PEC and the Environmental Defense Fund submitted the following letter today to the Senate Environmental Resources & Energy Committee on newly introduced legislation that would task the Department of Environmental Protection with pursuing primacy for Class VI injection wells, which can be used for carbon capture and storage (CCUS). While PEC supports measured CCUS deployment, we have concerns with the legislation as written.
November 14, 2022
To: Members of the Senate Environmental Resources and Energy Committee
Re: Carbon Dioxide Geologic Sequestration Primacy Legislation (SB 1361)
Dear Senators:
The Pennsylvania Environmental Council (PEC) and Environmental Defense Fund (EDF) respectfully submit these comments on Senate Bill 1361 (P.N. 1361), addressing carbon dioxide geologic sequestration primacy.
PEC[1] and EDF feel strongly that any carbon capture deployment in Pennsylvania should only proceed with appropriate safeguards and considerations incorporated, and we appreciate Senator Yaw bringing this issue forward for consideration. However, we have significant concerns with the bill as written and cannot support it. Our reasons, following the sequence of the draft legislation, are as follows:
- Section 2 of the bill requires the Department of Environmental Protection (DEP) to submit an application within 90 days to the U.S. Environmental Protection Agency (EPA) for state primacy for Class VI injection wells. The issue with this requirement is that an application can only be made once a state program has been fully established, which requires formal rulemaking in addition to certification by the Governor that the state is able to administer the program. That process will take one to two years at a minimum. While it is reasonable to charge DEP with starting the process, it is not feasible that an application to EPA can be made in 90 days.
- Sections 3 and 4 constrain requirements DEP can incorporate into its regulations and permitting for Class VI injection wells, preventing necessary environmental and public protections from being employed. No other state that has pursued primacy for Class VI injection wells has adopted these types of restrictions. Further, these limitations run counter to federal funding guidance for carbon capture deployment.
- Section 3 prevents DEP from adopting any criteria or standards that go above minimum federal requirements. Section 4 absolves permit applicants from complying with existing state permitting requirements under Title 58 (58 Pa. C.S. §3211). It’s important to note that federal Class VI standards originate from a groundwater protection program. The restrictions in this legislation would prevent DEP from addressing key issues like induced seismicity, environmental justice, and critical well siting and management issues that are unique and critical to Pennsylvania. When EPA reviews the state’s application for primacy, it will certainly factor these issues in its determination.
- In addition, the U.S. Department of Energy’s emerging guidance on federal funding for carbon capture demonstration projects[2] expressly calls out the need to proactively address community impacts and environmental justice. Thus, not only would the limitations in this bill inhibit environmental protections, it could also disadvantage operators in Pennsylvania from obtaining funding to deploy carbon capture.
- The legislation fails to provide any resources to DEP to develop or implement a Class VI injection well program. The budget, personnel, and skill sets needed to effectively oversee a Class VI program for the benefit of both the public and the regulated community are considerable.
Our recommendation to the Committee is to amend this legislation to:
- Make a simple authorization to DEP to start the process to seek primacy for Class VI injections wells in a manner that protects the public while also making Pennsylvania a leader in decarbonization for the benefit of our environment, communities, economy, and industry.
- Make a commitment to provide DEP with the resources it needs to accomplish this goal.
This simplification would send the strongest signal that Pennsylvania intends to be a leader in carbon capture deployment. It would also allow for proper development and enactment of a program in the coming years.
Thank you for your consideration.
John Walliser
Senior Vice President, Legal and Government Affairs
Pennsylvania Environmental Council
Adam Peltz
Director and Senior Attorney, Energy Transition
Environmental Defense Fund
[1] Please also see PEC’s submitted comments to the Committee for the Informational Hearing that was held on September 19, 2022. https://pecpa.org/wp-content/uploads/2022/08/PEC-Senate-ERE-Hearing-Comments-19-Sept-2022.pdf
[2] https://oced-exchange.energy.gov/Default.aspx#FoaId3ec25bcf-a385-4b5a-87d2-2a0b8fa4ca5a