EPA Provides Increased Transparency in Class VI Permitting Process; Now Incorporated in Update to Interactive CCUS State Tracker

Environmental Edge: Climate Change & Regulatory Insights

By Samuel Pickerill Ethan G. Shenkman Sarah Grey

The Environmental Protection Agency (EPA) has created a new website providing detailed status updates on Class VI permit applications pending before the agency. Class VI permits, a component of EPA’s Underground Injection Control program, are required for most carbon capture and sequestration (CCS) projects to begin construction of a well(s) to inject carbon dioxide in deep subsurface formations where it will become permanently sequestered. EPA provides guidance on each phase of the permitting process and specific estimates for the 47 CCS projects that have submitted administratively complete Class VI permit applications. EPA also lists 11 projects with pending applications that are not yet administratively complete, for a total of 169 permit applications at 58 projects.

Arnold & Porter, in collaboration with Columbia Law School’s Sabin Center for Climate Change Law, maintains an up-to-date interactive online tracker surveying the legislative frameworks that states have enacted to facilitate CCS projects. This tracker has now been expanded to map the projects on EPA’s permitting website by state and EPA Region.

EPA Estimates for Permit Processing Timeline

EPA’s general timeline estimates an approximately 25-month total process from application to final permit, divided into five phases:

30-day completeness review
18-month technical review
60-day preparation of draft permit
30 to 45-day public comment period
90-day preparation of final permit

Once the final permit is issued, storage operators may begin construction, but still must conduct additional testing and obtain a separate authorization from EPA before injection may commence.

EPA indicates that it expects to finalize the permits for the Wabash Carbon Services project in Indiana before the end of this year, which would become the first Class VI permits issued by EPA since 2015. The agency also expects to issue final permits for 13 other projects by the end of 2024, and to have issued final permits for all 44 projects with complete applications by Q3 2025.

Increased Transparency

The information published in EPA’s new website helps peel back the curtain on a Class VI permitting timeline that has been associated with considerable uncertainty, in part due to the very small sample size of permits issued by EPA to date. However, the 25-month timeline laid out by EPA remains considerably longer than North Dakota, the only state to have issued Class VI permits to date under its primacy authority. North Dakota has averaged approximately nine months from application to final permit for the five facilities the state has permitted.

Builds off Recent EJ Guidance

EPA’s new website release also follows the publication of new environmental justice (EJ) guidance which, among other priorities, directs EPA Regions to be “transparent in decision making throughout the UIC Class VI permitting process.” That guidance specified that the administrative record for Class VI permits, as well as compliance monitoring, test results, records, and reports required by the permit, should be made “publicly available, understandable, and readily accessible to the community.”

CCUS Tracker

State-level information from EPA’s permitting website has been incorporated into Arnold & Porter’s CCUS State Legislative Tracker, a collaboration with Columbia Law School’s Sabin Center for Climate Change Law. Users may now use the tracker to compare the number of CCS projects in development in each state with the state’s legislative actions. Users may also view projects by EPA Region to compare the permit processing workload across the agency’s regional offices.

The tracker will continue to be updated in real time as EPA periodically provides new Class VI permitting information. For comments and suggestions please contact CCUSTracker@arnoldporter.com.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.