On December 28, 2023, the United States Environmental Protection Agency (“EPA”) approved Louisiana’s application for primary enforcement authority (primacy) over Class VI injection wells pursuant to the Safe Water Drinking Act (“SDWA”). This will allow the Louisiana Department of Natural Resources (“LDNR”) to issue permits and oversee compliance for Class VI wells. Class VI wells, as described in the unofficial final rule by the EPA, are “used to inject carbon dioxide into deep rock formations for the purpose of long-term underground storage, also known as geologic sequestration.” The geologic sequestration is intended to reduce the volume of carbon dioxide in the atmosphere.
The Class VI well program and the SDWA provide multiple safeguards for the protection of underground sources of drinking water and human health. Additionally, the program requires applicants to meet technical, financial, and reporting and record keeping requirements to obtain a Class VI permit. There are also many monitoring requirements that must take place throughout the operational period and continue after carbon dioxide injection is completed.
The application for primacy was approved on the basis that Louisiana’s application has meet all applicable requirements under SDWA §1422. As part of its application Louisiana enacted HB 571, which revised portions of the Louisiana law to include provisions applicable to carbon capture and sequestration. For a more thorough discussion of this bill which has now been enacted into law, please see our previous article entitled Recent Developments in Louisiana Carbon Capture, Utilization, and Storage Laws.
Overall, this is a positive development for members of the energy industry in Louisiana looking to engage in carbon capture and sequestration where a Class VI permit is required. Primacy now allows for the LDNR to approve these permits. This will hopefully speed up the approval process in Louisiana as currently the EPA permit approval process is rather time consuming since they must approve all permits from any state that does not have primacy authority. Thus, as Louisiana is now one of three states (the others being North Dakota and Wyoming) that have this primacy authority for Class VI wells, the number of permits of Class VI wells is expected to increase in Louisiana in the coming years.
Patrick represents clients on acquisitions and divestitures, complex mineral titles, pooling issues, lease analysis, joint operating agreements, surface use issues and title curative.