The U.S. Environmental Appeals Board on April 28 rejected four separate appeals over a U.S. Environmental Protection Agency permit covering underground sequestration of CO2 at the coal-fired FutureGen 2.0 power project in Illinois.
In this case, where the four appeals were consolidated, the Leinberger Family (Andrew H. Leinberger Family Trust and DJL Farm LLC) and William and Sharon Critchelow petitioned the Environmental Appeals Board to review four Class VI Underground Injection Control permits that the U.S. EPA Region 5 issued to the FutureGen Industrial Alliance. These Class VI permits authorize FutureGen to construct and operate four geologic sequestration wells for the purpose of injecting and storing carbon dioxide, a process also known as carbon sequestration. The FutureGen permits are among the first permits issued under regulations that EPA promulgated to govern carbon sequestration wells in the United States.
The petitioners raised a number of issues with respect to the permit decision. They asserted that the FutureGen’s modeling materially understates the size of the anticipated carbon dioxide plume that will spread underground at the level of injection. They also assert that FutureGen’s and the Region’s justification for the number and placement of monitoring wells is inadequate. Petitioners also argued that the Region inadequately identified wells within the area of review and failed to investigate reported well impacts. Finally, they challenged the financial responsibility provisions of the permits on a number of grounds.
Said the April 28 board ruling: “Petitioners have identified no clear error of fact or law, abuse of discretion, or matter of policy warranting the Board’s review under [federal regulations].”
- First, Region 5 was not required to independently model the anticipated plume and Region 5 conducted a thorough review of FutureGen’s modeling in a manner fully consistent with the Region’s obligations under the regulations. Additionally, petitioners’ technical arguments concerning the size and shape of the plume are immaterial, given the relative size of the delineated area of review, which is based on the pressure front rather than the plume. Moreover, the Board defers to the Region’s well-explained and supported technical determinations with respect to the modeling of the plume. Finally, notwithstanding Petitioners’ argument to the contrary, the Region did not rely on the requirement for further future evaluation of the area or review as a substitute for adequately delineating the area of review in this permit proceeding. Rather, the Region pointed out the reevaluation provisions as added reassurance. In sum, the Region did not err or abuse its discretion in approving the area of review for the FutureGen permits.
- Second, the administrative record reflects that the Region reviewed and approved the number and placement of the monitoring wells for the FutureGen permits in a manner consistent with the discretion afforded by the regulations. The board said it will not second guess the Region’s clear and supported rationale, particularly where petitioners have identified no flaw in the monitoring plan warranting review.
- Third, the Region did not clearly err or abuse its discretion in identifying and considering wells within the area of review. Owners or operators of Class VI wells are required to identify all wells within the area of review that may penetrate the confining zone. The Region’s identification efforts took into account the stratigraphy of the 1,814 square mile area of review, as well as the depths of the thousands of wells it identified using the state’s public databases. Based on that information, the Region reasonably determined that site reconnaissance, review of aerial and satellite imagery, and geophysical surveys were neither necessary nor appropriate. Moreover, petitioners’ identification of two wells on the Leinberger’s property that were not identified by the Region, were not in the public databases, and for which there was no basis from which to assume the wells would come anywhere near the confining zone, is not indicative of a flawed well identification process.
- Finally, the Region acted well within its discretion when it approved of FutureGen’s demonstration of financial assurance for emergency and remedial response costs, the board ruled. The Region provided a clear explanation on the record for its approval of the amount of financial assurance for emergency and remedial response costs, as well as its approval of a trust fund as the sole mechanism for financial assurance and its corresponding rejection ofthe proposed insurance policy.
FutureGen 2.0 is a near-zero emissions coal-fueled power plant. The FutureGen 2.0 project partners planned to upgrade a shut power plant in Meredosia, Ill. with oxy-combustion technology to capture approximately 1.1 million tons of CO2 each year—more than 90% of the plant’s carbon emissions.
This victory for the FutureGen alliance at the appeals board is a hollow one, since the U.S. Department of Energy in February pulled the plug on about $1 billion in federal funding, effectively killing the project. The board’s ruling, though, will probably have some precedent value as CO2 sequestration wells are permitted for other facilities in the future.