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.







Letter ID: 0212 

Commenter: Paul L. Carpinone 

Organization: Tampa Electric Company 

Letter ID: 0212 Comment ID: 22895 Letter Lines: 40 to 47 

Comment Code: 1320 1.1.3 General comments about GS 

Comment: The development of a viable CO2 capture and sequestration regulatory program has 

been cited by many as a prerequisite to the implementation of energy reform 

initiatives involving carbon reduction measures on both the federal and state 

level. Because the electric utility industry has been identified as the primary 

industrial sector targeted for regulation under future carbon capture and 

sequestration (CCS) regulations, the electric utility industry has a direct and 

substantial interest in EPA's development of a realistic and cost-effective UIC 

program for Class VI CO2 GS wells. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA’s 

responses to this comment for further details. For additional information on EPA’s final 

regulatory approach, please see the final rule and preamble as well as the rulemaking docket. 

Letter ID: 0212 Comment ID: 22896 Letter Lines: 49 to 52 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment: It is important to recognize at the outset the development of a viable, largescale commercial CCS program requires resolution of technical, policy, legal, 

and liability issues providing necessary regulatory certainty that may be beyond 

the scope of this specific rulemaking. 

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. 

1
Letter ID: 0212 Comment ID: 22897 Letter Lines: 54 to 64 

Comment Code: 1200 1.1 General comments about the rulemaking 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: This rulemaking can resolve some important policy and legal issues and, in doing 

so, help foster the development of a practical, commercially deployable CCS 

regulatory program. For example, the Final Rule can provide much needed clarity 

regarding (1) the potential for liability under the Resource Conservation and 

Recovery Act ("RCRA") and the Comprehensive Environmental Response, 

Compensation, and Liability Act ("CERCLA") resulting from CO2 injection and GS 

activities, and (2) the options for addressing long-term post-injection 

liability for Class VI wells. As discussed below, there are practical regulatory 

and legislative options available to resolve these uncertainties that will help 

assure the public and the regulated community that CO2 UIC activities can be 

conducted in a manner that is both safe and effective. 

Individual Response: EPA agrees that regulatory clarity is important. With respect to RCRA 

and need for regulatory clarity, 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. 

Letter ID: 0212 Comment ID: 22898 Letter Lines: 66 to 82 

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

Comment: It is imperative that the Final Rule reflect the challenges inherent in crafting 

regulations for commercial CO2 injection activities when large-scale commercial 

operations are only at the nascent stage. The challenge confronting EPA in this 

rulemaking is to establish a cost-effective and environmentally protective 

regulatory program to cover a range of operations for which the technology will 

not be commercially deployed for a number of years. To meet this challenge, it 

is critical that the Final Rule emphasize performance-based rules that can be 

readily adjusted and fine-tuned as industry and regulators alike gain experience 

with large-scale CO2 sequestration. Tampa Electric acknowledges EPA's efforts to 

build flexibility mechanisms into the Proposal, including provisions for 

directorial discretion and the suggestion that forthcoming guidance may be used 

2
to clarify other requirements. In general, we agree 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 of the 

Individual Response: The Agency believes that the Class VI requirements balance site-specific 

flexibility with USDW protection. Rather than setting performance or technology-based 

standards for GS projects, EPA is adopting a flexible approach, where operators of GS projects 

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

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

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

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

encourage use of the most appropriate technologies for a particular project. 

To address the comment that the rule should accommodate future technological developments 

related to GS, EPA adds that it is using an adaptive approach to regulating GS under the UIC 

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

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

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

modifications to the requirements are appropriate or necessary. 

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: 0212 Comment ID: 22899 Letter Lines: 82 to 87 ; 220 to 224 

Comment Code: 1435 1.2.1.3 EPA should develop guidance 

Comment: and avoids unnecessary prohibitions. In addition, guidance on any aspect of the 

Final Rule (for example, clarification of requirements for financial assurance 

mechanisms) must be developed in accordance with OMB's Good Guidance Practices 

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

significant" guidance documents.(Foot note 1) See 72 Fed. Reg. 3432, 3438 (Jan. 

25, 2007). 

(1)The Bulletin defines "economically significant guidance document" 

as "a significant guidance document that 'may reasonably be anticipated to lead 

to' art annual effect on the economy of $100 million or more or adversely affect 

in a material way the economy or a sector a the economy." See 72 Fed. Reg. at 

3
3435. 

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

level of discretion, EPA is developing guidance for states and tribes that describes 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, 

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

agencies. 

Letter ID: 0212 Comment ID: 22900 Letter Lines: 89 to 101 

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

Comment: Because information and technology related to carbon sequestration will develop 

as industry and regulators gain experience with CCS, Tampa Electric urges EPA to 

avoid blanket prohibitions or arbitrary absolutes in the Final Rule. We agree 

that the appropriate standard underlying the technical requirements for CO2 GS 

wells is the protection of underground sources of drinking water (USDWs). 

However, because it is difficult to know at this point what methods or 

technology will be developed for injection and long-term storage of CO2 in a 

manner that is protective of USDWs -- and because there is sure to be demand for 

significant capacity for CO2 GS -- EPA should not prematurely preclude the use of 

specific types of sites or methods for Class VI CO2 injection. The Final Rule 

should leave the door open for a range of injection sites and methods (some of 

which are unknown or not yet fully understood), provided that the Owner or 

Operator can show that the injection and storage will be protective of USDWs. 

Individual Response: As described above, EPA believes that the Class VI requirements balance 

site-specific flexibility with USDW protection. EPA clarifies that the Class VI GS requirements 

are designed to ensure that, where deployed, GS is conducted in a manner that protects USDWs 

from endangerment. Encouraging investment in CCS projects and facilitating deployment are 

outside the scope of the GS rulemaking. 

Letter ID: 0212 Comment ID: 22901 Letter Lines: 103 to 122 

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

ownership 

Comment: Tampa Electric acknowledges the EPA's note that the proposed SDWA underground 

injection regulations do not provide the EPA with authority to develop 

4
regulations for all areas related to carbon sequestration, including 

"determining property rights (i.e., to permit its use for [carbon sequestration] 

and for possible storage credits) [and] transfer of liability from one entity to 

another", but feels that parts of this regulation can be constructed so as to 

provide important guidance in further statue and regulatory development as 

related to these issues. Of main importance in this particular regulation 

development, if the Federal government believes this type of regulation is 

necessary, then it is Tampa Electric's recommendation to EPA to include a 

declaration that the activity of CCS is of high public importance. If and when 

storage of carbon dioxide is deemed a public necessity by the EPA, for the 

occasion that a CO2 injection well may be located adjacent to property owned by 

another party, the Final Rule may include verbiage analogous to underground 

natural gas storage eminent domain powers or oil and gas unitization processes 

for acquisition of pore space of a geological formation. Also, the EPA may 

consider providing guidance similar to that of the "negative rule of capture" 

for secondary oil recovery operations (water flooding), which provides that less 

valuable substances injected into a geological formation may migrate and replace 

more valuable substances without resulting liability. 

Individual Response: EPA clarifies that eminent domain, pore space ownership, and surface 

and subsurface property and mineral rights are outside of the scope of the Class VI GS 

rulemaking. 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. EPA also notes 

that carbon crediting and green house gas accounting are outside the scope of the Class VI GS 

rulemaking. The Class VI GS rule 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. 

However, the Agency acknowledges that these issues are important and is addressing them using 

other regulatory authorities. For example, in a separate rulemaking under authority of the Clean 

Air Act, EPA is amending the Greenhouse Gas Reporting Program at 40 CFR Part 98 to add 

reporting requirements for CO2 injection and GS. The greenhouse gas reporting requirements 

build on the requirements outlined in the Class VI GS rule with the additional goals of verifying 

the amount of CO2 sequestered and collecting data on any CO2 emissions to the surface from 

GS facilities. 

Letter ID: 0212 Comment ID: 22902 Letter Lines: 129 to 131 

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

Requirements 

Comment: - EPA must resolve key policy and legal uncertainties 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. 

Individual Response: EPA clarifies that owners or operators of Class VI wells must 

5
demonstrate and maintain financial responsibility for addressing corrective action on wells in the 

AoR, injection well plugging, PISC and site closure, and emergency and remedial response at 

GS sites, as required at §146.85(a). The final rule provides owners or operators to choose from a 

variety of financial instruments to meet the financial responsibility requirements. 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. 

EPA clarifies that the GS rule is not to promote or encourage the use of GS; rather the intent of 

the GS regulation is to ensure that, where GS is employed, projects are permitted, sited, 

constructed, operated, monitored, and closed in a manner that protects USDWs from 

endangerment. The goal of the financial responsibility requirements for Class VI well owners or 

operators is to ensure that financial resources are available to prevent endangerment of USDWs 

from improper plugging, remediation, and management of wells in the event that the owner or 

operator experiences financial difficulties during the life of the Class VI well. See the final rule 

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

Letter ID: 0212 Comment ID: 22903 Letter Lines: 132 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: Issues that must be addressed include the interaction of RCRA and CERCLA with 

Class VI injection activities as well as long-term post-injection liability. 

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 

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. 

Additionally, while 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 

6
carefully structured to ensure that they prevent potential releases from the well which are outside 

the scope of the Class VI permit. 

The UIC program Director has authority under SDWA §1423 to address potential compliance 

issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in 

the unlikely event that a remedial response is necessary. Although EPA anticipates that the need 

for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that 

emergency and remedial response plans be developed and updated to address such events and 

that owners or operators demonstrate that financial resources are set aside to implement the plans 

if necessary, per §146.85. 

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 

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: 0212 Comment ID: 22904 Letter Lines: 135 to 142 

Comment Code: 1210 1.1.1 Comments about the proposed rule 

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

Comment: - In many instances the proposed requirements for Class VI CO2 GS wells are 

7
unnecessarily more stringent than existing requirements for other well classes 

under the UIC Program. While it is essential that the Final Rule be protective 

of USDWs, many of the more rigorous requirements proposed for Class VI wells are 

not warranted by findings of unique risks posed by CO2 GS wells. The Final Rule 

should craft requirements that protect USDWs while avoiding the imposition of 

unnecessary costs or the inappropriate creation of a negative public perception 

of CO2 GS projects. 

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

or that it is unnecessarily stringent. 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 does not believe 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. 

Letter ID: 0212 Comment ID: 22905 Letter Lines: 144 to 152 

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

Comment: - Because the technology described in the Proposal will not be commercially 

deployed for a number of years, the Final Rule must be flexible enough to 

accommodate developments in information and technology related to carbon 

sequestration. Similarly, because there is likely to be a significant amount of 

CO2 available for sequestration under the Program, the Final Rule should avoid 

arbitrary absolutes or blanket prohibitions regarding site selection or well 

construction or injection procedures. The Final Rule should keep available as 

many options as possible for site selection and method of injection, subject 

always to the standard that any CO2 GS be protective of USDWs. 

Individual Response: As described above, 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: 0212 Comment ID: 22906 Letter Lines: 154 to 158 

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

8
Comment Code: 3500 2.2.3 Area of Review Reevaluation (seeking comment) 

Comment Code: 5200 2.8.2 Post injection site care (seeking comment) (40 CFR 146.93) 

Comment: - Because carbon sequestration technology is still developing and the 

characteristics and limitations of CO2 GS projects will vary greatly from one 

site to another it is essential to incorporate performance-based standards into 

the Final Rule, leading to a site-tailored approach to requirements for Area of 

Review ("AoR") reevaluation and post-injection site care and closure periods. 

Individual Response: The PISC requirements in the final GS rule, as specified in §146.93(b), 

incorporate a combination of a fixed timeframe and a performance standard approach. EPA 

believes that a default PISC timeframe of 50 years, with Director's discretion to shorten or 

lengthen this timeframe, combined with a site-specific Director’s discretion to create an 

alternative PISC time frame, ensures that USDWs are protected. The GS rule offers owners or 

operators flexibility regarding the duration of the PISC timeframe by: (1) allowing the Director 

discretion to shorten or lengthen the PISC timeframe during the PISC period based on sitespecific data, pursuant to requirements at §146.93(b); or (2) affording the Director discretion to 

allow a Class VI well owner or operator to demonstrate, based on substantial data during the 

permitting process, that an alternative PISC timeframe may be appropriate if it ensures nonendangerment of USDWs pursuant to requirements at §146.93(c). EPA expects that the Director 

will consider the types of information the commenter describes in determining whether the 

plume and pressure front no longer pose a risk of endangerment to USDWs and post-injection 

site care monitoring may be discontinued. 

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

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

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

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

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

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

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

impacts. 

EPA disagrees that the GS regulation should include performance-based standards for AoR 

calculation. However, EPA believes that consideration of site-specific conditions is appropriate 

for the AoR calculation and reevaluation process. EPA believes that the flexibility incorporated 

into the AoR and corrective action plans and the provision for AoR reevaluation as required at 

§146.84(e) provide for an ongoing review of the site and a dialogue between the Director and the 

owner or operator to ensure that the most appropriate modeling and corrective action 

technologies are used to protect USDWs from endangerment. However, EPA believes that 

setting a minimum reevaluation frequency is appropriate. In the final rule, the Agency changed 

the minimum frequency for the AoR reevaluation at §146.84(e) from 10 years to at least every 5 

years in the final GS rule. EPA believes that this revised frequency addresses commenters' 

concerns about the inherent uncertainties in modeling CO2 movement, the emerging nature of 

GS technology, risk-based targeting of monitoring activities, and the unique nature of CO2 GS. 

9
Letter ID: 0212 Comment ID: 22907 Letter Lines: 160 to 166 

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 is a solid waste under RCRA. To the extent there is any 

possibility that CO2 injection operations could be subject to RCRA controls, EPA 

should exempt such activities from RCRA regulation under the well-established 

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

ensure that the injected material is not mismanaged. 

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 

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: 0212 Comment ID: 22908 Letter Lines: 168 to 176 

Comment Code: 5200 2.8.2 Post injection site care (seeking comment) (40 CFR 146.93) 

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

comment) 

Comment: - In developing guidance identifying financial responsibility mechanisms 

available for post-injection care, EPA should retain the option of selfinsurance instruments including the corporate financial test. Self-insurance has 

worked successfully for over two decades under the RCRA program and there is no 

reason why this option should not also be available for Class VI UIC wells. EPA 

must also take steps to mitigate the specter of open-ended financial liability 

for CO2 injection operations after the cessation of the post-injection site care 

period. Such open-end liability is one of the major impediments to the 

successful development of a commercial CO2 GS program. 

Individual Response: EPA will retain self insurance as an option for financial responsibility for 

Class VI wells. Owners or operators who choose to self-insure and use the financial test must be 

able to demonstrate profitability, with a margin sufficient to cover contingencies and unknown 

obligations, and stability. If the owner or operator meets corporate financial test criteria, this is 

an indication that the owner or operator can guarantee its ability to satisfy financial obligations 

10
based solely on the strength of the company’s financial condition. If an operator or operator is 

not able to meet the corporate financial test criteria it may arrange a corporate guarantee by 

demonstrating that its corporate parent meets the financial requirements on its behalf. 

Under SDWA authority, owners or operators of injection wells must ensure protection of 

USDWs from endangerment and are subject to liability for enforcement under the Act. The final 

rule requires that an owner or operator must conduct post-injection site care that is consistent 

with the approved PISC plan or for the duration of the alternative timeframe approved by the 

Director pursuant to requirements in §146.93(c), until a demonstration can be made to the 

satisfaction of the Director that the plume and pressure front no longer pose a risk of 

endangerment to USDWs. For additional information about the PISC and site closure 

requirements, see the preamble to the final GS rule. 

Once an owner or operator has met all regulatory requirements under Part 146 for Class VI wells 

and the Director has approved site closure pursuant to requirements at §146.93, the owner or 

operator will generally no longer be subject to enforcement for regulatory noncompliance. 

Furthermore, their financial instrument as required under §146.85 will be released if it was not 

used. However, even if a site closure is approved under §146.93, an owner or operator may be 

held liable for regulatory noncompliance (including violation of 40 CFR 144.12) in certain 

circumstances. For example, an owner or operator may be held liable for regulatory 

noncompliance even after site closure was approved if the Director relied on erroneous 

information (e.g., erroneous modeling data) provided by the owner or operator when approving 

site closure. 

Additionally, an owner or operator may always be subject to any action the Administrator deems 

necessary to protect the health of persons under §1431 of the SDWA after site closure if there is 

unanticipated migration towards or into a USDW that causes or threatens imminent and 

substantial endangerment to public health. The action may include issuing administrative orders 

or commencing a civil action for appropriate relief. 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. 

The Agency clarifies that Class VI well permits may be transferred to another owner or operator 

pursuant to §144.38 whereby generally all other regulatory responsibilities are transferred to that 

new owner and operator, which includes all potential liabilities associated with meeting the 

requirements of that permit. Please see further clarification on the issue of long term liability in 

the preamble of the final rule. 

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. 

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Letter ID: 0212 Comment ID: 22909 Letter Lines: 178 to 182 

Comment Code: 3150 2.1.5 Comments on required permit information (40 CFR 146.82) 

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

comment) 

Comment: - 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 GS well and its AoR as that 

information becomes available. 

Individual Response: EPA disagrees that any of the protective requirements are unnecessary, 

and believes that the Class VI GS requirements for obtaining a permit are tailored so that they 

are appropriate for the unique nature of injecting large volumes of CO2 into a variety of 

geological formations for long-term storage. 

EPA agrees 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. In addition, section §146.82 in the final rule is similar to the 

permit application requirements for other injection well classes, which could help avoid 

confusion about how to meet the permitting requirements for Class VI wells. The requirements at 

§146.82(c) for information to be submitted before operation of the well is authorized are very 

similar to those for Class I wells, with modifications and additions that address the unique 

challenges and types of data collected for GS wells. 

Letter ID: 0212 Comment ID: 22910 Letter Lines: 184 to 189 

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

Comment: - Given the similarities between Class VI wells (as envisioned by the Proposal) 

and the existing requirements for those Class I and V wells permitted 

exclusively for COz injection, the Final Rule should allow grandfathering of 

construction and operating requirements for these existing wells seeking to 

become Class VI wells provided that it can be demonstrated that such carryingover of requirements will be protective of USDWs. 

Individual Response: EPA agrees that many Class I and Class V experimental technology wells 

are designed and constructed to withstand exposure to CO2. The final GS rule provides for the 

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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). EPA clarifies that only the construction requirements are 

grandfathered and that all other Class VI requirements (reporting, monitoring, mechnical 

integrity testing, etc.) must be met following a determination under §146.81(c). 

Letter ID: 0212 Comment ID: 22911 Letter Lines: 191 to 192 

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

Comment: - While directorial discretion is a useful mechanism to ensure flexibility in 

the Final Rule, such discretion must be clearly defined and limited. 

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: 0212 Comment ID: 22912 Letter Lines: 194 to 198 

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

Comment: - Because state regulators have worked extensively with Owners or Operators of 

UIC Class V experimental CO2 wells and have familiarity with environmental, 

geologic, and financial concerns specific to a given region, state adoption and 

tailored implementation of the CO2 GS rules will be crucial to the success of 

the Program. 

Individual Response: EPA agrees with commenters on the importance of states having primacy 

for GS wells given the variety of geologic settings in which GS will be applied. EPA recognizes 

that State, Tribal, Territorial and DI UIC Program Directors are in the best position to evaluate 

the unique issues related to well depth, geology, and hydrogeology that are posed by a Class VI 

well. Some degree of flexibility is needed for Class VI wells because each decision made will be 

site-specific and conditions will differ from state to state. The GS rule balances the need for 

these site-specific decisions with the need for minimum standards to ensure national consistency. 

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 encourages states to accept 

primacy for Class VI, and believes that, due to the importance of implementing an effective, 

comprehensive, and seamless CCS program, States should be provided the flexibility to obtain 

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primacy for Class VI only. 

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. The Agency will allow independent primacy for Class VI wells under §145.1(i) of the final 

GS rule. 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. 

Letter ID: 0212 Comment ID: 22913 Letter Lines: 200 to 207 

Comment Code: 5560 2.10.3 Enhancing the public participation process (seeking comment) 

Comment: The ultimate successful long term implementation of a UIC Final Rule will be 

dependant on public outreach of the GS of CO2. It is critically important to: 

(1) identify and respond to public needs, fears, and desires; (2) inform the 

public about carbon sequestration strategies; (3) involve the public in a joint 

discovery of opportunities associated with carbon sequestration; (4) educate the 

public the appropriate amount of risk associated with long term GS of CO2; (5) 

and enable the public to more effectively evaluate costs and benefits associated 

with carbon sequestration. 

Individual Response: EPA agrees that informing the public on all aspects of GS projects is 

important. The Agency encourages permitting authorities and GS operators to provide the public, 

including residents near the project, with as much project-specific information as possible. EPA 

encourages owners or operators and permitting agencies to begin involving the public by 

providing information as early in the process as possible. Such information exchange can affect 

how the local community and surrounding communities perceive potential environmental, 

economic, or health effects. 

The Agency also 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. GS permitting authorities must follow the existing public 

participation requirements for UIC permits as specified in 40 CFR Part 124. Generally, these 

regulations require the Director to notify the public regarding the availability of the draft permit 

and allow him or her to require a public hearing on the draft permit. 

In addition to requiring public notice of all draft permits under §124.10(a)(1)(ii), stakeholders 

may request copies of the draft permit and the permit application during the draft permit 

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comment period. Permitting authorities are required under §124.8 to produce a fact sheet which 

typically summarizes relevant information for the public in a much more understandable format 

than the supporting data in a permit application. The fact sheet describes the draft permit 

conditions, procedures to determine the final decision on the permit, any procedures to request a 

hearing, and procedures that may be available for additional public participation in the final 

permitting decision. 

In response to the comment about the regulations ensuring that the public is informed of the full 

cost of a GS project, EPA clarifies that any impact on the cost of electricity is likely to be 

influenced by all aspects of CCS, including capture, transport, and sequestration. Sequestration 

costs are expected to be a small component of total CCS project costs; EPA estimates that the GS 

requirements amount to approximately 3 percent of the total CCS project costs. 

Letter ID: 0212 Comment ID: 23041 Letter Lines: 37 to 38 

Comment Code: 1000 1. General and Administrative Comments 

Comment: Regulatory Group (USWAG). Tampa Electric endorses the comments filed by EEI 

and 

USWAG in this docket. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment, USWAG’s comment, and Edison Electric Institute’s 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. 

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