(a) Scope of jurisdiction. This subchapter applies to the geologic storage and associated injection of anthropogenic CO             2            in this state, both onshore and offshore.     
      (b) Injection of CO             2            for enhanced recovery.      
        (1) This subchapter does not apply to the injection of fluid through the use of an injection well regulated under §3.46 of this title (relating to Fluid Injection into Productive Reservoirs) for the primary purpose of enhanced recovery operations from which there is reasonable expectation of more than insignificant future production volumes of oil, gas, or geothermal energy and operating pressures are no higher than reasonably necessary to produce such volumes or rates. However, the operator of an enhanced recovery project may propose to also permit the enhanced recovery project as a CO                 2                geologic storage facility simultaneously.       
        (2) If the director determines that an injection well that is permitted for the injection of CO                 2                for the purpose of enhanced recovery regulated under §3.46 of this title should be regulated under this subchapter because the injection well is no longer being used for the primary purpose of enhanced recovery operations or there is an increased risk to USDWs, the director must notify the operator of such determination and allow the operator at least 30 days to respond to the determination and to file an application under this subchapter or cease operation of the well. In determining if there is an increased risk to USDWs, the director shall consider the following factors:                  (A) increase in reservoir pressure within the injection zone;                   (B) increase in CO                     2                    injection rates;                   (C) decrease in reservoir production rates;                   (D) distance between the injection zone and USDWs;                   (E) suitability of the enhanced oil or gas recovery AOR delineation;                   (F) quality of abandoned well plugs within the AOR;                   (G) the storage operator's plan for recovery of CO                     2                    at the cessation of injection;                   (H) the source and properties of injected CO                     2                    ; and                   (I) any additional site-specific factors as determined by the director.         
        (3) This subchapter does not preclude an enhanced oil recovery project operator from opting into a regulatory program that provides carbon credit for anthropogenic CO                 2                sequestered through the enhanced recovery project.       
      (c) Injection of acid gas. This subchapter does not apply to the disposal of acid gas generated from oil and gas activities from leases, units, fields, or a gas processing facility. Injection of acid gas that contains CO             2            and that was generated as part of oil and gas processing may continue to be permitted as a Class II injection well. The potential need to transition a well from Class II to Class VI shall be based on the increased risk to USDWs related to significant storage of CO             2            in the reservoir, where the regulatory tools of the Class II program cannot successfully manage the risk. In determining if there is an increased risk to USDWs, the director shall consider the following factors:      
        (1) the reservoir pressure within the injection zone;       
        (2) the quantity of acid gas being disposed of;       
        (3) the distance between the injection zone and USDWs;       
        (4) the suitability of the disposed waste AOR delineation;       
        (5) the quality of abandoned well plugs within the AOR;       
        (6) the source and properties of injected acid gas; and       
        (7) any additional site-specific factors as determined by the director.       
      (d) This subchapter applies to a well that is authorized as or converted to an anthropogenic CO             2            injection well for geologic storage (a Class VI injection well). This subchapter applies regardless of whether the well was initially completed for the purpose of injection and geologic storage of anthropogenic CO             2            or was initially completed for another purpose and is converted to the purpose of injection and geologic storage of anthropogenic CO             2            , except that the Commission may not issue a permit under this subchapter for the conversion of a previously plugged and abandoned Class I injection well, including any associated waste plume, to a Class VI injection well.     
      (e) Expansion of aquifer exemption. The areal extent of an aquifer exemption for a Class II enhanced recovery well may be expanded for the exclusive purpose of Class VI injection for geologic storage if the aquifer does not currently serve as a source of drinking water; and the total dissolved solids content is more than 3,000 milligrams per liter (mg/l) and less than 10,000 mg/l; and it is not reasonably expected to supply a public water system in accordance with 40 CFR §146.4. An operator seeking such an expansion shall submit, concurrent with the permit application, a supplemental report that complies with 40 CFR §144.7(d). The Commission adopts 40 CFR §144.7 and §146.4 by reference, effective September 20, 2022.     
      (f) Injection depth waiver. An operator may seek a waiver from the Class VI injection depth requirements for geologic storage to allow injection into non-USDW formations while ensuring that USDWs above and below the injection zone are protected from endangerment. An operator seeking a waiver of the requirement to inject below the lowermost USDW shall submit, concurrent with the permit application or a permit amendment application, a supplemental report that complies with 40 CFR §146.95. The Commission adopts 40 CFR §146.95 by reference, effective September 20, 2022.     
      (g) This subchapter does not apply to the injection of any CO             2            stream that meets the definition of a hazardous waste under 40 CFR Part 261.     
      (h) An operator shall apply for a permit to drill (Form W-1) prior to drilling a stratigraphic test well, notify the UIC Section of the application, and submit a completion report (Form W-2/G-1) once the well is completed. If the operator plans to convert the stratigraphic test well to a Class VI injection well, the well construction shall meet all of the requirements of this subchapter for a Class VI injection well. Any stratigraphic test well drilled for exploratory purposes only shall be governed by the provisions of Commission rules in Chapter 3 of this title (relating to Oil and Gas Division) applicable to the drilling, safety, casing, abandoning, and plugging of wells. As an alternative to drilling a stratigraphic test well, an operator may obtain data for site characterization from offset wells.     
      (i) If a provision of this subchapter conflicts with any provision or term of a Commission order or permit, the provision of such order or permit controls provided that the provision satisfies the minimum requirements for EPA's Class VI UIC program.     
      (j) The operator of a geologic storage facility must comply with the requirements of this subchapter as well as with all other applicable Commission rules and orders, including the requirements of Chapter 8 of this title (relating to Pipeline Safety Regulations) for pipelines and associated facilities.     
     Source Note:        The provisions of this §5.201 adopted to be effective December 20, 2010, 35 TexReg 11202; amended to be effective September 19, 2022, 47 TexReg 5797; amended to be effective September 11, 2023, 48 TexReg 5022