(Senate - May 12, 2009)

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[Pages S5373-S5375]
From the Congressional Record Online through the Government Publishing Office []


      By Mr. BINGAMAN (for himself, Mr. Barrasso, Mr. Dorgan, Mr. 
        Tester, Mr. Bayh, Ms. Landrieu, and Mr. Casey):
  S. 1013. A bill to authorize the Secretary of Energy to carry out a 
program to demonstrate the commercial application of integrated systems 
for long-term geological storage of carbon dioxide, and for other 
purposes; to the Committee on Energy and Natural Resources.
  Mr. BINGAMAN. Mr. President, I am pleased to have been able to 
introduce the Department of Energy Carbon Capture and Sequestration 
Program Amendments Act of 2009, S. 1013, along with Sens. Barasso, 
Dorgan, Tester, Udall, Bayh, Landrieu, Casey, and Voinovich. It is 
critical that we work towards reducing our greenhouse gas footprint 
while producing safe and secure, clean energy here in America. I 
believe this bill will go far to incentivize early project developers 
to start reducing their carbon dioxide emissions through carbon capture 
and geologic sequestration.
  This bipartisan bill establishes a national indemnity program through 
the Department of Energy for up to 10 commercial-scale carbon capture 
and sequestration projects. There is a clear need for liability 
treatments and adequate project financing for early mover projects. An 
indemnity program is a strong step to building confidence for project 
developers and demonstrates that the projects will be conducted safely 
while addressing the growing concerns of reducing greenhouse gas 
emissions from industrial facilities, such as coal and natural gas 
fired utilities, cement plants, refineries and other carbon intensive 
industrial processes.
  In addition, the legislation maps out a clear framework for closing 
down a geological storage site. It is essential to consider the issue 
of safe, long-term storage of carbon dioxide and take the steps needed 
for site stewardship during the injection phase, directly following 
closure and for long-term preventative maintenance of the geologic 
storage site. Many stakeholders associate maintenance issues with 
liability concerns, however they should be viewed as two separate 
entities. Maintenance is essential for reducing risk and limiting 
liabilities at a storage site, and it is critical to have robust 
monitoring and verification of an injected carbon dioxide plume at each 
of the storage sites that would continue well past site closure. With a 
proper site maintenance program developed for each project, risk will 
be minimized and developers will have greater confidence that 
liabilities will not be incurred. This legislation will require 
science-based monitoring and verification of the injected carbon 
dioxide plume throughout the life of the project to well beyond the 
closure phase.
  Also, as carbon capture and sequestration projects grow in both scale 
and number, there will be an increasing need to train qualified 
regulators to oversee the permitting, operation, and closure of 
geologic storage sites. This bill creates a grant program whose goal

[[Page S5374]]

is to train State agencies and personnel who oversee the regulatory 
aspects of geologic storage of carbon dioxide.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1013

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Department of Energy Carbon 
     Capture and Sequestration Program Amendments Act of 2009''.


       (a) In General.--Subtitle F of title IX of the Energy 
     Policy Act of 2005 (42 U.S.C. 16291 et seq.) is amended by 
     inserting after section 963 (42 U.S.C. 16293) the following:


       ``(a) Definitions.--In this section:
       ``(1) Industrial source.--The term `industrial source' 
     means any source of carbon dioxide that is not naturally 
       ``(2) Large-scale.--The term `large-scale' means the 
     injection of over 1,000,000 tons of carbon dioxide each year 
     from industrial sources into a geological formation.
       ``(3) Secretary concerned.--The term `Secretary concerned' 
       ``(A) the Secretary of Agriculture (acting through the 
     Chief of the Forest Service), with respect to National Forest 
     System land; and
       ``(B) the Secretary of the Interior, with respect to land 
     managed by the Bureau of Land Management (including land held 
     for the benefit of an Indian tribe).
       ``(b) Program.--In addition to the research, development, 
     and demonstration program authorized by section 963, the 
     Secretary shall carry out a program to demonstrate the 
     commercial application of integrated systems for the capture, 
     injection, monitoring, and long-term geological storage of 
     carbon dioxide from industrial sources.
       ``(c) Authorized Assistance.--In carrying out the program, 
     the Secretary may enter into cooperative agreements to 
     provide financial and technical assistance to up to 10 
     demonstration projects.
       ``(d) Project Selection.--The Secretary shall competitively 
     select recipients of cooperative agreements under this 
     section from among applicants that--
       ``(1) provide the Secretary with sufficient geological site 
     information (including hydrogeological and geophysical 
     information) to establish that the proposed geological 
     storage unit is capable of long-term storage of the injected 
     carbon dioxide, including--
       ``(A) the location, extent, and storage capacity of the 
     geological storage unit at the site into which the carbon 
     dioxide will be injected;
       ``(B) the principal potential modes of geomechanical 
     failure in the geological storage unit;
       ``(C) the ability of the geological storage unit to retain 
     injected carbon dioxide; and
       ``(D) the measurement, monitoring, and verification 
     requirements necessary to ensure adequate information on the 
     operation of the geological storage unit during and after the 
     injection of carbon dioxide;
       ``(2) possess the land or interests in land necessary for--
       ``(A) the injection and storage of the carbon dioxide at 
     the proposed geological storage unit; and
       ``(B) the closure, monitoring, and long-term stewardship of 
     the geological storage unit;
       ``(3) possess or have a reasonable expectation of obtaining 
     all necessary permits and authorizations under applicable 
     Federal and State laws (including regulations); and
       ``(4) agree to comply with each requirement of subsection 
       ``(e) Terms and Conditions.--The Secretary shall condition 
     receipt of financial assistance pursuant to a cooperative 
     agreement under this section on the recipient agreeing to--
       ``(1) comply with all applicable Federal and State laws 
     (including regulations), including a certification by the 
     appropriate regulatory authority that the project will comply 
     with Federal and State requirements to protect drinking water 
       ``(2) in the case of industrial sources subject to the 
     Clean Air Act (42 U.S.C. 7401 et seq.), inject only carbon 
     dioxide captured from industrial sources in compliance with 
     that Act;
       ``(3) comply with all applicable construction and operating 
     requirements for deep injection wells;
       ``(4) measure, monitor, and test to verify that carbon 
     dioxide injected into the injection zone is not--
       ``(A) escaping from or migrating beyond the confinement 
     zone; or
       ``(B) endangering an underground source of drinking water;
       ``(5) comply with applicable well-plugging, post-injection 
     site care, and site closure requirements, including--
       ``(A)(i) maintaining financial assurances during the post-
     injection closure and monitoring phase until a certificate of 
     closure is issued by the Secretary; and
       ``(ii) promptly undertaking remediation activities for any 
     leak from the geological storage unit that would endanger 
     public health or safety or natural resources; and
       ``(B) complying with subsection (f);
       ``(6) comply with applicable long-term care requirements;
       ``(7) maintain financial protection in a form and in an 
     amount acceptable to--
       ``(A) the Secretary;
       ``(B) the Secretary with jurisdiction over the land; and
       ``(C) the Administrator of the Environmental Protection 
     Agency; and
       ``(8) provide the assurances described in section 
       ``(f) Post Injection Closure and Monitoring Elements.--In 
     assessing whether a project complies with site closure 
     requirements under subsection (e)(5), the Secretary, in 
     consultation with the Administrator of the Environmental 
     Protection Agency, shall determine whether the recipient of 
     financial assistance has demonstrated continuous compliance 
     with each of the following over a period of not less than 10 
     consecutive years after the plume of carbon dioxide has come 
     into equilibrium with the geologic formation that comprises 
     the geologic storage unit following the cessation of 
     injection activities:
       ``(1) The estimated location and extent of the project 
     footprint (including the detectable plume of carbon dioxide 
     and the area of elevated pressure resulting from the project) 
     has not substantially changed.
       ``(2) There is no leakage of either carbon dioxide or 
     displaced fluid in the geologic storage unit that is 
     endangering public health and safety, including underground 
     sources of drinking water and natural resources.
       ``(3) The injected or displaced fluids are not expected to 
     migrate in the future in a manner that encounters a potential 
     leakage pathway.
       ``(4) The injection wells at the site completed into or 
     through the injection zone or confining zone are plugged and 
     abandoned in accordance with the applicable requirements of 
     Federal or State law governing the wells.
       ``(g) Indemnification Agreements.--
       ``(1) Definition of liability.--In this subsection, the 
     term `liability' means any legal liability for--
       ``(A) bodily injury, sickness, disease, or death;
       ``(B) loss of or damage to property, or loss of use of 
     property; or
       ``(C) injury to or destruction or loss of natural 
     resources, including fish, wildlife, and drinking water 
       ``(2) Agreements.--The Secretary may agree to indemnify and 
     hold harmless the recipient of a cooperative agreement under 
     this section from liability arising out of or resulting from 
     a demonstration project in excess of the amount of liability 
     covered by financial protection maintained by the recipient 
     under subsection (e)(7).
       ``(3) Exception for gross negligence and intentional 
     misconduct.--Notwithstanding paragraph (1), the Secretary may 
     not indemnify the recipient of a cooperative agreement under 
     this section from liability arising out of conduct of a 
     recipient that is grossly negligent or that constitutes 
     intentional misconduct.
       ``(4) Collection of fees.--
       ``(A) In general.--The Secretary shall collect a fee from 
     any person with whom an agreement for indemnification is 
     executed under this subsection in an amount that is equal to 
     the net present value of payments made by the United States 
     to cover liability under the indemnification agreement.
       ``(B) Amount.--The Secretary shall establish, by 
     regulation, criteria for determining the amount of the fee, 
     taking into account--
       ``(i) the likelihood of an incident resulting in liability 
     to the United States under the indemnification agreement; and
       ``(ii) other factors pertaining to the hazard of the 
     indemnified project.
       ``(C) Use of fees.--Fees collected under this paragraph 
     shall be deposited in the Treasury and credited to 
     miscellaneous receipts.
       ``(5) Contracts in advance of appropriations.--The 
     Secretary may enter into agreements of indemnification under 
     this subsection in advance of appropriations and incur 
     obligations without regard to section 1341 of title 31, 
     United States Code (commonly known as the `Anti-Deficiency 
     Act'), or section 11 of title 41, United States Code 
     (commonly known as the `Adequacy of Appropriations Act').
       ``(6) Conditions of agreements of indemnification.--
       ``(A) In general.--An agreement of indemnification under 
     this subsection may contain such terms as the Secretary 
     considers appropriate to carry out the purposes of this 
       ``(B) Administration.--The agreement shall provide that, if 
     the Secretary makes a determination the United States will 
     probably be required to make indemnity payments under the 
     agreement, the Attorney General--
       ``(i) shall collaborate with the recipient of an award 
     under this subsection; and
       ``(ii) may--

       ``(I) approve the payment of any claim under the agreement 
     of indemnification;
       ``(II) appear on behalf of the recipient;
       ``(III) take charge of an action; and
       ``(IV) settle or defend an action.

       ``(C) Settlement of claims.--
       ``(i) In general.--The Attorney General shall have final 
     authority on behalf of the

[[Page S5375]]

     United States to settle or approve the settlement of any 
     claim under this subsection on a fair and reasonable basis 
     with due regard for the purposes of this subsection.
       ``(ii) Expenses.--The settlement shall not include expenses 
     in connection with the claim incurred by the recipient.
       ``(h) Federal Land.--
       ``(1) In general.--The Secretary concerned may authorize 
     the siting of a project on Federal land under the 
     jurisdiction of the Secretary concerned in a manner 
     consistent with applicable laws and land management plans and 
     subject to such terms and conditions as the Secretary 
     concerned determines to be necessary.
       ``(2) Framework for geological carbon sequestration on 
     public land.--In determining whether to authorize a project 
     on Federal land, the Secretary concerned shall take into 
     account the framework for geological carbon sequestration on 
     public land prepared in accordance with section 714 of the 
     Energy Independence and Security Act of 2007 (Public Law 110-
     140; 121 Stat. 1715).
       ``(i) Acceptance of Title and Long-Term Monitoring.--
       ``(1) In general.--As a condition of a cooperative 
     agreement under this section, the Secretary may accept title 
     to, or transfer of administrative jurisdiction from another 
     Federal agency over, any land or interest in land necessary 
     for the monitoring, remediation, or long-term stewardship of 
     a project site.
       ``(2) Long-term monitoring activities.--After accepting 
     title to, or transfer of, a site closed in accordance with 
     this section, the Secretary shall monitor the site and 
     conduct any remediation activities to ensure the geological 
     integrity of the site and prevent any endangerment of public 
     health or safety.
       ``(3) Funding.--There is appropriated to the Secretary, out 
     of funds of the Treasury not otherwise appropriated, such 
     sums as are necessary to carry out paragraph (2).''.
       (b) Conforming Amendments.--
       (1) Section 963 of the Energy Policy Act of 2005 (42 U.S.C. 
     16293) is amended--
       (A) by redesignating subsections (a) through (d) as 
     subsections (b) through (e), respectively;
       (B) by inserting before subsection (b) (as so redesignated) 
     the following:
       ``(a) Definitions.--In this section:
       ``(1) Industrial source.--The term `industrial source' 
     means any source of carbon dioxide that is not naturally 
       ``(2) Large-scale.--The term `large-scale' means the 
     injection of over 1,000,000 tons of carbon dioxide from 
     industrial sources over the lifetime of the project.'';
       (C) in subsection (b) (as so redesignated), by striking 
     ``In General'' and inserting ``Program'';
       (D) in subsection (c) (as so redesignated), by striking 
     ``subsection (a)'' and inserting ``subsection (b)''; and
       (E) in subsection (d)(3) (as so redesignated), by striking 
     subparagraph (D).
       (2) Sections 703(a)(3) and 704 of the Energy Independence 
     and Security Act of 2007 (42 U.S.C. 17251(a)(3), 17252) are 
     amended by striking ``section 963(c)(3) of the Energy Policy 
     Act of 2005 (42 U.S.C. 16293(c)(3))'' each place it appears 
     and inserting ``section 963(d)(3) of the Energy Policy Act of 
     2005 (42 U.S.C. 16293(d)(3))''.


       (a) Establishment.--The Secretary of Energy, in 
     consultation with the Administrator of the Environmental 
     Protection Agency and the Secretary of Transportation, shall 
     establish a program to provide grants for employee training 
     purposes to State agencies involved in permitting, 
     management, inspection, and oversight of carbon capture, 
     transportation, and storage projects.
       (b) Authorization of Appropriations.--There is authorized 
     to be appropriated to the Secretary of Energy to carry out 
     this section $10,000,000 for each of fiscal years 2010 
     through 2020.