CO2 sequestration storage pore surface owners

(Correction: The initial release of this column contained an error - that 18,000 people had died in the gas incident in Africa. The actual number was closer to 1,800.)
   LARAMIE - Twenty years ago a huge explosion of gas from Lake Nyos in the central Africa Republic of Cameroon killed nearly 1,800 people and untold livestock up to 15 miles away. The naturally occurring gas was carbon dioxide (CO2). A year later, the U.S. House Committee on Energy and Commerce decided that, “since CO2 is deadly, CO2 pipelines should have appropriate federal safety regulations.”

   Concerns about CO2 today center not on its ability to asphyxiate, as in the Lake Nyos incident, but on its role in global warming. Many are hopeful that new carbon capture and geological storage technology can reduce CO2 emitted from coal-fired power plants and other industrial sources by 80 percent or more. Carbon capture and storage involves removing CO2 from fuels, compressing it, and injecting it under pressure deep underground. Wyoming, the country’s biggest coal-producer, is at the forefront of this effort.

   Two interesting bills now before the Legislature address carbon capture and storage.

   However well intentioned, the second measure jumps the gun. The legal status of sequestered CO2 is a thorny issue that the federal Environmental Protection Agency must address and which it is only now beginning to take on.

   Two types of CO2 injection - for experimental purposes and “enhanced oil recovery” - are regulated under the federal Underground Injection Control program to protect drinking water, which the state administers with EPA approval. No law explicitly permits long-term CO2 storage. In addition, U.S. Dept. of Transportation rules for pipelines treat CO2 as a hazardous liquid.

   HB 90 directs the Wyoming Dept. of Environmental Quality to establish and issue permits to new “sub-classes of wells” within the Underground Injection Control program and to regulate well standards, bonding and monitoring.

   Carbon capture and storage technology is already well advanced, but law and policy lag behind. Last fall, Governor Freudenthal blamed “the absence of a well-thought-out, cogent federal policy” for the difficulties states face in “setting workable rules, regulations and operating practices.” Although he told a congressional committee that Wyoming “favor(s) a model of federal standards and state implementation” (pointing to the Clean Air Act), he has urged the state legislature to “act now.”

   If HB 90 is enacted, Wyoming will be the first to regulate long-term geologic sequestration of CO2. Whether that law will mesh with EPA’s proposed underground injection rules, due in summer 2008, is the big question. In the case of conflict, the Constitution dictates that federal law prevails.

   Why legislate on a matter that the federal government controls? HB 90 is brief and couched in the most general terms, leaving the specifics to Dept. of Environmental Quality, so the law will do little to influence EPA rules.

   Raising the public profile of this issue is desirable. But might this bill actually mislead the public? HB 90 gives no hint that the state may not have complete discretion and ignores the risks of carbon capture and storage.

   At concentrations above ten percent CO2 can cause adverse health effects. The Lake Nyos incident illustrates what happens when CO2 is suddenly released: it blankets the ground and (at concentrations above 25 percent), asphyxiates humans and animals. CO2 removed from combusted coal contains impurities, some toxic. CO2 dissolves readily in water, forming carbonic acid, hence the Department of Transportation pipeline requirements. “Supercritical” CO2, forcefully injected underground in vast quantities, can contaminate aquifers, escape through geologic faults or abandoned wells, and trigger seismic events.

   Of greatest concern, say deputy state engineer Harry Labonde and Univ. of Wyoming School of Energy Resources director Mark Northam, is the potential for groundwater contamination. CO2 dissolves toxic minerals in rock, which can then pollute aquifers.

   Northam, a research scientist with a Ph.D. in organic geochemistry, cautioned legislators in a judiciary committee meeting not to proceed too hastily, warning that CO2 storage involves “unbalancing geologic systems that have been in balance for millions of years.” The “core question,” he says, is where CO2 should be stored. Few sites are appropriate and safe.

   CO2’s unresolved legal status also clouds the viability of carbon storage. Is the purpose to store a commodity for future use? The governor has said as much, and one sentence in HB 90 provides for state jurisdiction over “any subsequent extraction … for commercial or industrial purposes.”

   Or is the purpose to dispose of a waste product—a pollutant? Under the law, the distinction matters.

   According to the Congressional Research Service, “it is unlikely that the quantities of CO2 captured under a widely implemented CCS policy could all be absorbed in EOR or ECBM [enhanced recovery of coal bed methane] applications. In the long run, significant quantities of captured CO2 will have to be disposed as industrial pollution ….”

   A crucial question is whether sequestered CO2 might be subject to regulation under the federal Resource Conservation and Recovery Act as a solid, and perhaps a hazardous, waste. Don’t scoff: the act’s regulations stringently regulate land disposal of hazardous wastes, including in injection wells. In sum:
• if supercritical CO2 - a dense vapor or fluid contained in pipelines prior to injection - is deemed a “liquid” or “contained gaseous material”, and
• if the sequestered CO2 is deemed to be “discarded,”
the CO2 will be a “solid waste” subject to the Resource Conservation and Recovery Act. If the stored CO2 (under pressure, soluble in water, able to cause seismic fractures and dissolve toxic constituents in rock) is deemed to pose a hazard, it also will be “hazardous waste.”

   Even if EPA doesn’t act, governors can petition the agency to list any substance as a hazardous waste, and citizens can sue to prevent the storage or disposal of any “solid waste” that “may present an imminent and substantial endangerment to health or the environment.”

   The large scale of carbon storage, if widely adopted, reinforces the need for federal regulation. Many potential CO2 storage areas straddle state boundaries, as would some pipelines.