 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 regulatory certainty and oversight that operators have requested, 

and allow for the deployment of this key climate 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 regulating the injection of 

billions of gallons of fluids for decades, including 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/Modeling 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 define 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/parameters. Therefore, it is possible to 

obtain a wide-range of model outcomes from different model parameters. The 

treatment of uncertainty in model parameters and sensitivity of model results to 

parameter selection should be addressed. 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, 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 regulation and the associated 

background document "Computational Modeling of Underground Injection of Carbon Dioxide 

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

Water" (cited in the proposed rule preamble as USEPA, 2008d), model predictions depend 

largely on the values of key parameters. Often these 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 

7
during the permit review, the Director determines that modeling results are too wide-ranging, 

further information will be required of the owner or operator. 

EPA clarifies that models are tools 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 complete 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, testing and monitoring, injection well plugging, post-injection site care and site 

closure, and emergency and remedial response). EPA believes that 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 includes 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 concerns regarding model 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 allowed only beneath the lowermost formation 

containing a USDW may exclude numerous formations 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 likely to rise upward than to seep 

downward. We recommend that the regulation 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 limited circumstances where injection 

above the lowermost USDW can be performed 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 owners or operators can seek a waiver of the Class VI injection 

depth requirements for injection into non-USDW formations above and/or between USDWs. 

Additionally, the final GS rule does not categorically preclude or prohibit injection into any type 

of formation. 

8
The rule establishes: 1) requirements specifying information that owners or operators must 

submit, and Directors must consider, in consultation with PWSS Directors; 2) procedures for 

public notice of a waiver application and for Director-Regional Administrator communication; 3) 

the waiver issuance process; and, 4) additional requirements that apply to owners or operators of 

Class VI wells granted a waiver of the injection 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 owners or operators who undertake CO2 injection for GS. The 

Agency believes this approach: 1) responds to concerns about local and regional geologic storage 

capacity limitations imposed by the proposed injection depth requirements; 2) allows for a more 

site-specific assessment of injection depth for GS projects; 3) accommodates injection into 

different formation types; 4) allows for injection of CO2 for GS into non-USDWs above and/or 

between USDWs when appropriate and where it can be demonstrated that USDWs will be 

protected; and 5) responds to concerns about the use of aquifer exemptions for GS. Finally, 

EPA’s approach to addressing injection depth variability through a waiver process responds to 

concerns about future drinking water resource availability and the need to ensure that high 

quality water remains available in sufficient quantities to supply drinking water needs. For 

additional information on the waiver approach, please 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 (performance-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 permit 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 monitoring 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 characterizations. 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 available technology to meet the proposed requirements and 

then to amend their tailored monitoring 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 and monitoring plans that 

employ appropriate technologies provided they 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 recommended approaches for implementing a testing and 

monitoring plan, including pre-operational geophysical logging and testing of injection wells, 

9
MITs, injection well testing during operation, groundwater quality monitoring, tracking the CO2 

plume and pressure front, and soil gas and surface 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/groundwater/uic/wells_sequestration.cfm. In addition, in January 2009, 

DOE published a best practices manual entitled "Monitoring, Verification, 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 for Class VI wells post-injection site 

care (PISC) is not justifiable, and likely will raise long-term uncertainty 

about liability associated with a CO2 injection project. Furthermore, the hybrid 

default/performancebased standard permits the agency to lengthen this period, 

making it impossible for a CCS project developer to understand the timeframe of 

its regulatory obligation at project inception. This long-term regulatory 

uncertainty presents an insurmountable risk. 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 compression transport, and 

injection of CO2 from enhanced oil recovery. 

[FN3: Sally M. Benson, "Monitoring Carbon Dioxide Sequestration in Deep 

Geological Formations for Inventory Verification and Carbon Credits" (2006). 

[FN4: The Interstate Oil and Gas Compact Commission Task Force on Carbon Capture 

and Geologic Storage, "Storage of Carbon Dioxide in Geologic Structures: A Legal 

and Regulatory Guide for States and Provinces" (2007) [hereinafter IOGCC Model 

Rules].] 

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

excessive. 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, there are 

circumstances (e.g., little development of mineral trapping of CO2) under which the potential 

10
risks of endangering USDWs will likely not decline within these timeframes. EPA believes that a 

50 year post-injection site care timeframe represents 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 site care timeframe, as required at §146.93(b)(1), is not overly 

burdensome, does not exaggerate the risks associated with GS, is consistent with other 

environmental programs, and sufficiently protects USDWs from endangerment. 

To the comment expressing concern about financial responsibility, EPA recognizes 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 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 can use to meet the financial responsibility 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 discretion, 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-specific, 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 financial responsibility requirements (40 

CFR 146.85) 

Comment: Financial Responsibility and Long-term Care Requirements 

The proposed rule’s financial responsibility and long-term care requirements 

lead to significant economic burdens without demonstrating the environmental 

benefit of the requirement. Alone and in combination, these requirements go 

well beyond the financial assurance requirements 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 

11
stringent. The goal of financial responsibility 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 operator experiences financial difficulties. 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 final rule and preamble for further 

discussion of EPA's final approach to financial responsibility. EPA 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 liability 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 responsibilities or requirements. It is 

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

forward. 

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. 

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. 

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. Furthermore, 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 (performance-based standards) 

Comment: C. The Regulatory Design 

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

for CO2 injection might be structured. EPA selected an approach described as 

"Tailored Requirements," based on the perceived ability of that approach to be 

"tailored" to the volume, buoyancy, and corrosiveness of CO2 from specific CCS 

operations. It rejected a more flexible alternative, described as "General 

Requirements," because it was not "tailored." A performance-based program with 

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 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 approach 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 flexible approach, where operators of GS projects 

would develop and implement site-specific plans for delineating the AoR, testing and monitoring 

the site, performing corrective action, and post-injection site care. EPA believes that the plans—

which would be reviewed and approved by the Director and periodically updated throughout the 

life of the project—promote an ongoing dialogue between the operator and the Director that will 

encourage use of the most appropriate technologies 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, Tribes, and Territories can develop requirements for 

Class VI and submit primacy applications (under 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 

13
Comment 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 framework 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 achieved 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 partnerships, we are concerned that 

regulatory uncertainty will delay CCS project development; hence the need for an 

interim program. 

Projects issued permits under this guidance would collect data and technological 

experience that could contribute information necessary to establish a viable 

working framework for a long term permitting and liability regime for geologic 

CO2 storage activities. The program might be limited to a maximum number of 

projects, or cumulative amount of CO2 injection, and it should be designed to be 

compatible with anticipated financial incentives for "early adopters" of CCS 

technology. Projects permitted under this interim guidance should be 

grandfathered from the final UIC rule. 

Specific limiting provisions could be required 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 for GS wells, 

EPA could require applicants under this program to use geologically superior 

sites, or provide alternative requirements for sites with significantly superior 

characteristics. The World Resource Institute (WRI) CCS Guidelines [FN5] and 

IOGCC model rules include provisions for selecting storage sites that have a 

high probability of retaining injected CO2. [FN6] An interim program would 

recognize the same goals sought by EPA when it issued its guidance for DOE 

Regional Partnership pilot projects designed to evaluate the technical issues 

associated with CO2 injection as Class V experimental technology wells. [FN7] 

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

14
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.] 

[FN6: 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 not 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.] 

[FN7: 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).] 

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 information on GS, the Agency is also 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. 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 determine 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 experimental 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). 

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

15
Comment 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 necessary 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 consistency in permitting underground injection 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 regulatory certainty and oversight that operators have requested, 

and allow for the deployment of this key climate change mitigation technology that could be 

deployed to reduce CO2 emissions. Please see the remainder 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 (performance-based standards) 

Comment: regulatory certainty for early CCS projects. EPA should acknowledge that overly 

prescriptive regulations can discourage technological development and commercial 

deployment. Such an outcome can adversely 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 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 

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 research 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 appropriate 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 

16
17

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 rulemaking, EPA developed UIC Program 

Guidance # 83: Using the Class V Experimental Technology Well Classification for Pilot Carbon 

GS Projects (USEPA, 2007), which provides recommendations for permit writers regarding the 

use of the UIC Class V experimental technology well classification at demonstration GS projects 

while ensuring USDW protection. 

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 information on GS, the Agency is also 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. 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 determine 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 experimental 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 the GS rule, all GS projects that are not for 

experimental purposes must be re-permitted as Class VI wells and be subject to the final GS rule 

requirements.