74 TEXAS JOURNAL OF OIL , GAS , AND ENERGY LAW [ Vol . 16:1
4 . Access and Information Rights
The highly-integrated nature of the various processes involved in a CCUS project requires that project participants provide each other access and inspection rights to most of the facilities involved in project operations . For example , in almost all cases , the capturer ’ s equipment will need to be located onsite at the emitter ’ s industrial facility . Access and use rights are needed to allow for the installation and operation of the carbon capture equipment on the emitter ’ s premises and to account for issues such as joint use of those premises , ingress and egress to specific parts of the facility , restrictions on access , security , and emergency scenarios , and other issues .
Additionally , participants in the project will likely require inspection rights granting them the ability to inspect the facilities and processes controlled by the other project participants . These rights are necessary to allow each participant to confirm that the other project participants are complying with the requirements of Section 45Q as well as other applicable regulatory requirements . They also are needed to allow the project participants to monitor , and hopefully prevent , leakage of CO 2 that could result in recapture of Section 45Q credits .
In addition to granting inspection rights , participants in the project should be obligated to routinely provide other project participants with an agreed upon set of reports , certifications , and testing results as necessary to substantiate that participant ’ s compliance with Section 45Q and other applicable regulatory requirements . Each project participant should have the right to audit these reports , certifications , and testing results over reasonable periods after they are obtained . Further , each project participant should have the right to test facilities and related equipment as needed to confirm compliance with these core regulatory or legal requirements .
In certain situations , governmental agencies , such as the Department of Energy , will enter into cost sharing or reimbursement agreements with owners of carbon capture projects that utilize emerging technology . These agreements benefit the governmental agencies by providing them with information about the effectiveness of promising new technologies that support policy initiatives . They also provide the project participants with economic support that lowers the risk associated with the project . Often , those cost sharing reimbursement agreements will require that the capturer gain access for the applicable governmental agency to monitor and evaluate the results of the project operations . In these cases , sufficient access rights will need to sync up with the requirements under the applicable cost sharing or reimbursement agreements .
Finally , appropriate confidentiality and non-disclosure obligations should accompany these access and inspection rights in order to safeguard information concerning each participant ’ s business , operations , or facilities . Further , any party who is providing access to another party ’ s facilities should be required to remediate ( or otherwise account for ) any damages resulting from the exercise of those access and related inspection rights .