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.
TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.

HEADQUARTERS: P.O. BOX 33695 DENVER, COLORADO 80233-0695 303-452-6111

December 22, 2008

Water Docket

Environmental Protection Agency

Mailcode: 2822T

1200 Pennsylvania Ave., NW

Washington, DC 20460

RE: Docket No. EPA-HQ-OW-2008-0390

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

Comments on Federal Requirements Under the Underground Injection Control Program

for Carbon Dioxide Geologic Sequestration Wells; Proposed Rule

Tri-State Generation and Transmission Association, Inc. (Tri-State) transmits this letter

to provide comment aboutthe Environmental Protection Agency's (EPA) proposed requirements

under the Underground Injection Control (UIC) program for carbon dioxide (C02) geologic

sequestration. Tri-State is a not-far-profit, wholesale electric power supply cooperative

providing power to 44 member distribution systems serving customers throughout a 250,000

square-mile territory in Colorado, Nebraska, New Mexico, and Wyoming. Tri-State provides

electricity to members based on a diverse mix of generation sources including coal, natural gas,

hydroelectric, and wind power.

Tri-State is a member ofthe National Rural Electric Cooperative Association

(NRECA) and the Utilities Solid Waste Activities Group (USWAG). Tri-State incorporates here

by reference NRECA's and USWAG's written comments and the oral testimony provided by

USWAG at EPA's October 2, 2008 public hearing in Denver. Tri-State uses this opportunity to

reiterate the following concerns.

A. Tri-State acknowledges EPA's efforts to use a "performance-based" approach and to

build flexibility mechanisms into the rule. In general, Tri-State agrees that these methods

will help create a regulatory framework that can evolve as information and technological

advancements are gained in the field of carbon capture and sequestration. It is important,

however, that any directorial discretion be clearly defined and limited; this can be

achieved while still maintaining a rule that is flexible and avoids unnecessary

prohibitions. In addition, guidance on any aspect ofthe final rule (far example,

clarification ofrequirements for financial assurance mechanisms) must be developed in

accordance with Office ofManagement and Budget's Good Guidance Practices Bulletin,

which directs that notice and comment be provided on "economically significant"

guidance documents. EPA should not issue guidance that is effectively implemented as

regulations.

NUCLA STATION

P.O. BOX 698

NUCLA, CO 81424·0698

970·864·7316

ESCALANTE STATION

P.O. BOX 577

PREWITT, NM 87045

505·876·2271

CRAIG STATION

P.O. BOX 1307

CRAIG, CO 81626·1307

970·824·4411 A Touchstone EnerglCooperative /I"'IIA," ••'~W"'1

AN
Water Docket

December 22, 2008

Page 2

B. State regulators have familiarity with local environmental, geologic, and financial

concems, and in many cases have pre-existing relationships with the regulated

community that will facilitate implementation of a new and complex regulatory program.

For these reasons, Tri-State believes it is also appropriate to allow states to obtain

primacy for only Class VI wells if a particular state so chooses. Such class-specific

primacy is consistent with the statutory authorization behind the UIC Program, and as

EPA predicts, states obtaining primacy for Class VI wells - regardless of whether they

have sought primacy under other aspects ofthe UIC program - may be more likely to

develop a comprehensive regulatory program for all aspects of carbon capture and

storage.

C. EPA should view CO2 as a resource, not a waste. CO2 has a commercial value for

enhanced oil recovery operators. A number of commercial operations exist solely for the

extraction and sale of natural CO2. Moreover, anthropogenic CO2may have a

commercial value for traders in carbon emissions reduction credits, once the CO2is

captured and stored. While the reason for capturing the CO2may be to prevent it from

entering the earth's atmosphere, it nonetheless will have a commercial value when stored.

Also, states that currently regulate CO2 injections for enhanced oil recovery operations do

so under a resource management framework. Surface Transportation Boards, which are

responsible for the economic regulation of CO2 interstate pipelines, also view C02 as a

commodity. Characterization as a waste would have a chilling effect on the development

of carbon capture and storage projects.

D, It is counterproductive at this stage in the development of a CO2 geologic sequestration

regulatory regime to categorically preclude any potentially feasible injection formations

as possible long-term storage sites. EPA recognizes that the commercial deployment of

CO2 geologic sequestration activities will result in the production oflarge volumes of

CO2 for which owners or operators will have to locate new and environmentally

protective inj ection zones. Therefore, it makes sound policy sense for EPA to encourage

the identification and utilization of as many protective zones as possible, with the

prerequisite that any injection site be protective of underground sources of drinking water

(USDW). Tri-State supports altemative approaches that would allow injection between

and/or above the lowermost USDW, increasing capacity for CO2 geologic sequestration,

as long as it can be demonstrated that injection will be protective ofUSDWs and meet

other applicable conditions for Class VI C02 geologic sequestration wells. The final rule

should not contain a blanket prohibition on injection ofCO2 into coal seams or into other

formations such as basalts, salt domes, or shales. The final rule must be flexible enough

to accommodate developments in information and technology related to carbon

sequestration.

A Touchstone EnerglCooperative
Water Docket

December 22, 2008

Page 3

EPA requests comment on whether the Final Rule should require, or allow the Director to

require at his/her discretion, the identification and characterization of additional

confining and containment zones above the primary (i.e., lowennost) confining zone that

could further impede vertical fluid movement and allow for pressure dissipation in

effect, a "secondary containment" requirement. Tri-State opposes the inclusion ofthis

secondary containment requirement, and believes that it will only be in the most unusual

situations where the circumstances warrant the Director exercising discretion to require

this additional protection in a Class VI pennit. While additional containment zones

above the confining zone could impede vertical fluid movement, there is no basis for

requiring these additional zones ifit was already demonstrated that the original confining

zone is protective ofUSDWs.

E. The General Accounting Office (GAO) issued in September 2008 a report entitled

Climate Change Federal Actions Will Greatly Affect the Viability ofCarbon Capture

and Storage As a Key Mitigation Option (GAO-08-1080). GAO cites a National

Academy of Sciences report emphasizing that a large-scale CO2UIC program cannot be

successful "if a significant fraction ofthe public views it as dangerous or unacceptable"

and, therefore, CO2storage technologies must not only be safe and effective, they must be

presented "to the public and the regulatory community in such a way as to instill

confidence that they are in fact safe and effective."

As the GAO report cautions, EPA must resolve key policy and legal uncertainties -

including the interaction ofthe Resource Conservation and Recovery Act (RCRA) and

the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) with Class VI injection activities and the specter oflong-ternl post-injection

liability - to alleviate financial concerns of potential Class VI well owners or operators,

and to encourage investment in the development and operation ofClass VI CO2 inj ection

wells. Tri-State recognizes that Congressional action may be needed to clear these

hurdles standing in the way of commercial deployment offull-scale geologic

sequestration projects.

In discussing the potential applicability ofRCRA's hazardous waste rules to Class VI

C02 injection activities, EPA prematurely assumes that the CO2 is being "discarded" and

thus is a solid waste under RCRA. Currently, CO2 is a valuable commodity that is used

in a variety ofmanufacturing processes and it is too early for EPA to summarily conclude

- especially given technological advancements that will likely be made in the coming

years - that CO2materials managed in Class VI wells will be permanently discarded.

Tri-State believes that EPA should specifically exempt CO2 gas streams from coverage

by RCRA, and develop requirements specifically tailored to this material if necessary to

assure further environmental protection beyond that already provided by the UIC

pennitting process. To the extent there is any possibility that C02 injection operations

A Touchstone Energy0Cooperative 3
Water Docket

December 22, 2008

Page 4

could be subject to RCRA controls, EPA should exempt such activities from RCRA's

corrective action program under the well-established "contingent management" concept,

particularly given that the UIC permit will ensure that the injected material is not

mismanaged.

EPA should take steps in the final rule to minimize the potential for CERCLA liability

attaching to owners of operators ofClass VI injection wells by issuing permits that take

full advantage ofCERCLA's "federally permitted release" exemption.

F. The final rule must not make the application process overly burdensome or unrealistic by

requiring detailed information that may not be available at the time ofthe initial

application. Instead, the final rule should allow for submission of updated information

regarding a CO2 geologic sequestration well, and its Area ofReview as that information

becomes available.

G. Given the similarities between Class VI wells (as envisioned by the proposed rule) and

the existing requirements for Class I, II, and V wells under the UIC program, the final

rule should allow grandfathering of construction and operating requirements for existing

wells seeking to become Class VI wells, provided that it is demonstrated that such

carrying-over ofrequirements will be protective ofUSDWs.

H. Regardless ofEPA's success in establishing a clear regulatory structure for addressing

site remediation risks and site liability risks, at some point a government backstop for

liability needs to be established. There is a clear role for private insurance/risk

management finns for assuming certain categories ofthe risks associated with a geologic

sequestration project. However, these projects are intended to sequester carbon long into

the future. This presents a risk category with particularly difficult characteristics. Private

companies cannot quantify risks for such an open-ended condition and likely will not

write policies for this stage ofthe geologic sequestration project. Government is urging

geologic sequestration for protection ofthe public welfare. In order for it to occur on a

broad-scale, government will have to be willing to bear some ofthe low probability, long

time-frame risks.

Tri-State appreciates the work EPA has done studying possible approaches to geologic

sequestration site stewardship. Tri-State sees some promise in parts ofthe general

framework ofthe first model listed in the study for federal management of geologic

sequestration liability -- The Price-Anderson Act. Specifically, using three tiers for

funding the liability regime would seem to be a good starting point for developing a

similar regime for geologic sequestration. The approach

requires a licensed nuclearfacility to maintain both site-specific liability

insurance (Tier 1) and industry-pooled liability insurance (Tier 2). In the event

A Touchstone EnergiCooperative 4
Water Docket

December 22, 2008

Page 5

that the private claims against a licensee exceed the amounts available in both the

site-specific, individual insurance and the industry-pooled insurance, the federal

government (Tier 3) provides the licensee with indemnity.

EPA should consider a 3-tier liability scheme for geologic sequestration that incorporates

private insurance, pooled industry insurance and a government backstop.

I. In considering financial assurance requirements, EPA and stakeholders should distinguish

financial assurance from liability. Regardless ofthe length oftime EPA establishes in the

final rule for a geologic sequestration facility owner or operator to maintain financial

assurance instruments, liability may last longer, depending on which statutory provisions

are applicable, as well as state law. While EPA is limited in its ability to address

potential liability, it should seek to do so, as potential long-term liability is a significant

deterrent to development of carbon capture and storage.

Thank you for the opportunity to comment on this important potential rulemaking. Please

contact me if you have questions or would like more information.

Sincerely,

!l{I4j

Barbara A. Walz

Vice President

Environmental

BAW:AB:pvt

bee: Mac McLennan

Mike McInnes

Andy Berger

Lee Boughey

Gigi Dennis

Tim Driver

Barry Ingold

Dana Stephens

Jim Van Someren

Heidi Wagner

File: P3-3.l(9)

A Touchstone Energy"Cooperative 5
Letter ID: 0216 

Commenter: Barbara Walz 

Organization: Tri-State Generation and Transmission Association, Inc. 

Letter ID: 0216 Comment ID: 22965 Letter Lines: 45 to 51 

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

Comment: A. Tri-State acknowledges EPA's efforts to use a "performance-based" approach 

and to build flexibility mechanisms into the rule. In general, Tri-State agrees 

that these methods will help create a regulatory framework that can evolve as 

information and technological advancements are gained in the field of carbon 

capture and sequestration. It is important, however, that any directorial 

discretion be clearly defined and limited; this can be achieved while still 

maintaining a rule that is flexible and avoids unnecessary prohibitions. In 

Individual Response: EPA is developing guidances for States that describe the process of 

applying for and receiving primary enforcement authority (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 describe areas of Directorial discretion and considerations for how that discretion would be 

exercised. This guidance will be available on EPA’s website at 

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

Letter ID: 0216 Comment ID: 22966 Letter Lines: 51 to 57 

Comment Code: 1435 1.2.1.3 EPA should develop guidance 

Comment: maintaining a rule that is flexible and avoids unnecessary prohibitions. In 

addition, guidance on any aspect of the final rule (far example, clarification 

of requirements for financial assurance mechanisms) must be developed in 

accordance with Office of Management and Budget's Good Guidance Practices 

Bulletin, which directs that notice and comment be provided on "economically 

significant" guidance documents. EPA should not issue guidance that is 

effectively implemented as regulations. 

Individual Response: To promote consistency while providing the Director with an appropriate 

level of discretion, EPA is developing guidances for states and tribes that describe the process of 

applying for and receiving primacy for GS Class VI wells under Section 1422 of SDWA, as well 

as the technical and administrative issues associated with developing GS regulations that are the 

equivalent of minimum federal criteria and requirements. These are available on EPA’s website 

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

EPA intends to take OMB’s Good Guidance Manual into consideration as guidance is developed. 

OMB’s Good Guidance Manual establishes policies and procedures for the development, 

1
issuance, and use of significant guidance documents by Executive Branch departments and 

agencies. 

Letter ID: 0216 Comment ID: 22967 Letter Lines: 59 to 68 

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

Comment: B. State regulators have familiarity with local environmental, geologic, and 

financial concerns, and in many cases have pre-existing relationships with the 

regulated community that will facilitate implementation of a new and complex 

regulatory program. For these reasons, Tri-State believes it is also appropriate 

to allow states to obtain primacy for only Class VI wells if a particular state 

so chooses. Such class-specific primacy is consistent with the statutory 

authorization behind the UIC Program, and as EPA predicts, states obtaining 

primacy for Class VI wells -regardless of whether they have sought primacy under 

other aspects of the UIC program -may be more likely to develop a comprehensive 

regulatory program for all aspects of carbon capture and storage. 

Individual Response: EPA agrees 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. In the past, EPA has not accepted UIC primacy applications 

for individual well classes under Section 1422 of SDWA. In other words, if a State wanted 

primacy for Class I wells, the State would also need to accept responsibility for Class III, IV, and 

V wells. This policy has been in place since the initiation of the UIC Program in the early 1980s 

and was intended to encourage states to take full responsibility for UIC programs, avoid 

duplication of efforts, and provide for administrative efficiencies. 

However, given the potential for CCS (encompassing capture, transportation, and geologic 

sequestration) to be an important part of a national priority to address climate change, EPA 

believes that providing states the flexibility to obtain primacy for Class VI wells independently 

of other well classes can help foster effective management of CCS. 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. 

The Agency believes that it is important for states to use their unique efficiencies to promote 

adoption of this burgeoning and important technology, while assuring that USDWs are protected 

from endangerment through the UIC regulatory framework. EPA believes that, due to the 

importance of implementing an effective, comprehensive, and seamless CCS program, States 

should be provided the flexibility to obtain primacy for Class VI only. 

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

2
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 recognizes that some states have already begun legislative efforts that are wider in scope 

than the Federal GS rule and believes that allowing Class VI primacy (independent of other well 

classes) may encourage states to take responsibility for implementation of a more comprehensive 

approach to managing CCS projects (e.g., capture, transportation, and geologic sequestration). 

Letter ID: 0216 Comment ID: 22968 Letter Lines: 70 to 81 

Comment Code: 1480 1.2.2.2.2 CO2 is not a pollutant 

Comment Code: 1680 1.3.8 Don't overstate risk, don't stigmatize CO2 

Comment: C. EPA should view CO2 as a resource, not a waste. CO2 has a commercial value for 

enhanced oil recovery operators. A number of commercial operations exist solely 

for the extraction and sale of natural CO2. Moreover, anthropogenic CO2 may have a 

commercial value for traders in carbon emissions reduction credits, once the 

CO2 is captured and stored. While the reason for capturing the CO2 may be to 

prevent it from entering the earth's atmosphere, it nonetheless will have a 

commercial value when stored. Also, states that currently regulate CO2 injections 

for enhanced oil recovery operations do so under a resource management 

framework. Surface Transportation Boards, which are responsible for the economic 

regulation of CO2 interstate pipelines, also view CO2 as a commodity. 

Characterization as a waste would have a chilling effect on the development of 

carbon capture and storage projects. 

Individual Response: EPA clarifies that the GS rule does not address the status of CO2 as either 

a pollutant, waste, or a commodity. In addition, whether or not a fluid could be sold on the 

market as a commodity does not override EPA's authority under the SDWA to protect USDWs 

from endangerment. EPA stresses that the focus of the GS rule is to ensure that, where GS is 

deployed, it is conducted in a manner that protects USDWs. 

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. 

"Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, 

whether in a semisolid, liquid, sludge, gas or other form or state, and it includes liquids, gases, 

3
and semisolids (i.e., slurries) injected into the subsurface. 

Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part 

of their permit application. If the injectate is determined to meet the definition of a hazardous 

waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous 

waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into 

Class VI wells is prohibited. In addition, owners or operators must periodically monitor their 

injectate throughout injection operations under §146.90(a). 

Letter ID: 0216 Comment ID: 22969 Letter Lines: 83 to 92 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

Comment Code: 3120 2.1.2 Need to identify additional confining and containment zones 

(seeking comment) 

Comment: D. It is counterproductive at this stage in the development of a CO2 geologic 

sequestration regulatory regime to categorically preclude any potentially 

feasible injection formations as possible long-term storage sites. EPA 

recognizes that the commercial deployment of CO2 geologic sequestration 

activities will result in the production of large volumes of CO2 for which 

owners or operators will have to locate new and environmentally protective 

injection zones. Therefore, it makes sound policy sense for EPA to encourage the 

identification and utilization of as many protective zones as possible, with the 

prerequisite that any injection site be protective of underground sources of 

drinking water (USDW). Tri-State supports alternative approaches that would allow 

Individual Response: EPA clarifies that the GS rule does not categorically preclude injection of 

CO2 into any non-USDW formation types. The purpose of the GS rule is to ensure protection of 

USDWs from endangerment, and the rule requires that owners or operators demonstrate that 

wells are sited in suitable systems with geologic formations to receive and confine injected CO2, 

required at §146.83 of the GS rule. The Class VI siting, well construction and operation, 

monitoring and testing, and post-injection site care and site closure requirements are designed to 

ensure that injected CO2 remains within the target formation. If an owner or operator can 

demonstrate to the Director's satisfaction that GS in coal seams, basalts, salt domes, or shales can 

be accomplished in a manner that protects USDWs and meets all of the requirements of the GS 

rule, the project may be permitted as a Class VI well. 

Letter ID: 0216 Comment ID: 22970 Letter Lines: 92 to 96 

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

USDW 

Comment: drinking water (USDW). Tri-State supports alternative approaches that would allow 

injection between and/or above the lowermost USDW, increasing capacity for 

4
CO2 geologic sequestration, as long as it can be demonstrated that injection will 

be protective of USDWs and meet other applicable conditions for Class VI CO2 

geologic sequestration wells. The final rule should not contain a blanket 

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. It 

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: 0216 Comment ID: 22971 Letter Lines: 96 to 100 

Comment Code: 2163 1.6.3.1 Comments in favor of injection into unmineable coal seams 

Comment: geologic sequestration wells. The final rule should not contain a blanket 

prohibition on injection of CO2 into coal seams or into other formations such as 

basalts, salt domes, or shales. The final rule must be flexible enough to 

accommodate developments in information and technology related to carbon 

sequestration. 

Individual Response: EPA clarifies that the GS rule does not preclude injection into any nonUSDWs formations, provided the site-suitability requirements in the GS rule are met. EPA 

acknowledges that there may be risks associated with GS into certain formation types. For this 

reason, the Agency is using an adaptive approach to regulate GS injection. EPA will collect and 

review project data on early GS projects, including those that inject into various formation types, 

to determine whether the appropriate amount and types of information and documentation are 

5
being collected. EPA plans, every six years, to 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. 

Letter ID: 0216 Comment ID: 22972 Letter Lines: 102 to 113 

Comment Code: 3120 2.1.2 Need to identify additional confining and containment zones 

(seeking comment) 

Comment: EPA requests comment on whether the Final Rule should require, or allow the 

Director to require at his/her discretion, the identification and 

characterization of additional confining and containment zones above the primary 

(i.e., lowermost) confining zone that could further impede vertical fluid 

movement and allow for pressure dissipation in effect, a "secondary containment" 

requirement. Tri-State opposes the inclusion of this secondary containment 

requirement, and believes that it will only be in the most unusual situations 

where the circumstances warrant the Director exercising discretion to require 

this additional protection in a Class VI permit. While additional containment 

zones above the confining zone could impede vertical fluid movement, there is no 

basis for requiring these additional zones if it was already demonstrated that 

the original confining zone is protective of USDWs. 

Individual Response: EPA believes that the Class VI requirements, including the level of site 

characterization required under §§146.82 and 146.83, appropriately address the unique 

challenges posed by large-scale GS including large injection volumes, the relative buoyancy of 

CO2, its corrosivity in the presence of water, the potential presence of impurities in captured 

CO2, and its mobility within subsurface geologic formations. 

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: 0216 Comment ID: 22973 Letter Lines: 115 to 123 

6
Comment Code: 1680 1.3.8 Don't overstate risk, don't stigmatize CO2 

Comment: E. The General Accounting Office (GAO) issued in September 2008 a report 

entitled Climate Change Federal Actions Will Greatly Affect the Viability 

of Carbon Capture and Storage As a Key Mitigation Option (GAO-08-1080). GAO cites 

a National Academy of Sciences report emphasizing that a large-scale CO2 UIC 

program cannot be successful "if a significant fraction of the public views it 

as dangerous or unacceptable" and, therefore, CO2 storage technologies must not 

only be safe and effective, they must be presented "to the public and the 

regulatory community in such a way as to instill confidence that they are in 

fact safe and effective." 

Individual Response: EPA recognizes that injecting large volumes of CO2 for GS poses unique 

challenges that, if not properly managed, could endanger drinking water sources and have other 

adverse impacts. However, with proper site selection, the final, tailored, Class VI requirements 

address the large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of 

water, and potential impurities in the CO2 stream. In addition, the tailored permitting, siting, 

construction, operation, monitoring, and post-injection site care requirements in the GS rule are 

intended to prevent leakage from injection formations and protect USDWs. 

EPA does not agree that the tailored requirements will create a negative public perception of GS. 

The Agency believes that a demonstration to the public that GS projects are meeting the GS 

rule's tailored requirements would likely improve confidence in the project and help address 

public questions and concerns. 

Letter ID: 0216 Comment ID: 22974 Letter Lines: 125 to 133 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: As the GAO report cautions, EPA must resolve key policy and legal uncertainties 

 including the interaction of the Resource Conservation and Recovery Act (RCRA) 

and the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) with Class VI injection activities and the specter of long-term postinjection liability -to alleviate financial concerns of potential Class VI well 

owners or operators, and to encourage investment in the development and 

operation of Class VI CO2 injection wells. Tri-State recognizes that 

Congressional action may be needed to clear these hurdles standing in the way of 

commercial deployment of full-scale geologic sequestration projects. 

Individual Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA 

received many comments regarding the applicability of the RCRA regulations and statute to CO2 

streams that are geologically sequestered under the final Class VI UIC well requirements. As a 

result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the 

issue of RCRA applicability to CO2 streams being geologically sequestered, including the 

possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class 

7
VI wells. EPA will consider these comments as part of its development of that proposal. The 

Agency will consider issues particular to RCRA in the context of that separate rulemaking, and 

recommends that the commenter read that proposed rule when it is published. The Agency notes 

that commenters who wish to submit comments on the RCRA proposal will need to do so during 

the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new 

regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any 

changes to the RCRA regulations. 

EPA clarifies that CO2 itself is not listed as a hazardous substance under CERCLA; however, the 

CO2 stream may contain a listed hazardous substance (such as mercury) or may mobilize 

substances in the subsurface that could react with ground water to produce listed hazardous 

substances (such as sulfuric acid). Whether such substances may result in CERCLA liability 

from a sequestration facility depends entirely on the composition of the specific CO2 stream and 

the environmental media in which it is stored (e.g., soil or ground water). CERCLA exempts 

from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted 

releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be 

carefully structured to ensure that they prevent potential releases from the well which are outside 

the scope of the Class VI permit. 

Letter ID: 0216 Comment ID: 22975 Letter Lines: 135 to 149 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment: In discussing the potential applicability of RCRA's hazardous waste rules to 

Class VI CO2 injection activities, EPA prematurely assumes that the CO2 is being 

"discarded" and thus is a solid waste under RCRA. Currently, CO2 is a valuable 

commodity that is used in a variety of manufacturing processes and it is too 

early for EPA to summarily conclude -especially given technological advancements 

that will likely be made in the coming years -that CO2 materials managed in Class 

VI wells will be permanently discarded. Tri-State believes that EPA should 

specifically exempt CO2 gas streams from coverage by RCRA, and develop 

requirements specifically tailored to this material if necessary to assure 

further environmental protection beyond that already provided by the UIC 

permitting process. To the extent there is any possibility that CO2 injection 

operations could be subject to RCRA controls, EPA should exempt such activities 

from RCRA's corrective action program under the well-established "contingent 

management" concept, particularly given that the UIC permit will ensure that the 

injected material is not mismanaged. EPA should take steps in the final rule to 

Individual Response: EPA received many comments regarding the applicability of the RCRA 

regulations and statute to CO2 streams that are geologically sequestered under the final Class VI 

UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking 

specifically to examine the issue of RCRA applicability to CO2 streams being geologically 

sequestered, including the possible option of a conditional exemption from the RCRA 

requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its 

development of that proposal. The Agency will consider issues particular to RCRA in the context 

8
of that separate rulemaking, and recommends that the commenter read that proposed rule when it 

is published. The Agency notes that commenters who wish to submit comments on the RCRA 

proposal will need to do so during the comment period for that rule. Finally, EPA also notes that 

the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water 

Act (SDWA), is not making any changes to the RCRA regulations. 

Letter ID: 0216 Comment ID: 22976 Letter Lines: 149 to 152 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: injected material is not mismanaged. EPA should take steps in the final rule to 

minimize the potential for CERCLA liability attaching to owners of operators of 

Class VI injection wells by issuing permits that take full advantage of CERCLA's 

"federally permitted release" exemption. 

Individual Response: CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 

9607, certain “federally permitted releases” (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). 

Therefore, Class VI requirements and permits will need to be carefully structured to ensure that 

they do not “authorize” inappropriate releases, and would need to prevent potential releases from 

the well which are outside the scope of the Class VI permit. EPA is promulgating this rule under 

the SDWA. To the extent that the commenter is seeking interpretations of CERCLA and its 

related provisions, such interpretations are outside the scope of this rulemaking. 

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

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

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

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

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

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

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

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

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

operator when approving site closure. 

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 

9
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. 

Letter ID: 0216 Comment ID: 22977 Letter Lines: 154 to 158 

Comment Code: 4710 2.7.1 Proposed submissions required for permit applications (seeking 

comment) 

Comment: F. The final rule must not make the application process overly burdensome or 

unrealistic by requiring detailed information that may not be available at the 

time of the initial application. Instead, the final rule should allow for 

submission of updated information regarding a CO2 geologic sequestration well, 

and its Area of Review as that information becomes available. 

Individual Response: The final rule permit application process is not overly burdensome or 

unrealistic. EPA acknowledges that not all of the information listed at §146.82 of the proposed 

regulation will be available at the time the owner or operator develops their initial permit 

application. In response to comments and based on an evaluation of the proposed requirements at 

§146.82, the Agency revised this subpart so that the final regulation specifies separate 

requirements for information to be submitted with the permit application and before well 

construction is approved (at §146.82(a)) and information to be submitted before operation of the 

well is authorized (at §146.82(c)). EPA believes that this revision of §146.82 addresses 

commenters' concerns regarding the timing of information to be submitted. Please see the final 

rule and the discussion of AoR reevaluations in the preamble for additional information. 

Letter ID: 0216 Comment ID: 22978 Letter Lines: 160 to 165 

Comment Code: 2060 1.5.3 Comments on grandfathering of existing wells (seeking comment) 

Comment: G. Given the similarities between Class VI wells (as envisioned by the proposed 

rule) and the existing requirements for Class I, II, and V wells under the UIC 

program, the final rule should allow grandfathering of construction and 

operating requirements for existing wells seeking to become Class VI wells, 

provided that it is demonstrated that such carrying-over of requirements will be 

protective of USDWs. 

Individual Response: EPA agrees that many Class I, Class II, and Class V experimental 

technology wells are designed and constructed to withstand exposure to CO2. The final GS rule 

provides for the construction of these wells to be grandfathered per §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). 

10
EPA adds that, following re-permitting as Class VI wells, these projects must be subject to the 

operational, MIT, monitoring, reporting, plugging, and post-injection site care and site closure 

requirements in the final GS rule. See the discussion of EPA's final regulatory approach in the 

preamble to the GS rule for additional detail on these requirements. 

Letter ID: 0216 Comment ID: 22979 Letter Lines: 167 to 195 

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

Comment: H. Regardless of EPA's success in establishing a clear regulatory structure for 

addressing site remediation risks and site liability risks, at some point a 

government backstop for liability needs to be established. There is a clear role 

for private insurance/risk management firms for assuming certain categories of 

the risks associated with a geologic sequestration project. However, these 

projects are intended to sequester carbon long into the future. This presents a 

risk category with particularly difficult characteristics. Private companies 

cannot quantify risks for such an open-ended condition and likely will not write 

policies for this stage of the geologic sequestration project. Government is 

urging geologic sequestration for protection of the public welfare. In order for 

it to occur on a broad-scale, government will have to be willing to bear some of 

the low probability, long time-frame risks. 

Tri-State appreciates the work EPA has done studying possible approaches to 

geologic sequestration site stewardship. Tri-State sees some promise in parts of 

the general framework of the first model listed in the study for federal 

management of geologic sequestration liability --The Price-Anderson Act. 

Specifically, using three tiers for funding the liability regime would seem to 

be a good starting point for developing a similar regime for geologic 

sequestration. The approach "requires a licensed nuclear facility to maintain both 

site-specific liability insurance (Tier 1) and industry-pooled liability 

insurance (Tier 2). In the event that the private claims against a licensee 

exceed the amounts available in both the site-specific, individual insurance and 

the industry-pooled insurance, the federal government (Tier 3) provides the 

licensee with indemnity." 

EPA should consider a 3-tier liability scheme for geologic sequestration that 

incorporates private insurance, pooled industry insurance and a government 

backstop. 

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 

11
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. 

Letter ID: 0216 Comment ID: 22980 Letter Lines: 197 to 204 

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

Comment: I. In considering financial assurance requirements, EPA and stakeholders should 

distinguish financial assurance from liability. Regardless of the length of time 

EPA establishes in the final rule for a geologic sequestration facility owner or 

operator to maintain financial assurance instruments, liability may last longer, 

depending on which statutory provisions are applicable, as well as state law. 

While EPA is limited in its ability to address potential liability, it should 

seek to do so, as potential long-term liability is a significant deterrent to 

development of carbon capture and storage. 

Individual Response: EPA acknowledges the commenter’s concern regarding the applicability 

of multiple statutes to GS projects and the need for a single clear liability regime for owners or 

operators. EPA is working to create a nationally consistent financial responsibility regime within 

its authority to ensure that financial resources are available to protect USDWs throughout the life 

of the GS project. However, the authority under the SDWA does not extend to release owners or 

operators from long-term responsibility for the potential economic costs of impacts unrelated to 

USDWs. EPA does not have authority to transfer liability from one entity to another and SDWA 

does not provide for the creation of a third party financial instrument where EPA is the trustee. In 

the UIC program, liability under SDWA §1423 remains with the owner or operator for all well 

classes until all regulatory requirements have been met. EPA understands that Congress is 

12
13

considering legislation that may address the liability issue. 

EPA clarifies that the GS regulation 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. See the final rule preamble for 

further discussion of EPA's approach.