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.
V~g~·DAKOTA ADivision of MDU Resources Group, Inc.

400 North Fourth Street

Bismarck, ND 58501

(701) 222·7900

December 24, 2008

Submitted via internet on www.regulations.gov

Water Docket

U.S. Environmental Protection Agency

Mailcode: 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Attention: DocketlD o. EPA-HQ-OW-2008-0390

Subject: Federal Requirements Under the Underground Injection Control (VIC) Program

for Carbon Dioxide (C02) Geologic Sequestration (GS) Wells (73 Federal Register 43492,

July 25,2008)

Montana Dakota Utilities Co., a division ofMDU Resources Group, Inc. (Montana-Dakota)

submits the following comments on the U.S. Environmental Protection Agency (EPA)'s

proposed rule for regulating the injection and geologic storage (GS) of carbon dioxide (C02)

under the Safe Drinking Water Act (SDWA)'s underground injection control program (VIC),

issued on July 25,2008. Montana-Dakota appreciates the opportunity to comment on EPA's

proposed rule. The proposed regulation provides a critical lTamework for implementing future

CO2 GS projects in which CO2 is captured and sequestered from fossil-fired power generating

facilities.

At the outset, Montana-Dakota would incorporate by reference the comments made by the

Edison Electric Institute, Lignite Energy Council, University ofNorth Dakota's Energy and

Environmental Research Center (EERC) and Western Bllsiness Roundtable.

Background

Montana-Dakota generates, transmits and distributes electricity in North Dakota, Montana, South

Dakota and Wyoming, and distributes natural gas in these same states, and also Minnesota. The

company owns and operates coal and natural gas fired electric generating facilities, as well as

wind turbine and heat recovery electricity generation facilities. Currently, Montana-Dakota

generates a majority of its electricity through fossil-fired power plants. Therefore, the proposed

rule, in providing additional certainty in capturing and sequestering CO2, is expected to support

Montana-Dakota's continued utilization ofthe region's abundant fossil fuel resources in order to

continue generating affordable electricity for its customers. Montana-Dakota believes it is
important to proceed with development ofCO2 GS projects while preventing potentially

undesirable impacts to drinking water resources.

Montana-Dakota strongly supports research and development efforts underway to facilitate

commercial-scale CO2 capture and sequestration (CCS) projects, and shows this support

specifically through its active membership in the Plains CO2 Regional (PCOR) Partnership. Led

by the EERC and assisted by its members, PCOR and has developed and is currently carrying

out two CO2 geologic sequestration projects designed to demonstrate the effectiveness ofCO2

geologic sequestration. As these efforts increase, it is necessary to develop clear, flexible and

appropriately tailored regulations to facilitate the development of and spur investment in carbon

capture and sequestration technology. The proposed rule assists with creating additional certainty

in approaching GS project development, however there are some concerns that need to be

addressed. Montana-Dakota offers comment on the following issues:

Potential Obstruction of Enhanced Oil Recoverv (EOR) Activities

EPA's search for a regulatory structure to manage geologic sequestration ofCO2, in the context

ofCO2 capture initiatives contemplated in CCS initiatives, has resulted in this proposal to create

a new SDWA UIC "Class VI" category. This effort reflects the fact that geologic sequestration

wells do not fall neatly into any ofthe current SWDA UIC classes. Montana-Dakota understands

that rationale and generally supports the distinction being drawn. In fact, Montana-Dakota wants

to make sure that the distinction is drawn clearly enough that it does not confuse or impede the

existing CO2 uses, such as enhanced oil recovery (EaR), already covered under Class II of the

UiC regime.

Utilize Performance-based Standards for Proposed Sites

As proposed, EPA's regulations contain a number of default provisions that would apply

universally to projects. Rather than imposing default provisions, those portions ofthe rulemaking

that address inherently site-specific issues should allow for site-specific, perfonnance-based

determinations as part ofthe permitting process. Sites will differ greatly geologically and

otherwise.

CO2 Not to Be Considered a Hazardous Waste

Montana-Dakota believes it is critical that any regulation under the UlC program does not

UlU1ecessarily characterize CO2 as a waste, pollutant or contaminant or otherwise unduly

stigmatize the injection and GS of CO2. While it is appropriate to consider the actual

characteristics ofCO2 and tailor regulations accordingly, unwarranted characterization ofCO2 as

a hazardous waste, for example, should be avoided.

Careful Characterization of Site Risks

It is, of course, crucial that the fmal rule meet EPA's objective of protecting drinking water

supplies. We are concerned, however, that some ofthe more stringent requirements being

proposed for Class VI wells are not supported by findings of unique risks actually posed by CCS

wells. EPA's regulations should be based upon an accurate characterization of the potential risks

posed by the geologic sequestration ofCO2 and be specifically tailored accordingly to address

those identified risks. This will ensure that EPA meets its obligation to provide appropriate

protection of underground sources of drinking water, while avoiding unnecessary regulations that

2
may hamper CCS or EaR projects from going forward or call into question the general safety of

CO2 storage.

Regulations tailored to ensure proper site selection will in tum minimize the need for regulations

crafted to respond to risks that, in such a context, would be extremely unlikely to occur. For

example, simply limiting CO2 injection to only beneath the lowemlost formation containing

Underground Sources of Drinking Water (USDW) is unwarranted. The suitability of the

receiving fomlation and the project's general protectiveness ofUSDW are already required to be

evaluated as a part of each GS permitting exercise in the proposed rule, and may prove that upper

fomlations are appropriate for GS ofCO2.

Montana-Dakota believes that the properties ofCO2, while unique in some respects, do not

require or warrant such stringent treatment. Plainly adopting a requirement for CO2 GS, such as

used for hazardous waste, would be likely to create the misperception that CO2 injection wells

are analogous to hazardous waste injection wells and thus carry analogous risks.

Secondary Containment Requirement Concerns

A proposal to require secondary contairunent, even in discretionary form, is unnecessary and

unwarranted for many ofthe same reasons that a blanket limitation on receiving formations is

unnecessary and unwarranted. The presumed purpose ofsecondary containment is better

addressed through proper site selection and well-designed plans to detect and contain leakage

from the primary containment system. Montana-Dakota believes that the physical and chemical

propel1ies of CO2 are not sufficiently unique, nor do they pose a sufficiently unique potential

threat to USDW, to warrant such unprecedented treatment under the VIC program.

Imposition ofa substantially more rigorous requirement on injection and storage ofCO2 strongly

implies that such a project would be more dangerous than underground injection of a host of

other materials, including hazardous wastes. The final rules should be crafted to avoid creating

this public stigma for one ofthe most promising GHG-management strategies, and for a

technology that can be employed safely and effectively in the absence ofsecondary containment

requirements of any sort.

However, should the EPA choose to impose a discretionary requirement for program directors to

determine secondary containment requirements, the current proposal should be modified to

include such clear guidelines in order to provide some amount of certainty for operators and

investors, as well as to avoid the metamorphosis ofwhat is a discretionary requirement on paper

into a default requirement in practice.

Periodic Reevaluation of Area of Review (AOR)

The proposed regulations would require operators to reevaluate the proper scope ofthe AOR

periodically at a minimum fixed frequency to be set by the program director, currently proposed

as no less than once every 10 years, with the discretion to require more frequent reevaluation.

AOR reevaluation provisions should be triggered by reasonable parameters, taking into

consideration site-specific issues. AOR issues are inherently site-specific; different projects, and

even different geographical regions ofthe country, likely warrant different approaches.

3
Montana-Dakota believes that tying reevaluation to the triggering of appropriate circumstances

will provide equivalent protection for USDW while also ensuring that those projects posing

greater relative risks receive greater scrutiny through more stringent reevaluation requirements,

and those projects posing fewer relative risks are relieved of unnecessary regulatory burdens. At

a minimum, any default period for reevaluation should be determined based on site-specific

characteristics at the time of project permitting.

A phased corrective action approach as proposed in the rule has merit particularly where periodic

reevaluations ofthe AOR are to be required. A phased approach will help ensure that all

necessary corrective action is taken, but also that unnecessary corrective action is avoided.

Closure and Post Injection Site Care (PISC)

Establishing a default time period for PISC, in particular a default time period as lengthy as 50

years as proposed in the rule, is unnecessary and undesirable, and the dual goals of protecting

USDW and supporting the commercialization of CCS technology are far better served through a

site-specific, performance-based approach. Montana-Dakota believes that the unique

characteristics ofCO2 do not justify imposition ofsuch a lengthy default PISC period for GS

projects. Appropriately sited projects should demonstrate the absence of endangemlent to USDW

in substantially less than 50 years.

Further, imposing requirements on CO2 storage projects that are far beyond those currently in

place even for injection of hazardous wastes is unnecessary and will only engender public

misperceptions regarding the safety ofsuch projects. There is potential for an obligation to

provide financial assurance for activities running through 70 years into the future (according to

EPA's assumption of a 20-year injection period), or more. Especially, given the ongoing credit

crisis, an unjustifiably lengthy PISC period may make obtaining the necessary financial

assurance impossible, stwlting or stopping commercial development ofCCS.

Montana-Dakota urges EPA to implement a performance-based approach that considers the

circumstances of a particular project, bounded by appropriate parameters for its application, and

also encourages the EPA to establish clear parameters for such a performance-based approach,

and in pa11icular, a clear set of guidelines for demonstrating that the injectate has "stabilized",

and for meeting the non-endangerment standard.

Financial Assurance Provisions

Requiring financial assurance for potential liabilities for more than 50 years in the future may

deter and even prevent investment in CCS projects. This timeframe exceeds what is currently in

place even for injection of hazardous wastes, and there is significant concern raised regarding the

perspective of promoting CCS development. Montana-Dakota questions whether any significant

showing has been made that the physical and chemical properties ofCO2 are sufficiently unique,

or that they pose a sufficiently unique potential threat to USDW, to warrant such unprecedented

treatment under the UTC program.

Financial assurance requirements should in no event go beyond what is currently required for

Class I hazardous waste injection wells (i.e., beyond requirements to assure corrective action in

4
the AOR). Again, there is the concern that treating CO2 more stringently than other injectate

would create undue public concern and potentially inhibit CCS implementation. MontanaDakota encourages EPA to consider the experience of current CCS demonstration projects in

moving forward with financial assurance provisions.

Also, the proposed rules do not contain clear provisions for reducing fmancial assurance

obligations over time in accordance with declining risk. Financial assurance requirements should

be based upon the actualities ofthe risk curve for CCS projects, and ideally the risk curve for a

particular CCS project. Financial assurance requirements as proposed do not include provisions

that would allow site-specific characteristics to be taken into account. It is crucial that any

financial assurance requirements be sufficiently flexible to take into account the particular risks

associated with any given project and also, the type offinancial assurance mechanism that can be

utilized.

The preamble indicates that EPA may be willing to consider a phased or staged approach to

financial assurance requirements, as well as separate financial assurance demonstrations for

plugging and PISC activities at later points in time. Such provisions would ease some ofthe

difficulties with the financial assurance proposal in terms of estimating costs for future activities

assuming that better estimation tools would become available.

It is understood that stakeholders have already reported some difficulty in obtaining insurance

coverage for CCS projects. Montana-Dakota encourages the EPA to evaluate this issue carefully

and ensure that it is not creating obligations with which operators simply cannot comply, or

which are so expensive that commercial development and deployment of CCS will be crippled at

the outset.

The preamble acknowledges that EPA is making no attempt to factor in circumstances in which a

state, for example, or other third party has assumed long-term risk or liability for or ownership of

stored CO2 (as is contemplated in the Interstate Oil and Gas Compact Commission (IOGCC)

model statute and regulations issued in September 2007 and by some states). Montana-Dakota

encourages the EPA to consider that liability transfers may be effectuated under other laws and

to examine closely how the UIC rules can take such provisions into account, and consider how

these entities would be required to provide financial assurance.

Grandfathering Other Wells

EPA has proposed giving the DIC program discretion to "grandfather" the construction

requirements for existing Class II and Class V experimental wells (as well as existing Class I

wells that were not intended to inject CO2 originally, since well construction requirements for

Classes I and proposed VI are similar) where the UIC program director can determine that the

wells will not endanger USDW. Such grandfathering is soundly justified, as these wells have

been constructed specifically for injection and, particularly in the case ofClass V experimental

wells, for storage ofCO2 and are suitable for the purpose for which they are designed. The

promulgation of new regulations should not render them unfit for the purpose for which they

were intended.

Further, pemlittees ofthese wells presumably were required to satisfy the non-endangerment

5
standard as part ofthe initial permitting process. However, under these circumstances, potential

grandfathering likely would not provide the needed assurance, and thus the needed incentives, to

project operators or investors that existing wells, or, perhaps more importantly, new wells that

may be permitted before the proposed rules take effect, will remain viable wells from a

regulatory perspective going forward.

There is a concern that EaR operators faced with the proposition of 50 or more years of financial

assurance requirements may decide that the benefits of converting to a CCS operation are not

worth the costs and could deter CCS projects from implementation. It is understood that wells

permitted to inject and store CO2 have already been deemed safe and suitable for those purposes,

and a determination has already been made that no endangerment is posed to USDW.

The grand fathering provision in the rule should be as expansive as possible while balancing the

need for protection ofUSDW, and thus Montana-Dakota believes that a couple ofmodifications

should be made to the proposed rule. A preferable approach would be to expand the scope of

available grandfathering for existing wells, given that the wells were initially constructed for

injection of CO2. Also, it would be preferable to allow grandfathering as a default, unless the

program director determines that, due to specific concerns, a project would not be suitable for

CO2 storage.

State Primacy

Montana-Dakota agrees that states and tribes should playa key role in managing CCS projects.

Many states are moving ahead with developing their own legislation and regulations related to

CCS activities, as are a number of western states. The EPA should consider potential issues

related to projects that may span multiple states in light of primacy issues. The EPA should

consider provisions in the rule for establishing a primary state for permitting purposes, with

additional affected states provided an opportunity for notice and comment.

Other Law Implications

Montana-Dakota urges EPA to evaluate carefully any proposed treatment ofthe Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA) and Resource

Conservation and Recovery Act (RCRA), or other laws, that it may be considering under the

Class VI regulations to ensure that any such treatment is necessary and does not serve as an

unintended springboard for hampering the successful conunercialization of CCS. Unless CO2 is

categorized as a commodity, and not as a waste, there could be significant complications in

implementing C02 GS projects.

Once a material is deemed to be a solid waste, an additional set of parameters applies to

determine whether that substance is also a hazardous waste and thus subject to further regulation.

Montana-Dakota recommends that EPA examine an approach to determining that CCS activities

which meet VIC permit requirements are not equated to discarding the CO2. Identifying CO2 as a

waste could limit the use ofstored CO2 in any potential future applications.

The EPA jumps to an unnecessary and potentially confusing discussion in the preamble of

whether injected CO2may be a hazardous waste, potentially implying that CO2 is a solid waste

to begin with. Montana-Dakota recommends that any characterization of potentially hazardous

6
constituents in CO2 injectate may be addressed, possibly through Toxicity Characteristic

Leaching Procedures, as part ofthe DIC permitting process without addressing any potential

RCRAjurisdictional issues. This should be examined further by EPA in regard to both RCRA

and CERCLA implications.

Limits on EPA Authority and Discretion

EPA should consider the significant interests and experience ofthe states in developing

regulations. Montana-Dakota recognizes that in order to allow for effective site-specific

determinations and to maintain essential regulatory flexibility, some amount of discretion must

be vested in the UTC program director. At the same time, such discretion should be bounded by

the inclusion ofrelevant and appropriate considerations for making necessary determinations. in

general, the rules should establish with sufficient clarity the factors to be taken into account and

leave the precise determinations to the permit process.

EPA should adhere to its limited authority at this juncture under SDWA and should avoid

exceeding that authority. The value of developing a clear regulatory regime will be undermined

ifthat regime is potentially unstable or subject to lengthy delays because of potential

susceptibility to attack for failure to adhere to EPA's authority. On the other hand, EPA should

strive to anticipate future statutory and regulatory developments in the climate change arena so

that any rulemaking has a reasonable chance of melding with such developments.

Much ofthe experience and expertise associated with injection and storage ofCO2 that currently

exists is the result ofseveral decades of experience with EOR and enhanced gas recovery

operations through Class II UTC permits. As CCS gains momentum as a GHG mitigation tool,

EOR operators may provide not only this wealth of experience and expertise, but also the first

push toward commercial CCS by seeking to convert existing EOR operations to purely storage

operations to take advantage of whatever credits may eventually become available under climate

change legislation or regulation.

Public Education

Montana-Dakota supports the development ofregulations and policies that will serve to educate

the public and provide for appropriate public input on projects, however, public participation

provisions like those currently applicable under RCRA are unnecessary and undesirable for GS

projects. Otherwise, Montana-Dakota believes that the rule provides a rational public

participation approach for GS projects. The EPA is recommended, as it indicates its interest in

the preamble, to provide education about this topic on their website regarding the benefits and

true risks ofCCS projects.

Conclusion

Montana-Dakota encourages the EPA to consider carefully the link between each proposed

provision and its authority to regulate under SDWA. Where the link is more tenuous, the

proposed provision may be subject to greater risk of legal challenge, posing uncertainty for those

who desire to move ahead with CCS projects. Montana-Dakota believes that the EPA has

proposed a rule that, pending the consideration of the above recommendations, should provide

additional certainty for further CCS project development.

7
Thank you for the opportunity to comment on this proposal. If you have any questions, please

contact me at (70 I) 222-7844.

Sincerely,

Abbie Krebsbach

Environmental Manager

cc: Andrea Stoll1berg, Vice President ofEJectric Supply

Alan Welte, Generation Manager

Geoff Simon, MDU Resources Governmental Affairs

Joe Icenogle, Fidelity Exploration

8
Letter ID: 0235 

Commenter: Abbie Krebsbach 

Organization: Montana-Dakota Utilities Co. 

Letter ID: 0235 Comment ID: 23175 Letter Lines: 35 to 38 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

Comment: Dakota appreciates the opportunity to comment on EPA's proposed rule. The 

proposed regulation provides a critical framework for implementing future CO2 GS 

projects in which CO2 is captured and sequestered from fossil-fired power 

generating facilities. 

Individual Response: EPA agrees that the UIC Program, under the authority of the SDWA, 

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

regulation tailors the UIC requirements to address the unique issues associated with large-scale 

GS, including large injection volumes, the relative buoyancy of CO2, its corrosivity in the 

presence of water, the potential presence of impurities in captured CO2, and its mobility within 

subsurface geologic formations. 

Letter ID: 0235 Comment ID: 23176 Letter Lines: 51 to 58 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment: electricity generation facilities. Currently, Montana-Dakota generates a 

majority of its electricity through fossil-fired power plants. Therefore, the 

proposed rule, in providing additional certainty in capturing and sequestering 

CO2, is expected to support Montana-Dakota's continued utilization of the 

region's abundant fossil fuel resources in order to continue generating 

affordable electricity for its customers. Montana-Dakota believes it is 

important to proceed with development of CO2 GS projects while preventing 

potentially undesirable impacts to drinking water resources. 

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

responses to this letter 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: 0235 Comment ID: 23177 Letter Lines: 60 to 70 

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

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

Comment Code: 1850 1.4.2 CO2 GS Field Research 

Comment: Montana-Dakota strongly supports research and development efforts underway to 

1
facilitate commercial-scale CO2 capture and sequestration (CCS) projects, and 

shows this support specifically through its active membership in the Plains CO2 

Regional (PCOR) Partnership. Led by the EERC and assisted by its members, PCOR 

and has developed and is currently carrying out two CO2 geologic sequestration 

projects designed to demonstrate the effectiveness of CO2 geologic 

sequestration. As these efforts increase, it is necessary to develop clear, 

flexible and appropriately tailored regulations to facilitate the development of 

and spur investment in carbon capture and sequestration technology. The proposed 

rule assists with creating additional certainty in approaching GS project 

development, however there are some concerns that need to be addressed. MontanaIndividual Response: EPA acknowledges the value of the DOE pilot projects and resultant data 

and information generated by such projects. EPA has evaluated permits and reviewed operational 

data and information associated with the seven RCSPs funded by the U.S. Department of Energy 

and coordinated through the National Energy Technology Laboratory (NETL). In addition to the 

information cited in the preamble to the proposed rule, EPA published a Notice of Data 

Availability and Request for Comment on August 31, 2009 (74 FR 44802) in which the Agency 

described the results of research at three DOE partnership sites: the Escatawpa, Mississippi 

project; the Aneth Field project in Paradox Basin, Southeast Utah; and the Pump Canyon Site, 

New Mexico. 

EPA agrees that flexibility to address new research is important. Even after finalizing the rule, 

the Agency plans to collect and review data every six years on GS projects, including research 

by the DOE Partnerships, 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 agrees that the implementation of the GS rule in a manner that ensures protection of 

USDWs from endangerment is important to establishing a foundation for further advances in the 

field of CO2 GS. EPA acknowledges the need for regulatory certainty: the final GS requirements 

provide a level of certainty by setting forth unique requirements for GS. These requirements 

include: the tailored AoR delineation process at §146.84, the types of monitoring appropriate to 

GS projects (§146.90) and the post-injection site care process (§146.93). For additional 

information on these requirements, please also see the discussion of EPA’s Final Regulatory 

Approach in the preamble to the final GS rule. 

EPA agrees that an adaptive and flexible approach is appropriate. To protect USDWs from 

endangerment and meet the potentially fast pace of GS deployment, EPA is using an adaptive 

approach to regulating CO2 injection for GS. The Agency plans to collect and review data every 

six years on GS 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. An adaptive approach will allow regulatory 

development to proceed in time to meet the current and future demands for Class VI permits 

while EPA continues to gather data from pilot projects and other research as it becomes 

available. 

2
Letter ID: 0235 Comment ID: 23178 Letter Lines: 73 to 83 

Comment Code: 2046 1.5.2.3 Continuing to classify CO2 injection for EOR/EGR as Class II/ 

dividing line between Class II and Class VI (seeking comment) 

Comment: Potential Obstruction of Enhanced Oil Recovery (EOR) Activities 

EPA's search for a regulatory structure to manage geologic sequestration of CO2, 

in the context of CO2 capture initiatives contemplated in CCS initiatives, has 

resulted in this proposal to create a new SDWA UIC "Class VI" category. This 

effort reflects the fact that geologic sequestration wells do not fall neatly 

into any of the current SWDA UIC classes. Montana-Dakota understands that 

rationale and generally supports the distinction being drawn. In fact, MontanaDakota wants to make sure that the distinction is drawn clearly enough that it 

does not confuse or impede the existing CO2 uses, such as enhanced oil recovery 

(EOR), already covered under Class II of the UIC regime. 

Individual Response: EPA agrees that tailored requirements for Class VI wells are necessary to 

address the unique nature of injecting large volumes of CO2 and to ensure that USDWs are 

protected from endangerment. The GS rule contains tailored requirements for the permitting, 

geologic site characterization, AoR and corrective action, well construction, operation, 

mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure 

of GS wells that directly address issues unique to the nature of large-scale CO2 injection for GS. 

EPA clarifies that projects that inject CO2 for the primary purpose of long-term storage will be 

permitted as Class VI wells and will be subject to the specific requirements in the final GS rule. 

The GS rule contains tailored requirements that directly address issues unique to large-scale CO2 

injection for GS. 

In response to the comment that establishing a new well class will create economic and 

operational barriers, EPA clarifies that this comment is outside the scope of this rulemaking. The 

purpose of the GS rule is to ensure protection of USDWs from endangerment and not to promote 

or incentivize GS deployment. Howver, the Agency believes that establishing a regulatory 

framework for the future development and deployment of CCS technology may provide the 

regulatory and jurisdictional certainty needed to foster development and deployment of CCS 

while ensuring USDW protection. 

Letter ID: 0235 Comment ID: 23179 Letter Lines: 85 to 91 

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

Comment: Utilize Performance-based Standards for Proposed Sites 

As proposed, EPA's regulations contain a number of default provisions that would 

apply universally to projects. Rather than imposing default provisions, those 

portions of the rulemaking that address inherently site-specific issues should 

3
allow for site-specific, performance-based determinations as part of the 

permitting process. Sites will differ greatly geologically and otherwise. 

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. 

Letter ID: 0235 Comment ID: 23180 Letter Lines: 93 to 100 

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

Comment: CO2 Not to Be Considered a Hazardous Waste 

Montana-Dakota believes it is critical that any regulation under the UIC program 

does not unnecessarily characterize CO2 as a waste, pollutant or contaminant or 

otherwise unduly stigmatize the injection and GS of CO2. While it is appropriate 

to consider the actual characteristics of CO2 and tailor regulations accordingly, 

unwarranted characterization of CO2 as a hazardous waste, for example, should be 

avoided. 

Individual Response: The GS rule does not address the status of CO2 as a pollutant or 

commodity. While the Class I requirements formed the basis of many of the specific 

requirements for GS wells, EPA clarifies that the GS rule is tailored to the unique nature of GS. 

EPA based many of the GS requirements on the Class I regulations because, like Class VI wells, 

Class I wells are typically deep and involve waste streams that, if not properly managed, can 

harm the well and lead to contamination. 

With respect to RCRA, 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. 

Letter ID: 0235 Comment ID: 23181 Letter Lines: 102 to 117 

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

Comment Code: 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83) 

4
Comment: Careful Characterization of Site Risks 

It is, of course, crucial that the final rule meet EPA's objective of protecting 

drinking water supplies. We are concerned, however, that some of the more 

stringent requirements being proposed for Class VI wells are not supported by 

findings of unique risks actually posed by CCS wells. EPA's regulations should 

be based upon an accurate characterization of the potential risks posed by the 

geologic sequestration of CO2 and be specifically tailored accordingly to 

address those identified risks. This will ensure that EPA meets its obligation 

to provide appropriate protection of underground sources of drinking water, 

while avoiding unnecessary regulations that may hamper CCS or EOR projects from 

going forward or call into question the general safety of CO2 storage. 

Regulations tailored to ensure proper site selection will in turn minimize the 

need for regulations crafted to respond to risks that, in such a context, would 

be extremely unlikely to occur. For example, simply limiting CO2 injection to 

Individual Response: EPA believes that a detailed, site-specific, geologic site characterization 

(required under §146.82) is essential to evaluating the presence and adequacy of the various 

geologic features necessary to receive and confine injected CO2 for GS. The requirements for 

geologic site characterization are based on a long standing UIC regulatory framework developed 

to address specific risks to USDWs posed by injection. The Class VI GS requirements 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. 

Letter ID: 0235 Comment ID: 23182 Letter Lines: 117 to 128 

Comment Code: 4410 2.4.4.3.1 Comments in favor of allowing injection above/between 

USDWs in certain circumstances 

Comment: be extremely unlikely to occur. For example, simply limiting CO2 injection to 

only beneath the lowermost formation containing Underground Sources of Drinking 

Water (USDW) is unwarranted. The suitability of the receiving formation and the 

project's general protectiveness of USDW are already required to be evaluated as 

a part of each GS permitting exercise in the proposed rule, and may prove that 

upper formations are appropriate for GS of CO2. 

Montana-Dakota believes that the properties of CO2, while unique in some 

respects, do not require or warrant such stringent treatment. Plainly adopting a 

requirement for CO2 GS, such as used for hazardous waste, would be likely to 

create the misperception that CO2 injection wells are analogous to hazardous 

waste injection wells and thus carry analogous risks. 

Individual Response: EPA acknowledges that there are limited circumstances where injection 

above the lowermost USDW can be performed in a manner that protects USDWs from 

5
endangerment, as long as appropriate protections are in place. 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 for injection into non-USDW formations above and/or between USDWs. The 

waiver approach requires the submission of extensive, site-specific information (in conjunction 

with the permit application submission) to demonstrate that injection of CO2 into a non-USDW 

that is above or between USDWs can be done in a manner that is protective of USDWs. The 

requirements are designed to ensure that the owner or operator, the Director, and the Regional 

Administrator consider, on a site-specific basis, the implications, benefits, and challenges 

associated with GS and ensuring water availability and USDW protection. 

EPA believes that the additional procedures for public notice of a waiver application and for 

Director-Regional Administrator communication at §146.95 will improve public confidence in 

and acceptance of GS projects operating under injection depth waivers. EPA clarifies that, due to 

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

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

Regional Administrator makes the final determination regarding waiver issuance following an 

evaluation of all site-specific information, public notice, and recommendations from the UIC 

Director. For additional information on the waiver approach, please see the final rule and 

preamble, as well as EPA's responses to comments on the Notice of Data Availability and 

Request for Comment. 

Letter ID: 0235 Comment ID: 23183 Letter Lines: 130 to 155 

Comment Code: 3120 2.1.2 Need to identify additional confining and containment zones 

(seeking comment) 

Comment: Secondary Containment Requirement Concerns 

A proposal to require secondary containment, even in discretionary form, is 

unnecessary and unwarranted for many of the same reasons that a blanket 

limitation on receiving formations is unnecessary and unwarranted. The presumed 

purpose of secondary containment is better addressed through proper site 

selection and well-designed plans to detect and contain leakage from the primary 

containment system. Montana-Dakota believes that the physical and chemical 

propel1ies of CO2 are not sufficiently unique, nor do they pose a sufficiently 

unique potential threat to USDW, to warrant such unprecedented treatment under 

the UIC program. 

Imposition of a substantially more rigorous requirement on injection and storage 

of CO2 strongly implies that such a project would be more dangerous than 

underground injection of a host of other materials, including hazardous wastes. 

The final rules should be crafted to avoid creating this public stigma for one 

of the most promising GHG-management strategies, and for a technology that can 

be employed safely and effectively in the absence of secondary containment 

requirements of any sort. 

However, should the EPA choose to impose a discretionary requirement for program 

6
directors to determine secondary containment requirements, the current proposal 

should be modified to include such clear guidelines in order to provide some 

amount of certainty for operators and investors, as well as to avoid the 

metamorphosis of what is a discretionary requirement on paper into a default 

requirement in practice. 

Individual Response: EPA believes that the Class VI requirements, including the level of site 

characterization required under §§146.82 and 146.83, appropriately address the unique 

challenges posed by large-scale GS including large injection volumes, the relative buoyancy of 

CO2, its corrosivity in the presence of water, the potential presence of impurities in captured 

CO2, and its mobility within subsurface geologic formations. The Agency believes that in some 

geologic settings, the presence and identification of additional confining and containment zones 

above the primary (i.e., lowermost) confining zone can improve USDW protection. These 

formations could further impede vertical fluid movement, allow for pressure dissipation, and 

provide additional sites for monitoring, mitigation, and remediation, while also affording the 

greatest protection of USDWs from endangerment. 

EPA retains the requirement to identify additional containment/confining zones, if required by 

the Director, as proposed (e.g., §146.83(b)). The Agency's decision is supported by commenters 

representing states, water associations, and an electric utility who assert that these requirements 

(at §146.83(b)) promote a flexible, risk-based, site-specific approach to characterizing and 

permitting a site for GS projects. 

The Agency believes that providing the Director discretion will allow consideration of a range of 

sites for GS, based on site-specific conditions, and ensure USDW protection. EPA believes that 

requiring appropriate site characterization by the owner or operator (under §146.82) and 

providing an appropriate degree of flexibility to the Director to evaluate site-specific geologic 

data will afford the greatest protection of USDWs from endangerment. 

EPA is developing guidance on site characterization for GS projects to assist owners or operators 

and Directors in evaluating permit requirements and applications under §146.82. The guidance 

provides recommendations regarding characterizing the regional geology and hydrogeology of a 

proposed GS site as well as performing the necessary geochemical, geomechanical, and 

geophysical analyses of the injection and confining zone. EPA expects that this guidance will 

assist permit writers in making an objective decision about requiring additional confining layers. 

The guidance can be found on EPA’s website at 

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

Letter ID: 0235 Comment ID: 23184 Letter Lines: 157 to 174 

Comment Code: 3530 2.2.3.1 AoR reevaluation frequency (seeking comment) 

Comment: Periodic Reevaluation of Area of Review (AOR) 

The proposed regulations would require operators to reevaluate the proper scope 

7
of the AOR periodically at a minimum fixed frequency to be set by the program 

director, currently proposed as no less than once every 10 years, with the 

discretion to require more frequent reevaluation. AOR reevaluation provisions 

should be triggered by reasonable parameters, taking into consideration sitespecific issues. AOR issues are inherently site-specific; different projects, 

and even different geographical regions of the country, likely warrant different 

approaches. 

Montana-Dakota believes that tying reevaluation to the triggering of appropriate 

circumstances will provide equivalent protection for USDW while also ensuring 

that those projects posing greater relative risks receive greater scrutiny 

through more stringent reevaluation requirements, and those projects posing 

fewer relative risks are relieved of unnecessary regulatory burdens. At a 

minimum, any default period for reevaluation should be determined based on sitespecific characteristics at the time of project permitting. 

Individual Response: EPA agrees that site-specific information is an important factor in 

determining when AoR reevaluations are appropriate, per §146.84(e), and expects that the owner 

or operator's and Director's combined knowledge of the local geologic conditions will be a 

critical element in developing plans that protect USDWs from endangerment. 

EPA also believes that periodic AoR reevaluation at a set frequency is necessary to ensure 

protection of USDWs from endangerment and address the uncertainties inherent in predictive 

modeling. Periodic AoR reevaluations at §146.84(e) ensure that a deliberate effort is made to 

verify, based on monitoring and operational data, that the CO2 plume is moving within the 

subsurface as predicted. 

EPA is developing guidance on AoR and corrective action at GS Class VI sites to assist owners 

or operators and Directors in evaluating requirements and proposed AoR and corrective action 

plans under §146.84. The guidance describes EPA's recommended approaches for the data to be 

considered in an initial AoR delineation, how to apply computational modeling to delineate the 

AoR, performing corrective action at GS sites, and, when appropriate, completing AoR 

reevaluations. The guidance will be available on EPA's web site, at 

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

Letter ID: 0235 Comment ID: 23185 Letter Lines: 176 to 179 

Comment Code: 3630 2.2.4.1 Comments in favor of allowing phased corrective action 

Comment: A phased corrective action approach as proposed in the rule has merit 

particularly where periodic reevaluations of the AOR are to be required. A 

phased approach will help ensure that all necessary corrective action is taken, 

but also that unnecessary corrective action is avoided. 

Individual Response: EPA acknowledges the commenter’s support of phased corrective action 

8
and agrees that phased corrective action may provide many benefits to a project including, but 

not limited to, spreading the burden of cost, avoiding delays in project start-up, allowing for use 

of future, improved corrective action techniques, and addressing unanticipated changes in the 

movement of the CO2 plume or pressure front. EPA believes that the phased corrective action 

approach is appropriate for GS projects, and retained it at §146.84(b)(2)(iv) in the final GS 

regulation. 

Regarding the comment that some wells may not need corrective action, EPA clarifies that, if 

monitoring or modeling data indicate a change in the AoR, the owner or operator would need to 

review and amend the AoR and corrective action plan and follow the amended plan. EPA 

clarifies that all wells in the AoR of a GS project that need corrective action must receive it at 

some point. 

Letter ID: 0235 Comment ID: 23186 Letter Lines: 181 to 207 

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

Comment Code: 5430 2.9.1 Comments on proposed financial responsibility requirements (40 

CFR 146.85) 

Comment: Closure and Post Injection Site Care (PISC) 

Establishing a default time period for PISC, in particular a default time period 

as lengthy as 50 years as proposed in the rule, is unnecessary and undesirable, 

and the dual goals of protecting USDW and supporting the commercialization of 

CCS technology are far better served through a site-specific, performance-based 

approach. Montana-Dakota believes that the unique characteristics of CO2 do not 

justify imposition of such a lengthy default PISC period for GS projects. 

Appropriately sited projects should demonstrate the absence of endangerment to 

USDW in substantially less than 50 years. 

Further, imposing requirements on CO2 storage projects that are far beyond those 

currently in place even for injection of hazardous wastes is unnecessary and 

will only engender public misperceptions regarding the safety of such projects. 

There is potential for an obligation to provide financial assurance for 

activities running through 70 years into the future (according to EPA's 

assumption of a 20-year injection period), or more. Especially, given the 

ongoing credit crisis, an unjustifiably lengthy PISC period may make obtaining 

the necessary financial assurance impossible, stunting or stopping commercial 

development of CCS. 

Montana-Dakota urges EPA to implement a performance-based approach that 

considers the circumstances of a particular project, bounded by appropriate 

parameters for its application, and also encourages the EPA to establish clear 

parameters for such a performance-based approach, and in particular, a clear set 

of guidelines for demonstrating that the injectate has "stabilized", and for 

9
meeting the non-endangerment standard. 

Individual Response: EPA disagrees that a post-injection site care timeframe of 50 years is 

excessive. EPA proposed a default post-injection site care timeframe of 50 years based on a 

review of research studies, industry reports, and existing environmental programs. This analysis 

was included in an EPA background document in the federal docket, "Computational Modeling 

of Underground Injection of Carbon Dioxide for Determination of Area-of-Review and Potential 

Risk to Underground Sources of Drinking Water." While numerous commenters suggested that 

EPA shorten the monitoring timeframe, none of the commenters provided sufficient data to 

warrant a change in the proposed timeframe. While the 10- or 30-year timeframe suggested by 

some of these commenters may be within the timeframe suggested in some studies, there are 

circumstances (e.g., little development of mineral trapping of CO2) under which the potential 

risks of endangering USDWs will likely not decline within these timeframes. EPA believes that a 

50-year default post-injection site care timeframe, as required at §146.93(b)(1), is not overly 

burdensome, does not exaggerate the risks associated with GS, is consistent with other 

environmental programs, and sufficiently protects USDWs from endangerment. 

EPA acknowledges that there will be circumstances where it can be demonstrated in less than 50 

years that the plume and pressure front no longer pose a risk of endangerment to USDWs. For 

this reason, the final GS regulation allows the Director to shorten the post-injection site care 

timeframe if the owner or operator can demonstrate that the GS project does not pose a risk to 

USDWs, as specified in §146.93(b)(2). Such a demonstration will be site-specific, and based on 

pressure monitoring and USDW impacts. EPA believes however, that to ensure USDW 

protection from endangerment, a default timeframe for post-injection site care is necessary. 

EPA adds that the purpose of the GS rule is not to incentivize the use of GS; rather, the purpose 

of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that protects 

USDWs from endangerment. 

EPA also recognizes the concerns associated with assuring financial responsibility for the long 

time-frames over which post-injection site care will be conducted. EPA is developing guidance 

on financial responsibility to assist owners or operators in evaluating the requirements of 

§146.85 and to assist Directors in evaluating financial responsibility demonstrations. The 

guidance describes the types of financial mechanisms that operators may choose to use when 

evaluating the financial responsibility requirements for GS wells and it will also include a section 

on how to estimate costs to support accurate financial responsibility demonstrations. The 

guidance will be available at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

EPA disagrees that the requirements for financial responsibility are overly stringent. The goal of 

financial responsibility is to ensure that financial resources are available to prevent the 

endangerment of USDWs from improper plugging, remediation, and management of wells in the 

event that the owner or operator experiences financial difficulties throughout the life of the 

project. 

EPA believes that minimum financial responsibility requirements are necessary to prevent 

endangerment of USDWs by holding well owners or operators accountable for the safe operation 

10
and closure of the well and to avoid expense and risk to the public. See the final rule and 

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

that the purpose of the GS rule is not to encourage the use of GS; rather, the purpose of the GS 

rule is to ensure that, where GS is deployed, it is conducted in a manner that protects USDWs 

from endangerment. 

Letter ID: 0235 Comment ID: 23187 Letter Lines: 209 to 226 

Comment Code: 5430 2.9.1 Comments on proposed financial responsibility requirements (40 

CFR 146.85) 

Comment: Financial Assurance Provisions 

Requiring financial assurance for potential liabilities for more than 50 years 

in the future may deter and even prevent investment in CCS projects. This 

timeframe exceeds what is currently in place even for injection of hazardous 

wastes, and there is significant concern raised regarding the perspective of 

promoting CCS development. Montana-Dakota questions whether any significant 

showing has been made that the physical and chemical properties of CO2 are 

sufficiently unique, or that they pose a sufficiently unique potential threat to 

USDW, to warrant such unprecedented treatment under the UTC program. 

Financial assurance requirements should in no event go beyond what is currently 

required for Class I hazardous waste injection wells (i.e., beyond requirements 

to assure corrective action in the AOR). Again, there is the concern that 

treating CO2 more stringently than other injectate would create undue public 

concern and potentially inhibit CCS implementation. MontanaDakota encourages 

EPA to consider the experience of current CCS demonstration projects in moving 

forward with financial assurance provisions. 

Individual Response: As described above, EPA disagrees that the requirements on financial 

responsibility are overly stringent. The goal of financial responsibility is to ensure that financial 

resources are available to prevent or remediate the endangerment of USDWs from improper 

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

experiences financial difficulties. EPA disagrees that the requirements equate GS wells with 

Class I hazardous waste wells; rather, the financial responsibility requirements for Class VI wells 

are tailored to account for the unique nature of the long-term GS of CO2, while providing 

flexibility for site-specific implementation. EPA adds that the purpose of the GS rule is not to 

incentivize or promote GS; rather, it is to ensure that where GS is deployed, it is done in a 

manner that ensures USDW protection from endangerment. 

Letter ID: 0235 Comment ID: 23188 Letter Lines: 228 to 249 

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

comment) 

11
Comment: Also, the proposed rules do not contain clear provisions for reducing financial 

assurance obligations over time in accordance with declining risk. Financial 

assurance requirements should be based upon the actualities of the risk curve 

for CCS projects, and ideally the risk curve for a particular CCS project. 

Financial assurance requirements as proposed do not include provisions that 

would allow site-specific characteristics to be taken into account. It is 

crucial that any financial assurance requirements be sufficiently flexible to 

take into account the particular risks associated with any given project and 

also, the type of financial assurance mechanism that can be utilized. 

The preamble indicates that EPA may be willing to consider a phased or staged 

approach to financial assurance requirements, as well as separate financial 

assurance demonstrations for plugging and PISC activities at later points in 

time. Such provisions would ease some of the difficulties with the financial 

assurance proposal in terms of estimating costs for future activities assuming 

that better estimation tools would become available. 

It is understood that stakeholders have already reported some difficulty in 

obtaining insurance coverage for CCS projects. Montana-Dakota encourages the EPA 

to evaluate this issue carefully and ensure that it is not creating obligations 

with which operators simply cannot comply, or which are so expensive that 

commercial development and deployment of CCS will be crippled at the outset. 

Individual Response: EPA agrees that it is appropriate to allow a flexible approach for financial 

responsibility. Under the final GS rule owners or operators may choose from a variety of 

financial instruments listed in §146.85(a) to meet their financial responsibility obligations, 

provided the Director determines that the owner or operator's proposed financial responsibility 

demonstration is adequate to protect USDWs from endangerment by demonstrating the ability to 

pay for each activity for which financial responsibility must be demonstrated, including 

corrective action on wells in the AoR, injection well plugging, PISC and site closure, and 

emergency and remedial response. 

However, EPA will not allow for a separate (or "phased") financial responsibility demonstration 

for well plugging and PISC (i.e., a demonstration submitted prior to well plugging and the 

beginning of the post-injection site care period rather than with the permit application). A 

demonstration of financial responsibility for all phases of the GS project will be required prior to 

the issuance of a Class VI permit (§146.85(a)(5)(i)). 

The GS rule allows owners or operators to use separate or multiple financial responsibility 

instruments for different GS activities. However, owners or operators must demonstrate adequate 

financial responsibility for all required activities with their permit application per 

§146.82(a)(14). In addition, on an annual basis, the owner or operator must adjust the cost 

estimate for inflation, increase or decrease the value of the financial instrument to match the cost 

estimate, and provide any updated information related to their financial responsibility 

instrument(s), or at any other time deemed appropriate by the Director. These annual reviews 

12
provide a mechanism for revising cost estimates up or down to account for changes in the 

project, including the execution of environmental obligations as phases of a GS project are 

completed. 

EPA is developing guidance on financial responsibility for Class VI wells. The guidance will 

include a discussion on recommended approaches to estimate costs to assist Class VI well 

owners or operators, third party insurers or providers of financial instruments, and permitting 

authorities in developing estimates of the costs associated with various GS activities. EPA will 

also discuss how best to evaluate the appropriateness of single and multiple bonding and phased 

release of bonds in the guidance. EPA will review the requirements under SMCRA as it develops 

the guidance and incorporate any relevant information. This guidance will be available on EPA's 

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

Regarding tying financial responsibility requirements to site-specific risk, EPA clarifies that the 

cost of securing financial responsibility instruments will be based on whether or not a third party 

financial institution is used and the agreement between the financial institution and the owner or 

operator. EPA expects that some third party providers, such as insurers, will take risk into 

account when determining the cost of coverage. However, cost is expected to depend heavily on 

the estimated cost of covered activities as well as certain site-specific factors. In order to assist 

owners or operators and financial institutions in achieving accurate cost estimates, EPA plans to 

include in the financial responsibility guidance a discussion of how to estimate costs, including 

how to adjust cost estimates for inflation, in its guidance on meeting financial responsibility 

requirements for Class VI wells. 

Letter ID: 0235 Comment ID: 23189 Letter Lines: 251 to 259 

Comment Code: 5460 2.9.2 Comments on transfer of liability for long-term care 

Comment: The preamble acknowledges that EPA is making no attempt to factor in 

circumstances in which a state, for example, or other third party has assumed 

long-term risk or liability for or ownership of stored CO2 (as is contemplated 

in the Interstate Oil and Gas Compact Commission (IOGCC) model statute and 

regulations issued in September 2007 and by some states). Montana-Dakota 

encourages the EPA to consider that liability transfers may be effectuated under 

other laws and to examine closely how the UIC rules can take such provisions 

into account, and consider how these entities would be required to provide 

financial assurance. 

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 

13
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: 0235 Comment ID: 23190 Letter Lines: 261 to 296 

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

Comment: Grandfathering Other Wells 

EPA has proposed giving the UIC program discretion to "grandfather" the 

construction requirements for existing Class II and Class V experimental wells 

(as well as existing Class I wells that were not intended to inject CO2 

originally, since well construction requirements for Classes I and proposed VI 

are similar) where the UIC program director can determine that the wells will 

not endanger USDW. Such grandfathering is soundly justified, as these wells have 

been constructed specifically for injection and, particularly in the case of 

Class V experimental wells, for storage of CO2 and are suitable for the purpose 

for which they are designed. The promulgation of new regulations should not 

render them unfit for the purpose for which they were intended. 

Further, permittees of these wells presumably were required to satisfy the nonendangerment standard as part of the initial permitting process. However, under 

these circumstances, potential grandfathering likely would not provide the 

needed assurance, and thus the needed incentives, to project operators or 

investors that existing wells, or, perhaps more importantly, new wells that may 

be permitted before the proposed rules take effect, will remain viable wells 

from a regulatory perspective going forward. 

14
There is a concern that EOR operators faced with the proposition of 50 or more 

years of financial assurance requirements may decide that the benefits of 

converting to a CCS operation are not worth the costs and could deter CCS 

projects from implementation. It is understood that wells permitted to inject 

and store CO2 have already been deemed safe and suitable for those purposes, and 

a determination has already been made that no endangerment is posed to USDW. 

The grandfathering provision in the rule should be as expansive as possible 

while balancing the need for protection of USDW, and thus Montana-Dakota 

believes that a couple of modifications should be made to the proposed rule. A 

preferable approach would be to expand the scope of available grandfathering for 

existing wells, given that the wells were initially constructed for injection of 

CO2. Also, it would be preferable to allow grandfathering as a default, unless 

the program director determines that, due to specific concerns, a project would 

not be suitable for CO2 storage. 

Individual Response: EPA agrees that many Class I, Class II, and Class V experimental 

technology wells are designed and constructed to withstand exposure to CO2. The final GS rule 

provides for the 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 disagrees with commenters who suggest that the other Class VI requirements (e.g., MITs, 

siting, monitoring, operational, financial responsibility, and AoR requirements) should also be 

grandfathered. Following re-permitting of the project as GS, many of the unique factors of GS 

sites (e.g., increased reservoir pressures associated with large volumes of stored CO2 and the 

corrosivity of CO2 in the presence of water) will result in an increased risk profile, warranting 

the specific requirements in the final GS rule. Therefore, following re-permitting as Class VI 

wells, these projects must be subject to the operational, MIT, monitoring, reporting, plugging, 

and post-injection site care and site closure requirements in the final GS rule. See the discussion 

of EPA's final regulatory approach in the preamble to the GS rule for additional detail on these 

requirements. 

In response to the comment that ER operators will be discouraged from pursuing GS, EPA 

clarifies that this comment is outside the scope of the rule. The purpose of the GS rule is not to 

incentivize the use of GS or to address the use of pore space, but to ensure that, where GS is 

deployed, it is conducted in a manner that does not endanger USDWs. 

Letter ID: 0235 Comment ID: 23191 Letter Lines: 298 to 306 

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

Comment: State Primacy 

Montana-Dakota agrees that states and tribes should play a key role in managing 

15
CCS projects. Many states are moving ahead with developing their own legislation 

and regulations related to CCS activities, as are a number of western states. 

The EPA should consider potential issues related to projects that may span 

multiple states in light of primacy issues. The EPA should consider provisions 

in the rule for establishing a primary state for permitting purposes, with 

additional affected states provided an opportunity for notice and comment. 

Individual Response: EPA understands that the CO2 plumes for large GS projects may cross 

State, Tribal, Territorial, or EPA Regional boundaries. The final GS rule, at §146.82(a)(2), 

requires the owner or operator to identify all State, Tribal, and Territorial boundaries within the 

AoR. Based on this information, the Director must provide written notification to all States, 

Tribes, and Territories to inform them of the permit application, as specified in §146.82(b), and 

ensure that they are involved in any necessary processes (e.g., development of the emergency 

and remedial response plan, as specified in §146.94. The Agency encourages transparency in the 

permitting process and anticipates that State-State/State-Tribal communication on GS permitting 

will facilitate information sharing and encourage safe, protective projects. 

Because some GS projects will require coordination across State, Tribal, and Territorial 

jurisdictions, the Agency will work with the appropriate entities to facilitate communication 

among States, Tribes, and Territories interested in obtaining Primacy during the implementation 

phase of the GS regulation. Such communication may involve other organizations such as the 

Sierra Club, NDWAC, associations, and other experts. However, the responsibility for 

addressing such subjects ultimately rests with the States, Tribes, and Territories with primacy. In 

addition, EPA is developing guidances for states that describe the process of applying for and 

receiving primary enforcement responsibility (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 be 

available at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0235 Comment ID: 23192 Letter Lines: 308 to 333 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: Other Law Implications 

Montana-Dakota urges EPA to evaluate carefully any proposed treatment of the 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 

and Resource Conservation and Recovery Act (RCRA), or other laws, that it may be 

considering under the Class VI regulations to ensure that any such treatment is 

necessary and does not serve as an unintended springboard for hampering the 

successful commercialization of CCS. Unless CO2 is categorized as a commodity, 

and not as a waste, there could be significant complications in implementing C02 

GS projects. 

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Once a material is deemed to be a solid waste, an additional set of parameters 

applies to determine whether that substance is also a hazardous waste and thus 

subject to further regulation. Montana-Dakota recommends that EPA examine an 

approach to determining that CCS activities which meet UIC permit requirements 

are not equated to discarding the CO2. Identifying CO2 as a waste could limit 

the use of stored CO2 in any potential future applications. 

The EPA jumps to an unnecessary and potentially confusing discussion in the 

preamble of whether injected CO2 may be a hazardous waste, potentially implying 

that CO2 is a solid waste to begin with. Montana-Dakota recommends that any 

characterization of potentially hazardous constituents in CO2 injectate may be 

addressed, possibly through Toxicity Characteristic Leaching Procedures, as part 

of the UIC permitting process without addressing any potential RCRA 

jurisdictional issues. This should be examined further by EPA in regard to both 

RCRA and CERCLA implications. 

Individual Response: As described above, the GS rule does not affect the regulatory status of 

CO2 under RCRA. Furthermore, 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. 

Letter ID: 0235 Comment ID: 23193 Letter Lines: 335 to 344 

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

Comment Code: 1930 1.4.4.2 Consultations with State, Tribal, and local Associations (e.g., 

GWPC, IOGCC) 

Comment: Limits on EPA Authority and Discretion 

EPA should consider the significant interests and experience of the states in 

developing regulations. Montana-Dakota recognizes that in order to allow for 

effective site-specific determinations and to maintain essential regulatory 

flexibility, some amount of discretion must be vested in the UIC program 

director. At the same time, such discretion should be bounded by the inclusion 

of relevant and appropriate considerations for making necessary determinations. 

In general, the rules should establish with sufficient clarity the factors to be 

taken into account and leave the precise determinations to the permit process. 

Individual Response: The GS rule provides flexibility to determine the suitability of a proposed 

site based on extensive, site-specific data. EPA believes that requiring appropriate site 

characterization by the owner or operator and providing an appropriate degree of flexibility to 

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the Director to evaluate site-specific geologic data will afford the greatest protection of USDWs. 

The issuance of a UIC Class VI permit is determined based on evaluation of site-specific permit 

information pursuant to the requirements at §§146.82 and 146.83. 

EPA is developing guidance materials that describe the process of applying for and receiving 

primary enforcement responsibility (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. This guidance and training 

addresses areas where the Director is given discretion in implementing the requirements. Such 

requirements where the Director has discretion include: whether to require owners or operators 

to identify and characterize additional confining zones under §146.83, whether to require surface 

air monitoring and/or soil gas monitoring under §146.90, and whether to extend or shorten the 

post-injection site care period or approve an alternative post-injection site care timeframe as part 

of the permitting process under §146.93 

Letter ID: 0235 Comment ID: 23194 Letter Lines: 346 to 353 

Comment Code: 1400 1.2 Comments on EPA's Authority to Regulate Injection of CO2 

Comment: EPA should adhere to its limited authority at this juncture under SDWA and 

should avoid exceeding that authority. The value of developing a clear 

regulatory regime will be undermined if that regime is potentially unstable or 

subject to lengthy delays because of potential susceptibility to attack for 

failure to adhere to EPA's authority. On the other hand, EPA should strive to 

anticipate future statutory and regulatory developments in the climate change 

arena so that any rulemaking has a reasonable chance of melding with such 

developments. 

Individual Response: The final GS rule, which addresses the injection of CO2 for the purpose 

of protecting USDWs from endangerment, is within EPA's authority under Part C of the SDWA. 

The SDWA mandates EPA to establish federal minimum requirements for state programs in 

order to prevent underground injection that endangers USDWs. See 42 U.S.C. §300h et. seq. 

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. 

"Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, 

whether in a semisolid, liquid, sludge, gas or other form or state, and includes liquids, gases, and 

semisolids (i.e., slurries) injected into the subsurface. EPA clarifies that CO2 injected for the 

purpose of GS is subject to the SDWA. 

While EPA agrees with commenters that a stable, predictable, nationally consistent, and 

workable regulatory framework is important, EPA stresses that the focus of the GS rule is to 

ensure that, where GS is deployed, it is conducted in a manner that protects USDWs from 

endangerment. 

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 

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

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

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

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

Resource Conservation and Recovery Act; the Comprehensive Environmental Response, 

Compensation, and Liability Act; and the Marine Protection, Research, and Sanctuaries Act to 

various aspects of GS and CCS. The Agency will continue to coordinate on GS and CCS related 

issues to minimize redundancy and maximize efficiencies for owners or operators. For additional 

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

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

Letter ID: 0235 Comment ID: 23195 Letter Lines: 355 to 362 

Comment Code: 1940 1.4.4.3 Consultations with Industry; experience with other wells 

Comment: Much of the experience and expertise associated with injection and storage of 

CO2 that currently exists is the result of several decades of experience with 

EOR and enhanced gas recovery operations through Class II UIC permits. As CCS 

gains momentum as a GHG mitigation tool, EOR operators may provide not only this 

wealth of experience and expertise, but also the first push toward commercial 

CCS by seeking to convert existing EOR operations to purely storage operations 

to take advantage of whatever credits may eventually become available under 

climate change legislation or regulation. 

Individual Response: EPA recognizes that the oil and gas industry has decades of experience 

injecting CO2 for the purpose of ER, and that sites used for ER may be suitable for GS and may 

be among the first GS sites. EPA also recognizes that a by-product of ER activities is that a 

certain percentage of the CO2 is trapped in the receiving formation. Some of the research that 

informs the final GS rule was conducted at ER sites. 

EPA clarifies that comments related to climate change legislation or regulations are outside the 

scope of the GS rulemaking. 

Letter ID: 0235 Comment ID: 23196 Letter Lines: 364 to 373 

Comment Code: 5520 2.10.1 Appropriateness of existing public participation requirements 

(Part 25 and Part 124) for GS (seeking comment) 

Comment: Public Education 

Montana-Dakota supports the development of regulations and policies that will 

serve to educate the public and provide for appropriate public input on 

projects, however, public participation provisions like those currently 

applicable under RCRA are unnecessary and undesirable for GS projects. 

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Otherwise, Montana-Dakota believes that the rule provides a rational public 

participation approach for GS projects. The EPA is recommended, as it indicates 

its interest in the preamble, to provide education about this topic on their 

website regarding the benefits and true risks of CCS projects. 

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. This 

information may include, but is not limited to, specific technologies used at the GS injection site, 

potential/new GS projects, and opportunities for public involvement. In addition to requiring 

public notice of all draft permits under §124.10(a)(1)(ii), stakeholders can request that they be 

notified about draft permits. In addition, §124.10(d) requires that the public notice state how 

stakeholders can obtain a copy of the permit application and draft permit. GS operators and 

permitting authorities are also encouraged to make this information available on the Internet. 

EPA agrees that the existing UIC public participation requirements as specified in 40 CFR 25 

and 40 CFR 124 are appropriate for GS projects. In addition, because of the unique nature of GS 

projects, and the anticipated level of public interest in GS projects, EPA encourages early public 

involvement in GS projects. Providing the public with accurate, project-specific information in 

the early stages of each GS project can help clarify project details and avoid public 

misperceptions about the nature and safety of GS projects, and will allow a potential GS owner 

or operator and the permitting agency to address the public's concerns before the permitting 

process is complete. 

In response to comments regarding the requirements in 40 CFR Parts 25 and 124 applicable 

under RCRA, EPA clarifies that only the public participation requirements pertaining to the UIC 

program apply to Class VI wells. 

Letter ID: 0235 Comment ID: 23197 Letter Lines: 375 to 381 

Comment Code: 1400 1.2 Comments on EPA's Authority to Regulate Injection of CO2 

Comment: Conclusion 

Montana-Dakota encourages the EPA to consider carefully the link between each 

proposed provision and its authority to regulate under SDWA. Where the link is 

more tenuous, the proposed provision may be subject to greater risk of legal 

challenge, posing uncertainty for those who desire to move ahead with CCS 

projects. Montana-Dakota believes that the EPA has proposed a rule that, pending 

Individual Response: EPA believes that the SDWA provides EPA with adequate authority to 

regulate injection of CO2 for GS and that the GS rule does not overstep its authority under the 

SDWA. The GS regulation, which addresses the injection of CO2 for the purpose of protecting 

USDWs from endangerment, is within EPA's authority under the SDWA. The SDWA mandates 

EPA to establish federal minimum requirements for state programs in order to prevent 

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underground injection that endangers USDWs. See 42 U.S.C. §300h et. seq. Under the SDWA, 

the injection of any "fluid" is subject to the requirements of the UIC program. "Fluid" is defined 

under 40 CFR 144.3 as any material or substance which flows or moves, whether in a semisolid, 

liquid, sludge, gas or other form or state, and includes liquids, gases, and semisolids (i.e., 

slurries) injected into the subsurface. EPA clarifies CO2 injected for the purpose of GS is subject 

to the SDWA. 

Letter ID: 0235 Comment ID: 23198 Letter Lines: 381 to 383 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

Comment: projects. Montana-Dakota believes that the EPA has proposed a rule that, pending 

the consideration of the above recommendations, should provide additional 

certainty for further CCS project development. 

Individual Response: EPA agrees that the implementation of the GS rule in a manner that 

ensures protection of USDWs from endangerment is important to establishing a foundation for 

further advances in the field of CO2 GS. EPA acknowledges the need for regulatory certainty: 

the final GS requirements provide a level of certainty by setting forth unique requirements for 

GS. These requirements include: the tailored AoR delineation process (per §146.84), the types of 

monitoring appropriate to GS projects (per §146.90), and the post-injection site care process (per 

§146.93). 

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