By John McFerrin
The United States Environmental Protection Agency has approved West Virginia’s application as the primary agency for regulating Class VI injection wells for carbon dioxide.
The driving force behind this is that West Virginia may someday be the site for wells to dispose of carbon dioxide underground. If that day comes, the state of West Virginia wants to be the one who permits and regulates the wells, rather than the Environmental Protection Agency.
The Safe Drinking Water Act is one of several federal statutes—including the Clean Water Act and the Surface Mining Control and Reclamation Act—that allow states the opportunity to regulate an industry within their borders. The federal statute sets out the requirements. States have the option of sitting still and allowing the federal agency to regulate the activity. The other choice states have is to develop their own regulatory program. If the state’s program is as effective as the federal one, the federal agency can approve that program and let the state take over regulation.
That is what happened here. West Virginia decided that it would prefer to develop its own program for regulating Class VI injection wells. The United States Environmental Protection Agency determined that West Virginia’s program is as effective as the federal program, granting the state authority to regulate Class VI wells in the future.
Why this matters:
Carbon dioxide in low concentrations is a naturally occurring gas. With every breath, we inhale and exhale some amount of it.
At higher concentrations it is toxic and possibly fatal. Concentrated carbon dioxide is used to kill pigs in slaughterhouses by replacing oxygen in the air. Mild exposure can cause headaches and drowsiness, while higher levels may lead to rapid breathing, confusion, increased cardiac output, elevated blood pressure and arrhythmias.
What People Are Saying:
The Gas and Oil Association of West Virginia and the West Virginia Manufacturers Association support the assumption of permitting authority by West Virginia, as does Senator Shelly Moore Capito. At the public hearing on West Virginia’s proposal, they talked of how great having these injection wells would be for West Virginia. In a statement, Senator Capito emphasized the importance of activities being regulated locally, not by the Environmental Protection Agency in another location.
Individuals and citizen groups—including the West Virginia Highlands Conservancy—opposed West Virginia taking control of permitting of Class VI wells for injecting carbon dioxide.
Prominent among the objections was West Virginia’s enforcement record on other types of injection wells. West Virginia already permits wells that dispose of brine and other waste from fracking as well as wells that allow carbon dioxide to be injected to enhance oil and gas recovery. It at least nominally enforces requirements at these wells.
The National Resources Defense Council did a study of West Virginia’s program. It found numerous instances of failures. It examined records of nineteen wells. At seventeen of those it found violations. It did not find any record of any fines being imposed upon the operators of those wells. With this type of track record, there is no justification for giving West Virginia a new responsibility.
There is also a question of resources. West Virginia has thousands of abandoned and orphan gas wells that need to be plugged. It has no plans to plug any meaningful number of these wells. The plans, such as they are, to plug these wells will not result in all—or even most—of these wells being plugged for decades. If West Virginia has no resources for this task, it is unwise to give it the additional task of regulating carbon dioxide injunction wells.
These unplugged oil and gas wells are a particular problem when considering a permit for injection of carbon dioxide. Unplugged wells provide an avenue for the injected carbon dioxide to leak.
The citizen groups also point out that the proposal to allow West Virginia to permit Class VI injection wells calls for a taking of property. Before a company can do the carbon dioxide injection, it must acquire the ‘pore space” at the injection site (see accompanying box for more about “pore space”). West Virginia’s proposal allows it to issue a permit when the applicant has only acquired 75% of the pore space. This results in the taking of the property of the owners of the remaining 25% of the pore space.
Finally, the citizen groups point to a lack of continuing responsibility by the well operator. Leaks or groundwater contamination from the stored carbon dioxide can occur any time, even after the well is complete and carbon dioxide is no longer being injected. Yet West Virginia’s proposal issues a Certificate of Completion when the well is complete. There is no mechanism for holding the operator accountable for anything that happens after that.
What are “pore Spaces?” Why should we care?
The expression “solid as a rock” to the contrary, rocks are not solid. All rocks have tiny spaces between the particles that make up the rock. These spaces are called “pore spaces.” The size of the pore spaces depends upon the type of rock.
Before natural gas or oil is extracted, it is in these pore spaces. If carbon dioxide is injected for storage, it will be stored in these pore spaces.
These pore spaces have a value. Anyone who wishes to use the pore spaces to store carbon dioxide would have to acquire them. In 2023 the West Virginia Legislature authorized the West Virginia Department of Natural Resources to lease the pore spaces beneath state forests, wildlife management areas, and other areas within its jurisdiction for carbon dioxide storage. As a West Virginian, you should care because it is a piece of land you own being sold off.
If you own land yourself, you should care because people and companies are currently approaching landowners about buying their pore spaces. Since there are currently no concrete plans for any carbon storage facilities, they are probably speculating, hoping that—if carbon capture and storage ever comes to pass—they will own the rights to valuable pore spaces.
If you are ever approached about selling pore spaces on your land, head over to the Surface Owners’ Rights Organization website. (wvsoro.org). It has a lot of useful information about this.
The big picture:
The big picture in all this is the response to the climate change that carbon dioxide produces. Burning coal, oil, or natural gas releases carbon dioxide. Released to the atmosphere, this carbon dioxide results in climate change.
One way to reduce the carbon dioxide is, of course, to burn less coal, oil, and natural gas. That means energy conservation programs as well as getting energy from alternative sources such as solar, wind, etc.
If we want to keep burning coal, oil, and natural gas, one way to do it is to capture the carbon dioxide that is released and pump it deep underground where it can no longer contribute to climate change. Right now, this is not a realistic prospect in West Virginia. Installing carbon capture equipment on power plants may be a gleam in the eyes of Appalachian Power, the West Virginia Coal Association, etc., but there is no public information that says that there will be a real proposal in the future. The technology has never been shown to work on a large scale, making its adoption unlikely.
The more likely possibility is capturing and storing the carbon dioxide released when hydrogen is produced from natural gas.
Methane—by far the largest component of natural gas—is a combination of carbon and hydrogen. Hydrogen is potentially useful as a fuel and for other industrial purposes. One prominent source of hydrogen is taking methane and removing the hydrogen. The process results in substantial quantities of carbon dioxide, quantities that could be captured and stored underground.
The enthusiasm for storing carbon dioxide underground (and West Virginia’s enthusiasm for controlling the regulation of wells to do that) comes from ARCH2 (Appalachian Regional Clean Hydrogen Hub). That is the program that the federal government has funded to develop several facilities in West Virginia that produce or use hydrogen. The details of the various projects are unknown; what we do know is that ARCH2 creates the potential for hydrogen production and the necessity to store the resulting carbon dioxide.
Coloring all this is the current situation in Washington. There are new memos and Executive Orders every day; many talk about funding. Maybe the federal government will ask for the ARCH2 money back. Maybe it won’t. Maybe the money will be already committed so it can’t have the money back even if it wants it back. We will just have to wait and see. If the government does end up taking the ARCH2 money back, the impact upon hydrogen production in West Virginia, the need to dispose of carbon dioxide underground, etc., will be enormous.
One possible indication of the fate of ARCH2 was a Jan., 31, 2025 announcement by the United States Department of Energy. It has canceled the scoping meeting for ARCH2 that was scheduled for Feb., 5. A project such as ARCH2 would require an Environmental Impact Statement. An early step in the Environmental Impact Statement process is called scoping. In scoping, the agency decides what issues it will study; this includes opportunities for the public to suggest issues for study. That was the purpose of the scoping meeting that was just canceled. Maybe canceling the meeting means that the ARCH2 project is in jeopardy. Maybe it doesn’t mean anything. We will have to wait and see.