Transcript Presentation on EPA Proposed Geologic Sequestration Rule

EPA’s Proposed Geologic Sequestration Rule
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Administrator Johnson signed July 15, 2008
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120 day comment period
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Final rule in 2010 or 2011
Key Points Regarding SDWA
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SDWA UIC – 42 USC § 300h et seq.
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Establishes minimum federal standards to protect USDWs
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USDW – any aquifer capable of supplying water to a public water
system with < 10,000 mg/L TDS
EPA has broad emergency powers under “imminent and substantial
endangerment” 42 USC § 300i
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contaminant which is present or is likely to enter a USDW (i.e.,
“endangerment”)
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EPA can order shut down of wells, remediation, replacement of water
supplies
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Violations – administrative orders, civil actions and criminal enforcement
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UIC Regulations – 40 CFR Part 144 - 148
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UIC Program
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Collective State/Federal Experience
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Over 9B gallons of hazardous waste injected each year
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Over 2B gallons of brine from oil & gas every day
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Over 1B gallons of municipal wastewater every day
Well Classes
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I – deep haz waste/industrial non-haz/municipal (500)
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II – oil & gas fluids/brines/hydrocarbon storage (147,500)
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III – mineral extraction (17,000)
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IV – shallow haz/radioactive wastes (subject to 1984 ban)
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V – experimental technology (650,000)
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VI – geologic sequestration (NEW)
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UIC – Delegated State Primacy
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UIC Progam Elements
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Site Characterization
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Area of Review and Corrective Action
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Well Construction
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Well Operation
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Site Monitoring
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Well Plugging and Post-Injection Site Care
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Financial Assurance
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Public Participation
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GS Rule - Overview
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EPA considered 4 alternatives: opted for “tailored requirements
approach”
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Applicable to all U.S. and up to 3 miles offshore
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Beyond scope: risks to air, human health, ecosystems
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State primacy for Class VI
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must promulgate regulations at least as stringent as the
final rulemaking
Targeted formations: below lowermost USDW (deep saline,
depleted oil/gas, unmineable coal seams, basalt)
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GS Rule - Overview
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Plans required
 AoR and Corrective Action
 Monitoring and Testing
 Emergency and Remedial Response
 Post-injection Site Care and Site Closure Plan
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Increased frequency of mechanical integrity monitoring from 5 to 1 year
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Tracers (odorants) not required but recommended to detect leaks
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Multi-barrier, continuous monitoring (confining zone, USDW, surface air,
soil gas) with alarms and automatic shut-off valves
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State discretion to require monitoring for CO2 in surface air
 Raises question whether federally enforceable
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GS Rule - Overview
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Permit issued through post-injection site care (50+ years)
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Periodic updates to AoR models and corrective action status
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States/Tribes may be more stringent than EPA
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Estimated cost of commercial scale GS well
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$3.40/t CO2 of which $1.20/t is attributable to new GS rule
(compared to $42/t CO2 for capture at IGCC plant)
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Liability Concerns - RCRA
“. . . EPA cannot make a categorical determination as to whether injected
CO2 is hazardous under RCRA. . .”
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Defined “carbon dioxide stream” to exclude hazardous wastes
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CO2 stream composition will depend on flue gas
scrubbing technology, additives, CO2 capture
technology.
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Test as hazardous per 40 CFR 261 (characteristic
wastes: reactive, ignitable, corrosive and toxic)
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If hazardous, cannot use Class VI
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Liability Concerns - CERCLA
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“. . . whether or not there is a ‘hazardous substance’ that
may result in CERCLA liability from a sequestration facility
depends entirely on the make-up of the specific CO2
stream and of the environmental media (e.g., soil,
groundwater) in which it is stored.”
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Impurities in CO2 stream that are hazardous substances, e.g.,
mercury
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Chemical reactions with groundwater that create hazardous
substances after injection, e.g., sulfuric acid, carbonic acid
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Dissolution of minerals that may liberate heavy metals
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CERCLA (cont’d)
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Potential for case-by-case claim for Natural Resource
Damages or response costs – Trustees (U.S., State,
Tribes) may pursue
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Defense to liability – “federally-permitted release”
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Expressly applies to UIC (42 USC 9601(10) and 9707(j))
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courts have construed narrowly – nicknamed “disappearing
exemption”
N/A if release is (1) not expressly permitted; (2) exceeds the
limitations established in the permits; or (3) occurs during a
time period when there were no permits.
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CERCLA (cont’d)
“Class VI permits will need to be carefully structured
to ensure that they do not ‘authorize’ inappropriate
hazardous releases . . . include clarifying if there
are potential releases from the well which are
outside the scope of the Class VI permit.”
What releases and “potential” releases should be
included in a permit application and permit?
What is an “inappropriate” release?
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Practical Challenges
 Phased corrective action/monitoring wells
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Negotiating site access agreements
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What happens if access denied?
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EPA recommends monitoring groundwater for
heavy metals and organics to track plume and
pressure front.
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How much sampling?
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What are the risks?
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What happens if contamination is
identified unrelated to UIC?
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Post-Injection Site Care
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50 years (possibly longer) or less time if demonstration of no
endangerment (monitoring and modeling in sync)
“. . .could be 100 years (or longer) if monitoring and modeling
information suggest that the plume may still endanger USDWs. . .”
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Deed recordation for the facility property (in perpetuity)
- What about other properties below plume?
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Financial Assurance
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Terminates after completed P-I site care approved and no longer
endangerment
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Specifies only a “general duty” to obtain financial care
(guidance to be provided later)
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May allow bi-furcated approach (well plugging v. P-I site care)
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Long-Term Liability Transfer
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“SDWA does not provide EPA with the authority to transfer liability
from one entity to another.”
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UIC regulations allow permit to be transferred
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Trust responsibilities for owner/operator are in perpetuity
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EPA says owner/operator may still be held responsible after
post-injection site care for unanticipated migration that
endangers USDW
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although parties may agree to contractually shift liability, such
agreements may not be binding on the government
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