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.
Department of Environmental Quality 

Dave Freudenthal, Governor 

October 14, 2009 

To protect, conserve and enhance the quality of Wyoming's 

environment for the benefjt of current and future generations. 

Hon. Peter S. Silva 

Assistant Administrator 

Office. of Water 

USEPA Headquarters 

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 4101M 

Washington, DC 20460 

John Corra, Director 

Re: Federal Requirements Under the Underground Injection Control (UIC) Program for <;:arbon Dioxide 

(C02) Geologic Sequestration (GS) Wells; Notice of Data Availability and Request for Comment, 74 Fed. 

Reg. 44802 (August 31, 2009), Docket: EPA-HQ-OW-2008-Q390 

Dear Mr. Silva: 

The Wyoming Department of Environmental Quality (WDEQ) wishes to provide the following comments 

and recommendations related to the NODA referenced above. As a leader in both the production of 

coal for energy as well as the production of energy from coal, the regulatory requirements concerning 

geologic sequestration of carbon dioxide are extremely important to us. 

Comments 

Comment: Waiver process to allow geologic sequestration (G5) of C02 above and between USDWs 

We appreciate EPA's analysis ofthe benefits that can accrue toward C02 sequestration at the national 

level by providing states additional flexibility in selecting suitable and preferred injection zones and 

formations. We agree with US EPA that such flexibility may greatly increase the opportunities for 

significant, safe sequestration in states such as ours, where potential USDWS may exist at depths in 

excess of 15,000 be!ow surface. In those situations few, if any, opportunities exist fQr GS beneath deep 

USDWs, given the absence of geologic conditions (Le. porosity, permeability, thickness) favorable to 

injection. Furthermore, we believe that GS can be performed safely and successfully in shallower 

geologic environments while also being prot~ctive of USDWs, as evidenced by the existence of 

pressurized natural gas and petroleum-bearing deposits above, as well as adjacent to USDWs in 

Wyoming. 

Herschler Building· 122 West 25th Street· Cheyenne, WY 82002 • ~ttp:lldeq.state.wy.us 

ADMIN/OUTREACH ABANDONED MINES 

(307) 777-7937 (307) 777-6145 

FAX 777-3610 FAX 777-6462 

AIROUALllY 

(307) 777-7391 

FAX 777-5616 

INDUSTRIAL SITING 

(307) 777-7369 

FAX 777-5973 

LAND OUALllY 'SOLID & HAZ. WASTE 

(307) 777-7756 . (307) 777-7752 

FAX 777-5864 FAX 777-5973 

WATER OUALllY 

(307) 777-7781 

FAX 777-5973 
Additionally, GS opportunities in Wyoming are significantly reduced if the waiver process cannot be 

applied to 'exempted' aquifers above and between USDWs. Our experience with Class I wells has shown 

that significant injection rates and volumes most often occur within aquifers which have been 

'exempted' in accordance with the exemption criteria contained within 40 CFR §146.4. 

I must stress that, in order for GS to be meaningfully successful and significant in Wyoming, we must 

have the ability to sequester C02 in aquifers (above or between USDWs) that can either be 'waived' for 

the purposes of GS solely by the state, or at the least be 'waived' by the state in accordance with the 

process outlined in the NODA and exempted as USDWs in accordance with the exemption options 

contained within 40 CFR §146.4. Our preference is that the no aquifer 'exemption' is required for 

aquifers when an application for waiver has been accepted by the state. If an exemption is required, we 

recommend that it not constitute a substantial program revision, and that the determination of 

exemption status be made by the Regional US EPA office. 

While we believe that the waiver process described in the NODA offers potential advantages, we 

recognize that the process also includes requirements that may not be necessary, nor achieve the 

intended benefits. 

Recommendation: We recommend that the waiver provision be made available to increase 

opportunities for GS. The waiver option should also apply to those aquifers that meet the criteria of 

'exempted' aquifers at 40 CFR §146.4, and that no further 'exemption' should be required by US EPA. 

No separate aquifer 'exemption' should be required for aquifers when an application for waiver has been 

accepted by the state. Ifan exemption is required by US EPA. we recommend that it not constitute a 

substantial proqram revision, and that the determination of exemption status be made by the Reqional 

US EPA office. We also recommend that an additional exemption criteria be created under 40 CFR 

§146.4 that provides for the exemption of aquifers for the purposes of qeoloqic sequestration. 

Comment: Requirement that the waiver may be subject to local notice and public hearing 

While we recognize and appreciate the need for the public to be informed when a GS project has 

applied for a waiver, we believe that the requirement for a public hearing may be unnecessary in many 

cases, especially where the project will have little, if any, effect upon the local populace, as may be the 

case in sparsely populated western states. We would prefer that the option for a public hearing remain 

at the discretion of the Director, and avoid the requirement for public hearing when there may be little, 

if any public interest. Upon public notice, interested citizens should have the opportunity to request a 

public hearing, and it is reasonable to expect that many Directors would voluntarily schedule public 

hearings for GS projects that involve potentially controversial waivers. We would remind US EPA that, 

under its proposed GS regulation, public notice is required and the public has an opportunity to request 

a public hearing once the draft permit is noticed. 

Recommendation: We recommend that there be norequirement for public hearinq on GS waiver 

applications, but that the Director be provided discretion to hold public hearings as he/she deems 

necessary. 
Comment: Requirement that the waiver be approved by both the UIC Program Director and the PWSS 

Program Director 

We believe this requirement is unnecessary since the focus of the UIC program is upon assessing permit 

applications and issuing permits to ensure the protection of USDWs, whether they be used as public 

water supply sources, or not. That is the primary purpose of the UIC program review. To engage 

another program (PWSS) in the same review and approval process would essentially be a redundant, 

duplicative effort with questionable, if any value added. In addition, it has the potential to pit the 

determinations of one agency against another. 

We believe this requirement is further problematic, and especially for states where the respective UIC 

and PWSS Program Directors may be operating within different agencies under different statutory 

authorities and/or regulatory requirements. We would like to point out that such a requirement 

presents numerous, unpredictable consequences in those situations where Directors may disagree on 

the approval of the waiver. As you know, many states have administrative procedures and 

review/appeal boards that are unique to their agency, but could work at cross-purposes in the event 

there was disagreement between Directors on the waiver approval. For instance, if each Director 

reports to his/her own administrative hearing board, or council, for decisions on appeal, which 

board/council decision prevails when both have equal authority? Such an arrangement places both the 

waiver applicant and the agencies in a realm of great uncertainty and delay in determining the status of 

the waiver application. The requirement is especially problematic for Wyoming, the only state where US 

EPA [Region 8] administers the PWSS Program, rather than the state. Under the proposed scenario, final 

waiver approval would require both state and federal approval, resulting in confusion regarding the 

highest determinations of state and federal sovereignty and rights. 

Finally, we caution that the Safe Drinking Water Act may not provide specific authority for PWSS 

programs to engage in permit, or waiver decisions, regarding the protection of USDWs from 

underground injection. To the contrary, the SDWA contains no requirements to implement drinking 

water protection programs such as Wellhead or Source Water protection programs. To extend PWSS 

programs into the review of UIC program administrative decisions, waivers, and permits may be 

questionable from a legal standpoint, but unnecessary, regardless. 

We remain sensitive, however, to the interests of local public water systems in being aware of activities 

within their wellhead and/or source water protection areas that may have the potential to affect the 

quality or quantity of source waters supplying their systems. 

Recommendation: We recommend that there be no requirement for the PWSS Proqram Director to 

approve the waiver; the approval determination should be left solelv with the UIC Program Director. In 

order to ensure that the PWSS Program Director and local public water systems that may potentially be 

affected by a GS project are informed that a waiver application has been applied for, we would suggest 

that US EPA consider specifying in the proposed GS rule that public notice be provided to those entities. 

In addition. US EPA may wish to consider reguiring that state approved Wellhead and Source Water 

Protection areas be included in those items to be illustrated on the map required under §146.82 of the 

proposed GS rule. 

Thank you for the opportunity to comment. Please accept my invitation to you, and your staff, to 

contact me directly (307-777-7192) should you have any questions. In the event that you or your staff 
would be interested in learning more about Wyoming's injection experiences and geologic setting, I 

would be happy to coordinate discussions and visits with the appropriate experts in our state. 

c: Governor David Freudenthal 

John Wagner, Administrator, Water Quality Division 

Kevin Frederick, Ground Water Section Manager 

Steve Pratt, Region 8 Ground Water Section 
Letter ID: 0386  

Commenter: John V. Corra  

Organization: Wyoming Department of Environmental Quality (WDEQ)  

Letter ID: 0386 Comment ID: 28154 Letter Lines: 37 to 51  

Comment Code: 3210 3.2.1. Comments Generally in Support of the Approach  

Comment: Comment: Waiver process to allow geologic sequestration (GS) of CO2 above and  

between USDWs  

We appreciate EPA's analysis of the benefits that can accrue toward CO2  

sequestration at the national level by providing states additional flexibility  

in selecting suitable and preferred injection zones and formations. We agree  

with US EPA that such flexibility may greatly increase the opportunities for  

significant, safe sequestration in states such as ours, where potential USDWs  

may exist at depths in excess of 15,000 below surface. In those situations few,  

if any, opportunities exist for GS beneath deep USDWs, given the absence of  

geologic conditions (i.e. porosity, permeability, thickness) favorable to  

injection. Furthermore, we believe that GS can be performed safely and  

successfully in shallower geologic environments while also being protective of  

USDWs, as evidenced by the existence of pressurized natural gas and petroleum‐  

bearing deposits above, as well as adjacent to USDWs in Wyoming.  

Individual Response: EPA acknowledges the commenter's support of the waiver approach and site‐

specific flexibility in regulatory development and permitting as described in the NODA and Request for

Comment. The Agency acknowledges that there are some situations where injection into non‐USDW

formations above the lowermost USDW can be performed in a manner that protects USDWs. The final

GS rule at §146.95 establishes a process by which owners and operators can seek a waiver of the Class

VI injection depth requirements. The Agency believes the waiver 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.  
EPA acknowledges that technologies exist to address the challenges associated with GS and injection

that will be conducted under the waiver approach, e.g., to inject through over‐pressured formations.

However, EPA also believes that additional considerations are necessary when permitting such wells to

ensure protection of all USDWs and that the additional requirements that apply to owners or operators

of Class VI wells granted a waiver of the injection depth requirements at §146.95 will provide this

protection.  

Letter ID: 0386 Comment ID: 28155 Letter Lines: 53 to 68  

Comment Code: 3110 3.1.1. National Storage Capacity  

Comment: Additionally, GS opportunities in Wyoming are significantly reduced if the  

waiver process cannot be applied to 'exempted' aquifers above and between USDWs.  

Our experience with Class I wells has shown that significant injection rates and  

volumes most often occur within aquifers which have been 'exempted' in  

accordance with the exemption criteria contained within 40 CFR §146.4.  

I must stress that, in order for GS to be meaningfully successful and  

significant in Wyoming, we must have the ability to sequester CO2 in aquifers  

(above or between USDWs) that can either be 'waived' for the purposes of GS  

solely by the state, or at the least be 'waived' by the state in accordance with  

the process outlined in the NODA and exempted as USDWs in accordance with the  

exemption options contained within 40 CFR §146.4. Our preference is that the no  

aquifer 'exemption' is required for aquifers when an application for waiver has  

been accepted by the state. If an exemption is required, we recommend that it  

not constitute a substantial program revision, and that the determination of  

exemption status be made by the Regional US EPA office.  

Individual Response: EPA agrees that that there are situations where injection into non‐USDW

formations above the lowermost USDW can be performed in a manner that protects USDWs, as long as

appropriate protections are in place. The final GS rule at §146.95 establishes a process by which owners

and operators can seek a waiver of the Class VI injection depth requirements. The purpose of the

injection depth waiver requirements is to ensure protection of USDWs while allowing the use of GS

capacity above and between USDWs if a site is suitable and all Class VI requirements are met.  

Because USDW protection is the priority of the GS rule, owners or operators seeking waivers must

provide a supplemental report (the GS Class VI injection depth waiver application report) referenced at

§146.82(d) and outlined at §146.95(a) with additional, site‐specific information including: additional

information about the injection zone; identification of confining units above and below the injection

zone; tailored AoR modeling above and below the injection zone; a demonstration that well design is
appropriate and protective of USDWs, in lieu of specific requirements at §146.86; a description of how

monitoring will be tailored for injection above/between USDWs; and information about public water

supplies in the AoR.

EPA believes that there are limited circumstances where aquifer exemptions for GS may be warranted.

The final rule allows for the expansion of the areal extent of existing aquifer exemptions for Class II

EOR/EGR wells transitioning to Class VI injection for GS pursuant to requirements at §§146.4 and

144.7(d). Class VI owners or operators granted expansions of existing Class II EOR/EGR aquifer

exemptions for GS projects must meet all of the tailored requirements for GS wells in the final GS rule.

However, the final rule precludes the issuance of new aquifer exemptions for Class VI GS wells; that is,

aquifer exemptions will only be granted for projects that are transitioning from Class II EOR/EGR wells to

Class VI.  

The Agency clarifies that the aquifer exemption requirements and the injection depth waiver

requirements serve different purposes. Class VI owners or operators granted expansions of existing

Class II EOR/EGR aquifer exemptions for GS projects must meet all of the tailored requirements for GS

wells in the final GS rule, including the site criteria at §146.83. EPA believes that, in most cases, the

injection depth waiver is a more appropriate option than aquifer exemptions for Class VI injection, and

believes that aquifer exemption expansions for GS should be granted in limited circumstances.  

The GS rule requires that all aquifer exemption expansion requests be treated as substantial program

revisions under §145.32 and will require revision of Part 147. Furthermore, if EPA directly implements

the UIC program in a State, an aquifer exemption expansion requires a revision to the UIC program of

the applicable State under Part 147.  

Letter ID: 0386 Comment ID: 28156 Letter Lines: 70 to 73  

Comment Code: 3240 3.2.4. Comments that the Approach Requests Too Much Data (seeking comment)  

Comment: While we believe that the waiver process described in the NODA offers potential  

advantages, we recognize that the process also includes requirements that may  

not be necessary, nor achieve the intended benefits.  

Individual Response: EPA believes that the information required to obtain a waiver is necessary to

ensure that the owner or operator collects information and demonstrates to the Director that the

injection zone is suitable for GS, is confined by confining units above and below the injection zone, and

that well construction, operation, and monitoring are tailored for the site and take into consideration

the presence of USDWs above and below the injection zone. Because USDW protection is the priority of

the GS rule, owners or operators seeking waivers must provide a supplemental report (the GS Class VI
injection depth waiver application report), referenced at §146.82(d) and outlined at §146.95(a), with

their Class VI permit applications. This report, suggested by commenters, is designed to ensure that all

waiver information is discrete (from the permit application) and can be made available to the Director,

PWSS Directors, and the public when the waiver is publicly noticed with the draft Class VI permit

application. The Agency believes that this report and requirements at §146.95 are complementary and

not redundant of the Class VI permit application requirements. Furthermore, to eliminate concerns

about duplication or redundancy, the requirements at §146.82(d) clarify that the supplemental report is

not part of the permit application.  

Letter ID: 0386 Comment ID: 28157 Letter Lines: 74 to 84  

Comment Code: 3200 3.2. Comments on Alternative Injection Depth Waiver Approach  

Comment: Recommendation: We recommend that the waiver provision be made available to  

increase opportunities for GS. The waiver option should also apply to those  

aquifers that meet the criteria of 'exempted' aquifers at 40 CFR §146.4, and  

that no further 'exemption' should be required by US EPA. No separate aquifer  

'exemption' should be required for aquifers when an application for waiver has  

been accepted by the state. If an exemption is required by US EPA. we recommend  

that it not constitute a substantial program revision, and that the  

determination of exemption status be made by the Regional US EPA office. We also  

recommend that an additional exemption criteria be created under 40 CFR §146.4  

that provides for the exemption of aquifers for the purposes of geologic  

sequestration.  

Individual Response: EPA acknowledges that there are limited circumstances where aquifer exemptions

for GS may be warranted. The final rule allows for the expansion of the areal extent of existing aquifer

exemptions for Class II EOR/EGR wells transitioning to Class VI injection for GS pursuant to requirements

at §§146.4 and 144.7(d). Class VI owners or operators granted expansions of existing Class II EOR/EGR

aquifer exemptions for GS projects must meet all of the tailored requirements for GS wells in the final

GS rule. However, the final rule precludes the issuance of new aquifer exemptions for Class VI GS wells;

that is, aquifer exemptions will only be granted for projects that are transitioning from Class II EOR/EGR

wells to Class VI.  

The Agency clarifies that the aquifer exemption requirements and the injection depth waiver

requirements serve different purposes. Class VI owners or operators granted expansions of existing

Class II EOR/EGR aquifer exemptions for GS projects must meet all of the tailored requirements for GS

wells in the final GS rule, including the site criteria at §146.83. EPA believes that, in most cases, the

injection depth waiver is a more appropriate option than aquifer exemptions for Class VI injection, and

believes that aquifer exemption expansions for GS should be granted in limited circumstances.  
The GS rule requires that all aquifer exemption expansion requests be treated as substantial program

revisions under §145.32 and will require revision of Part 147. Furthermore, if EPA directly implements

the UIC program in a State, an aquifer exemption expansion requires a revision to the UIC program of

the applicable State under Part 147.  

Letter ID: 0386 Comment ID: 28158 Letter Lines: 86 to 105  

Comment Code: 3370 3.3.7. Notice and Hearing  

Comment: Comment: Requirement that the waiver may be subject to local notice and public  

hearing  

While we recognize and appreciate the need for the public to be informed when a  

GS project has applied for a waiver, we believe that the requirement for a  

public hearing may be unnecessary in many cases, especially where the project  

will have little, if any, effect upon the local populace, as may be the case in  

sparsely populated western states. We would prefer that the option for a public  

hearing remain at the discretion of the Director, and avoid the requirement for  

public hearing when there may be little, if any public interest. Upon public  

notice, interested citizens should have the opportunity to request a public  

hearing, and it is reasonable to expect that many Directors would voluntarily  

schedule public hearings for GS projects that involve potentially controversial  

waivers. We would remind US EPA that, under its proposed GS regulation, public  

notice is required and the public has an opportunity to request a public hearing  

once the draft permit is noticed.  

Recommendation: We recommend that there be no requirement for public hearing on  

GS waiver applications, but that the Director be provided discretion to hold  

public hearings as he/she deems necessary.  

Individual Response: EPA disagrees that public hearings should be optional. The Agency believes that

public participation is an important part of the UIC permitting process and wants to ensure wide access

to decision‐making processes and information on projects that may affect the public, particularly where

waivers are under consideration.  

The final GS rule requires that the public notification process for a waiver of injection depth

requirements for a Class VI well occur concurrently with permit notification in order to ensure that all

necessary information is disclosed to the public for notice and comment and that the public understands

that the site, if permitted, would be operating under a waiver. The rule at §146.95(c) requires the
Director to provide the public with appropriate, site‐specific, and waiver‐specific information to inform

public comment. These requirements balance USDW protection and disclosure of PWSS information

with the GS permit application process requirements.  

Letter ID: 0386 Comment ID: 28159 Letter Lines: 107 to 159  

Comment Code: 3350 3.3.5. Requirement to Submit Waiver Application to UIC and PWSS Program

Directors  

Comment: Comment: Requirement that the waiver be approved by both the UIC Program  

Director and the PWSS Program Director  

We believe this requirement is unnecessary since the focus of the UIC program is  

upon assessing permit applications and issuing permits to ensure the protection  

of USDWs, whether they be used as public water supply sources, or not. That is  

the primary purpose of the UIC program review. To engage another program (PWSS)  

in the same review and approval process would essentially be a redundant,  

duplicative effort with questionable, if any value added. In addition, it has  

the potential to pit the determinations of one agency against another.  

We believe this requirement is further problematic, and especially for states  

where the respective UIC and PWSS Program Directors may be operating within  

different agencies under different statutory authorities and/or regulatory  

requirements. We would like to point out that such a requirement presents  

numerous, unpredictable consequences in those situations where Directors may  

disagree on the approval of the waiver. As you know, many states have  

administrative procedures and review/appeal boards that are unique to their  

agency, but could work at cross‐purposes in the event there was disagreement  

between Directors on the waiver approval. For instance, if each Director reports  

to his/her own administrative hearing board, or council, for decisions on  

appeal, which board/council decision prevails when both have equal authority?  

Such an arrangement places both the waiver applicant and the agencies in a realm  

of great uncertainty and delay in determining the status of the waiver  

application. The requirement is especially problematic for Wyoming, the only  

state where US EPA [Region 8] administers the PWSS Program, rather than the  

state. Under the proposed scenario, final waiver approval would require both  

state and federal approval, resulting in confusion regarding the highest  

determinations of state and federal sovereignty and rights.  

Finally, we caution that the Safe Drinking Water Act may not provide specific  
authority for PWSS programs to engage in permit, or waiver decisions, regarding  

the protection of USDWs from underground injection. To the contrary, the SDWA  

contains no requirements to implement drinking water protection programs such as  

Wellhead or Source Water protection programs. To extend PWSS programs into the  

review of UIC program administrative decisions, waivers, and permits may be  

questionable from a legal standpoint, but unnecessary, regardless.  

We remain sensitive, however, to the interests of local public water systems in  

being aware of activities within their wellhead and/or source water protection  

areas that may have the potential to affect the quality or quantity of source  

waters supplying their systems.  

Recommendation: We recommend that there be no requirement for the PWSS Program  

Director to approve the waiver; the approval determination should be left solely  

with the UIC Program Director. In order to ensure that the PWSS Program Director  

and local public water systems that may potentially be affected by a GS project  

are informed that a waiver application has been applied for, we would suggest  

that US EPA consider specifying in the proposed GS rule that public notice be  

provided to those entities. In addition, US EPA may wish to consider requiring  

that state approved Wellhead and Source Water Protection areas be included in  

those items to be illustrated on the map required under §146.82 of the proposed  

GS rule.  

Individual Response: The final GS rule includes a requirement that the UIC Program Director consult

with the PWSS Directors of all states, Territories, and Tribes having jurisdiction within the AoR of a well

for which a waiver is sought as specified in §146.95(b)(2). EPA believes this process is necessary and

appropriate to ensure that water system concerns are considered when evaluating a waiver application.

EPA requires that this consultation be documented to ensure transparent public disclosure of all

information evaluated by the Directors and their respective recommendations.  

EPA clarifies that the PWSS director does not have "veto power" over a UIC permitting decision; instead,

the role of the PWSS Director is to ensure consideration of water system and water resource issues

where injection into non‐USDW formations above the lowermost USDW is being considered. Due to the

unique nature of the injection depth waiver process and in an effort to ensure national consistency and

application of the requirements, the requirement at §146.95(d) indicates that the Regional

Administrator makes the final determination regarding waiver issuance following an evaluation of all

site‐specific information, public notice, and recommendations from the UIC Director. EPA believes that

UIC Program staff is in the appropriate position to evaluate the technical details of the waiver

application, in concert with the UIC permit application, to inform the Regional Administrator’s decision.

EPA adds that adoption of the waiver process will remain at the discretion of individual UIC programs.  

EPA is developing guidance on the injection depth waiver process. The guidance describes the
recommended approach an owner or operator may follow when submitting a waiver application,

processing waiver applications by the UIC and PWSS Program Directors, and additional considerations

that may apply to projects that have been issued waivers. This guidance will be available on EPA’s

website at water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.