text:
[Federal Register Volume 76, Number 152 (Monday, August 8, 2011)]
40 CFR Parts 260 and 261
[EPA-HQ-RCRA-2010-0695; FRL-9448-9]
RIN 2050-AG60
Hazardous Waste Management System: Identification and Listing of
Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic Sequestration
AGENCY: Environmental Protection Agency.
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to revise the regulations for hazardous waste management
under the Resource Conservation and Recovery Act (RCRA) to
conditionally exclude carbon dioxide (CO2) streams that are
hazardous from the definition of hazardous waste, provided these
hazardous CO2 streams are captured from emission sources,
are injected into Class VI Underground Injection Control (UIC) wells
for purposes of geologic sequestration (GS), and meet certain other
conditions. EPA is taking this action because the Agency believes that
the management of these CO2 streams under the proposed
conditions does not present a substantial risk to human health or the
environment, and therefore additional regulation pursuant to RCRA's
hazardous waste regulations is unnecessary. EPA expects that this
amendment will substantially reduce the uncertainty associated with
identifying these CO2 streams under RCRA subtitle C, and
will also facilitate the deployment of GS by providing additional
regulatory certainty.
DATES: Comments must be received on or before October 7, 2011. Under
the Paperwork Reduction Act, comments on the information collection
provisions must be received by the Office of Management and Budget
(OMB) on or before September 7, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2010-0695, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Mail: RCRA Docket, Environmental Protection Agency,
Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of two copies. In addition, please mail a copy
of your comments on the information collection provisions to the Office
of Information and Regulatory Affairs, Office of Management and Budget,
Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503.
Hand Delivery: Deliver two copies of your comments to EPA
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20460. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2010-0695. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
RCRA Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: Ross Elliott, Office of Resource
Conservation and Recovery (5304P), Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number:
703-308-8748; fax number: 703-308-0514; e-mail address
[email protected].
A. Does this action apply to me?
This is a proposed regulation. If finalized, this rule may apply to
generators, transporters, and owners or operators of treatment,
storage, and disposal facilities engaged in the management of carbon
dioxide streams that would otherwise be regulated as hazardous wastes
under the RCRA subtitle C hazardous waste regulations as part of
geologic sequestration activities. This includes entities in the
following industries: Operators of carbon dioxide injection wells used
for geologic sequestration; and certain industries identified by their
North American Industry Classification System (NAICS) code: oil and gas
extraction facilities (NAICS 211111); utilities (NAICS 22);
transportation (NAICS 48-49); and manufacturing (NAICS 31-33). More
detailed information on the potentially affected entities is presented
in Section VI of this preamble. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
the procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
3. Docket Copying Costs. The Docket Center no longer has hard
copies of original OSWER documents. The documents were converted to PDF
format. Oversized documents were retained and may be copied. Patrons
are allowed 93 free copied-pages. Thereafter, they are charged 15 cents
per page. When necessary, an invoice stating how many copies were made,
the cost of the order, and where to send a check will be issued to the
patron. There is also an administrative fee of $14.00 added to the cost
of the order.
Documents also are available on microfilm. The EPA/DC staff can
help patrons locate needed documents and operate the microfilm
machines. There is no fee for printing documents from microfilm or
Patrons who are outside of the metropolitan Washington, DC, area
can request documents by telephone, however, patrons are asked to
submit requests by e-mail to ensure accuracy. The photocopying fee is
the same as for walk-in patrons. There is no charge for converting
microfilm/microfiche to PDF format and sending it to a customer. If an
invoice is necessary, EPA/DC staff can mail one with the order.
Preamble Outline
I. Statutory Authority
II. Abbreviations, Acronyms, and Definitions
A. Abbreviations and Acronyms
B. Definitions Used in This Preamble
III. Background
A. What is Geologic Sequestration?
B. Why is Geologic Sequestration being considered as a climate
change mitigation technology?
C. What other recent EPA rulemakings are related to CCS?
D. RCRA Applicability to GS Activities
E. CO2 Stream Characterization
IV. Detailed Discussion of This Proposed Rule
A. Authority for Conditional Exclusion From RCRA Subtitle C
B. CO2 Streams Managed Prior to Underground Injection
1. CO2 Streams Generated at Capture Sites
2. Transportation of CO2 Streams to UIC Class VI
Injection Well
C. Underground Injection of CO2 Streams at UIC Class
VI Wells
1. Development of UIC Class VI Wells Under SDWA
2. Key Elements of the UIC Class VI Well Requirements
3. RCRA Land Disposal Restrictions
4. Subtitle C Corrective Action
D. Prohibition on Introduction of Other RCRA Hazardous Wastes
E. Loss of the Conditional Exclusion
F. Adaptive Approach
G. Definition of Carbon Dioxide Stream
V. State Authorization
A. Applicability of the Rule in Authorized States
B. Effect on State Authorization
VI. What are the costs and benefits of the proposed rule?
VII. Statutory and Executive Order (EO) Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Usage
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
These regulations are proposed under the authority of sections
2002, 3001-3009 and 3013 of the Solid Waste Disposal Act (SWDA) of
1970, as amended by the Resource Conservation and Recovery Act (RCRA)
of 1976, and the Hazardous and Solid Waste Amendments of 1984 (HSWA),
42 U.S.C. 6912, 6921-6929, 6934.
AoR Area of Review.
CAA Clean Air Act.
CCS Carbon Capture and Storage.
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act.
CO2 Carbon Dioxide.
EOR Enhanced Oil and Natural Gas Recovery.
EPA Environmental Protection Agency.
GHG Greenhouse Gas.
GS Geologic Sequestration.
HSWA Hazardous and Solid Waste Amendments.
RCRA Resource Conservation and Recovery Act.
SDWA Safe Drinking Water Act.
TC Toxicity Characteristic.
TCLP Toxicity Characteristic Leaching Procedure.
UIC Underground Injection Control.
USDW Underground Source of Drinking Water.
Authorized representative: The person responsible for the overall
operation of a facility or an operational unit (i.e., part of a
facility), e.g., the plant manager, superintendent or person of
equivalent responsibility.
Carbon dioxide (CO2) stream: Carbon dioxide that has been captured
from an emission source (e.g., power plant), plus incidental associated
substances derived from the source materials and the capture process,
and any substances added to the stream to enable or improve the
injection process.
Enhanced Oil or Gas Recovery (EOR/EGR): Typically, the process of
injecting a fluid (e.g., water, brine, or CO2) into an oil
or gas bearing formation to recover residual oil or natural gas. The
injected fluid thins (decreases the viscosity) or displaces small
amounts of extractable oil and gas, which is then available for
recovery. This is also known as secondary or tertiary recovery.
Supercritical CO2: Carbon dioxide that is above its critical
temperature (31.1 [deg] C, or 88 [deg]F) and pressure (73.8 bar, or
1070 psi). Supercritical substances have physical properties
intermediate to those of gases and liquids.
Geologic Sequestration (GS) is the process of injecting carbon
dioxide (CO2) captured from an emission source (e.g., a
power plant or industrial facility) into deep subsurface rock
formations in order to isolate the CO2. GS is a key
component of a set of climate change mitigation technologies referred
to as ``carbon capture and storage'' or CCS. CCS can be described as a
three-step process, beginning with the capture and compression of the
CO2 stream from fossil-fuel power plants or other industrial
sources, after which the CO2 stream is transported (usually
in pipelines) to an on-site or off-site location, where it is then
underground for purposes of sequestration.\1\
\1\ Report of the Interagency Task Force on Carbon Capture and
Storage, August 2010, p. 8.
To transport the captured CO2 stream for GS, the
CO2 stream will typically be compressed into a supercritical
fluid.\2\ CO2 exists as a supercritical fluid at
approximately 1,070 pounds per square inch (psi) and 88 [deg]Fahrenheit
(F), and in this state it exhibits physical properties intermediate to
those of a liquid and a gas. As mentioned, the majority of
CO2 is expected to be delivered to the sequestration site by
dedicated pipeline; \3\ however, transport by truck, rail, barge or
supertanker may also occur, but these have been described as
``logistically impractical'' for large-scale CCS operations.\4\ Whether
by pipeline, or these other means, the transportation of supercritical
CO2 is regulated by the U.S. Department of Transportation
(DOT) under regulations found in 49 CFR parts 171-180 (governing the
transportation by air, rail, highway, and water) and parts 190 and 195-
199 (governing the transportation of hazardous liquids and carbon
dioxide by pipeline). The CO2 stream is then injected into
deep subsurface rock formations via one or more wells, using
technologies that have been developed and refined by the oil and gas
and chemical manufacturing industries over the past several decades. To
sequester the CO2 stream, EPA believes that many GS site
owners or operators will inject the CO2 stream to depths of
greater than 800 meters (or 2,625 feet), for the purpose of maximizing
capacity and storage, and where ambient pressure and temperature are
sufficient to maintain the CO2 stream in a supercritical
state. December 10, 2010 (75 FR at 77233).
\2\ Carbon Dioxide Capture and Storage. Intergovernmental Panel
on Climate Change (IPCC), 2005.
\3\ Guidelines for Carbon Dioxide Capture, Transport, and
Storage. World Resources Institute, 2008.
\4\ CRS Report for Congress. Carbon Dioxide (CO2)
Pipelines for Carbon Sequestration: Emerging Policy Issues. Paul W.
Parfomak and Peter Folger. January 17, 2008.
When injected in an appropriate receiving formation, the
CO2 stream is sequestered by a combination of trapping
mechanisms, including physical and geochemical processes, as summarized
[cir] Physical trapping occurs when the relatively buoyant
CO2 rises in the formation until it reaches a stratigraphic
zone with low fluid permeability (i.e., geologic confining system) that
inhibits further upward migration. Physical trapping can also occur as
residual CO2 is immobilized in formation pore spaces. A
portion of the CO2 will dissolve into the groundwater and
hydrocarbons present in the receiving formation, and CO2
molecules can also attach onto the surfaces of coal and certain
organic-rich shales (a process called preferential sorption),
displacing other molecules, such as methane. The effectiveness of
physical CO2 trapping is demonstrated by natural analogs
worldwide in a range of geologic settings, where CO2 has
remained trapped for millions of years. For example, CO2 has
been trapped for more than 65 million years under the Pisgah Anticline,
northeast of the Jackson Dome in Mississippi and Louisiana, with no
evidence of leakage from the confining formation.\5\
\5\ Carbon Dioxide Capture and Storage. IPCC, 2005.
[cir] Geochemical trapping occurs when chemical reactions between
the dissolved CO2 and minerals in the receiving formation
result in the precipitation of solid carbonate minerals.\6\ The
timeframe over which CO2 will be trapped by these mechanisms
depends on the properties of the receiving formation and the injected
CO2 stream. Research is currently ongoing to further
understand these mechanisms and the time required to trap
CO2 under various conditions.
\6\ Ibid.
Additional background information on the GS of CO2
streams can also be found in the final rule and associated record for
the final rule for UIC Class VI wells published on December 10, 2010
(75 FR 77230).
B. Why is Geologic Sequestration being considered as a climate change
mitigation technology?
Climate change is happening now, and the effects can be seen on
every continent and in every ocean. While certain effects of climate
change can be beneficial, particularly in the short term, current and
future effects of climate change pose considerable risks to human
health and the environment.\7\ There is now clear evidence that the
Earth's climate is warming: \8\
\7\ National Research Council (2011) Climate Stabilization
Targets: Emissions, Concentrations, and Impacts over Decades to
Millennia. Washington, DC: National Academies Press.
\8\ Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global
Climate Change Impacts in the United States. Cambridge University
Press, Cambridge, United Kingdom.
[cir] Global surface temperatures have risen by 1.3 [deg]F when
estimated by a linear trend from 1906 to 2005.\9\
\9\ Trenberth, K.E. et al. (2007) Observations: Surface and
Atmospheric Climate Change. In: Climate Change 2007: The Physical
Science Basis. Contribution of Working Group I to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change
[Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt,
M. Tignor and H.L. Miller (eds.)]. Cambridge University Press,
Cambridge, United Kingdom and New York, NY, USA.
[cir] Worldwide, the last decade has been the warmest on
record.\10\
\10\ National Oceanic and Atmospheric Administration (NOAA)
(2009a) The Annual Global (land and ocean combined) Anomalies
(degrees C).
ftp://ftp.ncdc.noaa.gov/pub/data/anomalies/annual.land_ocean.90S.90N.df_1901-2000mean.dat. Accessed April 28, 2011.
[cir] Ocean temperatures and sea levels are rising and glaciers are
retreating around the world.\11\
\11\ Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global
Most of this recent warming is very likely the result of human
activities.\12\ Many human activities (such as the combustion of fossil
fuels) release greenhouse gases (GHGs) into the atmosphere. The levels
of several of these gases, including CO2, have reached
concentrations not seen on Earth in hundreds of thousands of years.\13\
\12\ IPCC (2007b) Summary for Policymakers. In: Climate Change
2007: Impacts, Adaptation and Vulnerability. Contribution of Working
Group II to the Fourth Assessment Report of the Intergovernmental
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof,
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University
Press, Cambridge, United Kingdom and New York, NY, USA.
In addition, fossil fuels are expected to remain the main source of
energy production well into the 21st century, and increased
concentrations of CO2 are expected unless energy producers
reduce CO2 emissions to the atmosphere. For example, CCS
could enable the continued use of coal in a manner that greatly reduces
the associated CO2 emissions, while other alternative energy
sources are developed in the coming decades. CCS has the potential to
be key to achieving domestic GHG emissions reductions, and as already
mentioned, GS is a key component of CCS.\14\
\14\ Report of the Interagency Task Force on Carbon Capture and
Storage, August 2010, p. 14.
GS is therefore one of a portfolio of options that could be
deployed to reduce CO2 emissions to the atmosphere and help
to mitigate climate change. Other options include, but are not limited
to, energy conservation, efficiency improvements, and the use of
alternative fuels and renewable energy sources, including solar and
wind power.
In an effort to establish a regulatory framework that supports the
future development and deployment of CCS technologies, EPA has set out
a goal to provide the regulatory certainty needed to foster industry
adoption of CCS. As mentioned above, EPA believes that GS is a key
climate change mitigation technology. Therefore, providing a consistent
regulatory approach to GS will promote its future use in the United
States. Two important EPA rulemakings that directly address GS
activities are requirements under the Greenhouse Gas (GHG) Reporting
Program; and Federal Requirements under the Underground Injection
Control (UIC) Program for Carbon Dioxide (CO2) Geologic
Sequestration (GS) Wells. These are described in more detail below.
EPA Greenhouse Gas (GHG) Reporting Program: The GHG
Reporting Program was established under authority of the Clean Air Act
(CAA) and requires reporting of GHG emissions and other relevant
information from certain source categories in the United States. On
October 30, 2009, EPA issued a final rule (74 FR 56260) that requires
reporting by facilities with production process units that capture a
CO2 stream under subpart PP of the program. These facilities
are required to report the amount of CO2 in a stream
captured, and provide information on the downstream CO2 end
use (e.g., food and beverage, EOR, GS, etc.). On December 1, 2010, EPA
issued a final rule (75 FR 75060) that requires reporting from
facilities that inject CO2 underground for GS under subpart
RR of the program. The rule requires facilities that inject
CO2 underground for GS to report basic information on
CO2 received for injection, develop and implement an EPA-
approved site-specific monitoring, reporting and verification plan, and
report the amount of CO2 sequestered using a mass balance
approach and annual monitoring activities.
EPA Class VI Underground Injection Control (UIC) Rule: On
July 25, 2008, EPA proposed to amend the UIC program (73 FR 43492) to
establish a new class of injection well (Class VI) and to establish
minimum Federal requirements under the Safe Drinking Water Act (SDWA)
for the underground injection of CO2 for the purpose of GS.
The proposed requirements would ensure that GS is conducted in a manner
that protects Underground Sources of Drinking Water (USDWs) from
endangerment, by tailoring existing components of the UIC program to
address the unique nature of GS. On December 10, 2010, EPA finalized
the new UIC Class VI injection well standards. These requirements are
intended to provide certainty to industry and the public about the
requirements that would apply to injection for purposes of GS, by
providing consistency regarding the requirements across the U.S., and
transparency about what requirements apply to permitted UIC Class VI
facility owners or operators. For a more detailed discussion of these
requirements, see the final rule in the December 10, 2010 Federal
Register (75 FR 77230).
In response to the July 25, 2008 proposed rule for UIC Class VI
wells, EPA received a number of comments regarding the potential
applicability of RCRA subtitle C to CO2 streams being
geologically sequestered. As a result of those comments, EPA decided to
initiate work on today's proposal. EPA also considered those RCRA-
related comments in the development of today's proposed rule. EPA
notes, however, that should persons wish to comment on the RCRA
applicability issues raised by today's proposal, it is necessary to
submit comments to the docket established for today's proposed rule as
described above in the ADDRESSES section of this Federal Register
notice. EPA will not provide further responses to comments submitted on
the UIC rule as part of this rulemaking. In addition, today's proposal
is not reopening the UIC Class VI final rule, nor will EPA respond to
comments related only to that rule.
At this time, EPA has little information to conclude that
CO2 streams would qualify as RCRA hazardous wastes, which
would make them subject to EPA's comprehensive RCRA hazardous waste
management regulations. However, commenters have cited the potential
for RCRA hazardous waste requirements to attach to some CO2
streams (i.e., some CO2 streams might be classified as
hazardous waste and therefore, would be subject to RCRA subtitle C), as
a significant impediment to widespread deployment of CCS technologies.
Today's proposal seeks to address this concern and provide regulatory
clarity through a revised RCRA regulatory approach for CO2
streams. Simultaneously, as discussed below, EPA expects that
management in accordance with the conditions in today's proposal will
provide no reduced protection to human health and the environment.
After issuance of the proposed UIC Class VI rule, EPA received
public comments that the proposed requirements were unclear as to
whether the CO2 stream would be a RCRA hazardous waste, and
expressed concern that this created uncertainty regarding the type of
permit needed for GS. Many commenters stated that a CO2
stream should not be treated as a RCRA hazardous waste on the grounds
that it is neither a listed hazardous waste nor exhibits a hazardous
characteristic, or is even a solid waste. Other commenters, however,
asserted that CO2 in the presence of water could exhibit the
RCRA corrosivity characteristic. Additionally, some commenters raised
the issue of whether the analytic procedures used under RCRA (in
particular, the toxicity characteristic leaching procedure, TCLP) \15\
can be applied to supercritical CO2 streams, and whether or
not the UIC Class VI regulations would better ensure the proper
management of CO2 streams, compared with the RCRA subtitle C
hazardous waste requirements.
\15\ Toxicity Characteristic Leaching Procedure, or TCLP. See 40
CFR 261.24. A solid waste is defined as hazardous when a
representative sample of that waste leaches a particular chemical or
compound--for example, arsenic--above a specified regulatory
concentration, using the TCLP.
EPA believes that the RCRA hazardous waste regulations can apply to
CO2 streams being geologically sequestered. Subtitle C of
RCRA and its implementing regulations establish a ``cradle to grave''
regulatory scheme over certain ``solid wastes'' which are also
``hazardous wastes.'' RCRA defines solid waste as ``any garbage,
refuse, sludge from a waste treatment plant, water supply treatment
plant, or air pollution control facility and other discarded material,
including solid, liquid, semisolid, or contained gaseous material * *
*.'' See RCRA 1004(27), 42 U.S.C. 6903(27). EPA has further defined the
term ``solid waste'' for purposes of its RCRA hazardous waste
regulations. 40 CFR 261.2. To be considered a hazardous waste, a
material first must be classified as a solid waste. Under EPA's
regulations, generators of solid waste are required to determine
whether their wastes are hazardous wastes. 40 CFR 262.11. A solid waste
is a hazardous waste if it exhibits any of four characteristics
(ignitability, corrosivity, reactivity, or toxicity), 40 CFR
261.20-.24, or is a listed waste, 40 CFR 261.30-.33 (these include
wastes from non-specific sources, such as spent solvents; by-products
from specific industries; and discarded, unused commercial chemical
products).
A supercritical CO2 stream injected into a permitted UIC
Class VI well for
purposes of GS is a RCRA solid waste, as it is a ``discarded material''
within the plain meaning of the term in RCRA Sec.  1004(27). Courts
have stated that the plain meaning of ``discarded material'' refers to
materials that have been disposed of, abandoned or thrown away.\16\
This clearly applies to supercritical CO2 stream (which, as
already stated, is rather unique in that it has properties intermediate
between a liquid and a gas) injected into UIC Class VI wells,
regardless of whether the material is a hazardous waste or not. An
entity involved in the CCS process may generate CO2 that
qualifies as a solid waste under the RCRA hazardous waste regulations
by making the decision to discard the material through abandonment by
disposing of the material (see 40 CFR 261.2(a)(2)(i) and (b)(1)). Once
the decision is made that the supercritical CO2 stream will
be sent to a UIC Class VI well for discard, EPA considers this material
to be a solid waste. This decision may be made upstream of the
injection well facility. As discussed above, EPA's regulations require
that generators of a solid waste determine whether their wastes are
hazardous wastes, and if so, manage them in accordance with EPA's RCRA
hazardous waste regulations. 40 CFR 262.11.
\16\ The proposed rule is not intended to affect the status of
CO2 that is injected into wells other than UIC Class VI
wells. For example, CO2 that is used for enhanced oil or
gas recovery (EOR/EGR) in other than UIC Class VI wells, where some
sequestration may occur in the process of recovering gas or oil, is
beyond the scope of this proposal.
One commenter to the UIC proposed rule suggested that the captured
CO2 stream was exempt from the RCRA hazardous waste
regulations under the exemption for ``fly ash waste, bottom ash waste,
slag waste, and flue gas emission control waste, generated primarily
from the combustion of coal or other fossil fuels,'' also referred to
as the ``Bevill exemption.'' (See 40 CFR 261.4(b)(4).)
EPA studied the fossil fuel combustion wastes as directed by
Congress, and published two Reports to Congress,\17\ and issued two
Regulatory Determinations on the management and use of coal and other
fossil fuel combustion products, one on August 9, 1993 and a second one
on May 22, 2000 (58 FR 42466 and 65 FR 32214, respectively).
CO2 captured for purposes of GS was not included in either
of these Regulatory Determinations, or in the underlying studies upon
which these determinations were based. The Agency has consistently
interpreted the Sec.  261.4(b)(4) exemption as only encompassing those
wastes that were studied, and EPA did not study CO2 that has
been captured for GS. Therefore, EPA believes that the CO2
streams discussed in today's proposed rule are not included within the
Bevill exemption under Sec.  261.4(b)(4).\18\
\17\ Report to Congress: Wastes from the Combustion of Coal by
Electric Utility Power Plants, February 1988, EPA-530-SW-88-002; and
Report to Congress: Wastes From the Combustion of Fossil Fuels, Vol.
1 & 2, U.S. EPA, March 1999, EPA-530-S-99-010 and EPA-530-R-99-010.
\18\ EPA notes that even if CO2 streams from the
combustion of fossil fuels were exempt from regulation as hazardous
waste under Sec.  261.4(b)(4)--which it does not believe to be the
case--the Bevill exemption would only apply to CO2
generated from the combustion of materials in boilers to generate
steam for the purpose of generating energy, and not to other
CO2 streams generated from other sources.
EPA notes that CO2 streams are not listed RCRA hazardous
wastes (i.e., CO2 streams are not specifically identified as
one of the hazardous wastes listed in 40 CFR part 261, subpart D).
However, the CO2 stream would be a hazardous waste if it
exhibits any of the hazardous characteristics in 40 CFR part 261,
subpart C, or, is mixed with a listed hazardous waste. See Sec.
261.3(a)(iv). Under the UIC Class VI final rule, injection site owners
and operators must determine whether the CO2 stream is
hazardous under the RCRA regulations, and if so, injection of the
CO2 stream may only occur in a UIC Class I hazardous waste
injection well.\19\ Conversely, UIC Class VI wells cannot be used for
the injection of RCRA hazardous wastes. Today's proposal, if finalized,
would allow CO2 streams that would otherwise qualify as RCRA
hazardous wastes to be managed in a Class VI well, provided that they
meet the conditions of this proposed rule.
\19\ As already mentioned, a hazardous waste determination must
be made when a waste is first generated (Sec.  262.11); however,
knowing whether a solid waste is a hazardous waste is necessary at
any point during the management of that waste, in order for persons
to ensure that they are in compliance with the hazardous waste
requirements if and when they are managing hazardous waste. See 40
CFR 261.3(b)(3) and 45 FR 33096 (May 19, 1980).
As already noted, commenters to the UIC Class VI proposed rule also
raised questions about the appropriateness and feasibility of applying
the RCRA hazardous waste characteristics to CO2 streams and,
in particular, the Toxicity Characteristic (TC). See Sec.  261.24. Some
commenters stated that the TCLP test method associated with the TC
could not be used on materials other than solids or liquids, and that
EPA would have to develop new testing regulations and guidelines
specifically for evaluating supercritical CO2. Commenters
also stated that the TC regulation was inappropriate for CO2
streams because the TC was ``* * * designed to assess the threat waste
would have in a municipal landfill disposal scenario, a scenario that *
* * is inherently inapplicable to uncontained supercritical
CO2.'' Many commenters also expressed concern over the
uncertainty in determining how the RCRA hazardous waste regulations,
including the hazardous waste identification issues described here,
apply to CO2 streams being sequestered in UIC Class VI
wells.
In light of these comments, EPA reiterates that no hazardous waste
listings apply specifically to CO2 streams; therefore, a
CO2 stream could only be defined as a hazardous waste if it
exhibits a hazardous waste characteristic as defined in 40 CFR part
261, subpart C.\20\ Regarding the feasibility of testing CO2
streams, EPA acknowledges the commenter's concern, but also notes that
the hazardous waste regulations allow generators to apply their
knowledge--in lieu of testing--of the hazard characteristic of a waste,
in light of the materials or processes used, to determine whether that
waste is a characteristic hazardous waste under RCRA.\21\ 40 CFR
262.11(c)(2). EPA also notes that methods exist for sampling and
analyzing gaseous emissions in order to identify and quantify hazardous
constituents that may be present.\22\ Regarding whether a TCLP leach
test can be applied to a supercritical CO2 stream, EPA notes
that the TC regulation, and the TCLP test method, allow for measurement
of total constituent concentrations in a waste, in lieu of running the
leach test, and under certain circumstances even require it (such as
where wastes are liquids that contain less than 0.5% solids).\23\
However, EPA acknowledges the commenters' underlying concerns related
to RCRA characterization, and requests comment on this issue.
\20\ It is also possible that a CO2 stream could
become a hazardous waste if it is mixed with a listed hazardous
waste, or, mixed with a characteristic hazardous waste and the
resultant mixture exhibits a characteristic of hazardous waste. This
is commonly referred to as the ``mixture rule.'' See 40 CFR 261.3.
We note that today's proposed exemption includes the condition that
prohibits the mixing of CO2 streams with hazardous waste.
\21\ Any persons claiming that a waste is non-hazardous, based
on knowledge in lieu of testing, should be prepared to substantiate
this claim.
\22\ E.g., EPA notes that existing analytical test methods, such
as SW-846 Methods 0060, 0010, and 0031, are available to quantify
the levels of various hazardous constituents in gaseous streams,
although sampling a supercritical CO2 stream may require
particular sampling protocols.
\23\ See SW-846, Method 1311, Section 2.1.
As noted above, EPA is proposing to conditionally exclude from the
definition of hazardous waste CO2 streams captured,
transported (or otherwise delivered to) and injected into permitted UIC
Class VI wells for purposes of GS. At this time, EPA has little
information to conclude that CO2 streams would qualify as
RCRA hazardous wastes, which would make them subject to EPA's
comprehensive RCRA hazardous waste management regulations. Today's
proposal is intended to provide clarity for deployment of CCS under
conditions that EPA believes would not present a substantial risk to
human health and the environment. However, EPA acknowledges that at
this time, it does not have full knowledge of the range of possible
CO2 stream compositions. Today's proposed conditional
exclusion is based upon EPA's existing knowledge of the composition of
CO2 streams, and its analysis that compliance with the
existing standards and regulations designed to prevent any exposure of
CO2 (and any associated impurities) would render additional
regulation under RCRA subtitle C unnecessary.
Nevertheless, EPA is proceeding with this proposal, and notes that
the UIC Class VI regulations include requirements that the owner or
operator of the injection well provide an analysis of the physical and
chemical characteristics of the CO2 stream, both during
permit application and periodically during operation (See 40 CFR
146.82, 146.90 and 146.91). The permit-issuing authority is also
authorized under EPA's UIC permit regulations to add any additional
conditions to the permit, as necessary, to assure compliance with
applicable SDWA requirements (40 CFR 146.52(b)). Under this authority,
the UIC Program Director (EPA or a State permitting authority) may add
specific testing or chemical/waste limitations to the permit to prevent
endangerment of USDWs, or to assure that unauthorized wastes are not
injected with the CO2 stream.
EPA has reviewed estimates of CO2 stream composition
that were calculated using information, such as the composition of flue
gas from the burning of fossil fuels and other likely sources, existing
flue gas emission control technologies (e.g., electrostatic
precipitators and scrubbers), and data from applied capture
technology.\24\ These estimates indicate that captured CO2
could contain (based upon the information used in developing those
estimates) low concentrations of hazardous constituents (e.g.,
estimated concentrations expressed in parts per million by volume, or
ppmv, are: 0.0022-0.0097 arsenic, 0.0462-0.4623 barium, 0.0002-0.0085
cadmium, 0.0016-0.0171 chromium, 0.0022-0.0028 mercury, 0.0011-0.0045
lead, and 0.0074-0.0244 selenium). EPA notes that these contaminants
derived from the combustion flue gas are relevant to the TC regulation
in Sec.  261.24.\25\ These estimates also indicate that the types of
impurities and their concentrations would likely vary by facility, coal
composition, plant operating conditions, and pollutant removal and
carbon capture technologies.
\24\ Apps, J.A., A Review of Hazardous Chemical Species
Associate with CO2 Capture from Coal-Fired Power Plants
and Their Potential Fate in CO2 Geologic Storage,
Lawrence Berkeley National Laboratory, March 2006.
\25\ Ibid, Table 13b. EPA notes that the presence of hazardous
constituents or contaminants does not automatically mean that a
CO2 stream is a hazardous waste.
EPA solicited comment in the July 25, 2008 proposed UIC Class VI
rule on the presence of impurities in CO2 streams, but did
not receive any analytical data on the composition of captured
CO2 streams in response. As various CCS pilot projects \26\
move forward and continue to generate information, EPA expects the
amount of available analytical data on captured CO2 to
increase. In addition, EPA expects that data will become available
under the recently promulgated UIC Class VI regulations. As discussed
above, the final UIC Class VI regulations require that prior to
issuance of a permit, the owner or operator of the well must submit to
the Director \27\ proposed operating data for the proposed GS site,
including an analysis of the chemical and physical properties of the
CO2 stream (40 CFR 146.82(a)(7)(iv)). The UIC rule also
requires that, throughout the operational life of the Class VI well,
the injected CO2 stream be analyzed by owners or operators
with sufficient frequency to yield data representative of its physical
and chemical characteristics (40 CFR 146.90(a)). Owners or operators
must also submit semi-annual reports that include any changes to the
physical, chemical, and other relevant characteristics of the
CO2 stream from the proposed operating data (40 CFR
146.91(a)(1)). While guidance is still being developed regarding these
requirements, at a minimum, the physical characteristics of the
CO2 stream will include temperature and pressure, while the
chemical characteristics will include pH, carbon dioxide purity (as a
percent), as well as concentrations of non-CO2 constituents
(either in ppmv or in percent). These non-CO2 constituents
may include, but are not limited to, sulfur dioxide (SO2),
hydrogen sulfide (H2S), nitrous oxides (NOX),
carbon monoxide (CO), methane (CH4), other hydrocarbons,
water vapor (H2O), as well as certain contaminants, that are
also defined as hazardous contaminants in 40 CFR 261.24, such as
arsenic, mercury, and selenium. EPA expects that these data will
provide an indication of any impurities that may be present, their
concentrations, and whether such impurities might alter the corrosivity
or other properties of the CO2 stream after injection.
\26\ See Exhibits 1 and 2 in EPA's analysis of the potential
costs and benefits associated with this action, entitled Assessment
of the Potential Costs, Benefits, and Other Impacts of the
Conditional Exclusion from the RCRA Definition of Hazardous Waste
for CO2 Streams Managed in UIC Class VI Wells for the Purposes of
Geologic Sequestration, as Proposed. A copy of this document is
available in the docket established for this action.
\27\ As used here in the context of the UIC program, `Director'
means the person responsible for permitting, implementation, and
compliance of the UIC program. For UIC programs administered by EPA,
the Director is the EPA Regional Administrator or his/her authorized
representative; for UIC programs in Primacy States, the Director is
the person responsible for permitting, implementation, and
compliance of the State, Territorial, or Tribal UIC program. 40 CFR
144.3.
EPA today requests analytical data on the physical and chemical
characteristics of captured CO2, including the
concentrations of hazardous contaminants, CO2 content,
information on the type of CO2 capture process used, and how
the samples were collected and analyzed. This data will allow EPA to
gain a better understanding of the nature and characteristics of
captured CO2 streams.
EPA is proposing to revise the regulations for hazardous waste
management under RCRA to exclude from the definition of hazardous waste
CO2 streams that would otherwise be defined as hazardous,
when these CO2 streams are managed under certain conditions.
The Agency believes that this amendment to the RCRA hazardous waste
rules, if finalized, will substantially reduce the uncertainty
associated with defining and managing these CO2 streams
under RCRA subtitle C. For the reasons discussed below, EPA believes
that the management of these CO2 streams in accordance with
the proposed conditions does not present a substantial risk to human
health and the environment. These proposed conditions include, but are
not limited to, compliance with the existing regulatory regimes
governing the transportation of the CO2 stream, and its
injection in a UIC Class VI permitted well.
EPA has previously interpreted RCRA section 3001(a) to authorize
the issuance of ``conditional exemptions'' from the requirements of
subtitle C, where it determines that ``a waste might pose a hazard only
under limited management scenarios, and other regulatory programs
already address such scenarios.'' 62 FR at 6636 (February 12, 1997); 66
FR at 27222-27223 (May 16, 2001). Today's proposal takes a similar
approach to those earlier rules.
Section 3001(a) provides the Agency with flexibility to consider
the need for regulation in deciding whether to list or identify a waste
as hazardous. Specifically, RCRA section 3001(a) requires that EPA, in
determining whether to list a waste as a hazardous waste, or to
otherwise identify a waste as a hazardous waste, decide whether a waste
``should be subject to'' the requirements of subtitle C. Hence, RCRA
section 3001 authorizes EPA to determine when subtitle C regulation is
appropriate. EPA has consistently interpreted section 3001 of RCRA to
give it broad flexibility in fashioning criteria for hazardous wastes
to enter or exit the subtitle C regulatory system. EPA's longstanding
regulatory criteria for determining whether wastes pose hazards that
require regulatory control incorporate the idea that a waste that is
otherwise hazardous may not present a hazard if already subject to
adequate regulation. (See, e.g., 40 CFR 261.11(a)(3)(x), which requires
EPA to consider action taken by other governmental agencies or
regulatory programs based on the health or environmental hazard posed
by the waste.)
EPA's interpretation is further supported by the text of RCRA
sections 1004(5), and 3002-3004, and RCRA's legislative history. This
interpretation has also been upheld upon judicial review. See, e.g.,
Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998)
(upholding conditional exemption for storage of military munitions,
based on EPA determination that such wastes are subject to binding
standards that meet or exceed RCRA standards, in addition to an
institutional oversight process).
The statutory definition of hazardous waste, section 1004(5)(B),
informs EPA's interpretation that EPA may consider good management
practices in determining the need to regulate waste as hazardous. That
section defines a `hazardous waste' as ``a solid waste, or combination
of solid wastes, which because of its quantity, concentration, or
physical, chemical or infectious characteristics may * * * (B) pose a
substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed.'' (Emphasis added.) EPA has interpreted the
statutory definition as incorporating the idea that a waste that is
otherwise hazardous does not require regulation so long as it is
properly managed. For example, EPA's standards for listing hazardous
wastes require consideration of a waste's potential for mismanagement.
See 40 CFR 261.11(a)(3)(vii) (incorporating the language of RCRA
section 1004(5)(B) and requiring EPA to consider ``plausible types of
improper management'').
The statute also directs EPA to regulate hazardous waste generators
(RCRA Sec.  3002(a)), transporters (RCRA Sec.  3003(a)) and treatment,
storage and disposal facilities (RCRA Sec.  3004(a)) ``as may be
necessary to protect human health and the environment.'' By extension,
the decision of when a waste should be subject to the regulatory
requirements of subtitle C is a question of whether such regulatory
controls are necessary to protect human health and the environment.
Thus, where a waste might pose a hazard only under limited
management scenarios, and other regulatory programs already address
such scenarios, EPA is not required to classify a waste as hazardous
waste subject to regulation under subtitle C. At least three decisions
by the U.S. Court of Appeals for the D.C. Circuit provide support for
this approach to regulating wastes as hazardous waste only where
necessary to protect human health and the environment. In Military
Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), the court upheld
a conditional exemption whereby the storage and transportation of
certain military munitions are not considered hazardous waste subject
to regulation under RCRA subtitle C, provided the munitions are stored
and transported in compliance with regulations issued by the Department
of Defense and the Department of Transportation, respectively. See 40
CFR 266.203, 266.205. The court ruled that EPA's interpretation of RCRA
as authorizing a conditional exemption is ``a permissible construction
of the statute.'' 146 F.3d at 958. The court cited its own precedent as
recognizing ```that Congress intended the agency to have substantial
room to exercise its expertise in determining the appropriate grounds
for listing,' '' id. (citing NRDC v. EPA, 25 F.3d 1063, 1070 (D.C. Cir.
1994)), and concluded that, although the military munitions rule ``does
not involve the listing regulations at issue in NRDC v. EPA, we think
the principle at work there also supports the conditional exemption at
issue here.'' Id.
In NRDC v. EPA, the court held that EPA appropriately used its
discretion in relying on several existing regulatory frameworks
governing used oil in determining not to list certain used oils as a
hazardous waste. NRDC, 25 F.3d at 1071. Similarly, in Edison Electric
Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993), the court upheld a
temporary exemption from subtitle C for petroleum-contaminated media
based on the fact that the potential hazards of such materials are
already controlled under the underground storage tank regulations under
RCRA subtitle I. In reaching its decision, the court considered the
fact that the subtitle I standards could prevent threats to human
health and the environment to be an important factor supporting the
exemption. Id. at 453.
The legislative history of RCRA subtitle C also supports this
interpretation, stating that ``the basic thrust of this hazardous waste
title is to identify what wastes are hazardous in what quantities,
qualities, and concentrations, and the methods of disposal which may
make such wastes hazardous.'' H. Rep. No. 94-1491, 94th Cong., 2d Sess.
6 (1976), reprinted in A Legislative History of the Solid Waste
Disposal Act, as Amended, Congressional Research Service, Vol.1, 567
(1991) (emphasis added). Finally, as discussed above, in proposing this
conditional exemption from RCRA, EPA is in part relying on the
regulatory controls for Class VI wells, under the UIC program of the
SDWA, 42 U.S.C. 300f et seq. EPA notes that such reliance is also
consistent with the direction provided in section 1006(b) of RCRA,
which directs EPA to integrate the provisions of RCRA, for purposes of
administration and enforcement and to avoid duplication, to the maximum
extent practicable, with those of certain other statutes, including the
SDWA, to the extent that it can be done in a manner that is consistent
with the goals and policies of both RCRA and the other relevant
statute(s).
Under the subtitle C hazardous waste program, the generator
requirements (40 CFR part 262) contain provisions designed to ensure
that hazardous wastes are properly managed by persons who generate the
wastes. This is accomplished through certain requirements governing the
storage (i.e., accumulation) of hazardous wastes, in units, such as
tanks or containers, at the site of generation. These requirements
include technical requirements for the tanks or containers, and time
limits on hazardous waste storage, if the waste is to be sent off-site
to a treatment, storage or disposal facility.\28\ These requirements
also include recordkeeping and reporting, and certain pre-transport
requirements, such as packaging, labeling, and preparing a hazardous
waste manifest to accompany the waste. Generators must also notify EPA
of their hazardous waste management activity, and obtain an EPA
identification (ID) number. Likewise, hazardous waste transporters
(e.g., persons transporting waste, including over the highway or by
rail) have certain requirements in 40 CFR part 263, to ensure that the
hazardous wastes are properly transported to a hazardous waste
treatment, storage, or disposal facility. These transporter
requirements include notifying EPA and obtaining an EPA ID number,
recordkeeping, and compliance with the hazardous waste manifest. EPA
notes that under the RCRA subtitle C regulations, a hazardous waste
manifest is not required for hazardous wastes sent off-site via
pipeline.\29\
\28\ The generator regulations in 40 CFR part 262 provide for
limited, temporary on-site hazardous waste storage (accumulation)
without a RCRA permit or being subject to the interim status
standards, provided certain conditions are met (see Sec.  262.34).
While generators are not required to send hazardous waste off-site
for disposal, they often do so because they do not wish to engage in
RCRA-permitted hazardous waste activity on-site.
\29\ This is because use of the hazardous waste manifest is
triggered by the transport of hazardous waste (see discussion in
Section IV.B.2. in this preamble, including Footnote 41).
For CO2 streams that are captured, compressed, and
transported to a UIC Class VI well, EPA believes that the full set of
subtitle C generator and transporter requirements are not necessary,
because they do not provide any additional protection over existing
regulatory requirements. Regarding the generator requirements, EPA
believes that the process of capturing and compressing CO2
prior to delivery to a UIC Class VI facility via a pipeline, as the
Agency understands it, will not involve storage at the generator
facility (i.e., at the CO2 source), but rather will occur in
a continuous fashion (capture process [rarr] compression/dehydration
[rarr] pipeline insertion). Once in the pipeline, EPA believes the
applicable DOT requirements (which apply to supercritical
CO2 streams regardless of whether or not these materials
meet the definition of hazardous waste) will ensure that CO2
streams are managed in a manner that addresses the potential risks to
human health and the environment that these materials may pose, prior
to arrival at a Class VI injection well facility.
While certain technologies for removing (capturing) CO2
have been in use commercially for over 60 years (e.g., natural gas
processing, production of food-grade CO2), research has been
underway to develop more cost-effective technologies to capture
CO2 for purposes of CCS. Regardless of the capture
technology that is ultimately implemented, information currently
available to EPA indicates that once the CO2 stream is
captured at the source (e.g., coal-fired power plant), it will be
dehydrated (to meet pipeline specifications preventing corrosion) and
compressed (to match designated pipeline pressures) in preparation for
transport, primarily via CO2 pipeline.30 31
\30\ DOE/NETL's Carbon Capture R&D Program for Existing Coal-
Fired Power Plants, DOE/NETL-2009-1356, February 2009.
\31\ Figueroa, Jose D. et al., 2008. Advances in CO2
capture technology--the U.S. Department of Energy's Carbon
Sequestration Program, International Journal of Greenhouse Gas
Control 2, 2008 (9-20).
However, evaluating in more detail how CO2 streams will
be managed at the CO2 source prior to GS in a UIC Class VI
facility, and what regulations or other standards might apply to these
activities in lieu of the RCRA generator standards, has proven somewhat
difficult based on a review of the literature. This is either because
many of the newer capture technologies are still in the developmental
stages, or because the more established capture technologies used in
commercial CO2 capture have not yet been scaled up to large
facilities, such as coal-fired power plants. Nonetheless, EPA attempted
to assess how captured CO2 streams would be managed in the
context of the RCRA generator requirements identified above (e.g., EPA
notification, standards for tanks or containers, time limits for on-
site storage, recordkeeping and reporting, packaging, labeling,
manifesting, etc.).
First, it is unclear from existing information sources whether
captured CO2 has been or will be stored at the generator
site prior to insertion into a pipeline, so EPA examined the
feasibility of storing captured CO2 streams at the source,
since storage is a hazardous waste management activity of concern at
RCRA generator sites generally.\32\ EPA looked at estimates of
CO2 capture rates both in the CCS projects currently
underway, as well as future scenarios where CO2 capture is
deployed at full scale. A review of commercially-available
CO2 capture facilities in 2009 identified 17 facilities,
with CO2 capture rates ranging from 50,000 metric tons/year
to 3.63 million metric tons per year.\33\ According to the 2010 CCS
Task Force Report, the largest of these capture rates (3.63 million
metric tons/yr) is close to the volume of CO2 required for
capture at electric utility generating plants. It is also estimated
that a 500MW (megawatt) coal-fired power plant emits close to 3 million
metric tons of CO2 per year.\34\ Similarly, the Mountaineer,
West Virginia CCS project, which is currently capturing 100,000 metric
tons CO2/year, will eventually scale up to 1.5 million
metric tons of CO2 per year from an emission slipstream
representing 235MW. See 75 FR 32171, June 7, 2010. An annual
CO2 capture rate of 1.5 million metric tons translates to
approximately 4,100 metric tons CO2 per day, or (at
temperatures and pressures close to supercritical) 34,000 cubic meters,
which is approximately 9 million gallons of CO2 per day.
Even the smallest annual capture rate mentioned above (50,000 metric
tons per year) equates to approximately 137 metric tons of
CO2 per day, or 1,142 cubic meters, which is approximately
301,568 gallons per day.
\32\ The term ``store'' or ``storage'' used throughout this
preamble refers to the holding of waste for a temporary period above
ground, and does not refer to the placement of CO2
streams in underground formations through the process of GS. See 40
CFR 260.10.
\33\ CCS Task Force Study, August, 2010, Appendix A.
\34\ Carbon Dioxide Capture and Storage. Intergovernmental Panel
on Climate Change (IPCC), 2005, p. 61.
Based on these estimates, the volume of CO2 streams
either being captured, or anticipated to be captured, are quite large,
and would require pressure vessels (i.e., tanks engineered for
pressurized material) of inordinate size at the low end of these
estimates, and are not likely to exist or be practicable at the upper
end of these estimates. Therefore, EPA does not envision these large
volumes of captured CO2 streams being stored on-site, and
instead assumes that the CO2 streams will be dehydrated,
compressed, and either injected on-site, or sent off-site, in a
continuous fashion. EPA believes that even if the CO2 were
defined as a hazardous waste, under the scenario described above, where
captured CO2 streams are delivered in a continuous fashion
to either on-site injection wells,
or to a pipeline for off-site injection (and presumably in a totally-
enclosed manner, due to the need to maintain proper pressures) there
would not be any substantive \35\ RCRA subtitle C requirements
applicable to this activity. EPA notes that there are no RCRA hazardous
waste standards for pipelines, unless the pipelines are ancillary to a
regulated hazardous waste tank, which does not appear to be the case
here.\36\
\35\ ``Substantive'' as used here describes those requirements
that are directly related to storage, transportation, treatment, or
disposal, and not notification or biennial reporting.
\36\ EPA notes that there are no stand-alone RCRA hazardous
waste standards for pipelines only; rather, EPA regulates hazardous
waste ``tank systems'' which includes technical standards for piping
where that piping is ancillary to hazardous waste tanks. See 40 CFR
260.10 for the definition of tank system; see also July 14, 1986
Federal Register for discussion of ancillary equipment, 51 FR at
Regarding other generator requirements, such as notification to EPA
of hazardous waste activity, and recordkeeping and reporting, EPA
believes there will be equivalent notice and reporting for facilities
engaged in CO2 capture for purposes of GS. The new GHG
reporting requirements promulgated on October 30, 2009 (74 FR 56260)
will provide information to the Agency regarding individual facilities
engaged in CO2 capture activities. Under 40 CFR part 98,
subpart PP, of the GHG rule, facilities with production process units
that capture a CO2 stream must annually report certain
information to EPA, such as the amount of CO2 in the stream
captured, and information on the fate of the CO2 stream
(i.e., the downstream `end use' of the CO2), including GS.
See 40 CFR 98.426. The GHG rule also requires comprehensive
recordkeeping, and records that must be retained for three years. See
Sec.  98.3(g) and Sec.  98.427. EPA points out that these GHG
requirements apply irrespective of whether a facility claims the RCRA
exclusion being proposed today, if finalized.
Therefore, with respect to generators of CO2 streams,
EPA believes there would not be any additional protection to human
health or the environment through the RCRA hazardous waste regulations
of these operations. Absent any storage, the regulation of the movement
of captured CO2 streams from the point of capture to either
an on-site UIC Class VI injection well, or to an off-site DOT-regulated
pipeline (discussed below), would not be significantly different in the
presence or absence of today's proposed conditional exclusion. While it
is not clear what would be the procedure during maintenance or upset
circumstances (such as if the capture process could not function), EPA
assumes that the source emissions would be diverted for release under
the facility's Clean Air Act permit.
EPA requests information on whether EPA's estimates for captured
CO2 volumes are accurate and reasonable, and whether the
CO2 that is captured could be stored on-site prior to being
sent elsewhere for GS or any other purpose; if so, EPA requests
detailed information on the duration and method of storage, and what
existing regulatory or voluntary controls and standards apply to such
storage. EPA also requests information on the units and processes
involved after the CO2 is captured, and before it is either
injected on-site, or sent off-site. Finally, EPA requests comment and
information on the procedures that have been or are expected to be used
during maintenance and upset circumstances of the carbon capture
2. Transportation of CO2 Streams to UIC Class VI Injection
While there may be instances where captured CO2 streams
are injected on-site, most generators will likely transport their
captured CO2 streams to UIC Class VI wells located off-site,
and therefore EPA considered the transportation of CO2
streams under today's proposed conditional exclusion. Carbon dioxide
itself is listed under the DOT regulations as a Class 2.2 hazardous
material (non-flammable gas). See definitions in 49 CFR 172.101 and
173.115(b). By this designation as a hazardous material, CO2
becomes subject to regulations established by DOT for the safe and
secure transportation of hazardous materials in commerce. DOT's
Pipeline Hazardous Materials Safety Administration (PHMSA) is charged
with overseeing the movement of hazardous materials, including
CO2, over all modes of transportation. For purposes of this
proposal, EPA examined existing requirements for pipeline, and non-
pipeline, modes of transportation.
Pipeline Transport--EPA presumes that pipeline transport of
CO2 streams will be the principal mode of transport for CCS
activities, either using existing or newly-built pipelines. For
example, in 2008, a Congressional Research Service report stated that
``[t]ransporting captured CO2 in relatively limited
quantities is possible by truck, rail, and ship, but moving the
enormous quantities of CO2 implied by a widespread
implementation of CCS technologies would likely require a dedicated
interstate pipeline network.'' \37\ In the United States, there are
approximately 3,600 miles of dedicated CO2 pipelines,
carrying about 50 million metric tons of CO2 per year,
primarily for EOR activities in the oil and gas industry.\38\
Experience and knowledge gained by the oil and gas industry, which has
used CO2 pipelines over the past 35 years to transport large
volumes of CO2 to oil fields, is directly applicable to
carbon capture and GS operations and, thus, there is much experience
with this activity.
\37\ CRS Report for Congress. Carbon Dioxide (CO2)
\38\ CRS Report for Congress. Regulation of Carbon Dioxide
(CO2) Sequestration Pipelines: Jurisdictional Issues.
Adam Vann and Paul W. Parfomak. April 15, 2008.
Pipeline transportation of CO2 is subject to the PHMSA
requirements in 49 CFR part 195, which apply to pipeline facilities
used in the transportation of hazardous liquids or supercritical
CO2.\39\ As defined in 49 CFR 195.2, carbon dioxide is ``a
fluid consisting of more than 90 percent carbon dioxide molecules
compressed to a supercritical state,'' which would include
supercritical CO2 streams transported for purposes of CCS.
The requirements in 49 CFR part 195 govern pipeline design,
construction, operation and maintenance, and emergency response
planning, and EPA believes that by addressing these areas, the PHMSA
requirements are consistent with the RCRA subtitle C goal of preventing
releases in order to protect human health and the environment.
\39\ The pipeline transportation of carbon dioxide and hazardous
liquids are both regulated under the same regulatory framework.
``Hazardous liquids,'' for purposes of 49 CFR part 195, are defined
by DOT as petroleum, petroleum products, and anhydrous ammonia, and
are not the subject of this proposed rule. 49 CFR 195.2.
Additionally, PHMSA's goal is to improve the overall integrity of
pipeline systems and reduce risks. See January 10, 2011 Federal
Register (76 FR 1504). To evaluate risk adequately, the Hazardous
Liquid and Gas Transmission Pipeline Integrity Management (IM)
requirements were created (49 CFR 195.450 and Sec.  195.452), which
supplement PHMSA's safety regulations mentioned above. The goal of the
IM requirements is to identify and evaluate the physical and
operational characteristics of each individual pipeline system, in
order to ensure the quality of pipeline integrity in areas with a
higher potential for adverse consequences (high consequence areas or
HCAs).\40\ In addition, PHMSA's IM
requirements promote a more rigorous and systematic management of
pipeline integrity and risk by operators; maintain the government's
prominent role in the oversight of pipeline operator integrity plans
and programs; and increase the public's confidence in the safe
operation of the nation's pipeline network. EPA believes that these
requirements, which focus on preventing releases that might affect
human populations and ecologically-sensitive areas, further support the
conclusion in today's proposal that additional regulation of pipeline
transportation under RCRA subtitle C is not necessary in order to
protect human health and the environment.
\40\ HCAs include populated areas, and other areas particularly
vulnerable to pipeline releases, such as drinking water resources or
certain ecologically-sensitive areas. 49 CFR 195.450.
With respect to there being no requirement to use a hazardous waste
manifest under today's proposal for CO2 streams that are
conditionally excluded, it is important to note that under the RCRA
subtitle C regulations, moving hazardous waste off-site through a
pipeline does not trigger the use of a manifest, because pipelines are
not included in the definition of ``transportation'' under RCRA
subtitle C.\41\ With respect to the use of a manifest, because the
applicable requirements would not change under either the existing RCRA
subtitle C regulations, or when managed in accordance with today's
proposed conditional exclusion, there is no change in protection to
human health and the environment under today's proposed rule. In fact,
EPA notes that were CO2 streams to be subject to RCRA
subtitle C as hazardous waste, they would not be regulated any
differently under the part 195 regulations that are applicable to
supercritical CO2 streams. Consultations with PHMSA staff
indicate that whether a CO2 stream is defined as hazardous
waste under RCRA subtitle C (in this instance, if it were to exhibit a
RCRA characteristic) does not change the technical and other
requirements applicable to the transportation of supercritical
CO2 under PHMSA.\42\
\41\ 40 CFR 260.10, 262.20(a)(1), and 263.20(a)(1). See also
Memorandum from Marcia Williams, Director, Office of Solid Waste, to
Barry [sic] Seraydarian, Director, Toxics and Waste Management
Division, EPA Region 9, April 30, 1986.
\42\ Memorandum to Docket EPA-HQ-RCRA-2010-0695, Personal
Communication with Vince Holohan, PHMSA, U.S. DOT.
Finally, EPA notes that it may be the case that some pipelines used
to transport CO2 are not subject to the DOT requirements,
because they are located on-site at the generator facility or at the
UIC Class VI facility. See, e.g., 49 CFR 195.1(b)(8). EPA requests
information on how these pipelines are currently regulated, including
any design and operating standards that apply to such pipelines. As
discussed earlier in today's preamble, EPA assumes that in the typical
case, captured CO2 will not be stored at the generator
facility, and will be transferred in a continuous manner either to an
on-site or off-site UIC Class VI well. EPA is not proposing to apply
RCRA subtitle C requirements to these pipelines as a condition of
today's proposed rule (as stated earlier, absent storage of hazardous
waste by generators, piping alone would not be subject to subtitle C
regulation in any event); but EPA still requests comment on the
appropriateness of applying the RCRA subtitle C standards to these non-
DOT regulated pipelines.
Non-Pipeline Transport--While EPA expects that pipelines will be
the most commonly used transportation method for moving supercritical
CO2 from its source to a UIC Class VI injection well, other
forms of transportation other than pipeline (e.g., highway, rail) are
still possible. Supercritical CO2 streams being transported
by means other than by pipeline must comply with applicable DOT
hazardous materials transportation regulations, which address (for
these modes of transportation) requirements, such as packaging,
labeling, marking, placarding, emergency response, training, and
shipping documentation. These regulations are found in 49 CFR parts
100-180 (hazardous materials regulations). EPA believes that these DOT
requirements will adequately address risks to human health and the
environment from the transportation of CO2 and, therefore,
additional RCRA subtitle C requirements specifically relating to
transportation will not provide substantially more protection.
Where a hazardous waste manifest would otherwise be required for
transporting CO2 streams that meet the definition of
hazardous waste, under today's proposed conditional exclusion, no
hazardous waste manifest would be required. While the DOT hazardous
materials shipping paper ensures that important information regarding
the CO2 stream accompanies the shipment, and that persons
offering the CO2 stream for transport must keep copies of
the DOT shipping paper for two years, there is no tracking feature
provided by the DOT shipping paper (as is the case for a hazardous
waste manifest). EPA believes, however, that today's proposed rule will
provide adequate incentive to ensure that the CO2 stream is
delivered to a UIC Class VI facility (for example, as discussed later
in today's preamble, EPA is proposing a condition requiring generators
to certify that any CO2 stream, which they claim to be
excluded from RCRA subtitle C, has been delivered to a UIC Class VI
facility). EPA believes that this proposed certification statement,
which must be signed by the generator, provides a strong incentive to
ensure delivery to the designated UIC Class VI facility; this is
because generators who claim the exclusion, but fail to ensure delivery
of their CO2 stream that is hazardous to a Class VI
facility, risk losing the exclusion and invoking the full hazardous
waste requirements. Nonetheless, EPA notes that this certification
statement does not provide the same type of tracking as a hazardous
waste manifest would provide. Therefore, EPA requests comment on the
extent to which non-pipeline transportation will be used specifically
for transporting CO2 streams to UIC Class VI facilities, and
whether the use of the certification statement, together with
compliance with applicable DOT hazardous material transportation
requirements, are effective substitutes for the RCRA hazardous waste
regulations that would apply to these specific circumstances.
C. Underground Injection of CO2 Streams at UIC Class VI Wells
The UIC Class VI regulations specifically preclude CO2
streams that are defined as RCRA hazardous waste from being injected
into a UIC Class VI well. See 40 CFR 146.81(d) (definition of Carbon
Dioxide Stream in the UIC Class VI regulation). Instead, under the
existing UIC and RCRA regulations, hazardous wastes (including
CO2 streams that meet the definition of hazardous waste)--if
injected--must be injected into a Class I hazardous waste well. As
already discussed, EPA has little information about whether
CO2 streams would exhibit a RCRA hazardous waste
characteristic (in particular, the TC). However, because it is possible
that captured CO2 streams could contain low concentrations
of contaminants which could cause a waste to be identified as hazardous
by the TC (e.g., arsenic, mercury, selenium),\43\ EPA considered
whether the injection of captured CO2 streams into UIC Class
VI wells would be properly managed, such that subtitle C regulation was
duplicative and unnecessary.
The UIC Class VI requirements are designed to ensure that the
CO2 and any incidental associated substances will be
isolated within the injection zone, and thus protect USDWs from
endangerment. The UIC Class VI requirements are designed for the unique
characteristics of CO2, including its buoyancy relative to
other fluids in the subsurface, which requirements account for the
potential presence of impurities (including hazardous contaminants
which could cause the waste to be identified as hazardous by the TC) in
captured CO2. See 75 FR at 77234-5 (December 10, 2010).
Thus, EPA expects that compliance with the UIC Class VI requirements,
which are designed to ensure isolation of supercritical CO2
streams, will also address the potential for effects on human health
and the environment from the contaminants present in the stream. Below
is a description of key elements of the UIC Class VI requirements that
EPA believes will ensure protection of human health and the
environment, such that RCRA subtitle C regulation would be duplicative
and unnecessary.
Section 1421(d)(2) of the SDWA provides, ``Underground injection
endangers drinking water sources if such injection may result in the
presence in underground water which supplies or can reasonably be
expected to supply any public water system of any contaminant, and if
the presence of such contaminant may result in such system's not
complying with any national primary drinking water regulation or may
otherwise adversely affect the health of persons.'' Pursuant to Sec.
1421(d)(2), the UIC program requirements for all well classes,
promulgated under the authority of the SDWA, are designed to
comprehensively ensure that an injection well is appropriately sited,
operated, tested, monitored, and closed in a manner that ensures USDW
protection and does not otherwise adversely affect the health of
persons.\44\
\44\ For example, the following general standard in the SDWA
regulations applies to all classes of UIC wells: ``No owner or
operator shall construct, operate, maintain, convert, plug, abandon,
or conduct any other injection activity in a manner that allows the
movement of fluid containing any contaminant into underground
sources of drinking water, if the presence of that contaminant may
cause a violation of any primary drinking water regulation under 40
CFR part 142 or may otherwise adversely affect the health of
persons. The applicant for a permit shall have the burden of showing
that the requirements of this paragraph are met.'' 40 CFR 144.12(a).
In developing standards for CO2 injection for GS, the
Agency evaluated the applicability of the existing UIC program
requirements for Class I wells (hazardous and non-hazardous) through
Class V wells, and determined that new, tailored regulations to address
the injection of supercritical CO2 streams for GS, including
any associated constituents that may be present in the CO2
streams, were warranted in order to protect USDWs from endangerment. In
October 2007, EPA announced that it would develop tailored regulations
for GS, by adapting the existing UIC program framework and by relying
on that program's experience--over 25 years--in regulating the
injection of fluids, including CO2 injected for enhanced
hydrocarbon recovery. The Class VI rule, finalized in December 2010,
includes specific requirements designed to address the unique nature of
CO2 injection for GS, including the large CO2
injection volumes anticipated at GS projects, the relative buoyancy of
CO2, its mobility within subsurface geologic formations, and
its corrosivity in the presence of water. In addition, EPA recognized
that the CO2 stream could contain impurities, including
those which could cause the waste to exhibit the TC under the RCRA
subtitle C regulations.
Throughout the regulatory development process for the Class VI
requirements, the UIC program, in coordination with other EPA program
offices, stakeholders, and the public relied upon the existing UIC
regulatory framework and applicable requirements of other well classes
(i.e., Class II, Class I industrial, Class I hazardous), as
appropriate. However, the Agency recognized that these established
programmatic requirements required certain modifications and
enhancements with respect to CO2 injection for GS in order
to ensure USDW protection.
The UIC Class VI final regulations include specific requirements
tailored to the particular nature of CO2 injection for GS.
These program elements include site characterization, area of review
(AoR) delineation, corrective action,\45\ well construction and
operation, testing and monitoring, post-injection site care, site
closure, and financial responsibility. Together, these program elements
provide a comprehensive approach for verifiable isolation of the
CO2 stream within the injection zone to ensure protection of
USDWs from endangerment. Although not an exhaustive list, some
requirements tailored for GS (Class VI) include:
\45\ EPA notes that the term ``corrective action'' is used in
both the SDWA and RCRA programs, but refers to different activities
under each. Under the UIC Class VI rule, the phrase refers to
actions taken to correct situations where artificial penetrations
(e.g., wells) could serve as unwanted conduits for CO2 or
other fluid movement into or between USDW within the AoR. See 40 CFR
144.55, 146.7, and 146.64. Under RCRA subtitle C, corrective action
generally refers to actions taken to address releases of hazardous
wastes or hazardous constituents from solid waste management units
at a treatment, storage, or disposal facility. The RCRA corrective
action aspects of this proposed rule are discussed in Section IV.C.4
of this preamble.
[cir] Class VI well owners or operators must conduct and submit,
with the permit application, an extensive, detailed assessment of the
geologic, hydrogeologic, geochemical, and geomechanical properties of
the proposed GS site to ensure that GS wells are located in suitable
geologic formations, and that the geology provides containment. The
owner or operator must also select a site with an injection zone of
sufficient areal extent, thickness, porosity and permeability to
receive the total anticipated volume of the CO2 stream, and,
confining zones free of transmissive faults or fractures and of
sufficient areal extent and integrity to contain the injected
CO2 stream and displaced formation fluids. Class VI
requirements also mandate a thorough process for the identification of
features that might compromise the integrity of the containment system
(e.g., abandoned wells) and remediation of those features through
corrective action, within the AoR. Existing UIC regulations, including
those for Class I hazardous wells, require that owners or operators
define the AoR, within which they must identify artificial penetrations
and determine whether they have been properly constructed or plugged;
the Class VI regulations are consistent with this approach.
[cir] Class VI well owners or operators must delineate the AoR
using a sophisticated computational model that incorporates available
site characterization data and planned operational conditions.
Throughout the life of the project, the AoR must be periodically
reevaluated (at least once every 5 years) through the use of monitoring
and operational data to verify that the CO2 plume and the
associated area of elevated pressure are moving as predicted within the
subsurface, and that the injected CO2 stream is isolated
within the injection zone. With the exception of the UIC Class VI
regulations, the existing UIC regulations (including Class I hazardous)
do not include a requirement to reevaluate the AoR and
corrective action plan. This reevaluation is an additional level of
protection that has been added for Class VI wells in order to address
the unique characteristics of the CO2 stream injectate. This
reevaluation will provide an ongoing dialogue between the Director and
the owners or operators, while ensuring that if a circumstance changes,
the AoR will be updated to address those changes, while ensuring
protection of USDW. Because there will be inevitable plume movement, a
reevaluation was deemed to be necessary to protect USDW for Class VI
[cir] Class VI well owners or operators must also identify and
evaluate all artificial penetrations within the AoR, and based on this
review, identify the wells that need corrective action to prevent the
movement of CO2 or other fluids into or between USDWs.
Owners or operators must perform corrective action to address
deficiencies in any wells (regardless of ownership) that are identified
as potential conduits for fluid movement into USDWs. The Director must
approve the methods used to identify the wells and the corrective
action selected by the owners or operators. This inventory and review
process is similar to what is required of all Class I and Class II
injection well owners or operators.
[cir] Class VI wells must meet the same stringent injection well
construction standards as Class I hazardous waste wells, in order to
ensure that the well itself does not serve as a conduit for fluid
movement. In addition, the Class VI rule requires that all well
construction materials be compatible with the fluids with which the
materials may come in contact (e.g., fluid formations; CO2
streams) over the life of the GS project. Class VI operating
requirements also ensure that injection in a Class VI well will not
propagate fractures within the injection and/or confining zones that
could compromise containment.
[cir] Class VI owners or operators must conduct robust monitoring
to ensure the integrity of the injection well, detect any changes in
groundwater geochemistry that may indicate leakage, and track the
evolution of the CO2 stream and associated pressure front.
Class VI monitoring requirements are generally more detailed and
rigorous than those for Class I hazardous waste injection wells, and
are designed to verify isolation of the injected CO2 stream,
and allow for early-warning of any possible fluid leakage.
[cir] The Class VI rule contains tailored requirements for
extended, comprehensive post-injection monitoring and site care of GS
projects following cessation of injection, until it can be demonstrated
that movement of the CO2 plume and pressure will not pose a
risk of endangerment to USDWs. Owners or operators must also plug
injection and monitoring wells in a manner that protects USDWs. Proper
plugging of injection and monitoring wells is a long-standing
requirement in the UIC Program to ensure that existing wells do not
serve as conduits for fluid movement following cessation of injection
and site closure. Post-injection site care (PISC), which is unique to
GS and Class I hazardous wells in the UIC program, is a protective
measure that requires site monitoring to continue in order to ensure
the injectate and any mobilized fluids do not pose a risk to USDW.
[cir] Class VI provisions require that owners or operators maintain
financial responsibility obligations guaranteeing that funds will be
available for all SDWA corrective action, injection well plugging,
PISC, site closure, and emergency and remedial response.
These elements of the Class VI requirements are designed to provide
verifiable control of the CO2 stream at the Class VI well,
and containment of that stream within the injection zone, in order to
ensure protection of USDW from endangerment. EPA believes that the
elimination of exposure routes through these requirements will ensure
protection of human health and the environment, and views this as
determinative in its evaluation of whether the RCRA subtitle C
regulatory requirements for hazardous waste disposal provide any
substantial, additional protection for CO2 streams which
exhibit a characteristic of hazardous waste and are disposed in UIC
Class VI wells. Thus, EPA concludes (subject to consideration of public
comment) that a conditional exclusion from RCRA subtitle C requirements
is warranted for CO2 streams that are injected into UIC
Class VI wells for purposes of GS.
Under today's proposed rule, a CO2 stream that is
conditionally excluded from the definition of hazardous waste would not
be subject to the RCRA land disposal restriction (LDR) requirements in
40 CFR part 148 that apply to restricted hazardous wastes that are
disposed of in UIC wells. EPA considered how the conditions proposed in
today's rule compare to the protections afforded by the RCRA LDR
requirements (that would otherwise apply to a CO2 stream
that exhibits a RCRA characteristic and is disposed of in an injection
well). As discussed below, EPA believes that with respect to
CO2 streams that are conditionally excluded for purposes of
GS, the LDR requirements would not provide more protection to human
health and the environment than the UIC Class VI requirements provide.
The LDR program ensures that hazardous waste cannot be placed on or
under the land--i.e., land disposed--until the waste meets specific
treatment standards to reduce the mobility or toxicity of the hazardous
constituents in the waste. These treatment standards are waste-code
specific, and either specify an allowable concentration of hazardous
constituents or specify a method of treatment. These treatment
standards must be satisfied before land disposal of the waste occurs.
The alternative to meeting the treatment standards is to make a
successful demonstration to EPA that no hazardous constituents will
migrate from the disposal unit (or, in the case of injection wells, the
``injection zone'' (see RCRA section 3004(d)(1)) for as long as the
waste remains hazardous (a ``no-migration'' petition). See RCRA
sections 3004(f) and (m). The LDR requirements are found in 40 CFR part
268, and the LDR requirements regarding injection wells are located in
40 CFR part 148.
LDR requirements attach to wastes that are hazardous at the point
of generation. Chemical Waste Management v. EPA, 976 F. 2d 2, 13,14
(D.C. Cir. 1992), so that if a waste is conditionally excluded from
being a hazardous waste, LDRs do not apply. EPA evaluated the
protections afforded under the Class VI regulations and the LDR program
to assure that this is an appropriate outcome here.
Class VI wells are required to demonstrate (through the initial
permitting process, and periodically during the operational life of the
well), on a well-by-well basis, that there are no features near an
injection well that would allow injected fluid to move into a USDW or
displace native fluids into USDWs resulting in their endangerment. EPA
interprets the UIC Class VI isolation requirements as meeting the
objectives of the RCRA LDR requirements. This is because the same
individualized determination, using the same or similar decision tools,
with essentially the same ultimate determination (no migration of
hazardous constituents from the injection zone of either a Class VI
well or a Class I hazardous waste well) would apply in either instance.
EPA thus believes (subject to consideration of public comment) that
the Class VI well review process and
isolation requirements will meet essentially the same requirements and
objectives as the RCRA no-migration process, affords similar procedural
safeguards (individualized determinations in both instances), and will
protect human health and the environment via proper management under
the Class VI regulations. Thus, the proposed conditional exclusion
appears reasonable with respect to otherwise-applicable LDR
In addition, we note that RCRA section 1006(b) provides that EPA
``shall integrate all provisions of this chapter for purposes of
administration and enforcement and shall avoid duplication, to the
maximum extent practicable, with the appropriate provisions of the * *
* Safe Drinking Water Act.'' For the reasons just discussed, it appears
that the RCRA LDR provisions duplicate the requirements and procedures
of the Class VI rules and that a conditional exclusion from being a
hazardous waste avoids this duplication. See Chemical Waste Management
v. EPA, 976 F. 2d 2, 23-24 (integration of RCRA LDR and Clean Water Act
direct discharger requirements).
EPA also reviewed the subtitle C corrective action requirements,
which apply to any hazardous waste treatment, storage or disposal
facility, including Class I UIC hazardous waste facilities. Under
today's proposed conditional exclusion, CO2 streams that
would otherwise be defined as RCRA hazardous waste (because they
exhibit a RCRA characteristic) and meet the proposed conditions, would
not be defined as hazardous waste. Therefore, the RCRA corrective
action requirements would not be triggered at the UIC Class VI facility
as a result of the management of conditionally-excluded CO2
streams. EPA does not believe, however, that the absence of RCRA
corrective action authority at a Class VI UIC facility is of concern
with respect to the management of excluded CO2 streams in
the Class VI UIC well under a SDWA permit. In EPA's view, the
comprehensive Class VI UIC regulations provide multiple, enforceable
mechanisms to correct permit violations and other situations that may
pose a risk to USDW. These include enforceable requirements to develop,
maintain, and update an emergency and remedial response plan, and to
undertake emergency or remedial response actions for any unauthorized
releases from the well or injection zone. See 40 CFR 146.94.
In conclusion, consistent with the SDWA and RCRA, the integrated
application, implementation, and enforcement of the UIC Class VI
requirements will protect human health and the environment by ensuring
that the CO2 streams (which may include low concentrations
of hazardous constituents as discussed above) remain isolated in the
injection zone and confined by confining zones in an appropriate, well-
characterized geologic setting, that is continuously monitored to
ensure that the CO2 streams remain in the injection zone.
EPA believes that with respect to CO2 streams as discussed
in today's proposed conditional exclusion, the existing UIC Class VI
requirements sufficiently address any potential risk to human health
and the environment, such that subtitle C regulation is unwarranted.
The UIC Class VI well program was specifically developed for the
unique purpose of GS of CO2 streams. Today's proposed
conditional exclusion only applies to CO2 streams that have
been captured for purposes of GS and are to be injected into a UIC
Class VI well. EPA is proposing to limit the scope of this exclusion by
including a condition that no other hazardous waste can be mixed with,
or otherwise co-injected with, the CO2 streams as defined in
today's proposed rule. Thus, if hazardous waste is mixed with the
CO2 stream, under today's proposal that stream would not be
eligible for the conditional exclusion. That stream would need to be
managed as a RCRA hazardous waste, and, if well injection is selected
as the means of disposal, injected into a UIC Class I hazardous well.
EPA expects that where facilities have made the significant
economic commitment to capture and/or inject CO2 streams for
purposes of GS, such facilities will not wish to jeopardize this
arrangement by mixing hazardous waste into the CO2 stream in
violation of the explicit prohibition in the UIC Class VI rule, as well
as the condition being proposed today in 40 CFR 261.4(h)(1)(iii). EPA
seeks to safeguard the efforts of the CO2 sources and
injection facilities that comply with the mixing prohibition by
designing a regulatory scheme that is enforceable and is structured to
ensure compliance, thus obtaining the full benefit of the regulation
that the public expects.
In order to better ensure that CO2 sources and UIC Class
VI injection facilities choosing to use this conditional exclusion
fully comply with the conditions of the exclusion, including the
prohibition on mixing hazardous waste with the CO2 stream,
EPA is proposing that a certification statement be executed by an
authorized representative of the generator and the Class VI injection
facility owner/operator. The term ``authorized representative'' is
defined in the RCRA regulations to mean ``the person responsible for
the overall operation of a facility or an operational unit (i.e., part
of a facility), e.g., the plant manager, superintendent or person of
equivalent responsibility.'' 40 CFR 260.10.
Because the function of the certification statement is to ensure
compliance with the conditions of the proposed conditional exclusion,
EPA requests comment on whether it should limit the categories of
employees who would be required to sign this certification statement,
to senior employees in the same manner as that which is required for
RCRA permit applications under 40 CFR 270.11(a). Under this alternative
approach, certification statements (for corporations) would need to be
signed by a ``responsible corporate officer'' as defined in Sec.
270.11(a)(1)(i), or, plant managers for facilities over a certain size
as defined in Sec.  270.11(a)(1)(ii); by a general partner or
proprietor (for general partnerships or sole proprietorships,
respectively) as specified in Sec.  270.11(a)(2); or, for public
agencies, the chief executive officer, or certain other senior officers
of that agency, as defined in Sec.  270.11(a)(3). Accountability and
enforceability may be improved when signatories to these types of
certifications are at the highest levels of an organization.
EPA is not requiring that these certifications be submitted to the
Agency; rather, EPA is proposing that the signed certification
statement be kept on-site for no less than three years, and that these
signed certifications be made available within 72 hours of a written
request from the Regional Administrator (or state Director, if located
in a state implementing the conditional exclusion as part of their
authorized RCRA program).\46\ EPA believes the retention time of three
years is reasonable and appropriate, and consistent with the existing
subtitle C recordkeeping requirements (e.g., 40 CFR 262.40 and
268.7(a)(8) for
generators; 264.73 for TSDFs). Because EPA is not requiring the
submittal of signed certification statements, today's proposed rule
does not impose any new reporting requirements; however, EPA will be
aware of the universe of generator and UIC Class VI facilities that may
potentially claim this proposed conditional exclusion, because under
the existing regulatory framework for GS, facilities that capture and
sequester CO2 must identify themselves, and report specific
information regarding their CO2 capture and GS activity, to
the Agency.\47\ Therefore, EPA believes that it will have adequate
opportunity to determine whether any particular facility is claiming
the exclusion, as it anticipates a relatively gradual increase in the
deployment of CCS activities in the near term. EPA is also proposing
that these certifications shall be renewed every year that the
generator or UIC Class VI well owner/operator claims the RCRA
conditional exclusion, in order to ensure that the certification is
kept current (e.g., facility personnel may change, etc.). This yearly
renewal of the certification statement means that an authorized
representative must annually prepare and sign a new copy of the
certification statement, to be retained on-site for no less than three
\46\ ``Regional Administrator'' as defined under RCRA subtitle C
(40 CFR 260.10) includes any designee of the Regional Administrator;
therefore, written requests may be made by a designee of the
Regional Administrator or state Director. Today's proposed
regulatory text reflects this.
\47\ Under subparts PP and RR of the GHG reporting program,
facilities that capture CO2 and facilities that inject
CO2 underground for GS (including UIC Class VI
facilities) have certain reporting requirements. For more
information, see Section III of this preamble.
The language for this certification is in proposed 40 CFR
261.4(h)(1)(iv), and reads as follows:
I certify under penalty of law that the carbon dioxide stream
that I am claiming to be excluded under 40 CFR 261.4(h)(1) meets all
of the conditions set forth in that paragraph.''
While EPA is not currently aware of specific examples where
hazardous wastes are being mixed into or with CO2 streams,
particularly at this early stage of CCS deployment, well-designed rules
are essential to the success of future enforcement efforts. EPA
requests comment on the certification statement, and particularly seeks
comment on whether this measure will appropriately ensure compliance
with the conditional exclusion, including the mixing prohibition. EPA
also requests comment on how CO2 sources, who add excluded
CO2 streams into an existing (or future) CO2
pipeline network, can ensure that the CO2 reaches a UIC
Class VI facility. Finally, EPA requests comment on whether
transporters, as well as pipeline owners and operators, should also
sign such a certification statement.
In addition to the conditions and requirements being proposed
today, the Agency recognizes that other conditions or requirements
could possibly improve EPA's and the states' ability to monitor
compliance with the mixing prohibition. For example, there are certain
existing requirements for the physical and chemical characterization of
CO2 streams that apply at the UIC Class VI facility
(discussed in Section III.E. of this preamble), and the prohibition
that no hazardous waste be injected in the UIC Class VI well. However,
there are no CO2 stream characterization requirements that
EPA could identify upstream of the UIC Class VI well, such as at the
CO2 source or in a pipeline, other than the general
requirement that generators make a hazardous waste determination for
any solid waste they generate (40 CFR 262.11), and the PHMSA
requirement that supercritical CO2 streams be chemically
compatible with the pipeline and any commodities in the pipeline (49
CFR 195.4), and will not corrode the pipeline and pipeline system (49
CFR 195.579).\48\ EPA requests comment, including supporting
information, on whether (and if so, what type of) additional
monitoring, recordkeeping, and reporting of the CO2
composition by generators and transporters (including pipeline
operators), might aid EPA and the states in their ability to detect
improper mixing of hazardous waste with CO2 streams. EPA
also requests comment on whether there are other conditions, such as a
minimum CO2 content, that could enhance compliance with the
proposed ``no mixture'' condition. For example, EPA is aware that under
the PHMSA requirements for the pipeline transportation of supercritical
carbon dioxide, the definition of carbon dioxide specifies a
CO2 content of greater than ninety percent. 49 CFR 195.2.
EPA also requests comment on what commercial, operational, or
regulatory requirements or specifications already exist regarding
CO2 content in the management of supercritical
CO2.
\48\ The Agency is also aware that supercritical CO2
pipeline owner/operators follow certain requirements and
specifications related to monitoring supercritical CO2
composition, including water content, and the identification of any
impurities or other inert materials, that might negatively affect
CO2 transport, or otherwise take up needed space. Pers.
comm., Doug McMurrey, V.P. for Marketing and Business Development,
Kinder Morgan, 7-21-2010.
EPA notes that it is requesting comment on whether persons engaged
in the movement of conditionally-excluded CO2 streams,
including transporters, as well as pipeline owners or operators, should
certify that they meet the conditions of today's proposed conditional
exclusion. EPA is also requesting comment on whether any new
monitoring, recordkeeping or reporting requirements are necessary
(including as those might apply to pipeline owners or operators) to
ensure that the conditions of the proposed exclusion are met. EPA
emphasizes that aside from seeking comment in these two areas, EPA is
not proposing any new requirements applicable to pipelines or pipeline
owner/operators.
EPA understands that much of the existing U.S. pipeline
infrastructure is used to transport materials that are not RCRA solid
wastes. EPA also appreciates that because of this, the potential
application of subtitle C jurisdiction may raise questions over whether
EPA is proposing to extend its existing RCRA jurisdiction in today's
proposed rule. EPA wishes to clarify that this is not the case, as EPA
generally already has RCRA jurisdiction over solid and hazardous waste.
While pipelines are not included in the definition of
``transportation'' under the RCRA subtitle C regulations (40 CFR
260.10), EPA retains RCRA subtitle C jurisdiction over solid and
hazardous wastes generally, including when these materials are in
pipelines. At the same time, however, EPA again notes that, provided
the conditions proposed today are met (when final), persons engaged in
transportation or pipeline delivery of conditionally-excluded
CO2 streams are not managing a RCRA hazardous waste.
The conditional exclusion being proposed today does not preclude
regulation or enforcement by EPA or the states against generators,
transporters, or treatment, storage, or disposal facilities who are not
eligible for the conditional exclusion, or who do not meet the
conditions of the exclusion. Because this hazardous waste exclusion is
conditional, a claimant must meet the conditions to qualify for and
maintain the exclusion from the hazardous waste regulations. Failure to
meet the conditions results in the loss of the exclusion. As proposed,
a violation of a condition at any point in the management of a
CO2 stream would result in that CO2 stream being
subject to all applicable subtitle C regulatory requirements, from the
point of generation. Thus, a violation of a condition at a UIC Class VI
facility, for example, would mean that in addition to the UIC Class VI
facility, the generator and transporter would also be considered to be
managing (or to have
managed) a hazardous waste. Moreover, imminent and substantial
endangerment provisions under Sec.  7003 of RCRA will continue to apply
to conditionally-excluded CO2 streams as a safeguard in the
unlikely event of a release which could pose a health or environmental
threat. This is true even if the CO2 stream does not
otherwise meet the regulatory definition of hazardous waste.\49\
\49\ EPA also notes that existing obligations to address
corrective action at RCRA treatment, storage, and disposal
facilities would not be affected by this proposed rule. In addition,
today's proposed conditional exemption would not preclude RCRA
corrective action requirements from applying to a Class VI UIC
facility if the facility were to engage in the management of
hazardous waste that would require a RCRA permit (e.g., if the
conditions of today's proposed exemption were not met and the
previously exempt CO2 streams were no longer exempt; or,
if other hazardous wastes were treated, stored, or disposed of at
the facility).
EPA is using an adaptive approach in the UIC Class VI final rule to
allow it to consider making changes to the UIC Class VI program to
incorporate new research, data, and information about GS and associated
technologies. In the UIC Class VI final rule, EPA stated that the
Agency plans, every six years, to review the rulemaking and data on GS
projects to determine whether the appropriate amount and types of
information and appropriate documentation are being collected, and to
determine if modifications to the UIC Class VI requirements are
appropriate or necessary. See December 10, 2010 Federal Register (75 FR
at 77240-41, 77243, and 77257). This new information may increase
protectiveness, streamline implementation, or otherwise inform the
requirements for GS injection of CO2.
Consistent with EPA's stated intent in the UIC Class VI rule, EPA
also plans to evaluate any new information related to the conditional
exclusion being proposed today at the same time as is planned for the
UIC Class VI rule. EPA intends to use the information gathered by the
UIC Class VI program described above, as well as additional
information, such as data on the chemical and physical characteristics
of the CO2 streams being injected, to inform its
consideration of whether changes should be made to the conditional
exclusion (such changes could require additional rulemaking). Thus, the
Agency commits to reviewing, in coordination with the adaptive approach
planned for the UIC Class VI rule, new research, data, and information
related to today's proposed conditional exclusion (if finalized),
particularly with respect to compliance with the conditions of the
exclusion, and the nature and composition of the CO2 stream.
Today, EPA is also proposing to add a definition for the term
carbon dioxide (CO2) stream to the hazardous waste
regulations in 40 CFR 260.10. Under today's proposed rule, carbon
dioxide (CO2) stream is defined as ``carbon dioxide that has
been captured from an emission source (e.g., a power plant), plus
incidental associated substances derived from the source materials and
the capture process, and any substances added to the stream to enable
or improve the injection process.'' The same definition is used in the
UIC Class VI regulations in 40 CFR 146.81(d), with one exception. The
definition in Sec.  146.81(d) includes additional language that reads,
``This subpart does not apply to any carbon dioxide stream that meets
the definition of a hazardous waste under 40 CFR part 261,'' thus,
prohibiting the injection of hazardous waste into UIC Class VI wells.
Because today's conditional exclusion would apply to CO2
streams that are otherwise RCRA hazardous wastes, EPA did not include
similar language in today's proposed definition of carbon dioxide
stream. EPA intends for the two definitions to work in concert,
however, such that it is clear that both RCRA hazardous CO2
streams (that are excluded when managed pursuant to the terms of
today's proposed conditional exclusion) and non-hazardous
CO2 streams may be injected into a UIC Class VI well.
Finally, EPA notes that in today's proposed definition, ``substances
added to the stream to enable or improve the injection process'' refers
to non-waste substances that serve the legitimate purpose as stated
(i.e., to enable or improve the injection process), and does not
include listed or characteristic hazardous wastes. EPA requests comment
on the types and characteristics of substances that are added to
CO2 streams to enable or improve the injection process.
Under Section 3006 of RCRA, EPA may authorize qualified states to
administer their own hazardous waste programs in lieu of the Federal
program within the state. Following authorization, EPA retains
enforcement authority under Sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
Federal program in that state. The Federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
issue RCRA permits. When new, more stringent Federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new Federal requirements did
not take effect in an authorized state until the state adopted the
Federal requirements as state law.
In contrast, under RCRA Section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts Federal requirements that are more stringent or broader in
scope than existing Federal requirements. RCRA Section 3009 allows the
states to impose standards more stringent than those in the Federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt Federal regulations that are considered less
stringent than previous Federal regulations.
The provisions in today's notice are proposed pursuant to non-HSWA
authority, and would eliminate the hazardous waste requirements for
those CO2 streams that would otherwise meet the definition
of hazardous waste, when these streams are managed in accordance with
certain conditions. Therefore, this proposed exclusion is less
stringent than the Federal program, and states are not required to
adopt this
provision.\50\ Nevertheless, while states do not have to adopt this
provision, EPA strongly encourages them to do so, because this
defining and managing these CO2 streams under RCRA subtitle
C, which will remove the uncertainty regarding the type of permit
needed for the GS of CO2 streams.
\50\ EPA notes that decisions regarding whether a state rule is
more stringent or broader in scope than the Federal program are made
when the Agency authorizes state programs.
EPA notes that because the conditional exclusion is less stringent
than the current RCRA program, states are not required to adopt this
rule, if finalized.\51\ In situations involving the interstate
transportation of conditionally-excluded waste, the exclusion must be
authorized in the state where the waste is generated, any states
through which the waste passes, and the state where the UIC Class VI
injection well is located, in order for that conditionally-excluded
waste to be managed as excluded from subtitle C from point of
generation to injection in a UIC Class VI well. A state that has not
adopted the conditional exclusion may impose state requirements,
including the uniform hazardous waste manifest requirement, if
characteristically-hazardous CO2 streams are being
transported through that state.\52\
\51\ Some states incorporate the Federal regulations by
reference, or have specific state statutory requirements that their
state program can be no more stringent than the Federal regulations.
In those cases, EPA anticipates that the conditional exemption
proposed today, if finalized, would be adopted by these states,
consistent with state laws and administrative procedures (unless
explicit action is taken by such a state to decline the revisions,
as specified under that state's laws).
\52\ As discussed in Section IV.B.2. of this preamble, the off-
site movement of hazardous waste through pipelines does not require
the use of a hazardous waste manifest under the Federal subtitle C
hazardous waste regulations.
The economic assessment conducted in support of this action
evaluated the costs, benefits, small entity impacts, environmental
justice, and other impacts (e.g., children's health, unfunded mandates,
federalism) of the proposal. As part of the evaluation of potential
costs and benefits, EPA first prepared a baseline characterization of
the potentially affected universe. We then assessed the ``baseline''
behavior that the affected entities could be expected to display in the
absence of the proposed rule. This baseline provided a reference point
from which the incremental costs and benefits of the proposed rule were
measured. Finally, we estimated how the affected entities would likely
change their behavior in response to the rule, as proposed. The
analysis estimated incremental costs and benefits of the proposed rule
over a 50-year period.\53\
\53\ This 50-year time period is consistent with the Office of
Water Analysis for the Final Geologic Sequestration Rule: Draft Cost
Analysis for the Federal Requirements Under the Underground
Injection Control Program for Carbon Dioxide Geologic Sequestration
Wells (Final GS Rule), EPA 816-R-10-013, July 2010.
The universe of entities that may be directly affected by the
proposed rule include CO2 generators/capturers,
transporters, and sequestration facilities. CO2 generator
facilities are likely to be entities that capture their CO2
byproducts and manage them in a manner other than releasing them into
the atmosphere. Currently, EPA estimates that, at a maximum, there
could be up to 27 CO2 capture facilities affected by the
proposed rule. This estimate includes ten facilities that currently
capture CO2, along with 17 facilities expected to begin
CO2 capture in the future. These 27 capture facilities
include fossil fuel electric power generators, oil and gas extraction
facilities, natural gas distribution facilities, ethyl alcohol
manufacturers, and nitrogenous fertilizer manufacturers. Our low-end
estimate considers only 13 CO2 capture facilities. This
includes ten existing capture facilities, two capture projects
associated with named DOE pilot projects, and one capture facility
associated with the FutureGen Federal/private partnership.
EPA expects that captured CO2 will generally be
transported by pipeline. As of 2008, there were 30 operating
CO2 pipelines in the U.S., operated by 29 separate entities.
CO2 sequestration facilities inject the CO2
streams into UIC wells for the purposes of sequestration. This
sequestration may be conducted either with or without concurrent EOR.
However, EOR itself is outside the scope of this rule, as proposed.\54\
EPA estimates that as many as 29 planned sequestration facilities could
be affected by the proposed rule. This estimate includes 15 planned
commercial CO2 sequestration projects and 14 planned
projects funded by DOE. The 15 planned commercial projects are expected
to include 12 EOR projects that transition to sequestration in the long
term and 3 saline reservoir sequestration projects.\55\ Our low-end
estimate considers only six CO2 sequestration facilities
that will be Class VI UIC wells. This includes five sequestration
projects associated with named DOE pilot projects and one sequestration
facility associated with the FutureGen Federal/private partnership.
\54\ EPA notes that today's proposed conditional exclusion only
applies to CO2 streams that are to be injected into UIC
Class VI wells; however, other classes of UIC wells that inject
CO2 streams (e.g., Class II wells conducting EOR and
Class V experimental wells) can transition to Class VI wells under
certain conditions outlined in the final UIC Class VI rule. December
10, 2010 (75 FR at 77243-77249).
\55\ Department of Energy, National Energy Technology
Laboratory, Carbon Capture and Storage Database, http://www.netl.doe.gov/technologies/carbon_seq/database/index.html.
In the baseline (absence of the proposed rule), generators of the
captured CO2 streams would have to determine if their
CO2 stream(s) is (are) a RCRA hazardous waste. Depending
upon this determination, a capture facility is most likely to engage in
one of four baseline management practices: (1) For CO2
streams that are determined to be nonhazardous waste, transport the
material to a sequestration facility for injection in a Class VI well;
for CO2 streams that are determined to be hazardous waste,
either (2) cease capturing the CO2 stream--that is, continue
to allow the CO2 stream to be emitted into the atmosphere;
or (3) transport the CO2 stream to a sequestration facility
for injection in a Class I hazardous well; or (4) treat the
CO2 stream so that it is no longer hazardous and transport
it to a sequestration facility for injection in a Class VI well. A
generator's determination as to how to manage a RCRA hazardous waste
CO2 stream would depend on several factors. Due to the lack
of definitive data on the RCRA hazardous characteristics of
CO2 streams, we applied bounding estimates in our analysis.
The high-end assumes that 90% of the CO2 streams are
generated as RCRA hazardous waste, while the low-end assumes that only
10% of the CO2 streams are RCRA hazardous waste.\56\ For all
generators that capture CO2, we further assume the
following: each facility would incur costs to determine if the
CO2 stream is a RCRA hazardous waste; facilities that
generate a CO2 stream that is characterized as a non-
hazardous RCRA waste would face no further costs associated with the
hazardous waste regulations, as would facilities who cease to capture
CO2; facilities that generate RCRA hazardous waste
CO2 streams and do not cease capturing the
CO2 would likely qualify as large quantity generators (LQGs)
in the baseline and would be subject to applicable hazardous waste
generator requirements; and, CO2 capture facilities that
treat their RCRA hazardous waste CO2 streams would incur
treatment costs, and may also incur RCRA permitting costs.
\56\ We employ this bounding estimate for analytical purposes
only due to the absence of supporting data. This assumption should
not be construed as an EPA determination of CO2 stream
status on a nationwide basis. These assumptions were developed
solely for this proposed rule, and were not used in, or derived
from, the supporting analysis in the UIC Class VI rulemaking.
The baseline universe of CO2 sequestration facilities is
assumed to include a mix of facilities with Class VI wells and
facilities with Class I hazardous wells that will meet the Class VI
requirements. This analysis assumes that, under the high-end baseline
assumption, approximately 57 percent of the sequestration wells would
manage non-hazardous CO2 streams and treated CO2
streams in Class VI wells.\57\ The remaining wells would manage RCRA
hazardous CO2 streams in Class I hazardous wells. For the
low-end, our analysis assumes that approximately 97 percent of the
sequestration wells would manage non-hazardous CO2 streams
and treated CO2 streams in Class VI wells. The remaining
sequestration wells would manage RCRA hazardous CO2 streams
in Class I hazardous waste wells.
\57\ The reasoning behind this assumption is discussed in the
supporting economic assessment document: Assessment of the Potential
Costs, Benefits, and Other Impacts of the Conditional Exclusion from
the RCRA Definition of Hazardous Waste for CO2 Streams
Managed in UIC Class VI Wells for the Purpose of Geologic
Sequestration, as Proposed.
Under the proposed rule, CO2 streams that are captured,
stored, transported, and injected into Class VI UIC wells in accordance
with the conditions in the proposed rule would be excluded from the
definition of hazardous waste and would therefore not be subject to
EPA's RCRA hazardous waste requirements. The exclusion would not apply
if the CO2 stream was mixed or co-injected with any other
hazardous wastes.
Our analysis also assumes all affected states will adopt the
conditional exclusion and all generators that capture CO2
will claim the proposed conditional exclusion and send their
CO2 streams to Class VI wells. These facilities would avoid
the costs of determining whether their CO2 stream is RCRA
hazardous or non-hazardous, and would also avoid possible RCRA
permitting costs and generator requirements. They would only be
required to submit an annual certification in accordance with the rule.
These generators that capture CO2 would also be able to send
their CO2 streams to UIC Class VI wells without any
additional cost of treating the CO2 stream. Under the
proposed rule, all CO2 sequestration facilities are assumed
to be permitted as UIC Class VI wells, resulting in no need for a UIC
Class I hazardous permit for those wells.
The CO2 stream exclusion, as proposed, would result in
three areas of savings for generators of CO2 streams:
exclusion from the hazardous waste determination, exclusion from the
need for hazardous waste treatment, and exclusion from compliance with
any other hazardous waste-related requirements. CO2
sequestration facilities managing hazardous CO2 under a
Class I hazardous well permit in the baseline would experience savings
related to the hazardous waste determination and compliance with
applicable hazardous waste regulations. Requirements and associated
costs for pipeline transportation would be unchanged.
Due to the high level of uncertainty regarding the percent of
CO2 that may be generated as RCRA hazardous waste, and the
uncertainty regarding the actual number of facilities potentially
affected over the projected 50 year period, EPA's best estimate for the
impacts of the proposed rule ranges from a low-end annualized net
savings of $7.3 million (7% discount rate) to the high-end annualized
net savings of $44.9 million (3%discount rate).\58\ These cost savings
are expected to occur without any discernible increase in negative
impacts to human health and the environment. In addition to industry
impacts, we project negligible cost increases to EPA and state
governments for rule implementation.
\58\ Under the high-end estimate, the proposed rule is expected
to result in undiscounted annualized net savings of approximately
$56.6 million. Applying a 3 percent discount rate, the annualized
net savings were found to be approximately $44.9 million, while a 7
percent discount rate resulted in annualized net savings of
approximately $32.0 million. Under the low-end estimate, the
undiscounted annualized net savings are $9.3 million. Applying a 3
percent and 7 percent discount rate, the annualized net savings were
found to be approximately $8.5 million and $7.3 million,
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Pursuant to the
terms of Executive Order 12866, it has been determined that this rule
is a ``significant regulatory action'' because it raises novel legal or
policy issues. Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011) and any changes made in response
to OMB recommendations have been documented in the docket for this
action. In addition, EPA prepared an analysis of the potential costs
and benefits associated with this action. This analysis is presented in
the following support document: Assessment of the Potential Costs,
Benefits, and Other Impacts of the Conditional Exclusion From the RCRA
Definition of Hazardous Waste for CO2 Streams Managed in UIC
Class VI Wells for the Purposes of Geologic Sequestration, as Proposed.
A copy of this document is available in the docket established for this
action. The methodology and findings from this analysis are briefly
summarized in Section VI above. The reader is encouraged to review and
comment on the full assessment document. The final rule will respond to
any substantive comments received on the assessment document.
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2421.01.
The Agency believes that this proposal is an important part of its
efforts to establish a regulatory framework for GS.\59\
\59\ See Section III of this preamble for a discussion of other
recent EPA rules related to this strategy.
The certification included in the proposed rule would be required
for entities wishing to take advantage of the flexibility provided by
the conditional exclusion. The certification statements would be used
by regulators to hold generators and UIC Class VI well owner/operators
accountable for knowing the conditions applicable to them (e.g., during
an on-site inspection). The certification statements also would be used
by generators and owner/operators to demonstrate that they are aware
of, and complying with, the conditions.
We believe that the certifications are a practical way to assure
compliance because they hold a single person at each facility
accountable for compliance (i.e., the authorized representative).
Because of this, the representative has a personal incentive to make
sure that the facility complies with the conditions. The proposed rule
requires that the certification be renewed every year that
the generator or UIC Class VI well owner/operator claims the RCRA
kept current.
EPA estimates the total annual burden to respondents under the new
paperwork requirements to be 79 hours and $6,753. However, EPA also
estimates an annual burden savings under the existing RCRA subtitle C
paperwork requirements of 303 hours and $25,428. Thus, this would
result in a net annual savings of 224 hours and $18,675. The bottom-
line burden savings over three years is estimated to be 672 hours and
$56,025. There are no capital costs associated with this burden
requirement. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this proposed rule, which includes this ICR, under Docket ID number
EPA-HQ-RCRA-2010-0695. Submit any comments related to the ICR to EPA
and OMB. See ADDRESSES section at the beginning of this notice for
where to submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after August 8, 2011, a comment to OMB is best
assured of having its full effect if OMB receives it by September 7,
2011. The final rule will respond to any comments on the information
collection requirements contained in this proposal.
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business (based on
Small Business Administration (SBA) size standards), that is primarily
engaged in the generation, capture, storage, transportation, and GS of
excluded hazardous CO2 streams, as defined by NAICS codes
211111, 221112, 322121, 324110, 324199, 325120, 325193, 325311, and
327310, with total corporate employment ranging from 500 to 1,500
persons \60\ (based on SBA size standards); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
\60\ 211111 (500 persons), 221112 (500 persons), 322121 (750
persons), 324110 (1,500 persons), 324199 (500 persons), 325120
(1,000 persons), 325193 (1,000 persons), 325311 (1,000 persons), and
327310 (750 persons).
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a proposed rule has a significant economic impact
on a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a proposed rule will not have
a significant economic impact on a substantial number of small entities
if it relieves regulatory burden, or otherwise has a positive economic
effect on all of the small entities subject to the proposed rule. This
rule, as proposed, is projected to reduce the burden on regulated
entities by conditionally exempting them from the RCRA subtitle C
hazardous waste management requirements associated with CO2
streams captured, transported, and injected into UIC Class VI wells. We
have, therefore, concluded that today's proposed rule will relieve
regulatory burden for all affected small entities. We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. As explained above, this proposed exclusion is less stringent
than the current RCRA Federal program, and states are therefore not
required to adopt it. Moreover, the rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
state, local, and tribal governments, in the aggregate, or the private
sector in any one year. Our analysis indicates that the proposed rule
is expected to result in undiscounted annualized net savings to the
regulated community ranging from $7.3 million to $44.9 million (3%
discount rate). Incorporated into these net saving estimates is a
negligible total estimated annualized cost to states of $70 to nearly
$565, depending on the discount rate. Thus, this proposed rule is not
subject to the requirements of sections 202 or 205 of UMRA.
This proposed rule is also not subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments. Occasional
requests for and review of certification statements is the only
potential impact on small governments. Furthermore, no small
governments are known to be owners or operators of compressed
CO2 facilities, storage facilities, transporters, or
sequestration facilities. We encourage comments on potential unfunded
mandates associated with this proposed action.
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because the rule will not impose any requirements on States or any
other level of government. As explained above, today's proposed rule
conditionally excludes CO2 streams that are hazardous from
the definition of hazardous waste, where such streams, in accordance
with the rule, are captured from emission sources and injected into UIC
Class VI wells for purposes of GS, but States would not be required to
adopt the rule. Thus, Executive Order 13132 does not apply to this
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed action
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). No tribal
governments are known to generate CO2 streams or own or
operate UIC Class VI wells subject to the proposed rule. Furthermore,
we have identified no existing CO2 pipelines that cross
tribal lands. Thus, Executive Order 13175 does not apply to this
action. EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action presents a disproportionate
risk to children. The public is invited to submit comments or identify
peer-reviewed studies and data that are relevant to assessing the
effects of early life exposure to CO2 streams captured from
emission sources and transported to and injected into UIC Class VI
wells for purposes of GS.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. The only effect of this action will be
to conditionally exclude CO2 streams that are hazardous from
the definition of hazardous waste, where such streams are captured from
emission sources and injected into UIC Class VI wells for purposes of
GS. This conditional exclusion would allow for the GS of
CO2, while maintaining protection of human health and the
environment, and would not significantly disrupt the supply,
distribution, or use of energy.
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629, February 16, 1994)
establishes Federal executive policy on environmental justice. Its main
provision directs Federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
EPA has determined that this proposed rule will not have
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The only effect of this action will be to conditionally
exclude CO2 streams that are hazardous from the definition
of hazardous waste, where such streams are captured from emission
sources and injected into UIC Class VI wells for purposes of GS, and
meet other conditions. Existing regulations governing the generation,
transportation, and injection of CO2 streams in UIC Class VI
wells are expected to provide safety to human health and the
environment, making additional regulation under RCRA subtitle C
unnecessary (see discussion under Section IV).
List of Subjects in 40 CFR Parts 260 and 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements
Dated: August 1, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, Parts 260 and 261 of title
40, Chapter I of the Code of Federal Regulations are proposed to be
amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260 continues to read as
Authority:  42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935,
6937-6939, and 6974.
Subpart B--Definitions
2. Section 260.10 is amended by adding in alphabetical order the
definition of ``Carbon dioxide stream'' to read as follows:
Sec.  260.10  Definitions.
Carbon dioxide stream means carbon dioxide that has been captured
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
4. Section 261.4 is amended by adding a new paragraph (h) to read
Sec.  261.4  Exclusions.
(h) Carbon Dioxide Stream Injected for Geologic Sequestration.
Carbon dioxide streams that are captured and transported for purposes
of injection into an underground injection well subject to the
requirements for Class VI Underground Injection Control wells,
including the requirements in 40 CFR parts 144 and 146 of the
Underground Injection Control Program of the Safe Drinking Water Act,
are not a hazardous waste, provided the following conditions are met.
(1) Carbon dioxide streams that meet all of the following
conditions are excluded from the definition of hazardous waste:
(i) Transportation of the carbon dioxide stream must be in
compliance with applicable Department of Transportation requirements;
(ii) Injection of the carbon dioxide stream must be in compliance
with the applicable requirements for Class VI Underground Injection
Control wells, including the applicable requirements in 40 CFR parts
144 and 146;
(iii) No other hazardous wastes may be mixed with, or otherwise co-
injected with, the carbon dioxide stream; and
(iv) Any generator of a carbon dioxide stream, and any Class VI
Underground Injection Control well owner or operator, who claims that a
carbon dioxide stream is excluded under paragraph (h)(1) of this
section, must have an authorized representative (as defined in 40 CFR
260.10) sign a certification statement worded as follows:
of the conditions set forth in that paragraph.
The signed certification statement must be kept on-site for no less
than three years. The signed certification statement must be made
available within 72 hours of a written request from the Regional
Administrator or state Director (if located in an authorized state), or
their designee, and shall be renewed every year by persons claiming the
exclusion in 40 CFR 261.4(h). The yearly renewal of a certification
statement under this paragraph means that an authorized representative
must annually prepare and sign a new copy of the certification
[FR Doc. 2011-19915 Filed 8-5-11; 8:45 am]