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 regul atory program has been cited by many as a prerequisite to the implementation of energy reform initiatives involving carbon reduction measures on bot h the federal and state level. Because the electric utility industry has been identified as the primary industrial sector targeted for regulat ion under future carbon capture and sequestration (CCS) regulations, the electr ic 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. Pleas e see the remainder of EPA’s responses to this comment for further deta ils. 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 outse t the development of a viable, largescale commercial CCS program requires re solution 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 Depart ment of Energy; United States Geological Survey; Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the Minerals Management Service; Bureau of Land Ma nagement). The Agency continues to evaluate areas of potential applicability of other Federa l environmental statutes including, but not limited

to: the Clean Air Act; the Resource Conserva tion and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liabili ty Act; and the Marine Protection, Research and Sanctuaries Act to various aspects of GS a nd CCS. The Agency will continue to coordinate

on GS and CCS related issues to minimize redunda ncy and maximize efficiencies for owners or operators. For additional information, please s ee 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.

1Letter 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 i ssues (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 potentia l for liability under the Re source 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-ter m post-injection liability for Class VI wells. As discusse d below, there are pr actical regulatory and legislative options ava ilable to resolve these uncertainties that will help assure the public and the regulated comm unity 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 appl icability 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 pa rticular 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 comment ers who wish to submit comments on the RCRA proposal will need to do so during the comment pe riod for that rule. Finall y, EPA also notes that

the final GS rule, which adds ne w regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any ch anges 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 (p erformance-based standards)

Comment: It is imperative that the Final Rule re flect the challenges inherent in crafting regulations for commercial CO2 injection activities when larg e-scale commercial operations are only at the nascent stage. The challenge confronting EPA in this rulemaking is to establish a cost-eff ective 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 emphasi ze performance-based ru les that can be readily adjusted and fine-tuned as industr y and regulators alike gain experience with large-scale CO2 seque stration. Tampa Electric acknow ledges EPA's efforts to build flexibility mechanisms into the Proposal, including provisions for

directorial discretion and th e suggestion that forthcoming guidance may be used

2to clarify other requirements. In general, we agree that these methods will help create a regulatory framework that can e volve as information and technological advancements are gained in the field of carbon capture and se questration. It is important, however, that any directoria l 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 flex ible approach, where operators of GS projects would develop and implement site-specific plans for delineating the AoR, testing and monitoring the site, performing corrective actio n, and post-injection site care . EPA believes that the plans— which would be reviewed and approved by the Director and periodical ly updated throughout the life of the project—promote an ongoing dialogue between the operato r and the Director that will encourage use of the most appropriate t echnologies 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 ad aptive approach to regulating GS under the UIC Program. Even after finalization of the GS regulat ion, 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 documenta tion 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 issu es on developing GS regul ations that are the equivalent of minimum federal criteria and requirements. The gui dance will describe areas of

Directorial discretion and consid erations for how that discre tion 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 accord ance 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 "economical ly significant guidance document" as "a significant guidance document that 'm ay 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 s ector a the economy." See 72 Fed. Reg. at

33435.

Individual Response: To promote consistency while providi ng 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 Cla ss VI wells under Section 1422 of SDWA, as well

as the technical and administrative issues associ ated 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/ground water/uic/wells_sequestration.cfm.

EPA intends to take OMB’s Good Guidance Manual in to consideration as gui dance is developed.

OMB’s Good Guidance Manual esta blishes policies and procedures for the development, issuance, and use of significant guidance docum ents 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 (p erformance-based standards)

Comment: Because information and technology relate d 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 require ments for CO2 GS wells is the protection of underground s ources 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 be cause there is sure to be demand for significant capacity for CO2 GS -- EPA shoul d not prematurely preclude the use of specific types of sites or methods for Class VI CO2 in jection. 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 unders tood), provided that the Owner or Operator can show that the injection a nd storage will be protective of USDWs.

Individual Response: As described above, EPA believes that the Class VI requirements balance site-specific flexibility with US DW 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 fac ilitating 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

4regulations for all areas related to carbon sequestration, including "determining property rights (i.e., to permit its use fo r [carbon sequestration] and for possible storage credits) [and] transfer of liability from one entity to another", but feels that part s of this regulation can be constructed so as to provide important guidance in further statue and re gulatory development as related to these issues. Of main import ance in this particular regulation development, if the Federal government be lieves 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 incl ude verbiage anal ogous to underground natural gas storage eminent domain powers or oil and gas uni tization processes for acquisition of pore space of a geol ogical formation. Also, the EPA may consider providing guidance similar to th at of the "negative rule of capture" for secondary oil recovery operations (wat er flooding), which provides that less valuable substances injected into a geol ogical 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 th ese 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 accounti ng 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 operati ons across the United States and provide requirements to prevent endangerment of USDWs in anticipation of the ev entual use of GS to reduce CO2 emissions.

However, the Agency acknowledges that these issu es 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 re porting 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 da ta 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 Respons ibility and Long-Term Care Requirements

Comment: - EPA must resolve key policy and legal uncertainties to alleviate financial concerns of potential Cl ass VI well Owners or Operators and to encourage investment in the development and opera tion of Class VI CO2 injection wells.

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

5demonstrate and maintain financial responsibilit y for addressing corrective action on wells in the AoR, injection well plugging, PISC and site clos ure, 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 th e financial responsibili ty 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 deploy ment 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 fina ncial responsibility re quirements for Class VI well owners or operators is to ensure that fi nancial resources are available to prevent endangerment of USDWs from improper plugging, remediation, and manageme nt of wells in the event that the owner or operator experiences financial diffi culties during the life of the Class VI well. See the final rule and preamble for further discussion of EPA's fi nal approach to financial responsibility.

Letter ID: 0212 Comment ID: 22903 Letter Lines: 132 to 133

Comment Code: 1630 1.3.3 RCRA/hazardous waste i ssues (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-inje ction liability.

Individual Response: EPA received many comments regardi ng the applicability of the RCRA regulations and statute to CO2 st reams that are geologically seque stered under the final Class VI UIC well requirements. As a result, EPA has deci ded to initiate a sepa rate proposed rulemaking specifically to examine the issue of RCRA appl icability 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 pa rticular 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 comment ers who wish to submit comments on the RCRA proposal will need to do so during the comment pe riod for that rule. Finall y, EPA also notes that

the final GS rule, which adds ne w 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 su bstance 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 su ch substances may result in CERCLA liability from a sequestration facility depe nds 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

6carefully 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 remedi al response is necessary. Although EPA anticipates that the need for emergency or remedial actions at GS sites wi ll be rare, the GS rule requires, at §146.94, that emergency and remedial response plans be deve loped and updated to address such events and that owners or operators demonstr ate 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 regu latory requirements

under Part 146 for Class VI wells and the Dire ctor has approved site closure pursuant to requirements at §146.93, the owner or operato r will generally no longer be subject to enforcement for regulatory noncompliance. Furtherm ore, 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 ce rtain circumstances. For example, an owner or operator may be held liable for regulatory noncompliance even afte r site closure was approved if the Director relied on erroneous information (e.g., erroneous modeling data) provid ed by the owner or operator when approving site closure.

Separate from EPA's authority to enforce regul atory compliance, an owner or operator may be subject to a §1431 response orde r even after proper site cl osure is approved under §146.93. Under §1431 the Administrator may require an ow ner 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 pres ent an imminent and s ubstantial endangerment to the health of persons, and the appropriate Stat e and local authorities ha ve not acted to protect the health of such persons. Th e action may include issuing admi nistrative orders or commencing a civil action for appropriate relief against the ow ner 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 ope rator may remain liable under tort and other

remedies, or under other federal statutes includi ng, 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 SD WA 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 ris k, don't stigmatize CO2

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

7unnecessarily more stringent than existing requirements for ot her well classes under the UIC Program. While it is essential that the Final Rule be protective of USDWs, many of the more rigorous requi rements proposed for Class VI wells are not warranted by findings of unique risks pos ed by CO2 GS wells. The Final Rule should craft requirements that protect USDWs while avoiding the imposition of unnecessary costs or the ina ppropriate creation of a nega tive public perception of CO2 GS projects.

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

or that it is unnecessari ly 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 pr oper 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 pot ential impurities in the CO2 stre am. In addition, EPA expects the tailored permitting, siting, construction, operation, monitoring, and post-injection site care requirements in the GS rule to prevent leakag e from injection formati ons and protect USDWs.

EPA does not believe that the tailored require ments will create a negativ e 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 c onfidence 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 (p erformance-based standards)

Comment: - Because the technology described in th e 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 Pr ogram, the Final Rule should avoid arbitrary absolutes or blanket prohibiti ons regarding site selection or well construction or injection procedures. The Final Rule should keep available as many options as possible for site selec tion 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 appropria te documentation are being collected, and to determine if modifications to the requir ements 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 (p erformance-based standards)

8Comment 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 technol ogy is still developing and the characteristics and limitations of CO2 GS projects will vary greatly from one

site to another it is essential to inco rporate performance-based standards into the Final Rule, leading to a site-tailored approach to requirements for Area of Review ("AoR") reevaluation and post-inj ection 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 year s, with Director's di scretion to shorten or lengthen this timeframe, combined with a site-s pecific Director’s disc retion to create an

alternative PISC time frame, ensu res that USDWs are protected. The GS rule offers owners or operators flexibility regarding th e duration of the PISC timeframe by: (1) allowing the Director discretion to shorten or lengt hen the PISC timeframe during the PISC period based on sitespecific data, pursuant to require ments at §146.93(b); or (2) afford ing the Director discretion to allow a Class VI well owner or operator to demo nstrate, based on substa ntial 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 expect s 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 US DWs and post-injection site care monitoring may be discontinued. EPA believes that a default post-injection site car e 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 ac commodate site-specific circumstances and various geologic conditions, and addre sses commenters’ concerns, wh ile ensuring USDW protection. Both approaches will utilize si te-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 considerat ion of site-specific co nditions is appropriate for the AoR calculation and reevaluation process. EPA believes that the flexibility incorporated into the AoR and corrective action plans and th e provision for AoR reeval uation 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 mo st appropriate modeling and corrective action technologies are used to prot ect USDWs from endangerment. However, EPA believes that setting a minimum reevaluation frequency is appr opriate. 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 unc ertainties in modeling CO2 move ment, the emerging nature of GS technology, risk-based targeti ng of monitoring activ ities, and the unique nature of CO2 GS.

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

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

Comment: - In discussing the potential applicability of RCRA's hazardous waste rules to Class VI CO2 injection activities, EPA prem aturely assumes that the CO2 is being

"discarded" and is a soli d 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, partic ularly given that the UIC permit will ensure that the injected ma terial is not mismanaged.

Individual Response: EPA received many comments regardi ng the applicability of the RCRA regulations and statute to CO2 st reams that are geologically seque stered under the final Class VI UIC well requirements. As a result, EPA has deci ded to initiate a sepa rate proposed rulemaking specifically to examine the issue of RCRA appl icability 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 pa rticular 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 comment ers who wish to submit comments on the RCRA proposal will need to do so during the comment pe riod for that rule. Finall y, EPA also notes that

the final GS rule, which adds ne w regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any ch anges 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 fi nancial responsibility mechanisms available for post-injection care, EPA should retain the option of selfinsurance instruments includi ng the corporate financial test. Self-insurance has worked successfully for ove r 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 sp ecter of open-ended financial liability for CO2 injection operations after the cessa tion of the post-inj ection site care period. Such open-end liability is one of the major impediments to the successful development of a co mmercial 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 marg in sufficient to cover contingencies and unknown obligations, and stabili ty. If the owner or operator meets corporate financial test criteria, this is an indication that the owner or operator can guarant ee its ability to satisfy financial obligations

10based solely on the strength of the company’s fina ncial 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 m eets the financial requirements on its behalf.

Under SDWA authority, owners or operators of injection well s must ensure protection of USDWs from endangerment and are subject to liab ility for enforcement under the Act. The final rule requires that an owner or operator must c onduct post-injection site car e that is consistent with the approved PISC plan or for the durati on of the alternative tim eframe approved by the Director pursuant to requirements in §146.93(c) , until a demonstration can be made to the

satisfaction of the Director th at the plume and pressure front no longer pose a risk of endangerment to USDWs. For additional info rmation about the PISC and site closure requirements, see the preamble to the final GS rule.

Once an owner or operator has met all regulator y 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 re quired under §146.85 will be released if it was not

used. However, even if a site closure is a pproved under §146.93, an owner or operator may be held liable for regulatory noncompliance (inc luding 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 a pproved if the Direct or relied on erroneous information (e.g., erroneous modeling data) provi ded 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 SD WA after site closure if there is unanticipated migration towards or into a US DW 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 penalt y 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 re sponsibilities are transferred to that new owner and operator, which includes all poten tial liabilities associat ed with meeting the requirements of that permit. Please see further clar ification on the issue of long term liability in the preamble of the final rule.

Furthermore, after site closure an owner or ope rator may remain liable under tort and other

remedies, or under other federal statutes includi ng, 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.

11Letter 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 a pplication process overly burdensome or unrealistic by requiring detailed informati on that may not be available at the time of the initial application; inst ead, the Final Rule should allow for submission of updated information regardi ng a CO2 GS well and its AoR as that

information becomes available.

Individual Response: EPA disagrees that any of the protective requirement s are unnecessary, and believes that the Class VI GS requirements for obtaining a permit are ta ilored so that they are appropriate for the unique nature of inj ecting 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 deve lops their initia l 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 be fore well construction is approved (at §146.82(a)) and information to be submitted before operati on of the well is aut horized (at §146.82(c)).

EPA believes that this revisi on 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 inje ction well classes, which could help avoid confusion about how to meet the permitting requirem ents 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 modifi cations and additions th at 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 Ru le should allow gr andfathering of construction and operating requirements fo r 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 Cl ass V experimental technology wells are designed and constructed to withstand exposure to CO2. The final GS rule provides for the

12construction of these wells to be grandfathe red per §146.81(c), provided th e owner or operator

can demonstrate to the Director that the wells were engineered and constructed to meet the requirements at §146.86(a) and ensu re 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 fo llowing 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 (p erformance-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 Stat es that describe the process of applying for and receiving primary enforcement au thority (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 re quirements. 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 rule s 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 settin gs in which GS will be applied. EPA recognizes

that State, Tribal, Territorial a nd DI UIC Program Direct ors are in the best position to evaluate the unique issues related to well depth, geol ogy, and hydrogeology that are posed by a Class VI well. Some degree of flexibility is needed for Cl ass VI wells because each decision made will be site-specific and conditions will di ffer from state to state. The GS rule balances the need for these site-specific decisions with the need for mi nimum standards to ensure national consistency.

The Agency believes that it is important for stat es to use their unique e fficiencies to promote adoption of this burgeoning and important tec hnology, 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

13primacy for Class VI only.

Given the potential for CCS (encompassing captur e, 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 we lls independently of other well classes can help foster effec tive management of CCS. EPA belie ves that allowing independent Class VI primacy may encourage states to take responsibility for impl ementation of Class VI regulations and provide for a more comprehensive approach to managing CCS projects by promoting the integration of GS activities unde r SDWA into a broader framework for managing CCS. The Agency will allow independent primacy for Class VI we lls under §145.1(i) of the final GS rule. Furthermore, GS operations involve an cillary activities (e.g., pi peline 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 particip ation process (seeking comment)

Comment: The ultimate successful long term implemen tation of a UIC Final Rule will be dependant on public outreach of the GS of CO2. It is critica lly important to: (1) identify and respond to publ ic needs, fears, and desires; (2) inform the public about carbon sequestrati on strategies; (3) involve the public in a joint discovery of opportunities associated with carbon sequestration; (4) educate the public the appropriate amount of risk associ ated 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 author ities and GS operators to provide the public, including residents near the proj ect, with as much project-specifi c information as possible. EPA encourages owners or operators and permitti ng 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 commun ities 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 perm itting 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 pub lic 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

14comment period. Permitting authorities are requi red under §124.8 to produce a fact sheet which typically summarizes relevant information for th e public in a much more understandable format than the supporting data in a permit applica tion. The fact sheet describes the draft permit conditions, procedures to determine the final deci sion on the permit, any procedures to request a hearing, and procedures that may be available for additional pub lic 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 im pact on the cost of elec tricity is likely to be influenced by all aspects of CCS, including cap ture, transport, and se questration. Sequestration costs are expected to be a small component of total CCS project co sts; EPA estimates that the GS requirements amount to approximately 3 perc ent 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 Electri c endorses the comments filed by EEI

and

USWAG in this docket.

Individual Response: EPA acknowledges the comment. Pleas e 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 EP A's final regulatory a pproach, please see the final rule and preamble as we ll as the rulemaking docket.

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