On September 7, EPA’s Safe Drinking Water Act rule regulating underground injection wells for carbon capture and storage took effect, with no States having applied for primacy in implementing the rule.  EPA retains permitting authority throughout the country. 

The final rule was promulgated in December 2010, and gave States 270 days to submit State regulatory programs that met the minimum requirements of the rule.  While some states had previously promulgated their own rules consistent with EPA’s previously proposed rule, EPA’s final rule changed the provisions of the proposed rule, so the States must amend their programs to comply with EPA’s final rule.  

EPA’s rule establishes a new classification of underground injection wells–Class VI wells–with permitting requirements tailored to injection of carbon dioxide for carbon capture and storage.  States may apply for primacy for the new Class VI wells even if they do not currently have primacy for other classes of underground injection wells.  Some wells were previously permitted for carbon capture and storage as Class I or Class V wells; they must be re-permitted under the Class VI requirements within 365 days of the program implementation date.  Carbon dioxide wells for enhanced oil recovery can continue to be permitted under Class II, and are entitled to greenhouse gas reporting and tax credits as carbon capture and storage if they can meet minimum requirements for a monitoring and verification plan to ensure they do not endanger ground water. 

For more information on the new carbon capture and storage regulatory program, contact Steve O’Day (soday@sgrlaw.com) or Phillip Hoover (pehoover@sgrlaw.com).