EPA Announces Intent to Approve Class VI Primacy for Louisiana

The U.S. Environmental Protection Agency (EPA) announced its intent to approve the State of Louisiana’s request to take primary responsibility for the permitting of geologic carbon sequestration facilities as Class VI injection wells under the Safe Drinking Water Act’s (SDWA) Underground Injection Control (UIC) program. UIC Class VI wells are used to inject and permanently store carbon dioxide in underground geologic formations. The approval will accelerate development of carbon capture and sequestration (CCS) projects in Louisiana.

Sponsors seeking to develop carbon capture and sequestration projects must seek approval for Class VI wells from the EPA, unless EPA grants primacy to the host state. EPA review of Class VI well applications is a multi-year time consuming process and is a key source of delay for CCS projects. Upon approval of Louisiana’s request for primacy, it would join North Dakota and Wyoming as the only states with authority to issue Class VI permits to CCS projects within their borders. 

In light of recent enhancements by the Inflation Reduction Act to the Section 45Q tax credit for CCS, along with a number of CCS funded programs under the Infrastructure Investment and Jobs Act, new Class VI wells will need to be permitted at an increasing rate to support the build out of this technology, which is viewed as a tool to mitigate greenhouse gas emissions that may contribute to climate change.

Background

The EPA added Class VI wells to the SDWA UIC program in 2010. Since then, EPA has issued just six Class VI permits. Of these, only two such permits led to actual Class VI well construction,¹ with each of those permits taking approximately six years to issue.² In 2022, EPA announced steps to speed up its Class VI permitting timeframe to two years.³ EPA has also received additional funding from Congress to support Class VI well permitting. By granting the Louisiana primacy request, the EPA will be able to further streamline the Class VI well permitting process for Louisiana-based CCS projects.

Before EPA may grant a state primacy over the Class VI well permitting process, the state must demonstrate that it will adopt a Class VI well permitting program at least as stringent as the EPA’s that is protective of underground sources of drinking water, and has the administrative, civil, and criminal enforcement penalties necessary to carry out the purpose of the SDWA.⁴ EPA conducts both a technical and legal review of a state’s primacy request to ensure it meets these requirements and will enter into a memorandum of agreement with the state regarding the administration, implementation and enforcement of the Class VI program.

Louisiana’s Class VI Primacy Request

Louisiana first submitted its request for primacy to EPA on September 17, 2021.⁵ Louisiana then submitted a revised application on April 23, 2023 after working with EPA to incorporate mitigation measures into its program that would consider the impacts of carbon capture and removal technologies on impacted environmental justice communities.⁶ Specifically, Louisiana committed to examining the potential risks of each proposed Class VI well to minority and low income populations.⁷ At one point, Louisiana’s request became a political flashpoint after one of the state’s U.S. Senators proposed to hold up the Biden administration’s nominees for the EPA until the state’s Class VI status was approved.⁸

Next Steps

Comments are due on EPA’s proposal to grant Louisiana Class VI primacy within 60 days of the date the proposed rule is published in the federal register. Additionally, EPA will hold a public hearing on Louisiana’s request on June 15, 2023 in Baton Rouge, Louisiana.

¹ EPA, Class VI Permitting Report to Congress at 15 (Oct. 28, 2022).

²Van Voorhees, Bob, et al., Observations on Class VI Permitting: Lessons Learned and Guidance Available at 3 (2021), available at: https://www.ideals.illinois.edu/items/117640.

³ EPA, Class VI Permitting Report to Congress at 13 (Oct. 28, 2022).

⁴ 40 C.F.R. § 145.23.

⁵EPA, State of Louisiana Underground Injection Control Program; Class VI Program Revision Application, Docket No. EPA-HQ-OW-2023-0073 (April 27, 2023).

⁶ Id.

⁷ Id.

⁸ Cassidy Places Holds on EPA Nominees over Delays in Permitting of Louisiana Carbon Capture (Feb. 16, 2022), available at: https://www.cassidy.senate.gov/newsroom/press-releases/cassidy-places-holds-on-epa-nominees-over-delays-in-permitting-of-louisiana-carbon-capture.