EPA Issues Proposed Rule Governing CO2 Sequestration

Taken from the article found here

July 30, 2008

On July 25, EPA published in the Federal Register its proposed rule to regulate the underground injection of carbon dioxide (CO2) for long-term storage, a process known as geologic sequestration. ...........EPA issued the rule under the Underground Injection Control (UIC) program. This program is implemented by EPA and the states under the Safe Drinking Water Act (SDWA) to regulate the injection of fluids into the subsurface so that these activities do not endanger current or future underground sources of drinking water. The public comment period ends on November 24, 2008.

While CO2 has been injected into the subsurface for purposes of enhanced oil and gas recovery for some time under “Class II” UIC permits, carbon capture and storage (CCS) technology has not been demonstrated at the commercial scale within the US. EPA issued guidance last year to provide that EPA regions, states, territories and tribes should, in the near-term, issue permits for pilot, non-commercial scale sequestration projects under its existing UIC permit classification for experimental technologies (Class V). (See “Class V Experimental Technology Well Guidance for Pilot Geologic Sequestration Projects,” EPA, March, 2007). EPA indicated that a Class V permit would be inappropriate for commercial-scale projects.

In contrast, the proposed rule is intended for commercial-scale sequestration projects. Although CCS technology has not been demonstrated at the commercial scale within the U.S., EPA decided to propose a separate UIC well classification for commercial-scale projects (Class VI), in part to reduce regulatory uncertainty that might hinder development of and investment in such projects."

(Who are they protecting? Us or BIG BUSINESS?)

"Importantly, in proposing the rule, EPA made clear that it does not have authority under the SDWA to do either of the following:

• Establish or provide mechanisms for addressing the liability of a UIC well operator for damages to public health (e.g., people), natural resources (e.g., air and ecosystems), or private property.
• Provide for the transfer of liability from one entity to another."

EPA made clear that sequestration projects could also trigger additional requirements under federal statutory regimes governing hazardous waste and releases of hazardous substances, finding that:

• If hazardous constituents are present in the injected CO2 stream due to the combustion source’s fuel source, additives, and other factors, the CO2 stream may constitute a federal RCRA “hazardous waste.” This would cause the injection to be subject to more stringent “Class I” UIC requirements.
• If hazardous substances are present in or created by the injected CO2 stream, its sequestration could also trigger potential liability under the federal Superfund law. While injection of hazardous substances in compliance with a UIC permit is deemed a “federally permitted release” exempt from liability under Superfund, EPA made clear that “Class VI requirements and permits will need to be carefully structured to ensure that they do not ‘authorize’ inappropriate hazardous releases.” 73 Fed. Reg. at 43504. Thus any release of subsurface migration which is not authorized by the permit could trigger liability under Superfund for response costs and/or natural resource damages (e.g., damages to an underground aquifer). Further, EPA raised the prospect of Superfund liability for the reaction of injected CO2 with the environmental media into which it is injected.

EPA has proposed a 50-year default period for post-injection site care during which monitoring and related activities would be required. The EPA Administrator or the director of the approved state program could either lengthen or shorten this period, depending on whether monitoring indicates that the CO2 plume movement and pressure front have ceased, and the Administrator or Director can determine that the injected CO2 does not pose a risk to underground sources of drinking water (with EPA noting that the period “could be extended for 100 years (or longer)”).

Click here for EPA’s proposed rule.