The Nickel Report

The geologic sequestration of carbon dioxide (CO₂) is a billion-dollar industry and is only projected to grow over the next decade. The key environmental permit needed for these projects is an Underground Injection Control Class VI permit for the injection wells used for geological sequestration. While some states have obtained authority to issue Class VI permits (including, recently, Texas and West Virginia), in most states, the US EPA is the Class VI permitting agency. EPA has permitted 11 CO₂ storage projects since the inception of the Class VI program in 2010 and currently has over 100 Class VI permits under review. As EPA clears this backlog and ramps up its issuance of Class VI permits, we are likely to see an increase in challenges to these permits before the EPA Environmental Appeals Board (EAB), a process that is often new for Class VI operators. This is a short primer on what Class VI operators can expect if their permit is appealed to the EAB.

The Environmental Protection Agency (EPA) will be 50 years old this year.  Over the past half-century, EPA has issued literally tens of thousands of documents explaining its extensive regulatory programs.  These guidance documents come in a wide variety of forms.  Some may be signed by the EPA Administrator. Many more are signed by officials in program offices, in the Regions, or even by technical staff.  Some may provide broad national guidance, while others interpret rules in source-specific factual settings.  Guidance may appear in preambles to rules, in response to “frequently asked questions” (FAQS), in applicability determinations, in Environmental Appeals Board decisions, in General Counsel opinions, and in many other ways.  And of course, as Administrations change, guidance may change to reflect new policies.  Anyone who has had to manage environmental compliance is familiar with the challenges of identifying operative agency guidance.