By Keith B. Hall,
LSU Law School
On January 17, 2025, the U.S. Environmental Protection Agency (EPA) issued a final rule under the Safe Drinking Water Act (SDWA) to grant primacy to West Viriginia for Class VI wells. Class VI wells are injection wells used for the disposal of CO2 (carbon dioxide) in carbon capture and storage (CCS). The final rule had not yet been published by the time Donald Trump was inaugurated on January 20, 2025, but new EPA Administrator Lee M. Zeldin signed the final rule on February 18, 2025, signifying the Trump administration’s intent to follow through on publishing the final rule in the Federal Register. The grant of primacy will be effective thirty days after the rule is published in the Federal Register.
Background
Congress enacted the Safe Drinking Water Act (“SWDA”) in 1974 “to assure that water supply systems serving the public meet minimum national standards for protection of public health.” The SDWA protects drinking water systems in several ways. Part C of the SDWA seeks to protect underground sources of drinking water (“USDW”) by directing the EPA to develop regulations for State underground injection control (“UIC”) regulations, including “minimum requirements for effective programs to prevent underground injection which endangers drinking water sources.”
Federal regulations promulgated to implement the SDWA establish six classes of injection wells and provide regulations for each class. The original federal UIC regulations recognized five classes of wells—Classes I though V—but Class VI was added in 2010 to regulate wells used to inject carbon dioxide for CCS.
Primacy
Part C of the SDWA provides two processes for States to seek primary enforcement authority—commonly called “primacy”—to implement and enforce the SDWA within their respective borders. When primacy for UIC regulations is granted, it is granted on a class-by-class basis. Thus, a state can receive primacy for one or more classes of injection wells, without receiving primacy for all classes. Indeed, a majority of states have primacy for some classes of injection wells, without having primacy for all classes.
Section 1422 of the SDWA (42 U.S.C. § 300h-1) provides the first process by which a state may obtain primacy for a class of wells. Under this process, a state can obtain primacy for a particular class of wells by demonstrating to the EPA that the state has implemented UIC rules for that class of wells that meet the federal regulatory standard for protecting USDWs. This Section 1422 process can be used to obtain primacy for any class of UIC wells. Pursuant to Section 1422, West Virginia obtained primacy for Class I, III, IV, and V wells in 1983.
The second process for obtaining primacy is found in Section 1425 of the SDWA (42 U.S.C. § 300h-4). Section 1425 provides an alternative process that can be used to obtain primacy for Class II wells, though a state can use the Section 1422 process to obtain primacy for Class II wells if the state wishes. The alternative Section 1425 process cannot be used to obtain primacy for any class of UIC wells other than Class II. In 1982, at the time West Virginia was obtaining primacy for Classes I, III, IV, and V pursuant to Section 1422, the State obtained primacy for Class II wells pursuant to Section 1425.
Of course, West Virginia did not obtain primacy for Class VI wells in 1983, at the time that it obtained primacy for Classes I through V, because Class VI was not created until 2010.
West Virginia’s Primacy Application
In 2022, West Virginia enacted H.B. 4491, which amends certain existing statutes and adds new statutes to govern carbon capture and storage. The statutes are found at West Virginia Code Chapter 22 (Environmental Resources), Article 11A (Carbon Dioxide Sequestration).
On May 1, 2024, West Virginia submitted its Class VI primacy application to the EPA. The application included various components required for a Class VI application. In West Virginia’s case, these included a description of the State’s Class VI UIC program, copies of all applicable rules and all forms, a statement from the Attorney General regarding authority to submit the application, a summary of West Virginia’s public participation activities, an amendment to the memorandum of agreement between West Virginia and EPA’s Region 3 office regarding West Virginia’s UIC program, an interagency memorandum of agreement between the West Virginia Department of Environmental Protection and the West Virginia Geological and Economic Survey, and an interagency agreement between the WVDEP and the West Virginia Department of Health.
The EPA conducted a comprehensive technical and legal evaluation of West Virginia’s Class VI application. On November 27, 2024, EPA published a proposed rule to grant primacy to West Virginia. The period for public comment ended on December 30, 2024.
EPA Grants Primacy
On January 17, 2024, just three days before the end of the Biden administration, the EPA issued a final rule granting primacy to West Virginia for Class VI wells, with the grant of authority to be effective thirty days after the rule is published in the Federal Register. The final rule states that “the EPA is approving West Virginia’s application because the EPA has determined that the application meets all applicable requirements for approval … and the State is capable of administering a Class VI program in a manner consistent with the terms and purposes of SDWA and applicable UIC regulations.” The final rule grants the West Virginia Department of Environmental Protection the authority to oversee the State’s Class VI UIC program, except on Indian lands. The EPA will remain the permitting authority as to Indian lands.
New EPA Administrator Lee M. Zeldin signed the final rule on February 18, 2025, signifying the new administration’s intent to follow through on publishing the rule in the Federal Register. The rule will be effective thirty days after it is published in the Federal Register.
Supporters of primacy have expressed hope that state regulators will be able to process Class VI applications more quickly than the federal government has. The EPA has stated a goal of processing Class VI permit applications in 24 months, but there has been a backlog of applications and the EPA does not appear to be meeting its goal of processing applications within 24 months.
[1] The Safe Drinking Water Act is found at 42 U.S.C. §§ 300f et seq.
[2] A pre-publication of the final rule is available here: https://www.epa.gov/system/files/documents/2025-01/prepublication-12000-02-ow_frn_wv-uic-class-vi_final_20250117_admin-002.pdf.
[3] 40 C.F.R. § 144.6(f).
[4] See pre-publication draft of final rule, available at: https://www.epa.gov/system/files/documents/2025-01/prepublication-12000-02-ow_frn_wv-uic-class-vi_final_20250117_admin-002.pdf.
[5] H.R. Rep. No. 93-1185 (1974).
[6] 42 U.S.C. § 300h(a)-(b).
[7] 40 C.F.R. § 144.6.
[8] Class I wells are wells used to inject wastes “beneath the lowermost formation containing, within one-quarter mile of the well bore, an underground source of drinking water.” 40 C.F.R. § 144.6(a). Class II wells are wells in which fluids are injected for disposal of produced water and certain wastewater associated with oil and gas production, “enhanced recovery of oil or natural gas,” or for storage of liquid hydrocarbons. 40 C.F.R. § 144.6(b). Class III wells are wells associated with certain mining activities, such as solution mining. 40 C.F.R. § 144.6(c). Class IV wells are wells used for injection of wastes into a formation that contains an underground source of drinking water within one-quarter mile of the well. 40 C.F.R. § 144.6(d). Class IV wells were banned in 1984. Class V wells are injection wells that do not fit into any other category of injection well. 40 C.F.R. § 144.6(e).
[9] 75 Fed. Reg. 77230 (Dec. 10, 2010).
[10] Part C of the SDWA is found at 42 U.S.C. §§ 300h et seq.
[11] See 48 Fed. Reg. 55127 (Dec. 9, 1983).
[12] 48 Fed. Reg. 55127 (Dec. 9, 1983).
[13] 75 Fed. Reg. 77230 (Dec. 10, 2010). The federal regulations specific to Class VI wells are found at 40 C.F.R. §§ 146.81 through 146.95.
[14] Information on H.B. 4491 of 2022 appears on the West Virginia legislature’s website at: https://legiscan.com/WV/bill/HB4491/2022.
[15] West Virginia Code §§ 22-11A-1 through 22-11A-9.
[16] 89 Fed. Reg. 93538 (Nov. 27, 2024).