EPA recently released a pre-publication version of a Notice of Data Availability and Request for Comments ("Notice") pertaining to its proposed regulatory amendments to the Underground Injection Control (UIC) Program that would establish a new class of wells (Class VI), pursuant to its authority under the federal Safe Drinking Water Act. The proposed regulations establishing the criteria and standards for issuance of Class VI Wells (to be codified at 40 CFR Part 146, Subpart H) will apply to wells that are used for the purpose of injecting carbon dioxide from an emission source into a deep subsurface rock formation for long-term storage (a.k.a. “Geologic Sequestration”). The proposed rule was issued in July, 2008 and has not yet been finalized. See "EPA Proposes UIC Rules for CO2 Injection Wells". The Geologic Sequestration of CO2 is a part of the process that is commonly referred to as “Carbon Capture and Storage,” or “CCS” - which is one of the key technologies that would allow coal to continue to be used as an energy supply after enactment of limits on greenhouse gas emissions.

The Notice describes the preliminary results of studies that have been undertaken as a part of the U.S. Department of Energy's Regional Carbon Sequestration Partnership projects, at the Lawrence Berkeley National Laboratory ("LBNL"), and by others. It includes a summary of the findings made by the LBNL team on the question of how an improperly managed CCS project might threaten underground drinking water supplies, such as by leaching and mobilization of contaminants from the injectate, and changes in regional groundwater flow. All of the referenced studies are available from EPA, and most may be accessed via the electronic docket found at: www.regulations.gov.

In addition, the Notice proposes to incorporate into the rules a process for seeking a waiver of the general requirement that all geologic sequestration take place below the lowest drinking water aquifer. According to EPA, in some states such a restriction would unduly hamper development of CCS projects, including the injection of CO2 into mined-out coal seams.

Comments on the proposed rule, in light of the additional data and proposal, must be received within 45 days from publication in the Federal Register (or by approximately late September or early October). A public hearing is scheduled for September 17, 2009, in Chicago. Comments may be submitted by on-line procedures, regular mail, or hand-delivery.