Highlights
- The U.S. Environmental Protection Agency (EPA) Region 6 on April 29, 2025, executed a Memorandum of Agreement Addendum 2 (MOA) with the Railroad Commission of Texas (RRC). This is a major step forward in Texas achieving primacy for Class VI underground injection control well permits for carbon capture and storage (CCS) facilities.
- The MOA marks an endpoint to the RRC's application process and the start of the rulemaking for the EPA to grant primacy to the RRC. There will be significant public engagement in the coming months as stakeholders have the opportunity to provide input and comment.
- The MOA is crafted to meet federal regulatory criteria requiring significant federal/state coordination and information sharing, along with the RRC taking the lead in inspections and enforcement. The MOA reveals that once primacy is granted, the RRC has committed to significant public outreach and community engagement in the permitting process and all pending permit applications will be transferred from the EPA to the RRC.
Stakeholders following developments in states obtaining primary authority for implementation and enforcement of permitting of carbon storage and sequestration wells, take notice. With a recent Memorandum of Agreement between the U.S. Environmental Protection Agency (EPA) and the Railroad Commission of Texas (RRC), Texas is a step closer to receiving that authority.
EPA Region 6 Regional Administrator Scott Mason and RRC Chairman and Commissioners executed a Memorandum of Agreement Addendum 2 (MOA) on April 29, 2025, marking a major step toward Texas receiving regulatory control, or primacy, for Class VI underground injection control (UIC) wells.
Class VI wells are used at carbon capture and storage (CCS) facilities to inject carbon into subsurface geologic formations and regulated by default under the federal Safe Drinking Water Act (SDWA) as a safeguard against potential impacts to underground sources of drinking water. SDWA regulations allow for states such as Texas to apply for regulatory primacy allowing the state to 1) issue permits for Class VI wells and 2) act as the primary enforcement agency. Currently, just four states – Louisiana, North Dakota, West Virginia and Wyoming – have primacy for Class VI wells. Louisiana is the only state to have primacy in EPA Region 6.
The MOA generally sets forth responsibilities for 1) the RRC's proposed Class VI permitting program, 2) the RRC's compliance monitoring and enforcement and 3) the EPA's oversight role for the RRC's administration of its Class VI program. Highlights include 1) an acknowledgement that the EPA will transfer to the RRC any pending Class VI permits, applications and other information once RRC receives primacy, 2) the RRC commitment to inspections and surveillance of permitted CCS facilities to ensure compliance with permit conditions and other regulatory requirements, and 3) the RRC commitment to public outreach and community engagement, including public meetings at convenient times with translating services, as appropriate, to get early feedback on permit applications. Perhaps unsurprisingly, references to environmental justice that were included in earlier drafts are not present in the executed MOA.
The RRC is several years into the application process, and the end now seems to be in sight. The MOA sets the stage for the RRC to obtain primary responsibility for Class VI UIC permits that support CCS facilities perhaps during this calendar year.
For next steps, the EPA will propose a rule granting primacy for Class VI wells to the RRC with a 45-day notice and comment period. After the close of notice and comment, the EPA will review and provide summaries and responses to the public comments received, including making any necessary revisions or updates to the proposed rule for consideration by the EPA administrator. Once the EPA administrator approves the final rule and selects an effective date, the final rule will be published in the Federal Register.
There is some recent precedent for what we might expect next in Texas. In EPA Region 6's recent rulemaking supporting Louisiana's Class VI primacy, almost 50,000 comments were received and reviewed by the EPA. Many of them focused on the ability of the state to administer the program and the post-closure liabilities associated with CCS projects. Given the commonalities in Texas, it is likely there will again be significant engagement by the public and other stakeholders during the rulemaking process on these topics and potentially others. The EPA's consideration of all comments received, along with the creation of a written response to the comments, will be another significant undertaking. In addition, the final rulemaking will present opportunity for stakeholders that remain skeptical to consider filing a lawsuit challenging the grant of primacy in federal court, as happened in Louisiana.
Strategic Considerations
Given these recent developments in the process for Texas obtaining primacy over the UIC Class VI well program, actions to best position companies and organizations for the transition include:
- Engaging with Regulatory Developments. Early involvement helps shape effective programs and policies, so interested parties should stay informed about comment periods and engage in the process – especially as the EPA moves toward the final rulemaking. The number and tenor of public comments will be an important early indicator of whether there will be significant legal or policy challenges and how much longer it might take for Texas to be able to take the reins of the Class VI well program.
- Considering Class VI Permit Application and Project Timeline in Texas. Applications currently at the EPA Region 6 office undergoing review could soon be transferred to the RRC once primacy is granted. Applicants should consider which strategic engagements will best position their applications and projects for future success.
- Beginning Work for the Transition. Ensure you are prepared to meet the intent and four corners of the Class VI program currently being considered for primacy in Texas, including the RRC's proposed robust public outreach and community engagement efforts during the permit application process.
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