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.
IRRIGATION & ELECTRICAL DISTRICTS 

ASSOCIATION OF ARIZONA

 R. GALE PEARCE SUITE 140 ELSTON GRUBAUGH 

 PRESIDENT 340 E. PALM LANE SECRETARY-TREASURER 

 PHOENIX, ARIZONA 85004-4603 

 R.D. JUSTICE (602) 254-5908 ROBERT S. LYNCH 

 VICE-PRESIDENT Fax (602) 257-9542 ASSISTANT SECRETARY-TREASURER 

 E-mail: rslynch@rslynchaty.com 

 

 October 15, 2009 

Water Docket 

Environmental Protection 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Re: Docket ID No. EPA-HQ-OW-2008-0390, EPA Notice of Date Availability, 74 Fed.Reg. 

44802, et seq. (August 31, 2009) 

Ladies and Gentlemen: 

The above-cited Federal Register notice requests comments by October 15, 2009 on the additional 

information provided in this Notice of Data Availability (NODA). We are responding to that 

request. 

We are particularly concerned about the language the notice uses on page 44811 concerning the 

proposed waiver that would allow drilling to and storage between Underground Sources of Drinking 

Water (USDW). 

We think it goes without saying that any new and relatively untested scheme for underground 

storage of CO2 and other greenhouse gases by use of injection wells is fraught with potential 

problems. EPA must agree because it has proposed requirements for emergency and remedial 

response and financial responsibility. These are obviously important elements in any waiver 

process that the agency would implement. What concerns us, however, is the vague language 

discussing these critical subjects. 

Concerning financial responsibility, the notice says that the responsible party would have to 

supplement the emergency remedial response plan otherwise required of an underground injection 

control (UIC) Class VI permit, which otherwise requires injection to take place below USDWs. 

The applicant would have to “demonstrate sufficient, additional financial responsibility to address 

any potential contamination of USDWs above or below the injection zone”. We have no idea what 

this means. We presume that the demonstration would be to EPA in the process for obtaining the 

waiver. However, the factors that are then listed as those that might be considered are just that, 

things that might be considered, not things that must be. Most importantly, because this is a process 

anticipating things going wrong, the listing for a proposed plan “for securing alternative resources 

or treating USDW formations in the event of contamination related to Class VI injection activity” 

gives essentially no detail on what the proposed plan would have to be in order to qualify. Will 

SERVING ARIZONA SINCE 1962 
Water Docket 

October 15, 2009 

Page 2 

there need to be a legal opinion from a qualified water attorney that the applicant has the legal 

ability to acquire such an alternative resource? Has the technical capability to treat contaminated 

USDW “formation waters”? What level of contamination triggers this requirement? What happens 

if the contaminated USDW is not being used for drinking water purposes at the time of 

contamination but only for other uses such as industrial or agricultural uses? What form will 

financial responsibility have to take? Insurance? Bonding? How much? And how will these 

matters be determined? 

In short, we believe that the safety net alluded to in this Federal Register notice lacks so much detail 

as to be too imprecise a basis on which to make a decision about whether to institute the waiver 

process or not. Protecting the quality of our ground water resources in the desert is a matter of 

utmost concern. We think EPA ought to go back to the drawing board on this one until it can 

articulate with some specificity the safety net it will require for anyone seeking to implement this 

waiver process. 

Thank you for the opportunity to comment on this important subject. 

Sincerely, 

/s/

Robert S. Lynch 

Counsel and Assistant Secretary/Treasurer 

RSL:psr 
Letter ID: 0372  

Commenter: Robert S. Lynch  

Organization: Irrigation & Electrical Districts Association of Arizona  

Letter ID: 0372 Comment ID: 27949 Letter Lines: 32 to 42  

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

Comment: We are particularly concerned about the language the notice uses on page 44811  

concerning the proposed waiver that would allow drilling to and storage between  

Underground Sources of Drinking Water (USDW).  

We think it goes without saying that any new and relatively untested scheme for  

underground storage of CO2 and other greenhouse gases by use of injection wells  

is fraught with potential problems. EPA must agree because it has proposed  

requirements for emergency and remedial response and financial responsibility.  

These are obviously important elements in any waiver process that the agency  

would implement. What concerns us, however, is the vague language discussing  

these critical subjects.  

Individual Response: EPA acknowledges the commenter's concerns about USDW protection and clarifies

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

comments on the proposed injection depth requirements and the waiver process discussed in the NODA

and Request for Comment, and concerns about USDW protection, EPA believes that there are situations

where injection into non‐USDW formations above the lowermost USDW can be performed in a manner

that protects USDWs. The final GS rule at §146.95 establishes a process and specific requirements by

which owners or operators can seek a waiver of the Class VI injection depth requirements. The waiver

approach establishes requirements for extensive site‐specific information related to injecting above or

between USDWs that the owner or operator must submit and the Director must consider, in

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

protected.  

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

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

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

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

EPA clarifies that the purpose of the emergency and remedial response requirements is to address the

remote possibility for USDW contamination associated with GS wells. EPA stresses that the primary
focus of USDW protection in the GS rule is proper site characterization, construction, operation, testing,

monitoring, and post‐injection site care of all GS projects.

EPA disagrees that finalization of the GS rule is premature or the technology is untested. EPA believes

that the tailored requirements for GS wells, which are built on a long‐protective UIC regulatory

framework and extensive data gathered from DOE pilot projects, international full‐scale GS projects, and

decades of Class II ER experience, provide adequate USDW protection. For additional information

regarding the data on which EPA based the final GS rule, see the preamble to the final GS rule.  

Letter ID: 0372 Comment ID: 27950 Letter Lines: 44 to 65  

Comment Code: 3340 3.3.4. Financial Responsibility  

Comment: Concerning financial responsibility, the notice says that the responsible party  

would have to supplement the emergency remedial response plan otherwise required  

of an underground injection control (UIC) Class VI permit, which otherwise  

requires injection to take place below USDWs. The applicant would have to  

"demonstrate sufficient, additional financial responsibility to address any  

potential contamination of USDWs above or below the injection zone". We have no  

idea what this means. We presume that the demonstration would be to EPA in the  

process for obtaining the waiver. However, the factors that are then listed as  

those that might be considered are just that, things that might be considered,  

not things that must be. Most importantly, because this is a process  

anticipating things going wrong, the listing for a proposed plan "for securing  

alternative resources or treating USDW formations in the event of contamination  

related to Class VI injection activity" gives essentially no detail on what the  

proposed plan would have to be in order to qualify. Will there need to be a  

legal opinion from a qualified water attorney that the applicant has the legal  

ability to acquire such an alternative resource? Has the technical capability  

to treat contaminated USDW "formation waters"? What level of contamination  

triggers this requirement? What happens if the contaminated USDW is not being  

used for drinking water purposes at the time of contamination but only for other  

uses such as industrial or agricultural uses? What form will financial  

responsibility have to take? Insurance? Bonding? How much? And how will these  

matters be determined?  

Individual Response: EPA clarifies that the owner or operator must develop and implement an

emergency and remedial response plan for how any contaminated water or other resources will be

replaced if an adverse event associated with the GS project renders them unusable per §146.94. The

owner or operator must demonstrate the financial resources to carry out the plan if it becomes
necessary 9146.85. EPA will issue guidance on developing the required plans and meeting financial

responsibility requirements.  

EPA adds that the requirements at §146.95 for owners and operators seeking injection depth waivers

are intended to add to and modify the requirements that all GS well owners or operators must meet,

including those for financial responsibility and emergency and remedial response, to ensure that the

proposed site is evaluated in the context of the presence of USDWs above and below the injection zone.  

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.

EPA is also developing guidance on the injection depth waiver process. The guidance describes the

recommended approach an owner or operator may follow when submitting a waiver application,

processing waiver applications by the UIC and PWSS Program Directors. These guidances will be

available on EPA’s website at water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.  

Letter ID: 0372 Comment ID: 27951 Letter Lines: 67 to 73  

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

Comment: In short, we believe that the safety net alluded to in this Federal Register  

notice lacks so much detail as to be too imprecise a basis on which to make a  

decision about whether to institute the waiver process or not. Protecting the  

quality of our ground water resources in the desert is a matter of utmost  

concern. We think EPA ought to go back to the drawing board on this one until  

it can articulate with some specificity the safety net it will require for  

anyone seeking to implement this waiver process.  

Individual Response: The final GS rule, at §146.95(a), requires owners or operators to submit

information to support a determination regarding whether a waiver from the injection depth

requirements should be granted. The rule requires that the owner or operator provide:

• A demonstration that the injection zone is laterally continuous, not connected to a USDW, does not

outcrop, and can safely contain the proposed amount of CO2 injection.

• A demonstration that adequate confining layers are present above and below the injection zone.

• A demonstration using modeling that USDWs will not be endangered by fluid movement.

• A demonstration that well construction will isolate the injection zone from other zones.

• The location of all water supplies in the area that may be affected by the injection.

• A description of planned monitoring above and below the injection zone.

Furthermore, owners or operators granted injection depth waivers are subject to additional
requirements at §146.95(f), which include: modified construction requirements and requirements to

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

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

EPA is developing guidance on the injection depth waiver process. The guidance describes the

recommended approach an owner or operator may follow when submitting a waiver application,

processing waiver applications by the UIC and PWSS Program Directors, and additional considerations

that may apply to projects that have been issued waivers. This guidance will be available on EPA’s

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