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.
CH A M B E R O F CO M M E R C E

O F T H E

UN I T E D ST A T E S O F AM E R I C A

WI L L I A M L . K O V A C S

VI C E P R E S I D E N T

E N V I R O N M E N T , T E C H N O L O G Y &

R E G U L A T O R Y AF F A I R S

1 6 1 5 H S T R E E T , N . W .

W A S H I N G T O N , D . C . 2 0 0 6 2

( 2 0 2 ) 4 6 3 - 5 4 5 7

December 16, 2008

VIA ELECTRONIC FILING

Water Docket

U.S. Environmental Protection Agency

Mailcode: 2822T

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Attn: Docket ID No.: EPA-HQ-OW-2008-0390

Re: Comments on Federal Requirements Under the Underground

Injection Control (UIC) Program for Carbon Dioxide (CO2)

Geologic Sequestration (GS) Wells

The U.S. Chamber of Commerce, the world’s largest business federation

representing more than three million businesses and organizations of every size,

sector, and region, is pleased to submit these comments on the proposed regulation

by the U.S. Environmental Protection Agency (EPA) creating a new category of

injection wells under the Safe Drinking Water Act (SDWA)1for the capture and

storage of CO2.

Introduction

Many major scientific bodies have concluded that reducing carbon dioxide, the

most significant greenhouse gas, is essential to mitigating the negative effects of

climate change. The United States, which relies heavily on coal-burning power plants

that emit significant quantities of CO2, recognizes carbon capture and storage (CCS)

as a crucial technology because it will reduce CO2emissions from these facilities while

still allowing for continued increases in electric power demand and output from coal,

America’s abundant, inexpensive energy resource.

1

P.L. 93-523
U.S. Chamber of Commerce

EPA-HQ-OW-2008-0390

December 16, 2008

Page 2 of 7

Simply stated, CCS involves separating and capturing CO2, transporting the

CO2 by truck or pipeline to an underground storage location, and injecting and storing

it in underground geologic formations. While CCS is just one of many climate change

mitigation options,

2

it will be a vital component of any U.S. strategy for addressing

climate change given our reliance on coal for almost half of our electricity production.

Likewise, CCS could have a substantial role in reducing CO2emissions from

developing countries, such as India and China, where CO2emissions are projected to

increase exponentially in connection with their growing energy needs.

As part of the U.S. strategy for addressing climate change and implementing

CCS, EPA has proposed a first-time rule under the SDWA for sequestering CO2in

geologic formations. The proposed rule is based on EPA’s existing regulatory

framework for its UIC Program and proposes a new category of injection well (Class

VI) along with several technical criteria for its implementation.

The Chamber strongly supports the development and deployment of carbon

capture and sequestration technology, and we applaud EPA for its extensive public

outreach, stakeholder dialog, and public workshops on this issue. Nevertheless, in

order to ensure that this proposed rule accomplishes its objectives to promote a CCS

regulatory framework and support “the development of a key climate change

mitigation technology,” the Chamber offers the following comments on potential

legal, economic, regulatory, and technical barriers to CCS deployment that EPA

should consider before finalizing this rule.

General and Specific Comments

The Chamber notes that EPA already regulates CO2injection for enhanced oil

recovery (EOR). Existing “Class II” regulations governing injection of CO2for EOR

have proven successful at protecting underground sources of drinking water (USDW)

and the health and safety of the public. Therefore, as an initial matter, EPA should

consider whether it is really necessary to create a new class of wells and a new set of

regulations for carbon sequestration purposes?

2

Other options include energy efficiency improvements, a switch to less carbon-intensive fuels, nuclear power, and

renewable energy sources.
U.S. Chamber of Commerce

EPA-HQ-OW-2008-0390

December 16, 2008

Page 3 of 7

Assuming EPA determines that a new class of wells is needed, despite existing

Class II wells and regulations, the Chamber would also recommend EPA address the

following concerns:

1. Statutory Liability

EPA is proposing its rule under the SDWA, which governs the Underground

Injection Control program, and provides the statutory authority for geologic

sequestration of CO2. EPA readily admits, however, that the SDWA is limited; it

does not cover the capture or transfer of CO2, the transfer of liability between entities,

nor accounting or certification of greenhouse gas reductions – only CO2injection.

But it is exactly because EPA’s authority under the SDWA is limited that EPA needs

to provide greater clarity as to what other statutory authorities may become relevant,

which provisions could be triggered, and to delineate, to the extent possible, all

potential liabilities associated with owning, operating, or investing in a Class VI well.

For example, if EPA eventually determines that CO2is hazardous, what are the

ramifications under the Resource Conservation and Recovery Act (RCRA)?

3

Presumably, its stringent “cradle to grave” requirements will be imposed on all

generators, transporters, and treatment, storage and disposal facilities involved in the

CCS project. Or, in the event of a release, under the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA)?4 The Clean Air Act?5If CO2

is deemed a “hazardous air pollutant” under Section 112, it will automatically trigger

CERCLA liability as it incorporates HAPs in its definition of “hazardous substance.”6

The Clean Water Act?7

The issue becomes even more acute when you consider that EPA has already

declined to address the very basic question of how to classify the CO2stream if trace

amounts of hazardous constituents get in it prior to injection:

Because the types of impurities and their concentrations in the CO2 stream are likely to vary

by facility, coal composition, plant operating conditions, and pollution removal technologies,

3

42 U.S.C. §§ 6901 et seq.

4

42 U.S.C. §§ 9601 et seq.

5

42 U.S.C. §§ 7401 et seq.

6

CERCLA, Section 101(14).

7

33 U.S.C. §§ 1251 et seq.
U.S. Chamber of Commerce

EPA-HQ-OW-2008-0390

December 16, 2008

Page 4 of 7

EPA cannot make a categorical determination as to whether injected CO2is hazardous

under RCRA.8

Instead, EPA advocates making determinations about the hazardous

classification of injected CO2 on a case-by-case basis. In essence, EPA is saying that

hazardous constituents could be present in the injected CO2stream, and if they are,

then it will be treated as hazardous. This approach provides little guidance to

industry, particularly facility owners and operators who are required to characterize

their CO2stream as part of their initial permit application.

Such overwhelming regulatory uncertainty will only serve to deter investment

in CCS technology and slow the rate at which large-scale commercial CCS projects are

developed. Instead, EPA needs to examine and explain which environmental statutes

could be triggered, how they will interact or overlap, and what potential liability exists

for industry. EPA should also explore the possibility of creating regulatory

exemptions under RCRA, CERCLA, etc., for injected CO2, thereby reducing

regulatory hurdles for CCS projects. One example of this would be to ensure that

final Class VI permits have the broadest possible reach to maximize the protection

offered by CERCLA’s “federally permitted release”9exemption. This would mean

including within the scope of the permit for carbon dioxide injection all other

CERCLA hazardous constituents likely to be contained in the CO2stream, thus

providing some comfort to owners and operators that they will not be subject to

CERCLA liability. When you consider that EPA lacks the authority to transfer well

ownership between entities, and that owners are therefore liable in perpetuity, the need

to craft regulatory exemptions becomes clear.

A final possibility would be to pursue a legislative remedy – ask Congress to

address the issue – in order to give this promising technology a chance to flourish or

fail on its own merits. Similarly, Congress should be encouraged to appropriate

money to fund the Energy Policy Act of 2005 and the Energy Independence and

Security Act, which together contain over 130 new energy technology provisions.

Funding these technologies would go a long way toward EPA’s stated goal of

addressing climate change.

8

Federal Register, Vol. 73 Fed. Reg. No. 144, pg. 43493 (July 25, 2008)

9

CERCLA, Section 107(j).
U.S. Chamber of Commerce

EPA-HQ-OW-2008-0390

December 16, 2008

Page 5 of 7

2. Need for Full-Scale Pilot Projects

Globally, only four full-scale CCS projects exist, and none of them capture CO2

from a coal-fired power plant. The International Energy Agency notes that at least 20

large-scale demonstration projects will need to be in planning by 2010 and in

operation by 2020 to have any impact on climate change policy planning. EPA

should ensure that this timetable is considered before implementing its final rule.

The real challenge, however, will be for EPA to create a regulatory framework

flexible enough to allow for technologies that may not be commercially available for

many years. That is, EPA must craft its CCS regulations with enough flexibility so

that they may be modified to include technologies not yet on the market.

3. CCS May impact Private Property Rights

Recognizing that subsurface land can be privately owned in the United States,

the chamber notes that CO2injection into geologic formations may require

permission from all owners of intersected subsurface property. While this

consideration may be somewhat addressed during the initial siting process, it may still

lead to tensions between large-scale CCS projects and individual property rights. The

issue becomes even more important as investors and industry participants will seek to

minimize liability from property trespass claims related to sub-surface trespass,

geological surveying, and deposit monitoring.

Likewise, property rights considerations may impact the availability of liability

insurance for CCS project participants. If insurance companies cannot accurately

calculate the risk of CCS projects, or future potential environmental liability for

property trespass, they may decline to offer coverage.

4. Why Does the Proposed Rule Treat CO2like a Hazardous Waste?

Carbon dioxide is not a hazardous waste; yet the proposed rules for CO2

storage are, in many ways, far more strict than those for underground injection of

hazardous wastes under Class I of the UIC program. Many of the construction,

mechanical integrity, monitoring and financial assurance provisions for Class VI wells

are more comprehensive and more onerous than those for Class I wells.
U.S. Chamber of Commerce

EPA-HQ-OW-2008-0390

December 16, 2008

Page 6 of 7

The Chamber does not believe that CO2should be treated more stringently

than hazardous waste because it distorts public perception about the safety of carbon

capture and storage, and it may make securing financial backing for CCS more

difficult.

a. Distorts Public Perception

By making the proposed rule so strict, the public may unduly perceive CCS as a

dangerous activity. Consider that the proposed rule requires a secondary containment

field for CO2storage. Such a requirement is unprecedented both domestically, in the

UIC program (including for storage of hazardous wastes in Class I wells), as well as

internationally.10 Singling out carbon capture and storage for this heightened and

substantially more rigorous requirement would suggest to the public that EPA thinks

geologic storage of carbon dioxide is more dangerous than the underground injection

of other substances. Since EPA is the agency charged with protecting the

environment, the public could be easily swayed by EPA’s apparent apprehension of

carbon capture and storage as currently embodied in the proposed regulations. In

order to create a regulatory scheme that fosters carbon capture and storage

development and deployment, EPA should reconsider how it has characterized

carbon dioxide injection – both explicitly and implicitly – in its final regulations.

b. Inhibits Financial Backing

EPA should also consider the effect of these regulations on securing critical

financial backing for CCS projects. As with public acceptance, EPA can shape carbon

capture and storage as a tool for reducing carbon emissions by the messages that it

sends the financial world with its regulations.

Consider that the proposed regulations contemplate a 50-year post-injection

site care period. EPA’s reasoning for proposing this time frame is based on CO2

plume stabilization and protection of USDWs. EPA attempts to ameliorate the

harshness of this time frame by stating that the UIC program director can modify it

under certain circumstances. A better approach would be to allow the characteristics

of each site determine the appropriate length of time for post-injection site care. This

10 Countries such as Norway, Canada, and Australia, which have carbon capture and storage projects currently

underway, do not require secondary containment zones, and in fact, those countries regulate CCS using existing

petroleum laws.
U.S. Chamber of Commerce

EPA-HQ-OW-2008-0390

December 16, 2008

Page 7 of 7

would prevent placing an unnecessary burden on those owners and operators who

can show that their projects pose no threat to underground sources of drinking water

in less than 50 years. In fact, the Chamber believes that appropriately sited CCS

projects will need substantially less than 50 years, especially since research suggests

that the risk profile of carbon dioxide injection diminishes dramatically after a decade.

Consequently, a lengthy post-injection care period would only serve to penalize those

owners and operators who have taken steps to ensure proper site characterization.

As a result, the 50-year timeframe (if retained in the final rule) could have an

inhibiting effect on insurers, investors, owners, and operators hoping to participate or

invest in CCS activities.

5. OMB’s Good Guidance Practices

With respect to EPA’s suggestion that future guidance documents be issued to

clarify requirements for financial responsibility on CO2injection projects, the

Chamber reiterates that such guidance must be issued in conformance with OMB’s

Good Guidance Practices bulletin.

Conclusion

CCS is not a “silver bullet” but an innovative solution for reducing CO2

emissions to the atmosphere. The Chamber applauds EPA for seeking out novel and

important approaches for addressing climate change, reducing CO2 emissions, and

continuing to protect our vital sources of safe drinking water. Nevertheless, the

Chamber encourages EPA to address the potentially serious impediments to CCS

development and deployment that have been raised in these comments.

The Chamber thanks EPA for drafting this proposed rule and providing the

opportunity to comment.

Sincerely,

William L. Kovacs
Letter ID: 0148 

Commenter: William Kovacs 

Organization: U.S. Chamber of Commerce 

Letter ID: 0148 Comment ID: 21748 Letter Lines: 46 to 56 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment: Simply stated, CCS involves separating and capturing CO2, transporting the CO2 

by truck or pipeline to an underground storage location, and injecting and 

storing it in underground geologic formations. While CCS is just one of many 

climate change mitigation options,[FN2 Other options include energy efficiency 

improvements, a switch to less carbon-intensive fuels, nuclear power, and 

renewable energy sources.] it will be a vital component of any U.S. strategy for 

addressing climate change given our reliance on coal for almost half of our 

electricity production. Likewise, CCS could have a substantial role in reducing 

CO2 emissions from developing countries, such as India and China, where CO2 

emissions are projected to increase exponentially in connection with their 

growing energy needs. 

Individual Response: EPA clarifies that the purpose of the UIC GS regulation is to ensure that 

GS is conducted in a manner that protects USDWs from endangerment. EPA agrees that GS is 

one technology in a portfolio of options, including energy conservation, efficiency 

improvements, and the use of alternative fuels and renewable energy sources, that could be 

deployed to reduce CO2 emissions. 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: 0148 Comment ID: 21749 Letter Lines: 58 to 71 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment Code: 1410 1.2.1 Comments in support of EPA/rulemaking 

Comment: As part of the U.S. strategy for addressing climate change and implementing CCS, 

EPA has proposed a first-time rule under the SDWA for sequestering CO2 in 

geologic formations. The proposed rule is based on EPA’s existing regulatory 

framework for its UIC Program and proposes a new category of injection well 

(Class VI) along with several technical criteria for its implementation. 

The Chamber strongly supports the development and deployment of carbon capture 

and sequestration technology, and we applaud EPA for its extensive public 

outreach, stakeholder dialog, and public workshops on this issue. Nevertheless, 

in order to ensure that this proposed rule accomplishes its objectives to 

promote a CCS regulatory framework and support "the development of a key climate 

change mitigation technology," the Chamber offers the following comments on 

1
potential legal, economic, regulatory, and technical barriers to CCS deployment 

that EPA should consider before finalizing this rule. 

Individual Response: EPA agrees that input of and participation by a wide spectrum of 

stakeholders is a vital component of a successful rulemaking. The Agency appreciates the degree 

of cooperation, participation, and active dialogue between the EPA and stakeholders and will 

continue to work with stakeholders and experts as it implements the GS rule. 

EPA believes that the creation of a new injection well class (VI) under the existing UIC Program 

is necessary to enable deployment of GS as a climate change mitigation technology in a manner 

that protects USDWs from endangerment. EPA agrees that the UIC Program, under the authority 

of the SDWA, provides a strong framework for regulating injection of CO2 for GS and adds that 

the GS regulation tailors the UIC requirements to address the unique issues associated with 

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 acknowledges that GS falls within the broader context of CCS and the need for regulatory 

clarity to ensure that USDWs are protected from endangerment. In developing the final GS rule, 

the Office of Water coordinated with other Agency program offices and across federal agencies 

(e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy 

Management, Regulation, and Enforcement, formerly the Minerals Management Service; Bureau 

of Land Management). The Agency continues to evaluate areas of potential applicability of other 

Federal environmental statutes including, but not limited to: the Clean Air Act; the Resource 

Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, 

and Liability Act; and the Marine Protection, Research and Sanctuaries Act to various aspects of 

GS and CCS. The Agency will continue to coordinate on GS and CCS related issues to minimize 

redundancy and maximize efficiencies for owners or operators. For additional information, 

please see the discussion entitled "How Does This Rulemaking Relate to Other Federal 

Authorities and GS and CCS Activities?" in the preamble to the final GS rule. 

Letter ID: 0148 Comment ID: 21750 Letter Lines: 73 to 84 

Comment Code: 2044 1.5.2.2 Oppose Class VI/ Support Class II 

Comment: General and Specific Comments 

The Chamber notes that EPA already regulates CO2 injection for enhanced oil 

recovery (EOR). Existing "Class II" regulations governing injection of CO2 for 

EOR have proven successful at protecting underground sources of drinking water 

(USDW) and the health and safety of the public. Therefore, as an initial matter, 

EPA should consider whether it is really necessary to create a new class of 

wells and a new set of regulations for carbon sequestration purposes? 

Assuming EPA determines that a new class of wells is needed, despite existing 

Class II wells and regulations, the Chamber would also recommend EPA address the 

2
following concerns: 

Individual Response: EPA does not believe that the unique risks posed by long term storage of 

CO2 for GS can be adequately addressed under existing UIC requirements to protect USDWs 

from endangerment, such as those for Class II wells. EPA believes that there are significant 

differences between how projects are operated, as well as the risks posed by these different 

injection activities. The new tailored approach of the GS rule was designed to address the general 

risks deep injection may pose to USDWs and was tailored specifically to address the risks posed 

by long term storage of CO2 (i.e., very large volumes, very long time-periods, and reservoir 

pressure conditions). 

Letter ID: 0148 Comment ID: 21751 Letter Lines: 86 to 95 

Comment Code: 1430 1.2.1.2 Support EPA's authority to regulate CO2 injection 

Comment: 1. Statutory Liability EPA is proposing its rule under the SDWA, which governs 

the Underground Injection Control program, and provides the statutory authority 

for geologic sequestration of CO2. EPA readily admits, however, that the SDWA is 

limited; it does not cover the capture or transfer of CO2, the transfer of 

liability between entities, nor accounting or certification of greenhouse gas 

reductions -- only CO2 injection. But it is exactly because EPA’s authority 

under the SDWA is limited that EPA needs to provide greater clarity as to what 

other statutory authorities may become relevant, which provisions could be 

triggered, and to delineate, to the extent possible, all potential liabilities 

associated with owning, operating, or investing in a Class VI well. 

Individual Response: EPA clarifies that the scope of the GS regulation is limited to injection of 

CO2, and that all requirements in the GS rule are designed for the purpose of protecting USDWs 

from endangerment. The SDWA does not provide the UIC Program with the authority to develop 

regulations for all areas related to GS, such as releases to the atmosphere. 

EPA acknowledges that GS falls within the broader context of CCS and the need for regulatory 

clarity to ensure that USDWs are protected from endangerment. In developing the final GS rule, 

the Office of Water coordinated with other Agency program offices and across federal agencies 

(e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy 

Management, Regulation, and Enforcement, formerly the Minerals Management Service; Bureau 

of Land Management). The Agency continues to evaluate areas of potential applicability of other 

Federal environmental statutes including, but not limited to: the Clean Air Act; the Resource 

Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, 

and Liability Act; and the Marine Protection, Research and Sanctuaries Act to various aspects of 

GS and CCS. The Agency will continue to coordinate on GS and CCS related issues to minimize 

redundancy and maximize efficiencies for owners or operators. For additional information, 

please see the discussion entitled "How Does This Rulemaking Relate to Other Federal 

Authorities and GS and CCS Activities?" in the preamble to the final GS rule. 

3
Letter ID: 0148 Comment ID: 21752 Letter Lines: 97 to 107 

Comment Code: 1520 1.2.3 Other authorities (e.g., CAA, MPRSA, London Convention) 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: For example, if EPA eventually determines that CO2 is hazardous, what are the 

ramifications under the Resource Conservation and Recovery Act (RCRA)?[FN3 42 

U.S.C. §§ 6901 et seq.] Presumably, its stringent "cradle to grave" requirements 

will be imposed on all generators, transporters, and treatment, storage and 

disposal facilities involved in the CCS project. Or, in the event of a release, 

under the Comprehensive Environmental Response, Compensation and Liability Act 

(CERCLA)?[FN4 42 U.S.C. §§ 9601 et seq.] The Clean Air Act? [FN5 42 U.S.C. §§ 

7401 et seq.] If CO2 is deemed a "hazardous air pollutant" under Section 112, it 

will automatically trigger CERCLA liability as it incorporates HAPs in its 

definition of "hazardous substance." [FN6 CERCLA, Section 101(14).] The Clean 

Water Act? [FN7 33 U.S.C. §§ 1251 et seq.] 

Individual Response: Under the final GS rule, owners or operators will need to determine 

whether the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of 

the hazardous CO2 stream may only occur in a Class I hazardous waste injection well. 

Conversely, Class VI wells cannot be used for the co-injection of RCRA hazardous wastes (i.e., 

hazardous wastes that are injected along with the CO2 stream). 

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 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. 

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 

4
that they prevent potential releases from the well which are outside the scope of the Class VI 

permit. 

Letter ID: 0148 Comment ID: 21766 Letter Lines: 109 to 125 

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

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

Comment: The issue becomes even more acute when you consider that EPA has already 

declined to address the very basic question of how to classify the CO2 stream if 

trace amounts of hazardous constituents get in it prior to injection: 

Because the types of impurities and their concentrations in the CO2 stream are 

likely to vary by facility, coal composition, plant operating conditions, and 

pollution removal technologies, EPA cannot make a categorical determination as 

to whether injected CO2 is hazardous under RCRA. [FN8 Federal Register, Vol. 73 

Fed. Reg. No. 144, pg. 43493 (July 25, 2008)] 

Instead, EPA advocates making determinations about the hazardous classification 

of injected CO2 on a case-by-case basis. In essence, EPA is saying that 

hazardous constituents could be present in the injected CO2 stream, and if they 

are, then it will be treated as hazardous. This approach provides little 

guidance to industry, particularly facility owners and operators who are 

required to characterize their CO2 stream as part of their initial permit 

application. 

Individual Response: EPA agrees that any requirements applicable to CO2 injectate should be 

clearly identified to the public and to the regulated community. 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 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. The existing RCRA hazardous waste characterization regulations apply to 

evaluations of CO2 streams, and those regulations define which RCRA solid wastes are 

regulated as RCRA hazardous wastes – it is not EPA’s position that the presence of any levels of 

impurities would necessarily render a CO2 stream a hazardous waste, without reference to those 

regulations. 

5
Letter ID: 0148 Comment ID: 21767 Letter Lines: 127 to 142 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: Such overwhelming regulatory uncertainty will only serve to deter investment in 

CCS technology and slow the rate at which large-scale commercial CCS projects 

are developed. Instead, EPA needs to examine and explain which environmental 

statutes could be triggered, how they will interact or overlap, and what 

potential liability exists for industry. EPA should also explore the possibility 

of creating regulatory exemptions under RCRA, CERCLA, etc., for injected CO2, 

thereby reducing regulatory hurdles for CCS projects. One example of this would 

be to ensure that final Class VI permits have the broadest possible reach to 

maximize the protection offered by CERCLA’s "federally permitted release" [FN9 

CERCLA, Section 107(j).] exemption. This would mean including within the scope 

of the permit for carbon dioxide injection all other CERCLA hazardous 

constituents likely to be contained in the CO2 stream, thus providing some 

comfort to owners and operators that they will not be subject to CERCLA 

liability. When you consider that EPA lacks the authority to transfer well 

ownership between entities, and that owners are therefore liable in perpetuity, 

the need to craft regulatory exemptions becomes clear. 

Individual Response: EPA agrees that any requirements for the CO2 stream should be clearly 

identified. 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 

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. 

As described above, EPA clarifies that the GS rule requires owner or operators of Class VI wells 

to characterize their injection stream prior to injection, and throughout the operational life of the 

injection facility. If the CO2 stream is determined to be a hazardous waste, injection may only 

occur in a Class I hazardous waste injection well. 

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 

6
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. 

EPA adds that providing financial incentives for or promoting the use of GS is outside the scope 

of the GS rule. 

Letter ID: 0148 Comment ID: 21768 Letter Lines: 144 to 150 

Comment Code: 1540 1.2.3.2 Climate change legislation 

Comment: A final possibility would be to pursue a legislative remedy -- ask Congress to 

address the issue -- in order to give this promising technology a chance to 

flourish or fail on its own merits. Similarly, Congress should be encouraged to 

appropriate money to fund the Energy Policy Act of 2005 and the Energy 

Independence and Security Act, which together contain over 130 new energy 

technology provisions. Funding these technologies would go a long way toward 

EPA’s stated goal of addressing climate change. 

Individual Response: EPA acknowledges that GS falls within the broader context of CCS and 

the need for regulatory clarity to ensure that USDWs are protected from endangerment. In 

developing the final GS rule, the Office of Water coordinated with other Agency program offices 

and across federal agencies (e.g., with the Department of Energy; United States Geological 

Survey; Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the 

Minerals Management Service; Bureau of Land Management). The Agency continues to evaluate 

areas of potential applicability of other Federal environmental statutes including, but not limited 

to: the Clean Air Act; the Resource Conservation and Recovery Act; the Comprehensive 

Environmental Response, Compensation, and Liability Act; and the Marine Protection, Research 

and Sanctuaries Act to various aspects of GS and CCS. The Agency will continue to coordinate 

on GS and CCS related issues to minimize redundancy and maximize efficiencies for owners or 

operators. For additional information, please see the discussion entitled "How Does This 

Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to 

the final GS rule. 

Regarding the need for a CCS agency to coordinate across agencies, EPA is coordinating with 

and will continue to facilitate communication among federal and state agencies during the 

implementation phase of the GS regulation. 

Letter ID: 0148 Comment ID: 21769 Letter Lines: 152 to 159 

Comment Code: 1850 1.4.2 CO2 GS Field Research 

Comment: 2. Need for Full-Scale Pilot Projects 

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Globally, only four full-scale CCS projects exist, and none of them capture CO2 

from a coal-fired power plant. The International Energy Agency notes that at 

least 20 large-scale demonstration projects will need to be in planning by 2010 

and in operation by 2020 to have any impact on climate change policy planning. 

EPA should ensure that this timetable is considered before implementing its 

final rule. 

Individual Response: EPA clarifies that controlling the pace of GS deployment is outside of the 

UIC program's authority under the Safe Drinking Water Act and outside the scope of this 

rulemaking. The UIC requirements are designed to ensure that, where GS is employed, it is done 

in a manner that protects USDWs from endangerment. 

Letter ID: 0148 Comment ID: 21770 Letter Lines: 161 to 165 

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

Comment: The real challenge, however, will be for EPA to create a regulatory framework 

flexible enough to allow for technologies that may not be commercially available 

for many years. That is, EPA must craft its CCS regulations with enough 

flexibility so that they may be modified to include technologies not yet on the 

market. 

Individual Response: EPA is using an adaptive approach to regulating GS under the UIC 

Program. Even after finalization of the GS regulation, EPA plans, every six years, to collect and 

review project data on GS research projects to determine whether the appropriate amount and 

types of information and appropriate documentation are being collected, and to determine if 

modifications to the requirements are appropriate or necessary. 

Letter ID: 0148 Comment ID: 21771 Letter Lines: 167 to 181 

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

ownership 

Comment: 3. CCS May impact Private Property Rights 

Recognizing that subsurface land can be privately owned in the United States, 

the chamber notes that CO2 injection into geologic formations may require 

permission from all owners of intersected subsurface property. While this 

consideration may be somewhat addressed during the initial siting process, it 

may still lead to tensions between large-scale CCS projects and individual 

property rights. The issue becomes even more important as investors and industry 

participants will seek to minimize liability from property trespass claims 

related to sub-surface trespass, geological surveying, and deposit monitoring. 

8
Likewise, property rights considerations may impact the availability of 

liability insurance for CCS project participants. If insurance companies cannot 

accurately calculate the risk of CCS projects, or future potential environmental 

liability for property trespass, they may decline to offer coverage. 

Individual Response: EPA clarifies that pore space ownership and surface or subsurface 

property and mineral rights are outside of the scope of the Class VI GS rulemaking, which 

focuses on ensuring consistency in permitting underground injection of CO2 at GS operations 

across the United States and provide requirements to prevent endangerment of USDWs in 

anticipation of the eventual use of GS to reduce CO2 emissions. EPA clarifies that these issues 

are under the purview of states and any of these issues, as they relate to GS, will need to be 

addressed though state regulations. Please see the final rule and preamble for additional 

information on financial responsibility for Class VI GS projects. 

Letter ID: 0148 Comment ID: 21772 Letter Lines: 183 to 194 

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

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

Comment: 4. Why Does the Proposed Rule Treat CO2 like a Hazardous Waste? 

Carbon dioxide is not a hazardous waste; yet the proposed rules for CO2 storage 

are, in many ways, far more strict than those for underground injection of 

hazardous wastes under Class I of the UIC program. Many of the construction, 

mechanical integrity, monitoring and financial assurance provisions for Class VI 

wells are more comprehensive and more onerous than those for Class I wells. 

The Chamber does not believe that CO2 should be treated more stringently than 

hazardous waste because it distorts public perception about the safety of carbon 

capture and storage, and it may make securing financial backing for CCS more 

difficult. 

Individual Response: EPA disagrees that the requirements in the GS rule are too stringent or 

overstate the risk associated with GS. The requirements for Class VI wells are tailored to address 

the unique nature of full-scale CO2 GS, including the injection volumes anticipated for longterm storage, the buoyant and viscous nature of the injectate, and its corrosivity in the presence 

of water. 

While the Class I requirements formed the basis of many of the specific requirements for GS 

wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. EPA based many of 

the GS requirements on the Class I regulations because, like Class VI wells, Class I wells are 

typically deep and involve waste streams that, if not properly managed, can harm the well and 

lead to contamination. 

9
Letter ID: 0148 Comment ID: 21773 Letter Lines: 196 to 214 

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

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

Comment: a. Distorts Public Perception 

By making the proposed rule so strict, the public may unduly perceive CCS as a 

dangerous activity. Consider that the proposed rule requires a secondary 

containment field for CO2 storage. Such a requirement is unprecedented both 

domestically, in the UIC program (including for storage of hazardous wastes in 

Class I wells), as well as internationally. [FN10 Countries such as Norway, 

Canada, and Australia, which have carbon capture and storage projects currently 

underway, do not require secondary containment zones, and in fact, those 

countries regulate CCS using existing petroleum laws.] Singling out carbon 

capture and storage for this heightened and substantially more rigorous 

requirement would suggest to the public that EPA thinks geologic storage of 

carbon dioxide is more dangerous than the underground injection of other 

substances. Since EPA is the agency charged with protecting the environment, the 

public could be easily swayed by EPA’s apparent apprehension of carbon capture 

and storage as currently embodied in the proposed regulations. In order to 

create a regulatory scheme that fosters carbon capture and storage development 

and deployment, EPA should reconsider how it has characterized carbon dioxide 

injection -- both explicitly and implicitly -- in its final regulations. 

Individual Response: EPA disagrees that the GS regulation overstates the risk of CO2 injection. 

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, EPA expects the tailored permitting, siting, 

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

prevent leakage from injection formations and protect USDWs. 

EPA also disagrees 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 will likely improve confidence in the project and help address public 

questions and concerns. 

Regarding secondary containment, EPA retains the requirement to identify additional 

containment/confining zones, if required by the Director, as proposed, at §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 

10
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. While other 

countries may not require such additional protection, EPA believes that providing the Director 

this additional discretion is an important element of assuring that GS activities will not endanger 

USDWs. 

Letter ID: 0148 Comment ID: 21774 Letter Lines: 216 to 221 

Comment Code: 5400 2.9 Proposed Financial Responsibility and Long-Term Care 

Requirements 

Comment: b. Inhibits Financial Backing 

EPA should also consider the effect of these regulations on securing critical 

financial backing for CCS projects. As with public acceptance, EPA can shape 

carbon capture and storage as a tool for reducing carbon emissions by the 

messages that it sends the financial world with its regulations. 

Individual Response: The goal of financial responsibility 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. 

EPA believes that minimum financial responsibility requirements are necessary to hold well 

owners or operators accountable for the safe operation and closure of the well and avoid expense 

and risk to the public. EPA adds that the purpose of the GS rule is not to encourage the use of 

GS; rather, the purpose of the GS rule is to ensure that, where GS is deployed, it is conducted in 

a manner that protects USDWs from endangerment. See the final rule and preamble for further 

discussion of EPA's final approach to financial responsibility. 

EPA anticipates that the availability of third-party GS financial instruments will grow in 

response to demand for such instruments by GS well owners or operators as deployment of GS 

technology increases in the future. In addition, EPA allows owners or operators under §146.85 

(subject to state law) to choose from a variety of financial instruments to demonstrate their 

financial responsibility needs, thereby allowing owners or operators flexibility based on each 

individual site. 

Letter ID: 0148 Comment ID: 21775 Letter Lines: 223 to 240 

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

Comment: Consider that the proposed regulations contemplate a 50-year post-injection site 

care period. EPA’s reasoning for proposing this time frame is based on CO2 plume 

stabilization and protection of USDWs. EPA attempts to ameliorate the harshness 

11
of this time frame by stating that the UIC program director can modify it under 

certain circumstances. A better approach would be to allow the characteristics 

of each site determine the appropriate length of time for post-injection site 

care. This would prevent placing an unnecessary burden on those owners and 

operators who can show that their projects pose no threat to underground sources 

of drinking water in less than 50 years. In fact, the Chamber believes that 

appropriately sited CCS projects will need substantially less than 50 years, 

especially since research suggests that the risk profile of carbon dioxide 

injection diminishes dramatically after a decade. Consequently, a lengthy postinjection care period would only serve to penalize those owners and operators 

who have taken steps to ensure proper site characterization. 

As a result, the 50-year timeframe (if retained in the final rule) could have an 

inhibiting effect on insurers, investors, owners, and operators hoping to 

participate or invest in CCS activities. 

Individual Response: EPA agrees that some owners or operators will be able to demonstrate, in 

less than 50 years, that the pressure front and plume no longer pose a risk of endangerment to 

USDWs. However, based on studies, EPA believes that the 50 year default time frame is 

warranted in most cases based on additional review of research studies and reports and 

evaluation of public comments. 

EPA believes that the best way to address all possibilities, while ensuring USDW protection 

from endangerment, is to set a 50 year default post-injection site care timeframe, with flexibility 

to: (1) allow the Director discretion to shorten or lengthen the PISC timeframe during the PISC 

period based on site-specific data, pursuant to requirements at §146.93(b); or (2) afford the 

Director discretion to allow a Class VI well owner or operator to demonstrate, based on 

substantial data during the permitting process, that an alternative PISC timeframe may be 

appropriate if it ensures non-endangerment of USDWs pursuant to requirements at §146.93(c). 

EPA does not believe that performing the demonstration before 50 years places an additional 

burden on these owners or operators. EPA clarifies that all operators will need to make this 

demonstration prior to the Director authorizing site closure; the difference is that some operators 

will be performing the demonstration earlier than others. As indicated by the commenter, ideally 

this demonstration will be part of an ongoing communication between the owner or operator and 

the UIC Director. If an owner or operator believes that an earlier demonstration will be 

burdensome, nothing in the GS rule requires them to make the demonstration prior to 50 years. 

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 

12
impacts. 

Letter ID: 0148 Comment ID: 21776 Letter Lines: 242 to 247 

Comment Code: 1435 1.2.1.3 EPA should develop guidance 

Comment: 5. OMB’s Good Guidance Practices 

With respect to EPA’s suggestion that future guidance documents be issued to 

clarify requirements for financial responsibility on CO2 injection projects, the 

Chamber reiterates that such guidance must be issued in conformance with OMB’s 

Good Guidance Practices bulletin. 

Individual Response: EPA is developing guidance on financial responsibility for GS wells. The 

guidance is 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 financial responsibility guidance is developed. 

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

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

agencies. 

Letter ID: 0148 Comment ID: 21777 Letter Lines: 249 to 256 

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

Comment: Conclusion 

CCS is not a "silver bullet" but an innovative solution for reducing CO2 

emissions to the atmosphere. The Chamber applauds EPA for seeking out novel and 

important approaches for addressing climate change, reducing CO2 emissions, and 

continuing to protect our vital sources of safe drinking water. Nevertheless, 

the Chamber encourages EPA to address the potentially serious impediments to CCS 

development and deployment that have been raised in these comments. 

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. 

13