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.
From: Erica Brown <brown@amwa.net> 

To: Peter Silva/DC/USEPA/US@EPA, Cynthia Dougherty/DC/USEPA/US@EPA, Steve Heare/DC/USEPA/US@EPA

Date: 10/15/2009 03:37 PM 

Subject: AMWA's Comments on EPA's NODA for CO2 Sequestration 

Good afternoon, 

For your information, AMWA submitted the attached comments on EPA's NODA today. 

------------------------------------- 

Erica Michaels Brown 

Director of Regulatory Affairs and Scientific Program Development 

Association of Metropolitan Water Agencies 

1620 I St. NW, Suite 500 

Washington, DC 20006 

202-331-2820 (p) 

202-785-1845 (f) 

AMWA is the definitive voice for the largest publicly owned drinking water 

systems in the United States on regulatory, legislative and security issues, as 

well as a leadership resource for senior water executives. Member-utilities 

collectively serve more than 127 million people with safe drinking water. 
October 15, 2009

Water Docket

U.S. Environmental Protection Agency

Office of Water Docket (Mailcode 2822T)

1200 Pennsylvania Ave., NW

Washington, DC 20460

RE: Comments On The Federal Requirements Under The Underground Injection 

Control (UIC) Program For Carbon Dioxide Geosequestration Wells, Notice of 

Data Availability and Request for Comment EPA-HQ-OW-2008-0390

Dear Water Docket:

The Association of Metropolitan Water Agencies (AMWA) appreciates the opportunity 

to review and comment on the proposed waiver process to allow for geosequestration 

(GS) injection above and between underground sources of drinking water (USDWs) 

under specific conditions. As expressed in our December 23, 2008 letter, AMWA 

recognizes the importance of reducing carbon dioxide emissions to mitigate climate 

change impacts. 

However, moving forward on climate change mitigation must not come at the expense of 

the country’s water supplies or water quality. Protecting our nation’s water supplies from 

potential negative impacts resulting from the development of carbon sequestration 

projects is of paramount importance. We urge EPA to be protective of public health and 

to base its regulatory decisions on sound scientific evidence in structuring this rule, so 

that the promulgated rule ensures the availability of current and potential future drinking 

water aquifers, recognizing that water managers are faced with difficult challenges in 

light of shrinking and changing water supplies due to climate change impacts. 

It is because of these water supply challenges that AMWA again urges EPA to reexamine 

the current classification of a USDW (i.e., an aquifer with a total dissolved solids (TDS) 

concentration of less than 10,000 mg/L). As explained in our previous comments, new 

technologies coupled with future water demands and resource limitations enhance the 

feasibility of using high TDS waters as future drinking water supplies. The potential need 

to use saline aquifers for potable supply, particularly in water-stressed areas, should be 

considered before authorizing the sequestration of carbon dioxide at these locations. 

AMWA member utilities continue to be concerned about the potential for unintended, 

negative consequences for drinking water utilities if GS wells are placed above, between

or below a USDW or a future USDW. As described in the NODA, GS is a new and 

emerging technology and projects in the U.S. are in the demonstration and pilot phase. 

There is very limited information available from these project sites, particularly with 

regard to data about subsurface geochemistry or CO2 seepage into groundwater. 

BOARD OF DIRECTORS

President

Brian L. Ramaley

Newport News Waterworks

Vice President

James McDaniel

LA Dept. of Water and Power

Treasurer

Chips Barry

Denver Water Department

Secretary

Jerry N. Johnson

Washington Suburban Sanitary 

Commission

Mark Premo

Anchorage Water and

Wastewater Utility

David Modeer

Central Arizona Project

Michael Wallis

East Bay Municipal Utility 

District

Robert Hunter

Atlanta Department of

Watershed Management

Irene Caminer

Chicago Department 

of Water Management

Don Broussard

Lafayette Utilities System

John P. Sullivan, Jr.

Boston Water and

Sewer Commission

Steve Schneider

St. Paul Regional

Water Services

Patricia Mulroy

Las Vegas Valley Water District

David Rager

Greater Cincinnati Water Works

Scott Potter

Nashville Water & Sewerage 

Services

Edmund Archuleta

El Paso Water Utilities

Charles M. Murray

Fairfax Water

Chuck Clarke

Cascade Water Alliance

Diane VanDe Hei

Executive Director

Leaders in Water Association of Metropolitan Water Agencies 1620 I Street, NW, Suite 500, Washington, DC 20006 • p 202.331.2820 f 202.785.1845 • www.amwa.net
October 15, 2009

Water Docket

Page 2

In addition, the NODA highlights research that has indicated that modeling CO2 related water quality 

changes in groundwater aquifers results in an increased potential for the mobilization of arsenic above the 

drinking water maximum contaminant level (MCL). The NODA also states that, “Other trace elements,

such as barium, cadmium, lead, antimony, and zinc, may also be mobilized in certain circumstances, but the 

majority of results did not show mobilization at levels exceeding the MCL or [action level] AL. (74 FR

44807).” This statement wrongly implies that any contamination below the MCL is not a concern for 

drinking water utilities or for public health. This is emphatically not the case, as simply the presence of these 

contaminates would further degrade the suitability of an aquifer as a drinking water source. Furthermore, in 

the case of arsenic and lead, the maximum contaminant level goal is zero. 

With such limited information and significant potential adverse consequences, the proposal for a waiver 

process to allow for GS injection above and between USDWs is premature. AMWA recommends that EPA 

not proceed with a waiver process at this time. Instead, the agency should commit to wait for the data from 

pilot projects relevant to interactions between groundwater and the injected CO2 prior to considering the 

implementation of any waiver process. We reiterate our December 23, 2008 comments and urge EPA to 

“prohibit the construction of CO2 sequestration wells in aquifers currently used for drinking water supply or 

expected to be used in the future.”

AMWA recommends that EPA work with the Department of Energy and other interested parties to develop 

current and future pilot projects to demonstrate the proof of concept of a waiver prior to implementing a 

waiver provision. EPA should implement the pilot program with the aim of evaluating GS technology in 

areas where, after careful review, the technology is determined to be the most viable alternative for reducing 

greenhouse gas (GHG) emissions, yet it would be a candidate for a waiver because the geologic formation 

for sequestration is above the USDW. AMWA also recommends that the pilot program be set up with the 

purpose of evaluating the technology and gathering as much comprehensive data as possible, particularly 

with regard to water/rock/gas interaction and the impacts of injected CO2 on aquifers within the area of 

review. The NODA provides information about preliminary studies by Lawrence Berkley National Labs, 

and notes that the conclusions of these studies also recommended that further studies be conducted, including

laboratory or field studies. To this end, modeling should be carried out in conjunction with the pilots and the 

model results validated by the data gathered from pilot projects; the modeling results described in the NODA 

are not validated and of minimal predictive value.

In its July 25, 2008 rule proposal for CO2 geosequestration (73 Federal Register 43492), EPA noted that an 

adaptive approach to the rulemaking would be required. AMWA supported this approach, recommending 

that EPA “commit to update the rule regularly as more becomes known about carbon capture and 

sequestration (CCS) technology and the behavior of CO2 injected into the subsurface.” AMWA recommends 

that the first step in the adaptive approach to the waiver process is to gather more information from pilot 

projects currently underway, as well as pilot projects from potential waiver scenarios. The following step 

would be to proceed to develop a formal waiver process, only if warranted. 

AMWA strongly recommends that EPA take these steps before finalizing the waiver provision. However, if 

EPA decides to finalize its rule under the UIC program for CO2 GS wells that includes the waiver provision

– despite drinking water utilities’ grave concerns about unintended consequences to current and future 

supplies – then AMWA recommends the following additional conditions and criteria be incorporated into 

such a provision: 
October 15, 2009

Water Docket

Page 3

• A waiver application should only be considered if the owner/operator has completed a thorough 

environmental review including demonstrating that the GS option has the least environmental impact 

and there is no other option for reducing greenhouse gas emissions.

• A waiver application must include additional criteria and requirements that provide additional 

safeguards beyond the proposed requirements for Class VI wells, such as more comprehensive 

monitoring plans. 

Waiver applications should only be considered under very specific circumstances. EPA’s proposal 

for a waiver process should describe in detail how an owner/operator must demonstrate the necessity 

for a waiver. Each waiver application would be very site specific but should consider additional 

criteria such as pilot scale and modeling data. 

• A waiver application must be subject to local notice and a public hearing, particularly where 

USDWs or potential USDWs (including high TDS aquifers that could be considered for future 

supplies in light of climate change, normal population growth or other supply issues) are in the area 

of review. 

As with AMWA’s comments on EPA’s original proposal for any GS project that could affect current 

or future water supplies, a public process and opportunity for public comment must be a prerequisite 

for a waiver application. As recommended in our December 2008 comments, AMWA also believes

that local drinking water utilities should be notified directly and invited to participate in the public 

proceedings. Protection of water supplies should be given the highest priority; transparency of the 

waiver process, including public disclosure of modeling and monitoring results, are essential 

elements in preserving the public trust.

• Any project accepted under the waiver program should be treated as a case study, with limitations on 

the amount of CO2 to be injected and/or the time span of the project, coupled with increased 

frequency of results of monitoring data to indentify potential impacts of GS operations, until longterm assessments of the monitoring data can be completed.

• An emergency response plan for each project should identify failure scenarios along with mitigation 

and remediation plans and responsibilities.

• Long-term financial responsibility (> 50 years) must be assigned to ensure the viability of current 

and future water supplies that could be negatively impacted by a GS project. The contaminating 

party must not be allowed to walk away.

In closing, as AMWA has commented before, many strategies must be used to reduce GHG – from 

conservation to alternative energy sources. Carbon capture and sequestration may be one tool in the toolbox, 

but it is not the silver bullet. Over two decades ago, MTBE was championed as the panacea to meet Clean 

Air Act requirements only to prove poisonous for many of the nation’s groundwater supplies. Therefore, 

careful research, data gathering and modeling and a commitment of long-term financial responsibility must 

be accomplished in advance of deployment of GS or the allowance for waivers. 

It is good and necessary for our nation to increase mitigation of GHG emissions. However, the desire to 

mitigate GHGs cannot preclude or worsen our ability to adapt to climate change, particularly as climate 

change is currently affecting the hydrologic cycle and in many cases, adversely impacting water supplies. 
October 15, 2009

Water Docket

Page 4

Again, AMWA appreciates the opportunity to comment on EPA’s NODA. If there are any questions about 

our comments please contact me or Erica Brown, Director of Regulatory Affairs and Scientific Program 

Development, at 202-331-2820.

Sincerely,

Diane VanDe Hei

Executive Director

 Cc: Peter Silva, OW

Cynthia Dougherty, OGWDW

 Steve Heare, OGWDW
Letter ID: 0383  

Commenter: Diane VanDe Hei  

Organization: Association of Metropolitan Water Agencies (AMWA)  

Letter ID: 0383 Comment ID: 28101 Letter Lines: 40 to 48  

Comment Code: 6000 6. Other Comments that are Out of Scope for the NODA  

Comment: However, moving forward on climate change mitigation must not come at the  

expense of the country’s water supplies or water quality. Protecting our  

nation’s water supplies from potential negative impacts resulting from the  

development of carbon sequestration projects is of paramount importance. We  

urge EPA to be protective of public health and to base its regulatory decisions  

on sound scientific evidence in structuring this rule, so that the promulgated  

rule ensures the availability of current and potential future drinking water  

aquifers, recognizing that water managers are faced with difficult challenges in  

light of shrinking and changing water supplies due to climate change impacts.  

Individual Response: This comment is outside the scope of the Notice of Data Availability and the UIC

Program’s authority under the GS rulemaking.  

Letter ID: 0383 Comment ID: 28102 Letter Lines: 50 to 65  

Comment Code: 5700 5.14. Comments on Other Aspects of the Proposed Rule  

Comment: It is because of these water supply challenges that AMWA again urges EPA to  

reexamine the current classification of a USDW (i.e., an aquifer with a total  

dissolved solids (TDS) concentration of less than 10,000 mg/L). As explained in  

our previous comments, new technologies coupled with future water demands and  

resource limitations enhance the feasibility of using high TDS waters as future  

drinking water supplies. The potential need to use saline aquifers for potable  

supply, particularly in water‐stressed areas, should be considered before  

authorizing the sequestration of carbon dioxide at these locations.  

AMWA member utilities continue to be concerned about the potential for  

unintended, negative consequences for drinking water utilities if GS wells are  

placed above, between or below a USDW or a future USDW. As described in the  

NODA, GS is a new and emerging technology and projects in the U.S. are in the  
demonstration and pilot phase. There is very limited information available from  

these project sites, particularly with regard to data about subsurface  

geochemistry or CO2 seepage into groundwater.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is outside the

scope of the Notice of Data Availability. Please see responses to comments on the proposed rule for

EPA’s response to similar comments.  

Letter ID: 0383 Comment ID: 28103 Letter Lines: 67 to 79  

Comment Code: 2210 2.2.1. Groundwater Quality and Mobilization of Trace Elements (seeking

comment)  

Comment: In addition, the NODA highlights research that has indicated that modeling CO2  

related water quality changes in groundwater aquifers results in an increased  

potential for the mobilization of arsenic above the drinking water maximum  

contaminant level (MCL). The NODA also states that, "Other trace elements,  

such as barium, cadmium, lead, antimony, and zinc, may also be mobilized in  

certain circumstances, but the majority of results did not show mobilization at  

levels exceeding the MCL or [action level] AL. (74 FR 44807)." This statement  

wrongly implies that any contamination below the MCL is not a concern for  

drinking water utilities or for public health. This is emphatically not the  

case, as simply the presence of these contaminates would further degrade the  

suitability of an aquifer as a drinking water source. Furthermore, in the case  

of arsenic and lead, the maximum contaminant level goal is zero.  

Individual Response: EPA clarifies the MCLs, MCLGs, and ALs cited in the study were presented in LBNL’s

work as a reference point for comparison purposes. The LBNL study makes no assertion about drinking

water standards. EPA acknowledges that any increase in concentration of metals is undesirable to water

utilities and the final rule requirements were established to maximize protection of USDWs. EPA clarifies

that the LBNL study was conducted to study the potential vulnerability of representative and relevant

aquifer types in the unlikely case of CO2 intrusion, in order to provide sound scientific information as a

basis for further studies on groundwater quality concerns.  

EPA clarifies that site‐specific data are necessary to understand the potential geochemical reactions at a

GS site. For this reason, all GS project owner or operators must submit detailed, site‐specific information

about a proposed GS site, including information on the porosity, permeability, mineralogy, and

geochemistry of the targeted injection and confining zones as well as all USDWs within the Area of

Review. Operators must also present information on the compatibility of the CO2 stream with fluids in
the injection zone and minerals in the injection and confining zones (146.82(c)(3)). The data can help the

Director determine the potential for geochemical reactions between the injectate (CO2) and the host

geologic formations. For additional information on EPA’s approach to site characterization for GS wells,

see the responses to comments on the proposed rule in the rulemaking docket.  

Letter ID: 0383 Comment ID: 28104 Letter Lines: 80 to 88  

Comment Code: 3220 3.2.2. Comments in Opposition to the Approach  

Comment: With such limited information and significant potential adverse consequences,  

the proposal for a waiver process to allow for GS injection above and between  

USDWs is premature. AMWA recommends that EPA not proceed with a waiver process  

at this time. Instead, the agency should commit to wait for the data from pilot  

projects relevant to interactions between groundwater and the injected CO2 prior  

to considering the implementation of any waiver process. We reiterate our  

December 23, 2008 comments and urge EPA to "prohibit the construction of CO2  

sequestration wells in aquifers currently used for drinking water supply or  

expected to be used in the future."  

Individual Response: EPA agrees that USDW protection is the highest priority and clarifies that the

purpose of the GS regulation is to ensure that GS, where deployed, is conducted in a manner that

protects USDWs. Incentivizing the use of GS or other renewable energy resources and technologies is

outside the scope of this rulemaking and the UIC Program’s authority under the SDWA. EPA disagrees

that finalization of the GS rule is premature. For additional information regarding the data on which EPA

based the final GS rule, see the preamble to the final GS rule.

EPA acknowledges the commenter's concerns about USDW protection and clarifies that the mission of

the UIC Program is to protect USDWs from endangerment. Based on an evaluation of comments on the

proposed injection depth requirements and the waiver process discussed in the NODA and Request for

Comment, and concerns about USDW protection, EPA believes that there are situations where injection

into non‐USDW formations above the lowermost USDW can be performed in a manner that protects

USDWs. The final GS rule at §146.95 establishes a process by which owners or operators can seek a

waiver of the Class VI injection depth requirements. The waiver approach establishes requirements for

extensive site‐specific information related to injecting above or between USDWs that the owner or

operator must submit and the Director must consider, in consultation with PWSS Directors, to ensure

that water supplies in the area and all USDWs are protected.  

Furthermore, owners or operators granted injection depth waivers are subject to additional

requirements at §146.95(f), which include: modified construction requirements and requirements to

monitor above and below the injection zone in order to ensure protection of USDWs underlying and
overlying the injection zone during both well operation and the post‐injection site care period.  

EPA disagrees that adoption of the waiver process is premature. The Agency has collected data on

various types of injection activities, including Class II injection and current GS activities and from

commenters, and believes that issuance of waivers pursuant to the additional protective requirements

at §146.95 (e.g., consideration of water resources issues, consultation with PWSS Directors, and

additional permit requirements) will allow injection that addresses capacity concerns and protects

USDWs.  

Letter ID: 0383 Comment ID: 28105 Letter Lines: 90 to 116  

Comment Code: 3220 3.2.2. Comments in Opposition to the Approach  

Comment: AMWA recommends that EPA work with the Department of Energy and other interested  

parties to develop current and future pilot projects to demonstrate the proof of  

concept of a waiver prior to implementing a waiver provision. EPA should  

implement the pilot program with the aim of evaluating GS technology in areas  

where, after careful review, the technology is determined to be the most viable  

alternative for reducing greenhouse gas (GHG) emissions, yet it would be a  

candidate for a waiver because the geologic formation for sequestration is above  

the USDW. AMWA also recommends that the pilot program be set up with the  

purpose of evaluating the technology and gathering as much comprehensive data as  

possible, particularly with regard to water/rock/gas interaction and the impacts  

of injected CO2 on aquifers within the area of review. The NODA provides  

information about preliminary studies by Lawrence Berkley National Labs, and  

notes that the conclusions of these studies also recommended that further  

studies be conducted, including laboratory or field studies. To this end,  

modeling should be carried out in conjunction with the pilots and the model  

results validated by the data gathered from pilot projects; the modeling results  

described in the NODA are not validated and of minimal predictive value.  

In its July 25, 2008 rule proposal for CO2 geosequestration (73 Federal Register  

43492), EPA noted that an adaptive approach to the rulemaking would be required.  

AMWA supported this approach, recommending that EPA "commit to update the rule  

regularly as more becomes known about carbon capture and sequestration (CCS)  

technology and the behavior of CO2 injected into the subsurface." AMWA  

recommends that the first step in the adaptive approach to the waiver process is  

to gather more information from pilot projects currently underway, as well as  

pilot projects from potential waiver scenarios. The following step would be to  

proceed to develop a formal waiver process, only if warranted.  
Individual Response: As described above, EPA disagrees that adoption of the waiver process is

premature, and the Agency clarifies that the GS rule requirements are based on extensive research,

including the results of DOE pilot projects.  

As part of its adaptive approach to regulating GS, EPA plans, every six years, to collect and review data

on GS projects, including information on any Class VI wells granted a waiver of the injection depth

requirements, 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. Given the unique nature of the waiver of injection depth requirements, the

Agency will further assess if the requirements provided in §146.95 are appropriately designed to

evaluate waiver applications, issue waivers, and ensure protection of USDWs. The adaptive approach

will also afford the Agency an opportunity to assess the manner in which waivers are issued across the

US.  

Letter ID: 0383 Comment ID: 28106 Letter Lines: 118 to 143  

Comment Code: 3230 3.2.3. Comments that Additional Submissions are Needed (seeking comment)  

Comment: Amwa strongly recommends that epa take these steps before finalizing the waiver  

provision. However, if epa decides to finalize its rule under the uic program  

for co2 gs wells that includes the waiver provision ‐ despite drinking water  

utilities’ grave concerns about unintended consequences to current and future  

supplies ‐ then amwa recommends the following additional conditions and criteria  

be incorporated into such a provision:  

‐ A waiver application should only be considered if the owner/operator has  

completed a thorough environmental review including demonstrating that the GS  

option has the least environmental impact and there is no other option for  

reducing greenhouse gas emissions.  

‐ A waiver application must include additional criteria and requirements that  

provide additional safeguards beyond the proposed requirements for Class VI  

wells, such as more comprehensive monitoring plans.  

Waiver applications should only be considered under very specific circumstances.  

EPA’s proposal for a waiver process should describe in detail how an  

owner/operator must demonstrate the necessity for a waiver. Each waiver  

application would be very site specific but should consider additional criteria  

such as pilot scale and modeling data.  
‐ A waiver application must be subject to local notice and a public hearing,  

particularly where USDWs or potential USDWs (including high TDS aquifers that  

could be considered for future supplies in light of climate change, normal  

population growth or other supply issues) are in the area of review.  

Individual Response: EPA agrees that protecting drinking water resources is vital and is the purpose of

the UIC requirements. The waiver approach establishes extensive site‐specific information related to

injecting above or between USDWs that the owner or operator must submit and the Director must

consider, in consultation with PWSS Directors, to ensure that water supplies in the area and all USDWs

are protected.  

Many of these additional requirements specifically address impacts to drinking water resources.

§146.95(b) establishes considerations that the UIC Director must assess when evaluating a waiver

application to ensure that USDW protection, site‐specific drinking water resource issues, and the use

and impact of GS technologies are considered and documented.  

Other aspects of the final approach to waivers also address the commenter's concerns. For example,

owners or operators seeking a waiver must demonstrate that the injection zone is bounded by laterally

continuous, impermeable confining units above and below the injection zone adequate to prevent fluid

movement and pressure buildup outside of the injection zone; and, that the confining units are free of

transmissive faults and fractures as specified in §146.95(a)(2). The owner or operator must also

demonstrate using computational modeling, that USDWs above and below the injection zone will not be

endangered as a result of fluid movement as specified in §146.95(a)(3). The owner or operator must also

describe how the monitoring and testing and any additional plans will be tailored to the GS project to

ensure protection of USDWs above and below the injection zone as specified in §146.95(a)(5).  

EPA agrees that the waiver application must be subject to local notice and a public hearing; §146.95(c)

requires the Director to give public notice, as part of the permit application process, including notice

that a waiver application has been submitted. Furthermore, owners or operators granted injection

depth waivers are subject to additional requirements at §146.95(f) ensuring protection of USDWs above

and below an injection zone. If the permitting authority receives comments on the injection depth

waiver during the public comment period for both the waiver and the permit application, the Director in

consultation with the Regional Administrator, must evaluate comments prior to providing a

recommendation to the Regional Administrator regarding a waiver and issuing the Class VI permit.

EPA adds that the GS rule does not address the availability of other climate change mitigation options;

rather the GS rule, including the waiver requirements, are designed to ensure that where deployed, GS

is performed in a manner that protects USDWs.  
Letter ID: 0383 Comment ID: 28107 Letter Lines: 145 to 152  

Comment Code: 3370 3.3.7. Notice and Hearing  

Comment: As with AMWA’s comments on EPA’s original proposal for any GS project that could  

affect current or future water supplies, a public process and opportunity for  

public comment must be a prerequisite for a waiver application. As recommended  

in our December 2008 comments, AMWA also believes that local drinking water  

utilities should be notified directly and invited to participate in the public  

proceedings. Protection of water supplies should be given the highest priority;  

transparency of the waiver process, including public disclosure of modeling and  

monitoring results, are essential elements in preserving the public trust.  

Individual Response: EPA agrees that local drinking water entities should be consulted and provided an

opportunity to inform in the waiver application evaluation process. In addition to the requirement for

consultation with the PWSS Directors of all States, Territories, and Tribes having jurisdiction within the

AoR of a well for which a waiver is sought as specified in §146.95(b)(2), the public notification process

for the waiver must occur concurrently with the UIC permit notification as specified in §146.95(c). EPA

believes this requirement is necessary to ensure that appropriate information is disclosed to the public

for notice and comment and that the public understands that the site, if permitted, would be operating

under a waiver. EPA believes these requirements balance USDW protection and disclosure of PWSS

information with the GS permit application process requirements.  

EPA has also added a requirement at §124.10(c)(1)(xi) that state and local oil and gas regulatory

agencies and state agencies regulating mineral exploration and recovery, the PWSS program director,

and all agencies that oversee injection wells in the state must be notified as part of the public notice

process for all Class VI permits. For additional information on the requirements for public notification

associated with GS permitting, see the preamble to the final rule and the responses to comments on the

proposed GS rule.  

Letter ID: 0383 Comment ID: 28108 Letter Lines: 154 to 166  

Comment Code: 3300 3.3. Comments on Specific Elements of the Waiver Approach  

Comment: ‐ Any project accepted under the waiver program should be treated as a case  

study, with limitations on the amount of CO2 to be injected and/or the time span  

of the project, coupled with increased frequency of results of monitoring data  

to indentify potential impacts of GS operations, until long‐ term assessments of  

the monitoring data can be completed.  
‐ An emergency response plan for each project should identify failure scenarios  

along with mitigation and remediation plans and responsibilities.  

‐ Long‐term financial responsibility (> 50 years) must be assigned to ensure the  

viability of current and future water supplies that could be negatively impacted  

by a GS project. The contaminating party must not be allowed to walk away.  

Individual Response: EPA clarifies that all decisions regarding waivers (and all aspects of GS project

permitting) will be made on a site‐specific basis. The waiver approach establishes requirements for

extensive site‐specific information related to injecting above or between USDWs that the owner or

operator must submit and the Director must consider, in consultation with PWSS Directors, to ensure

that water supplies in the area and all USDWs are protected. Furthermore, owners or operators granted

injection depth waivers are subject to additional requirements at §146.95(f), which include

requirements to monitor above and below the injection zone in order to ensure protection of USDWs

underlying and overlying the injection zone during both well operation and the post‐injection site care

period.  

EPA clarifies that, in the final GS rule, for GS projects where injection depth waivers are sought, the

Director must also consider the proposed emergency and remedial response plan in making a

determination whether to grant a waiver as specified in §146.95(b)(1)(iv).  

Regarding long‐term liability, under the final GS rule, once an owner or operator has met all regulatory

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

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

regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be

released if it was not used. However, even if a site closure is approved under §146.93, an owner or

operator may be held liable for regulatory noncompliance (including 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. Please note that 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.  

For additional information on the financial responsibility requirements for GS projects, see the preamble

to the final rule and the responses to comments on the proposed GS rule.  

Letter ID: 0383 Comment ID: 28109 Letter Lines: 160 to 161  

Comment Code: 3330 3.3.3. Emergency and Remedial Response  

Comment: ‐ An emergency response plan for each project should identify failure scenarios  

along with mitigation and remediation plans and responsibilities.  

Individual Response: EPA believes that the emergency and remedial response plan required at §146.94

should focus on actions to be taken in the event of an adverse impact on drinking water supplies; such

actions should include identifying remediation plans and responsible parties. While the plan is not

required to identify failure scenarios, EPA expects that owners and operators would consider potential

failure scenarios in developing the emergency and remedial response plan. EPA is developing guidance

on preparing all of the required GS project plans, including emergency and remedial response plans. This

guidance will be available on EPA’s website at

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

Letter ID: 0383 Comment ID: 28110 Letter Lines: 163 to 165  

Comment Code: 3340 3.3.4. Financial Responsibility  

Comment: ‐ Long‐term financial responsibility (> 50 years) must be assigned to ensure the  

viability of current and future water supplies that could be negatively impacted  

by a GS project. The contaminating party must not be allowed to walk away.  

Individual Response: Under the final GS rule, once an owner or operator has met all regulatory

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

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

regulatory noncompliance. Furthermore, their financial instrument as required under §146.85 will be

released if it was not used. However, even if a site closure is approved under §146.93, an owner or

operator may be held liable for regulatory noncompliance (including 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. Please note that 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.  

For additional information on the financial responsibility requirements for GS projects, see the preamble

to the final rule and the responses to comments on the proposed GS rule.  

Letter ID: 0383 Comment ID: 28111 Letter Lines: 167 to 183  

Comment Code: 6000 6. Other Comments that are Out of Scope for the NODA  

Comment: In closing, as AMWA has commented before, many strategies must be used to reduce  

GHG ‐ from conservation to alternative energy sources. Carbon capture and  

sequestration may be one tool in the toolbox, but it is not the silver bullet.  

Over two decades ago, MTBE was championed as the panacea to meet Clean Air Act  

requirements only to prove poisonous for many of the nation’s groundwater  

supplies. Therefore, careful research, data gathering and modeling and a  

commitment of long‐term financial responsibility must be accomplished in advance  

of deployment of GS or the allowance for waivers.  

It is good and necessary for our nation to increase mitigation of GHG emissions.  

However, the desire to mitigate GHGs cannot preclude or worsen our ability to  

adapt to climate change, particularly as climate change is currently affecting  

the hydrologic cycle and in many cases, adversely impacting water supplies.  
Again, AMWA appreciates the opportunity to comment on EPA’s NODA. If there are  

any questions about our comments please contact me or Erica Brown, Director of  

Regulatory Affairs and Scientific Program Development, at 202‐331‐2820.  

Individual Response: This comment is outside the scope of the Notice of Data Availability and the UIC

Program’s authority under the GS rulemaking.