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.
. 

Buddy Garcia, Chairman 

Larry R. Soward, Commissioner 

Bryan W. Shaw, Ph.D., Commissioner 

Mark R. Vickery, P.G, Executive Director 

`i o,3,76 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

December 19, 2008 

JAN 0 2 2009 

Mr. Lee Whitehurst 

Office of Ground Water and Drinking Water 

c/o Water Docket 

Environmental Protection Agency 

Mailcode: 2822T 

1200 Pennsylvania Ave., NW. 

Washington, DC 20460 

Re: Docket ID No. EPA-HQ-OW-2008-0390, Underground Injection Control (UIC) Program 

for Carbon Dioxide (C02) Geologic Sequestration (GS) Wells 

Dear Mr. Whitehurst: 

Thank you for the opportunity to provide comments on the proposed federal requirements for 

C02-GS wells. The Texas Commission on Environmental Quality (TCEQ) shares the 

Environmental Protection Agency's (EPA's) strong commitment to protection of drinking water. 

As a result of TCEQ's long partnership with EPA in UIC Program implementation and our 

state's experience in C02 injection in the Permian Basin of West Texas and in the Gulf Coast 

Frio Formation, the TCEQ has a large stake in the proposed new Class VI injection well 

requirements . Several factors combine to make Texas a prime location for future carbon capture 

and storage projects: Texas has a huge capacity for storage/sequestration in underground 

formations throughout the State and Texas is a center for well and pipeline technologies essential 

for C02-GS projects as a result of our decades of experience in petroleum exploration and 

production. 

As indicated in the preamble, the proposed Class VI requirements will be applicable to long-term 

storage (geo-sequestration) of nonhazardous C02 into formations below underground sources of 

drinking water and which are not productive of oil or gas. Accordingly, in Texas, injection of 

C02 with entrained constituents sufficient to exhibit the characteristics of hazardous waste would 

still require a Class I well permit from TCEQ, injection of COZ into producing formations for 

enhanced recovery of oil or gas will require a Class II well permit from the Railroad 

Commission, and experimental injection of C02 (noncommercial scale) will continue to qualify 

for a TCEQ Class V authorization or permit . 

DEC 2 2 2008 

P.O . Box 13087 0 Austin, Texas 78711-3087 " 512-239-1000 " Internet address: www.tceq.state.tx.us 

. pnnteJ on revde paper -mg co. -based ink 
Mr. Lee Whitehurst 

Page 2 

December 19, 2008 

Our most significant concerns from review of the proposed requirements are organized in four 

broad programmatic areas: 

(1) Appropriate level of regulation; 

(2) Appropriate financial assurance for long post-injection timeframes; 

(3) Flexibility and streamlining in Class VI program primacy considerations ; and, 

(4) Resource needs for regulation of the proposed new class of wells. 

More detailed comments on each of these areas of concern are provided as an enclosure to this 

letter . Also, TCEQ staff will be active in further evaluation of the programmatic and technical 

content of the proposed rules organized by the Ground Water Protection Council of which TCEQ 

is a longstanding member. 

Thank you again for this opportunity for review and comment on the published rules. We also 

wish to express our appreciation of EPA's inclusion of TCEQ as one of four state agencies in the 

C02-GS Workgroup for review and comment on the rule drafts prior to publication. 

We look forward to the development of the final rule, possible opportunities for further 

comment, and continued years of cooperation with EPA in administering the UIC and other 

programs for environmental protection. If you have questions regarding our comments, please 

contact Mr. Ben Knape, Industrial & Hazardous Waste Permits Section, at (512) 239-2334 or 

bknape@tceq.state.tx.us. 

1Vlark'R'Vickery, P.G., Executiv 

Texas Commission on Enviro 

Enclosure 
p. 3 

Areas of Principal Concern Regarding the Proposed C02-GS Requirements 

Texas Commission on Environmental Quality 

Appropriate Level of Re lation - Recognizing mandates under the Safe Drinking 

Water Act (SDWA) for protection of drinking water, there are serious concerns about 

the overall burdens and resource requirements of the proposed rules. This concern 

includes consideration of how such rules may inhibit implementation of carbon capture 

and storage technology. 

The "tailoring," as described by EPA, of the basic regulations for injection of 

nonhazardous industrial waste to the unique characteristics of C02 injection has 

resulted in proposed requirements that in many aspects exceed the stringency of those 

for injection of hazardous waste. This excessive stringency is particularly present in the 

proposed requirements for iterative computational modeling of the C02 plume and 

pressure front, and the model's proposed influence on a project's area of review, 

corrective action, monitoring, post-injection site care, closure, and financial assurance. 

Many of these concerns have been expressed in the C02-GS Workgroup process by 

state and federal staff responsible for regulation of the nation's largest concentration of 

Class I hazardous waste injection wells. As an additional consideration, the lack of 

significant environmental or health risks evident from our state's experience in C02 

injection for enhanced recovery of oil and gas under regulation by the Railroad 

Commission does not provide a supporting basis for the unprecedented stringency of 

Class VI requirements as proposed by EPA. 

Some of the more prominent technical concerns relating to the above discussion are as 

follows: 

(a) The proposed requirement that an application for Class VI well permit include 

baseline geochemical data on subsurface formations including all underground 

sources of drinking water (USDWs) in the area of review is unnecessarily 

burdensome, considering that this could entail sampling of numerous individual 

sands throughout thousands of feet of geologic section. USDWs in Texas may 

extend to depths of 4,000 feet or more, and in some regions of the U. S ., even 

deeper . Baseline determinations for local aquifers in a C02-GS project should focus 

on those immediately overlying C02 confining zones, lowest USDWs, and any 

other USDWs of significance . 

(b) Concern exists that the proposed rules would require the operator to have surface 

access to large areas of land possibly under separate ownership. This concern 

would apply to the proposed requirements for performance of necessary corrective 

action on unplugged wells, data acquisition such as in seismic surveys, and location 

and sampling of monitor wells or other monitoring stations . In TCEQ's experience, 

adoption of a rule requirement for 3-D seismic surveys over the area of review in 

permit applications for Class I well waste disposal in engineered salt caverns 

illustrates this concern. Permit applicants were not able to obtain permission from 

surface owners to run these surveys in all areas required by the rules. Off-site 

access needed for compliance with the proposed C02-GS rules may therefore be 

problematic. 
p. 4 

Areas of Principal Concern Regarding the Proposed C02-GS Requirements 

Texas Commission on Environmental Quality 

(c) Concern exists that the proposed well design and construction requirements for 

Class VI wells will be unjustifiably burdensome. Experience in C02 injection for 

enhanced oil and gas recovery indicates that the Class II well casing and cementing 

requirements are sufficient for protection of underground sources of drinking 

water. A more stringent alternative to the Class II requirements, but a definite 

improvement over the proposed Class VI requirements in this regard, could be 

made by adoption of the EPA-approved Class I well casing and cementing 

standards at Title 30, Texas Administrative Code, Section 331 .62. This section of 

the Texas rules provides clearer and more enforceable standards, with greater 

emphasis on proactive planning to improve results in cementing of well casings. 

TCEQ also advises against requirement of automatic down-hole shut off devices in 

well designs. This position is based on TCEQ's UIC program experience regarding 

the expense and time requirements for acquisition of workover rigs and contractor 

services to make down-hole repairs (well workovers) . Also, in our program's 

experience, abrupt activation of shut-off devices may cause damage to the well 

tubulars and elements upstream of the well in the C02 conveyance system 

(pipelines, valves, etc.) . In response to significant variations in well annulus 

monitoring data, an expeditious but controlled ramping down of well injection rates 

is considered to pose less stress on overall mechanical integrity of the well than an 

abrupt shut off of flow through the well. Additionally, from TCEQ's experience, 

use of such devices in four Class I wells imposed a restriction in the inside 

diameter of the injection tubing and compromised ability to perform conventional 

mechanical integrity testing. 

(d) Concern exists on the practical implementation of the proposed requirements for 

monitoring the C02 plume and pressure front. Noting that the actual monitoring 

plan would be left to director approval, EPA's cost analysis for a C02-GS project 

assumes the presence of three monitor wells. This would not seem to be sufficient 

for identification/confirmation of the position of the plume or pressure front, and 

leads to speculation whether under the proposed rules, the cost of the geosequestration portion of a carbon capture and sequestration project would be a 

significantly greater part of the overall cost of the project than represented. In this 

regard, monitor wells in any reasonable numbers could confirm or rule out the 

presence of C02 or its pressure effects at the monitor well location, but would not 

be expected to identify or confirm the full extent of the plume or pressure front. 

Computer modeling informed by monitoring data should however be able to bound 

the reasonable extent of the plume and pressure front. 

(e) Concern exists regarding the need for (i) a standard (in concentration or saturation) 

for defining the edge of a C02 plume, (ii) clear definition of the term "stabilization" 

as applied to fate and transport of an injected C02 plume and pressure front, and 

(iii) a clarified specification of the performance standard for the necessary 

demonstration to enable termination of the . iterative process of 

monitoring/modeling and related corrective action. If "stabilization" means absence 

of plume movement or pressure change, it is our understanding from C02-GS 

research efforts that indefinitely long periods of monitoring, modeling, and 

corrective action may be required in contrast to the default period of fifty years 
p. 5 

Areas of Principal Concern Regarding the Proposed C02-GS Requirements 

Texas Commission on Environmental Quality 

cited in the proposed rules and preamble. A more appropriate basis for 

demonstrations of protection of underground sources of drinking water (USDW) 

would be keyed to the presence of induced pressure conditions in the injection 

zone, spatially and temporally . When and where such pressure conditions are 

insufficient to cause endangerment of a USDW through leakage pathways such as 

improperly constructed or plugged wells or transmissive faults, the required USDW 

protection should be considered to be present. Accordingly, if the termination of 

monitoring, modeling, and corrective action is ultimately dependent on making the 

subject demonstration, it is recommended that the "fifty year" specification be 

deleted from the rule. This would conform the requirements for post-injection site 

care for Class VI wells more closely to the post-closure care specifications and 

concepts existing for Class I wells. 

With regard to the appropriate level of regulation, EPA has described the rule 

development as an adaptive process occurring over a period of years with careful 

consideration of stakeholder and general public comment, and results of research 

including experimental C02 injection projects worldwide. This process includes the 

possibility of future revision of the final adopted rules in response to accumulating 

knowledge from project operational experience, research, and increasing public 

confidence in capture and sequestration technology. Concern however remains that 

overly burdensome regulations may seriously impede the technology in a manner not 

easily correctable by later rule revisions, especially considering the experience from 

C02 injection in Class II well enhanced recovery projects indicating no significant 

environmental or health risks. EPA should strive to protect drinking water sources as 

mandated by the SDWA while imposing reasonable and proven controls on carbon 

sequestration, not onerous burdens without risk-based justification or cost effectiveness . 

Reasonable and proven controls will encourage responsible parties to voluntarily implement 

carbon capture and storage technology. In short, carbon is not a hazardous material and 

responsible industries need incentives, rather than unreasonable stringency, to participate in the 

program. Otherwise, the United States may not realize the benefits of carbon geosequestration . 

(2) Appropriate Financial Assurance for Long Post-Iniection Timeframes - 

(a) Although TCEQ recognizes the large potential variation in monitoring, postinjection site care, and closure processes and the uncertainty regarding potential 

changes in Resource Conservation and Recovery Act (RCRA) financial assurance 

generated by the Environmental Financial Advisory Board (EFAB) review, we 

recommend a more specific financial assurance rule framework, perhaps simply 

requiring consistency with RCRA financial assurance rules as they may be 

amended. 

) Allowing financial assurance for post-injection site care to be provided as late as 

180 days before plugging and abandonment (page 134) leaves significant 

financial risk with the agency or State. At a minimum, financial assurance should 

be provided over the period of time that revenue is received prior to plugging and 

abandonment. 
p. 6 

Areas of Principal Concern Regarding the Proposed C02-GS Requirements 

Texas Commission on Environmental Quality 

(c) Financial assurance mechanisms allowing performance (performance bond) or 

reimbursement (insurance) may not be appropriate for long-term activities such as 

post-injection site care. Both mechanisms would only be collected one year at a 

time leaving significant risk that the surety or insurer could go out of business in 

the event that post-injection site care is required for an extended period of time. 

Collection under a letter of credit, on the other hand, would provide funding for 

the entire period and eliminate future collection risk . 

(d) The preamble and rule are inconsistent in that the preamble indicates that notice 

of bankruptcy must be provided within 10 days of the event (p. 128), but the 

proposed rule specification [40 CFR 146.85(c)] does not specify a time frame. As 

noted above, we recommend more specificity. 

(e) The proposed rules do not set out a time frame by which to reevaluate the postinjection site care, site closure plan and related cost estimates. Absence of such 

specific time frames could present additional risk by failing to ensure sufficient 

financial assurance coverage is maintained during the life of the permit . 

(f) TCEQ agrees with EPA's approach that financial assurance for post-injection site 

care may be required for a period less than or greater than fifty years as proposed 

in 146.93, depending on a site specific demonstration to the Director. However, 

consistent with TCEQ's comments under Principal Concern 1, TCEQ also 

encourages EPA to delete the fifty-year threshold requirement in consideration of 

EPA's indication that the duration of financial assurance should ultimately be 

keyed to whatever site-specific time is necessary to meet the post-injection site 

care performance standard of demonstration of non-endangerment of USDWs. 

Flexibility and Streamlining in Class VI Program Primacy Considerations - TCEQ 

concurs with EPA's assessment that current options for injection of C02 include 

Class I, Class II, and Class V wells. Accordingly, under state law, injection of C02 in 

Texas will be regulated by either the TCEQ or the Railroad Commission (RRC). 

Noting the RRC's responsibility for Class II injection (including C02 injection for 

enhanced recovery of oil and gas), TCEQ is responsible for Class I and most of Class 

V (including experimental injection of C02). Class VI as proposed by EPA, under 

state law, would appear to be in TCEQ's jurisdiction . Section 27.022, Texas Water 

Code provides : "The commission has jurisdiction over the injection of carbon 

dioxide produced by a clean coal project, to the extent authorized by federal law, into 

a zone that is below the base of usable quality water and that is not productive of oil, 

gas, or geothermal resources" . However, such jurisdictional lines are subject to 

change by state legislation. Flexibility will therefore be needed in federal 

authorization of the Class VI well program at whichever agency is designated by the 

state legislature. Flexibility in this sense primarily means free from constraints that 

EPA has traditionally imposed by bundling various well classes into an "all or 

nothing" condition for program primacy. 

Also, with primary responsibility for carbon geo-sequestration residing with EPA 

until an application for state primacy is approved, it will be in the mutual interests of 

EPA and applying states, to make the state primacy process more efficient. In 
p. 7 

Areas of Principal Concern Regarding the Proposed C02-GS Requirements 

Texas Commission on Environmental Quality 

TCEQ's experience, revisions of UIC program primacy (authorization) which have 

been relatively limited in scope and complexity have required years for development 

and approval. 

Opportunities for streamlining the Class VI primacy process may be achieved by 

redesigning the review and approval processes coordinated between EPA regions and 

headquarters . Also, for consideration by states, the primacy process could be made 

easier for state and EPA staff, to the extent that federal regulations can be adopted 

verbatim, minimizing or eliminating the complicated "crosswalk" process for 

determining rule-for-rule equivalency. As an additional consideration, the possibility 

of optional interim authorization of a state program, or delegation of responsibility by 

EPA to states undeva memorandum of agreement until primacy is approved, should 

be explored. 

(4) Resource Needs for Regulation of the Proposed New Class of Wells - As described in 

the Ground Water Report to the Nation: A Call to Action (Ground Water Protection 

Council, 2007), the great challenges for the UIC Program are the need to effectively 

address higher risk Class V wells, and readiness to regulate waste streams from 

emerging technologies such as carbon capture and storage. In either case, the 

principal obstacle is the insufficiency of funding for state UIC programs. In 

congressional testimony, GWPC has recommended an increase in annual funding for 

the national UIC Program to $56 million, nearly a five-fold increase over present 

appropriations . While the full scope of resources needed for implementing a Class VI 

well program is not presently known, needs will be particularly acute in the following 

areas: 

Additional Staff - In addition to staff needed for regulation of the existing injection 

well classes, more qualified persons will be needed to conduct rulemaking for state 

equivalency with the new federal regulations, develop program procedures, form, and 

other documents for Class VI, assemble program authorization packages for submittal 

to EPA, and conduct permitting, compliance monitoring, and enforcement of Class VI 

wells. 

Additional Tools (Computer Models for Simulation of Multi-Phase Interactions in 

Determining Fate and Transport of Injected C02) - The central role, iterative nature, 

and unprecedented complexity of computational modeling and monitoring of the 

injected C02 plume and pressure front in nearly every consideration in a C02-GS 

project will require additional developmental work and funding to provide the 

specialized computer models, monitoring instruments, and other tools needed by state 

and EPA regional staff for regulation of Class VI wells. 

Guidance and Training in Implementation of Class VI Requirements - In the interest 

of regulatory flexibility and avoidance of unnecessary constraints in development of 

the technology through overly prescriptive specification of materials and methods, 

EPA's proposed rules feature a series of plans that an applicant for a Class VI permit 

must submit for director approval. Among the plans required that are unique or 

require special considerations in application to a Class VI well project are the area of 

review and corrective action plan, the monitoring plan, and the post-injection site care 
p. 8 

Areas of Principal Concern Regarding the Proposed C02-GS Requirements 

Texas Commission on Environmental Quality 

and closure plan. Under the proposed rules, the adequacy of any such plans would be 

a matter of director discretion . Practically, this would include public participation in 

a permitting or permit amendment process. While it is appropriate that EPA has 

provided with each requirement of a plan, a list of considerations in evaluating the 

plan, more specific guidance and training on such plans including the use and 

evaluation of models and monitoring data will be needed for efficient regulation. The 

need for guidance and training will be greatest in the first commercial scale C02-GS 

projects in the early phase of rule implementation. 
Letter ID: 0280 

Commenter: Mark Vickery 

Organization: Texas Commission on Environmental Quality 

Letter ID: 0280 Comment ID: 24097 Letter Lines: 66 to 77 

Comment Code: 1210 1.1.1 Comments about the proposed rule 

Comment: Our most significant concerns from review of the proposed requirements are 

organized in four broad programmatic areas: 

(1) Appropriate level of regulation; 

(2) Appropriate financial assurance for long post-injection timeframes; 

(3) Flexibility and streamlining in Class VI program primacy considerations; 

and, 

(4)Resource needs for regulation of the proposed new class of wells. 

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. 

Letter ID: 0280 Comment ID: 24098 Letter Lines: 101 to 121 

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

Comment: (1) Appropriate Level of Regulation -Recognizing mandates under the Safe 

Drinking Water Act (SDWA) for protection of drinking water, there are serious 

concerns about the overall burdens and resource requirements of the proposed 

rules. This concern includes consideration of how such rules may inhibit 

implementation of carbon capture and storage technology. 

The "tailoring," as described by EPA, of the basic regulations for injection of 

nonhazardous industrial waste to the unique characteristics of CO2 injection has 

resulted in proposed requirements that in many aspects exceed the stringency of 

those for injection of hazardous waste. This excessive stringency is particularly 

present in the proposed requirements for iterative computational modeling of the 

CO2 plume and pressure front, and the model's proposed influence on a project's 

area of review, corrective action, monitoring, post-injection site care, 

closure, and financial assurance. Many of these concerns have been expressed in 

the CO2-GS Workgroup process by state and federal staff responsible for 

regulation of the nation's largest concentration of Class I hazardous waste 

1
injection wells. As an additional consideration, the lack of significant 

environmental or health risks evident from our state's experience in CO2 

injection for enhanced recovery of oil and gas under regulation by the Railroad 

Commission does not provide a supporting basis for the unprecedented stringency 

of Class VI requirements as proposed by EPA. 

Individual Response: EPA disagrees that the Class VI requirements are overly stringent; 

instead, the GS requirements are tailored to the unique nature of GS, including the large volumes 

of CO2 injected, its buoyancy and potential corrosivity in the presence of water, and impurities 

in the CO2 stream. EPA believes these tailored requirements are more appropriate than Class I or 

Class II requirements. 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. 

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. 

Letter ID: 0280 Comment ID: 24099 Letter Lines: 126 to 134 

Comment Code: 3140 2.1.4 Comments that the proposed geologic data requirements are too 

stringent 

Comment: (a) The proposed requirement that an application for Class VI well permit 

include baseline geochemical data on subsurface formations including all 

underground sources of drinking water (USDWs) in the area of review is 

unnecessarily burdensome, considering that this could entail sampling of 

numerous individual sands throughout thousands of feet of geologic section. 

USDWs in Texas may extend to depths of 4,000 feet or more, and in some regions 

of the U. S., even deeper. Baseline determinations for local aquifers in a CO2- 

GS project should focus on those immediately overlying CO2 confining zones, 

lowest USDWs, and any other USDWs of significance. 

Individual Response: The Agency believes that the requirement at §146.82(a)(6) to submit 

baseline geochemical data on subsurface geologic formations, including all USDWs in the AoR 

is appropriate and protective of USDWs. EPA believes that this data will support monitoring 

plan development, inform injectate fate and transport model development (e.g., by providing 

appropriate input parameters), and provide information needed to respond to any unexpected and 

unpermitted leaks outside of the injection zone. The baseline geochemical information will allow 

the owner or operator and permitting authority to evaluate monitoring data and identify any 

changes in subsurface geochemistry that may indicate fluid movement. 

2
The rule requires geochemical analysis of, at a minimum, the injection zone, confining zone, and 

all USDWs (§146.82(a)(6)). These geochemical tests are necessary to ensure the adequacy of the 

confining system and to serve as a baseline for future monitoring. The Director has the discretion 

to require geochemical analysis of additional subsurface zones if in the Director's opinion they 

are necessary for the protection of USDWs from endangerment. 

EPA agrees that site characterization should be site-specific, particularly in light of the variety of 

geologic settings in which GS may be employed. EPA believes that, while there is a large 

amount of required information, the owner or operator is given flexibility in determining what 

methods are used to demonstrate the suitability of a potential site. EPA envisions an ongoing 

dialogue between the Director and the owner or operator during the permitting process (as well 

as throughout the operation of the site). 

Regarding concerns about deep USDWs, EPA adds that the final GS rule contains a provision (at 

§146.95) for owners or operators to apply for waivers from the requirement that injection be 

below the lowermost USDW. EPA believes this waiver provision will reduce potential 

limitations on the re-permitting of Class II wells as Class VI wells, provided they meet the 

requirements at §146.95. 

Letter ID: 0280 Comment ID: 24100 Letter Lines: 136 to 146 

Comment Code: 3200 2.2 Proposed Area of Review and Corrective Action Requirements (40 

CFR 146.84) 

Comment: (b) Concern exists that the proposed rules would require the operator to have 

surface access to large areas of land possibly under separate ownership. This 

concern would apply to the proposed requirements for performance of necessary 

corrective action on unplugged wells, data acquisition such as in seismic 

surveys, and location and sampling of monitor wells or other monitoring stations. 

In TCEQ's experience, adoption of a rule requirement for 3-D seismic surveys 

over the area of review in permit applications for Class I well waste disposal 

in engineered salt caverns illustrates this concern. Permit applicants were not 

able to obtain permission from surface owners to run these surveys in all areas 

required by the rules. Off-site access needed for compliance with the proposed 

CO2-GS rules may therefore be problematic. 

Individual Response: EPA clarifies that the purpose of the corrective action requirement at 

146.84(d) is to ensure that all wells in the AoR that have the potential to cause the movement of 

CO2 or other fluids into or between USDWs receive appropriate corrective action. In general, to 

meet this requirement, the owner or operator will most likely need to obtain the right of access to 

wells that may require corrective action, and demonstrate they have done this in their proposed 

AoR and corrective action plan. In the AoR and corrective action plan, the owner or operator 

must describe how site access will be guaranteed for future corrective action. 

3
Letter ID: 0280 Comment ID: 24101 Letter Lines: 148 to 157 

Comment Code: 3800 2.3 Proposed Injection Well Construction Requirements (40 CFR 

146.86) 

Comment: (c) Concern exists that the proposed well design and construction requirements 

for Class VI wells will be unjustifiably burdensome. Experience in CO2 injection 

for enhanced oil and gas recovery indicates that the Class II well casing and 

cementing requirements are sufficient for protection of underground sources of 

drinking water. A more stringent alternative to the Class II requirements, but a 

definite improvement over the proposed Class VI requirements in this regard, 

could be made by adoption of the EPA-approved Class I well casing and cementing 

standards at Title 30, Texas Administrative Code, Section 331.62. This section 

of the Texas rules provides clearer and more enforceable standards, with greater 

emphasis on proactive planning to improve results in cementing of well casings. 

Individual Response: Although the requirements are based on the existing regulatory 

framework for deep wells, including Class I wells, EPA believes that GS is sufficiently different 

from other injection operations to warrant the tailored requirements for Class VI wells at 

§146.86. 

EPA believes that GS is sufficiently different from Class II ER operations to warrant the tailored 

construction requirements for Class VI wells at §146.86. For example, the volume of CO2 

anticipated to be injected in Class VI wells is significantly greater than for Class II wells. 

Reservoir pressure conditions will be different, with Class VI injection operations involving 

large volumes of CO2 and likely having higher pressures within their storage formations than 

Class II ER projects. Therefore, Class VI GS reservoir pressures will increase more in 

comparison to Class II ER during the injection phase of the GS project. 

Letter ID: 0280 Comment ID: 24102 Letter Lines: 158 to 170 

Comment Code: 4200 2.4.2 Down-hole shut-off valves in GS wells (seeking comment) 

Comment: TCEQ also advises against requirement of automatic down-hole shut off devices in 

well designs. This position is based on TCEQ's UIC program experience regarding 

the expense and time requirements for acquisition of workover rigs and 

contractor services to make down-hole repairs (well workovers). Also, in our 

program's experience, abrupt activation of shut-off devices may cause damage to 

the well tubulars and elements upstream of the well in the CO2 conveyance system 

(pipelines, valves, etc.). In response to significant variations in well annulus 

monitoring data, an expeditious but controlled ramping down of well injection 

rates is considered to pose less stress on overall mechanical integrity of the 

well than an abrupt shut off of flow through the well. Additionally, from TCEQ's 

experience, use of such devices in four Class I wells imposed a restriction in 

the inside diameter of the injection tubing and compromised ability to perform 

4
conventional mechanical integrity testing. 

Individual Response: After evaluating the risks and benefits of down-hole shut-off systems and 

considering additional research, EPA will not require automatic down-hole shut-off devices for 

onshore Class VI wells since it is not necessary in all cases to ensure protection of USDWs from 

endangerment. Instead, the final rule, at §146.88(e)(2), requires that owners or operators of 

onshore Class VI wells install automatic surface shut-off devices. The rule affords Director's 

discretion to mandate automatic down-hole shut-off devices in onshore situations that may 

warrant their use. However, the Agency believes that offshore Class VI wells present unique 

construction and operational conditions, including isolation from shorelines and the need to 

construct wells through the water column and the subsurface, which may delay response time in 

the event of well difficulties. The rule requires, at §146.88(e)(3), that owners or operators of 

offshore wells within State territorial waters install automatic down-hole shut-off systems. EPA 

believes that these requirements at §146.88(e) ensure that proper precautions are taken to prevent 

subsurface fluid movement and ensure protection of USDWs. 

EPA recognizes that down-hole shut-off devices may make well maintenance and operation 

more challenging. However, the buoyant nature of CO2 and the elevated injection pressures 

associated with GS increase the likelihood of an uncontrolled flow of CO2 out of the well. If 

CO2 does begin to flow back up an injection well, it will rapidly cool and expand as it moves 

toward the surface and can result in a stream of solid CO2 which can cause damage to the 

wellhead and other well instrumentation; such damage has been documented in CO2 ER wells 

(Skinner, 2003; Duncan et al., 2008). Automatic shut-off devices can help prevent such 

occurrences, and EPA believes affording Director's discretion to require down-hole devices 

where necessary ensures that proper precautions are taken to prevent subsurface fluid movement 

and ensure protection of USDWs. 

EPA acknowledges that abrupt shut-offs are not the optimal way to shut down an injection well. 

These automatic shut-off systems, however, are intended only to activate when a severe drop in 

pressure occurs. This is only likely to occur if there has been serious damage to the wellhead or 

other surface features or if there has a sudden increase in pressure in the subsurface (i.e., a well 

blowout). In such conditions, any potential further damage to the well would be minor in 

comparison to the consequences of allowing CO2 to escape out of the well. EPA also notes that 

activation of the shut-off valve means that damage has likely already occurred to the well and 

any additional damage caused by the shut-off valve is likely to be minimal in comparison to the 

damage that may be caused by a malfunction. 

Letter ID: 0280 Comment ID: 24103 Letter Lines: 172 to 185 

Comment Code: 4650 2.6.5 CO2 plume and pressure front tracking (seeking comment) 

Comment Code: 6220 3.2.2 Assumptions about the number of monitoring wells (seeking 

comment) 

Comment: (d) Concern exists on the practical implementation of the proposed requirements 

for monitoring the CO2 plume and pressure front. Noting that the actual 

monitoring plan would be left to director approval, EPA's cost analysis for a 

5
CO2-GS project assumes the presence of three monitor wells. This would not seem 

to be sufficient for identification/confirmation of the position of the plume or 

pressure front, and leads to speculation whether under the proposed rules, the 

cost of the geosequestration portion of a carbon capture and sequestration 

project would be a significantly greater part of the overall cost of the project 

than represented. In this regard, monitor wells in any reasonable numbers could 

confirm or rule out the presence of CO2 or its pressure effects at the monitor 

well location, but would not be expected to identify or confirm the full extent 

of the plume or pressure front. Computer modeling informed by monitoring data 

should however be able to bound the reasonable extent of the plume and pressure 

front. 

Individual Response: EPA clarifies that the specifics of monitoring, including the number of 

monitoring wells, must be described in the site-specific testing and monitoring plan, which must 

be approved by the Director. 

EPA recognizes that the number of monitoring wells associated with GS projects will be sitespecific and vary based on many factors, including the local geologic characteristics, the 

presence of other injection wells, the size of the AoR, and volumes of CO2 injected. The 

proposed rule Cost Analysis described the number of monitoring wells as a ratio to the number 

of injection wells; EPA clarifies that the number of injection wells was based on the size of the 

AoR and the type of project. Therefore, the number of monitoring wells was indirectly based on 

the size of the AoR. Because ER project sites have injection wells that are more clustered than 

those in saline formations, the AoR and the number of monitoring wells were anticipated to be 

smaller at an ER project site compared to a saline formation project. EPA retained this 

assumption regarding the density of injection wells for the final rule analysis, but it changed its 

assumption on the number of monitoring wells at each site. For the final rule, the Agency 

assumes one monitoring well above the injection zone per two square miles of AoR; for 

monitoring wells into the injection zone, the Agency assumes one monitoring well per four 

square miles. EPA assumes monitoring wells into the injection zone will also be used to sample 

above the injection zone. The number of monitoring wells assumed for each project type is 

presented in Exhibit 5.2 of the Cost Analysis. 

Because the actual number of monitoring wells that will be necessary for a given project site is 

uncertain, EPA tested the sensitivity of overall cost estimates to the number of monitoring wells 

by applying a 25 percent decrease and increase in monitoring wells per project type to the 

original assumptions. This change results in annualized incremental rule costs approximately 16 

percent less and 16 percent greater than costs estimated for the primary analysis (as shown in 

Exhibit 5.26 of the Cost Analysis). For additional information on EPA's final regulatory 

approach, including testing and monitoring requirements, please see the final rule and preamble. 

EPA is developing guidance on monitoring and testing to assist owners/operators and Directors 

in evaluating requirements under §146.90, including developing determining the appropriate 

number of monitoring wells for a GS site. This guidance will be available on EPA’s website at 

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

6
Letter ID: 0280 Comment ID: 24104 Letter Lines: 187 to 207 

Comment Code: 1220 1.1.1.1 Terminology and definitions 

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

Comment Code: 5280 2.8.2.4 USDW non-endangerment demonstrations 

Comment: (e) Concern exists regarding the need for (i) a standard (in concentration or 

saturation) for defining the edge of a CO2 plume, (ii) clear definition of the 

term "stabilization" as applied to fate and transport of an injected CO2 plume 

and pressure front, and (iii) a clarified specification of the performance 

standard for the necessary demonstration to enable termination of the iterative 

process of monitoring/modeling and related corrective action. If "stabilization" 

means absence of plume movement or pressure change, it is our understanding from 

CO2-GS research efforts that indefinitely long periods of monitoring, modeling, 

and corrective action may be required in contrast to the default period of fifty 

years cited in the proposed rules and preamble. A more appropriate basis for 

demonstrations of protection of underground sources of drinking water (USDW) 

would be keyed to the presence of induced pressure conditions in the injection 

zone, spatially and temporally. When and where such pressure conditions are 

insufficient to cause endangerment of a USDW through leakage pathways such as 

improperly constructed or plugged wells or transmissible faults, the required 

USDW protection should be considered to be present. Accordingly, if the 

termination of monitoring, modeling, and corrective action is ultimately 

dependent on making the subject demonstration, it is recommended that the "fifty 

year" specification be deleted from the rule. This would conform the 

requirements for post-injection site care for Class VI wells more closely to the 

post-closure care specifications and concepts existing for Class I wells. 

Individual Response: EPA disagrees that the rule should specify the criteria for setting the 

monitoring timeframe. Instead, EPA believes that such determinations are site-specific and 

should be described in a project specific post-injection site care and site closure plan. EPA also 

believes that periodic reviews and updates, where necessary, to the plan are important to 

ensuring that the site continues to be managed effectively and to determine whether shortening 

the monitoring timeframe is appropriate. 

EPA acknowledges that many site-specific factors will influence the determination of when the 

CO2 plume and pressure front no longer pose a risk of endangerment to USDWs. It is for this 

reason that EPA believes that individual UIC Directors, in consultation with operators, will be in 

the best position to determine whether additional post-injection site care is needed. EPA expects 

this decision to be made based on relevant site data and in consultation with all potentially 

impacted parties. 

EPA agrees that a complete cessation of plume movement may not occur at some sites for long 

time periods due to density differences, natural formation flow gradients and diffusion. EPA 

clarifies that a complete cessation of plume movement is not required, only a demonstration that 

the plume and pressure front no longer pose a risk of endangerment to USDWs. 

7
EPA is developing guidance to assist owners or operators in evaluating well plugging, postinjection site care, and site closure requirements of 146.92 and 146.93. Additionally, the 

guidance will assist Directors in evaluating proposed well plugging plans and post-injection site 

care and site closure plans under 146.92 and 146.93. The guidance describes recommended 

approaches for how an owner or operator could plug injection and monitoring wells; perform 

post-injection monitoring; demonstrate non endangerment; and perform site closure activities. 

The guidance will be available at 

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

Letter ID: 0280 Comment ID: 24105 Letter Lines: 209 to 227 

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

Comment Code: 1480 1.2.2.2.2 CO2 is not a pollutant 

Comment: With regard to the appropriate level of regulation, EPA has described the rule 

development as an adaptive process occurring over a period of years with careful 

consideration of stakeholder and general public comment, and results of research 

including experimental CO2 injection projects worldwide. This process includes 

the possibility of future revision of the final adopted rules in response to 

accumulating knowledge from project operational experience, research, and 

increasing public confidence in capture and sequestration technology. Concern 

however remains that overly burdensome regulations may seriously impede the 

technology in a manner not easily correctable by later rule revisions, 

especially considering the experience from CO2 injection in Class II well 

enhanced recovery projects indicating no significant environmental or health 

risks. EPA should strive to protect drinking water sources as mandated by the 

SDWA while imposing reasonable and proven controls on carbon sequestration, not 

onerous burdens without risk-based justification or cost effectiveness. 

Reasonable and proven controls will encourage responsible parties to voluntarily 

implement carbon capture and storage technology. In short, carbon is not a 

hazardous material and responsible industries need incentives, rather than 

unreasonable stringency, to participate in the program. Otherwise, the United 

States may not realize the benefits of carbon geosequestration. 

Individual Response: EPA believes the final GS rule addresses the commenter’s concern that it 

protects drinking water sources while imposing reasonable and proven controls. The GS 

rulemaking builds upon decades of knowledge about safe injection practices regulated by the 

UIC Program (including the oil and gas industry’s decades of experience injecting CO2 for the 

purpose of ER). The final GS rule contains new requirements for Class VI wells that are tailored 

to address the unique nature of full-scale CO2 GS, including the injection volumes anticipated 

for long-term storage, the buoyant nature of the injectate, its corrosivity in the presence of water, 

and its mobility within subsurface geologic formations. 

EPA remains committed to an adaptive approach. The Agency plans to, every six years, collect 

8
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. An adaptive approach will allow 

regulatory development to proceed in time to meet the current and future demands for Class VI 

permits while EPA continues to gather data from pilot projects and other research as it becomes 

available. 

EPA adds that the intent of the GS rule is not to promote GS. Rather, the purpose of the GS 

regulation is to assure that, where deployed, GS is conducted in a manner that protects USDWs 

from endangerment. 

Letter ID: 0280 Comment ID: 24106 Letter Lines: 229 to 243 

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

CFR 146.85) 

Comment: (2) Appropriate Financial Assurance for Long Post-Injection Timeframes 

(a) Although TCEQ recognizes the large potential variation in monitoring, 

postinjection site care, and closure processes and the uncertainty regarding 

potential changes in Resource Conservation and Recovery Act (RCRA) financial 

assurance generated by the Environmental Financial Advisory Board (EFAB) review, 

we recommend a more specific financial assurance rule framework, perhaps simply 

requiring consistency with RCRA financial assurance rules as they may be 

amended. 

(b) Allowing financial assurance for post-injection site care to be provided as 

late as 180 days before plugging and abandonment (page 134) leaves significant 

financial risk with the agency or State. At a minimum, financial assurance 

should be provided over the period of time that revenue is received prior to 

plugging and abandonment. 

Individual Response: In response to public comments, EPA has added more specific 

requirements to the rule. These include a list of permitted financial instruments, timeframes for 

adjusting cost estimates, requirements for protective coverage, steps to take in the event of 

adverse financial conditions, and others. However, EPA believes flexibility in the financial 

responsibility requirements is also appropriate in order to account for site specific circumstances. 

EPA is developing guidance on financial responsibility for Class VI wells (available on EPA's 

website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm) that will provide 

information about the appropriateness of various financial instruments. 

Owners or operators may choose from a variety of financial instruments to meet their financial 

responsibility obligations, as listed in §146.85, provided the Director determines that the owner 

or operator's proposed financial responsibility demonstration is adequate to protect USDWs from 

endangerment by demonstrating the ability to pay for each activity for which financial 

responsibility must be demonstrated. EPA plans, every six years, to collect and review data on 

9
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 clarifies that financial responsibility for all required activities, including plugging and postinjection site care, must be demonstrated at the time of permit application, as required at 

§146.82(a)(14). To ensure USDW protection, EPA believes that adequate financial resources 

must be available at the time that CO2 is first injected. The goal of financial responsibility for 

purposes of this rule is to ensure that financial 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 at any time during the life of 

the GS project. In the final rule, owners or operators must demonstrate financial responsibility to 

the Director for PISC and other activities for which financial responsibility is required, prior to 

the issuance of a Class VI permit. The Director is required to evaluate the financial responsibility 

demonstration annually to confirm that the instrument(s) used remain adequate. See the final rule 

and preamble for further discussion of EPA's final approach to financial responsibility. 

Letter ID: 0280 Comment ID: 24107 Letter Lines: 245 to 251 

Comment Code: 5432 2.9.1.1 Need to adjust financial responsibility mechanisms (seeking 

comment) 

Comment: (c) Financial assurance mechanisms allowing performance (performance bond) or 

reimbursement (insurance) may not be appropriate for long-term activities such 

as post-injection site care. Both mechanisms would only be collected one year at 

a time leaving significant risk that the surety or insurer could go out of 

business in the event that post-injection site care is required for an extended 

period of time. Collection under a letter of credit, on the other hand, would 

provide funding for the entire period and eliminate future collection risk. 

Individual Response: Under the final GS rule owners or operators may choose from a variety of 

financial instruments listed in §146.85(a) to meet their financial responsibility needs, provided 

the Director determines that the owner or operator's proposed financial responsibility 

demonstration is adequate to pay for each activity for which financial responsibility must be 

demonstrated, including corrective action on wells in the AoR, injection well plugging, PISC and 

site closure, and emergency and remedial response. EPA is developing guidance to help owners 

or operators, permitting authorities, and third parties choose and evaluate appropriate financial 

methods, and states may set more specific financial responsibility requirements if they so choose. 

This guidance will be available on EPA's website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. States have the discretion 

under the rule to prohibit the use of financial instruments they feel are inadequate. 

Letter ID: 0280 Comment ID: 24108 Letter Lines: 253 to 256 

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

10
CFR 146.85) 

Comment: (d) The preamble and rule are inconsistent in that the preamble indicates that 

notice of bankruptcy must be provided within 10 days of the event (p. 128), but 

the proposed rule specification [40 CFR 146.85(c)] does not specify a time 

frame. As noted above, we recommend more specificity. 

Individual Response: EPA has specified a 10-day timeframe for notifying the Director about 

adverse financial conditions such as bankruptcy in the regulation at §146.85(d)(1). 

Letter ID: 0280 Comment ID: 24109 Letter Lines: 258 to 262 

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

CFR 146.85) 

Comment: (e) The proposed rules do not set out a time frame by which to reevaluate the 

postinjection site care, site closure plan and related cost estimates. Absence 

of such specific time frames could present additional risk by failing to ensure 

sufficient financial assurance coverage is maintained during the life of the 

permit. 

Individual Response: EPA agrees that it is important to periodically update cost estimates that 

support financial responsibility determinations. EPA clarifies that the GS rule, at §146.85(c) 

requires the owner or operator to provide annual updates to the cost estimate to account for any 

amendments to the AoR and corrective action plan, the injection well plugging plan, the PISC 

and site closure plan, and the emergency and remedial response plan. EPA adds that the well 

plugging plan and PISC and site closure plan must be reviewed prior to plugging and the postinjection site care period, and the AoR and corrective action plan must be reviewed at least every 

5 years. The final rule also requires the owner or operator to adjust the cost estimate annually for 

inflation, as specified at §146.85(c)(2). EPA adds that the Director can also require the owner or 

operator to provide an adjustment of the cost estimate if the Director determines that the original 

demonstration is no longer adequate, as specified at §146.85(e). 

EPA is developing guidance on financial responsibility for Class VI wells (available on EPA's 

website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm). The guidance 

will include a discussion on how to estimate costs, to assist Class VI well owners or operators, 

third party insurers or providers of financial instruments, and permitting authorities in 

developing estimates of the costs associated with various GS activities. These baseline estimates 

can then be updated annually and kept current through input from ongoing dialogue between the 

owner or operator and the Director. The cost estimation methodology guidance will also contain 

instructions on how to adjust cost estimates for inflation to help account for the long-term nature 

of geologic sequestration. 

Letter ID: 0280 Comment ID: 24110 Letter Lines: 264 to 271 

11
Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment Code: 5280 2.8.2.4 USDW non-endangerment demonstrations 

Comment: (f) TCEQ agrees with EPA's approach that financial assurance for post-injection 

site care may be required for a period less than or greater than fifty years as 

proposed in 146.93, depending on a site specific demonstration to the Director. 

However, consistent with TCEQ's comments under Principal Concern 1, TCEQ also 

encourages EPA to delete the fifty-year threshold requirement in consideration 

of EPA's indication that the duration of financial assurance should ultimately 

be keyed to whatever site-specific time is necessary to meet the post-injection 

site care performance standard of demonstration of non-endangerment ofUSDWs. 

Individual Response: EPA agrees that financial responsibility must be maintained throughout 

the post-injection site care timeframe, regardless of its ultimate length. The GS rule requires this, 

at 146.85. 

EPA also agrees 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 GS rule offers owners or operators flexibility regarding the duration of the PISC 

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

during the post-injection period based on site-specific data, pursuant to requirements at 

§146.93(b); or (2) affording the Director discretion to allow a Class VI well owner or operator to 

demonstrate, during the permitting process based on substantial data, that an alternative PISC 

timeframe may be appropriate if it ensures non-endangerment of USDWs pursuant to 

requirements at §146.93(c). 

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

for post-injection site care will be necessary in most cases. The default 50 year post-injection site 

care timeframe represents a reasonable and protective monitoring period based on a review of 

research studies, industry reports, and existing environmental programs, and evaluation of public 

comments. 

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

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

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

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

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

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

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

impacts. 

Letter ID: 0280 Comment ID: 24111 Letter Lines: 273 to 290 

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

Comment Code: 5610 2.11.1 Allowing partial primacy for Class VI wells (seeking comment) 

12
Comment: (3) Flexibility and Streamlining in Class VI Program Primacy Considerations - 

TCEQ concurs with EPA's assessment that current options for injection of CO2 

include Class I, ClassII, and ClassV wells. Accordingly, under state law, injection 

of CO2 in Texas will be regulated by either the TCEQ or the Railroad Commission 

(RRC). Noting the RRC's responsibility for Class II injection (including CO2 

injection for enhanced recovery of oil and gas), TCEQ is responsible for Class I 

and most of Class V (including experimental injection of CO2). Class VI as 

proposed by EPA, under state law, would appear to be in TCEQ's jurisdiction. 

Section 27.022, Texas Water Code provides: "The commission has jurisdiction over 

the injection of carbon dioxide produced by a clean coal project, to the extent 

authorized by federal law, into a zone that is below the base of usable quality 

water and that is not productive of oil, gas, or geothermal resources". However, 

such jurisdictional lines are subject to change by state legislation. 

Flexibility will therefore be needed in federal authorization of the Class VI 

well program at whichever agency is designated by the state legislature. 

Flexibility in this sense primarily means free from constraints that EPA has 

traditionally imposed by bundling various well classes into an "all or nothing" 

condition for program primacy. 

Individual Response: EPA agrees with commenters that states should be allowed to obtain 

primacy for Class VI wells independently of other well classes, and will allow independent 

primacy for Class VI wells under §145.1(i) of the final GS rule. EPA believes that allowing 

independent Class VI primacy may encourage states to take responsibility for implementation of 

Class VI regulations and provide for a more comprehensive approach to managing CCS projects 

by promoting the integration of GS activities under SDWA into a broader framework for 

managing CCS. Furthermore, GS operations involve ancillary activities (e.g., pipeline 

operations, pore space ownership, land use rights, and surface access) for which states can call 

upon other authorities that exist at the state level (but outside UIC authority) to provide a more 

comprehensive CCS management approach. 

EPA also believes that allowing states to apply only for Class VI primacy will shorten the 

primacy approval process for states. EPA's willingness to accept independent primacy 

applications for Class VI wells represents a shift in its longstanding policy of discouraging 

"partial primacy." It is very important to note that this shift in policy allowing for Class VI 

primacy does not apply to any other well Class under Section 1422. EPA will continue to 

discourage applications for partial primacy for all other well types under Section 1422. 

EPA clarifies that states should be able to obtain primacy for Class VI wells independent of other 

well classes provided they develop regulations that are at least as stringent as the minimum 

Federal requirements (e.g., permitting, inspection, operation, monitoring, and recordkeeping 

requirements) provided in the final GS rule. EPA believes that existing programs can adapt their 

expertise to the new requirements for Class VI wells and will be able to develop a primacy 

application for Class VI wells under section 1422 of SDWA and ensure that their GS programs 

integrate into national climate change priorities and protect USDWs from endangerment. 

EPA also clarifies that primacy is granted to a state, not to any agency within that state, and 

13
states are free to choose which agency will implement the Class VI program—for instance, an 

environmental quality protection agency (non-Class II) or the state's traditional oil and gas 

regulatory agency (Class II)—as long as the program meets the minimum Federal requirements 

for Class VI wells as required under section 1422 of SDWA. Some states administer their 

program for all injection well classes through a single agency, whereas other States elect to 

divide the program between agencies. For example, in most States, the Class II program is run by 

an oil and gas agency and other well classes are run by a State environmental agency (e.g., the 

Oklahoma Corporation Commission oversees Class II wells in the State, and the Oklahoma 

Department of Environmental Quality oversees other well classes). Additionally, several States 

allow their oil and gas agencies to administer their UIC program for specific well classes or 

subclasses provided they meet all Federal requirements (e.g., the Texas Railroad Commission 

oversees Class III brine-mining wells and Class V geothermal wells in Texas). EPA believes that 

retaining this flexibility for States to identify the appropriate agency to oversee Class VI wells 

will address commenters’ concerns that States should be afforded the opportunity to determine 

which agency should oversee Class VI wells, and recognizes the existing expertise of both State 

oil and gas agencies and environmental agencies. 

Letter ID: 0280 Comment ID: 24112 Letter Lines: 292 to 307 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

Comment: Also, with primary responsibility for carbon geo-sequestration residing with EPA 

until an application for state primacy is approved, it will be in the mutual 

interests of EPA and applying states, to make the state primacy process more 

efficient. In TCEQ's experience, revisions of UIC program primacy 

(authorization) which have been relatively limited in scope and complexity have 

required years for development and approval. 

Opportunities for streamlining the Class VI primacy process may be achieved by 

redesigning the review and approval processes coordinated between EPA regions 

and headquarters. Also, for consideration by states, the primacy process could 

be made easier for state and EPA staff, to the extent that federal regulations 

can be adopted verbatim, minimizing or eliminating the complicated "crosswalk" 

process for determining rule-for-rule equivalency. As an additional 

consideration, the possibility of optional interim authorization of a state 

program, or delegation of responsibility by EPA to states under a memorandum of 

agreement until primacy is approved, should be explored. 

Individual Response: EPA agrees that opportunities exist to streamline primacy application 

process. The final GS rule includes new regulatory language at §145.22 and §145.23 to 

streamline and clarify the process for submission of Class VI primacy applications and address 

the unique aspect of Class VI injection operations. For example, EPA is allowing the electronic 

submission of required primacy application information (e.g., letter from the Governor, program 

description, Attorney General’s statement, or Memorandum of Agreement). The Agency is also 

allowing the use of existing reporting form(s) for Class VI wells, as appropriate. 

14
Additionally, to address the unique nature of Class VI injection operations, the final rule at 

§145.23(f) includes new language describing the requirements for Class VI State Program 

descriptions. Specifically, §145.23(f)(13) requires States to describe in their primacy applications 

procedures for notifying any States, Tribes, and Territories of Class VI permit applications where 

the AoR is predicted to cross jurisdictional boundaries and for documenting this consultation. 

This new requirement addresses comments on the proposed rule and NODA and Request for 

Comment that Class VI operations are likely to have larger AoRs that may cross jurisdictional 

boundaries and necessitate trans-boundary coordination. Other additions in the final rule at 

§145.23(f) clarify the requirements for State Program descriptions, which must include 

information regarding the schedule, priorities for, and number of permits to be issued in the first 

two years of program operation. These changes ensure expeditious implementation of nationally 

consistent Class VI requirements. 

EPA is developing guidances for states that describe the process of applying for and receiving 

primary enforcement responsibility (primacy) for GS Class VI wells under Section 1422 of 

SDWA, as well as the technical and administrative issues on developing GS regulations that are 

the equivalent of minimum federal criteria and requirements. The guidance will be available at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. EPA will work closely with 

States, Tribes, and Territories to ensure timely approval of Class VI primacy applications. 

Letter ID: 0280 Comment ID: 24113 Letter Lines: 309 to 351 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

Comment: (4) Resource Needs for Regulation of the Proposed New Class of Wells-As 

described in the 

Ground Water Report to the Nation: A Call to Action (Ground Water Protection 

Council, 2007), the great challenges for the UIC Program are the need to 

effectively address higher risk Class V wells, and readiness to regulate waste 

streams from emerging technologies such as carbon capture and storage. In either 

case, the principal obstacle is the insufficiency of funding for state UIC 

programs. In congressional testimony, GWPC has recommended an increase in annual 

funding for the national UIC Program to $56 million, nearly a five-fold increase 

over present appropriations. While the full scope of resources needed for 

implementing a Class VI well program is not presently known, needs will be 

particularly acute in the following areas: 

Additional Staff -In addition to staff needed for regulation of the existing 

injection well classes, more qualified persons will be needed to conduct 

rulemaking for state equivalency with the new federal regulations, develop 

program procedures, form, and other documents for Class VI, assemble program 

authorization packages for submittal to EPA, and conduct permitting, compliance 

monitoring, and enforcement of Class VI wells. 

15
16

Additional Tools (Computer Models for Simulation of Multi-Phase Interactions in 

Determining Fate and Transport of Injected CO2) -The central role, iterative 

nature, and unprecedented complexity of computational modeling and monitoring of 

the injected CO2 plume and pressure front in nearly every consideration in a 

CO2-GS project will require additional developmental work and funding to provide 

the specialized computer models, monitoring instruments, and other tools needed 

by state and EPA regional staff for regulation of Class VI wells. 

Guidance and Training in Implementation of Class VI Requirements -In the 

interest of regulatory flexibility and avoidance of unnecessary constraints in 

development of the technology through overly prescriptive specification of 

materials and methods, EPA's proposed rules feature a series of plans that an 

applicant for a Class VI permit must submit for director approval. Among the 

plans required that are unique or require special considerations in application 

to a Class VI well project are the area of review and corrective action plan, 

the monitoring plan, and the post-injection site care and closure plan. Under 

the proposed rules, the adequacy of any such plans would be a matter of director 

discretion. Practically, this would include public participation in a permitting 

or permit amendment process. While it is appropriate that EPA has provided with 

each requirement of a plan, a list of considerations in evaluating the plan, 

more specific guidance and training on such plans including the use and 

evaluation of models and monitoring data will be needed for efficient regulation. 

The need for guidance and training will be greatest in the first commercial 

scale CO2-GS projects in the early phase of rule implementation. 

Individual Response: EPA acknowledges that there may be technical and administrative 

challenges including resource concerns, and will work closely with the states to assist them in 

resolving funding issues or acquiring the resources, personnel, and training needed to address the 

unique technical challenges associated with GS. EPA will coordinate with and assist states, e.g., 

through guidance and on-line and in-person training, to help them address problematic technical 

and policy issues. 

EPA will also incorporate Class VI wells into the UIC Program's grant allocation process. The 

States/Tribes/Territories must also demonstrate that they have adequate resources to implement 

the program through matching resources against those allocated by the UIC Program's grant 

allocation formula. Currently, primacy programs are required to meet a minimum of 25 percent 

matching requirement. 

EPA is developing a Class VI program primacy application and implementation manual that 

describes, for States, the process of applying for and receiving primacy for GS Class VI wells 

under Section 1422 of SDWA. The manual will also provide tools designed to assist States with 

the development of their primacy application and UIC Directors with evaluating permit 

application information. The guidance will be available at 

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