U.S. EPA Approves West Virginia’s Request for Primacy Regarding Issuance of Class VI Injection Well Permits

The U.S. Environmental Protection Agency (EPA) has approved West Virginia’s application to obtain authorization and primacy regarding the issuance of permits for Class VI underground injection control (UIC) wells. This follows the EPA’s initial filing of its intent to approve West Virginia’s request for program primacy and the agency’s acceptance of public comment and holding of a public hearing, which can be found here.

UIC wells are regulated pursuant to the federal Safe Drinking Water Act (SDWA). Similar to the federal Clean Water Act and the Clean Air Act, the SDWA contains provisions that allow the states to request authorization to operate the permitting program under the Act. Prior to gaining approval of a request by an individual state to become the primary agency to enforce and operate the permitting program, the state must adopt rules and regulations that are as stringent as its federal counterparts to address the permitting of these wells. West Virginia already maintained authorization to permit UIC for Class I through Class V wells. Class VI UIC wells are authorized for the injection and sequestration of carbon dioxide for the purpose of permanent geologic storage, and West Virginia’s rules are largely modeled after the EPA’s existing Class VI UIC well rules.

West Virginia will now be just the fourth state, along with North Dakota, Wyoming, and Louisiana, to receive primacy over the Class VI UIC permitting program. With the passage of the Inflation Reduction Act allocating potentially significant investments in the states to promote the use of hydrogen as a source of energy and the continued push to control the emission of greenhouse gases, the ability of the states to issue these permits and bypass what is often a significantly more time-consuming permitting and authorization process by the EPA is crucial to potential future development and investment in these hydrogen energy projects. These projects utilize natural gas to generate hydrogen and require carbon capture and sequestration to control greenhouse gas emissions, and for existing power-generating facilities that utilize coal and/or natural gas and require carbon capture and sequestration to meet potential new emission standards or wish to generate potential credits.

West Virginia will now be able to issue these permits without having to follow the lengthy procedures required under the National Environmental Policy Act that apply to the EPA, putting the state in a more advantageous position to attract investment for these energy projects that require a component of carbon capture and sequestration.

If you have any questions about this alert or how it might affect you, please contact Steptoe & Johnson’s Environmental Team or the author of this alert.