• EPA's Proposed UIC Regulations for Carbon Dioxide Geologic Sequestration Wells
  • November 10, 2008 | Authors: Steven E. Marlin; William J. Duffy
  • Law Firm: Davis Graham & Stubbs LLP - Denver Office
  • On July 25, 2008, the United States Environmental Protection Agency (EPA) issued a proposed rule for underground injection of carbon dioxide (CO2) for geologic sequestration.  The proposed rule sets forth standards and requirements that apply to operation of wells used to inject carbon dioxide into the subsurface for long-term storage.  EPA issued the rule within the regulatory framework of the Underground Injection Control (UIC) well permitting program, which is authorized under the federal Safe Drinking Water Act (SDWA), 33 U.S.C. § 300.h-3.  Under the UIC program, EPA presently permits five classes of wells used for injection of waste fluids:  Class I (deep injection of hazardous and non-hazardous wastes); Class II (oil and gas production wastes); Class III (fluids associated with solution mining); Class IV (shallow injection of hazardous wastes - these wells have been banned except when used as part of authorized groundwater remediation projects); and Class V (shallow injection of non-hazardous fluids not covered by Class I wells).  Pursuant to the rule, EPA proposes to create a new UIC Class VI class that would be permitted exclusively for injection of CO2 for long-term subsurface storage.  EPA is currently holding public hearings and accepting written comments regarding the proposed rule until November 24, 2008. 

    The key principles and features of the proposed rule include the following:  

    • The rule does not cover capture and transportation of CO2, determination of property rights, transfer of liability among parties, atmospheric releases of CO2, and certification of greenhouse gas reductions. 
    • A Class VI well permit would be issued for the duration of the CO2 storage project.
    • Geologic formations targeted for CO2 storage are deep saline formations, depleted oil and gas reservoirs, and unmineable coal seams.
    • States could apply for primacy to regulate Class VI wells.  However, EPA has not determined whether states may obtain primacy only for Class VI wells.  Presently, states may obtain primacy to regulate all five UIC well classes, to regulate Class I, III, IV and I wells, or to regulate only Class II wells.
    • The rule does not cover CO2 streams that meet the definition of or contain hazardous substances or constituents.  Such streams are subject to the more stringent UIC Class I well requirements, RCRA and/or CERCLA.  Operators would have the burden as part of the permitting process of characterizing CO2 streams to be injected.   
    • Well owners and operators, as part of the permitting process, would be required to delineate and characterize the vertical and horizontal extent of the subsurface CO2 confinement area, and conduct modeling to define the “Area of Review” (i.e., the area surrounding the geologic sequestration project that may be impacted by injection) and predict the flow pattern of the CO2 plume. 
    • Well owners and operators would be required to identify artificial conduits through which CO2 could escape (e.g., active and abandoned wells, underground mines), and perform corrective action such as plugging, regardless of who owns the conduits.  Failure or inability to conduct such corrective action may result in EPA’s modification or denial of a well permit. 
    • The rule imposes well construction and operation criteria specifically tailored to injection of pressurized CO2, and requires continuous monitoring at the wellhead and down-hole.
    • EPA proposes setting the CO2 injection depth at below the lowermost formation containing underground sources of water (USDW), defined as aquifers that supply public water systems.  However, EPA has not determined whether to allow a variance from this restriction at the discretion of EPA or the primacy State based on site-specific conditions.
    • The rule requires continuous monitoring of the subsurface extent of the CO2 plume, reservoir pressure, groundwater quality and geochemical changes above the confining system.
    • Well owners and operators would be required to develop post-injection care and closure plans, plug all wells, and monitor sites for 50 years unless EPA or the primacy State allows for a longer or shorter period based on site-specific conditions.
    • The rule requires well owners/operators to demonstrate and maintain financial responsibility sufficient to cover closure and remediation of the site. 

    EPA has held a series of stakeholder workshops and public meetings around the country over the past year to gather data and discuss technical and regulatory issues associated with CO2 capture and subsurface storage.  Several major unresolved themes have arisen through the comments made during EPA’s stakeholder and public hearing process, including:  

    • The extent that these regulations will interact or conflict with legislation that several states have enacted to date, such as Wyoming and Kansas, to address CO2 sequestration.     
    • Whether the standards and criteria imposed for construction, operation and closure of injection wells and storage projects should be performance-based.  
    • Whether the financial assurance requirement and the 50-year post-injection care and monitoring period are unnecessary and burdensome. 
    • Whether the definition of USDW should be broader to protect all sources of drinking water.
    • Whether the minimum injection depth at below the lowermost USDW is unnecessary.
    • Whether states should have the ability to obtain primacy over Class VI wells only.
    • The extent that state environmental agencies should have discretion to grant variances to some of the requirements, based on unique circumstances within particular states.
    • Whether sufficient funding for this program will be provided by federal legislation.  

    Many technical and legal issues concerning these proposed regulations remain, given the complexity of CO2 sequestration and the potential magnitude of future CO2 storage projects.  Several stakeholders have requested that EPA extend the comment period to provide more time for considering and resolving these issues.  To date, EPA has not extended the comment period beyond November 24, 2008.