Response to Comments Document

Hazardous Waste Management System: 

Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities

Docket ID: EPA-HQ-RCRA-2010-0695

November 2013

This document was prepared with the support of The Cadmus Group, Inc.,
under subcontract to Eastern Research Group, Inc., Contract EP-W-10-055,
Task Order #27.



This page is intentionally left blank.Table of Contents

  TOC \o "1-3"  1.0	Introduction	  PAGEREF _Toc361156425 \h  1 

1.1	Purpose & Organization of this Document	  PAGEREF _Toc361156426 \h 
1 

1.2	Comment Analysis Procedures	  PAGEREF _Toc361156427 \h  1 

2.0	List of Comments Submitted	  PAGEREF _Toc361156428 \h  3 

3.0	Individual Comments and Agency Response	  PAGEREF _Toc361156429 \h 
4 

3.1	American Petroleum Institute (API)	  PAGEREF _Toc361156435 \h  4 

3.2	Carbon Sequestration Council (CSC)	  PAGEREF _Toc361156436 \h  2 5

3.3	American Electric Power (AEP)	  PAGEREF _Toc361156437 \h  6 3

3.4	C12 Energy	  PAGEREF _Toc361156438 \h  7 4

3.5	Natural Resources Defense Council (NRDC)	81

3.6	Clean Air Task Force	  PAGEREF _Toc361156440 \h  8 8

3.7	Utility Solid Waste Activities Group (USWAG)	  PAGEREF _Toc361156441
\h  9 7

3.8	CCS Alliance	  PAGEREF _Toc361156442 \h  10 8

3.9	State of Utah	  PAGEREF _Toc361156443 \h  11 5

3.10	National Mining Association (NMA)	  PAGEREF _Toc361156444 \h  11 6

3.11	Texas Pipeline Association (TPA)	  PAGEREF _Toc361156445 \h  1 21

3.12	Western Business Roundtable	  PAGEREF _Toc361156446 \h  12 4

3.13	Greater Houston Partnership (GHP)	  PAGEREF _Toc361156447 \h  12 9

3.14	North American Carbon Capture & Storage Association (NACCSA)	 
PAGEREF _Toc361156448 \h  1 30

3.15	Edison Electric Institute (EEI)	  PAGEREF _Toc361156449 \h  14 2

3.16	Texas Carbon Capture & Storage Association (TxCCSA)	  PAGEREF
_Toc361156452 \h  1 55

3.17	Tri-State Generation & Transmission Association, Inc. (Tri-State)	 
PAGEREF _Toc361156453 \h  1 58

3.18	Southern Company	  PAGEREF _Toc361156454 \h  1 63

3.19	Xcel Energy, Inc.	  PAGEREF _Toc361156455 \h  1 64

3.20	Basin Electric Power Cooperative (Basin Electric)	  PAGEREF
_Toc361156456 \h  1 65

3.21	Spectra Energy (Spectra)	  PAGEREF _Toc361156457 \h  1 76

3.22	Western Environmental Trade Association (WETA)	  PAGEREF
_Toc361156458 \h  1 85

3.23	Chevron	188

3.24	Texas Oil and Gas Association (TxOGA)	191

3.25	Florida Department of Environmental Protection (DEP)	192

3.26	Joyce Dillard	193

3.27	Anonymous 1	194

3.28	Anonymous 2	194

3.29	Anonymous 3	195

Appendix A: Substantive Data Received from Commenters	196

 Introduction

Purpose & Organization of this Document

On August 8, 2011, EPA published the proposed Hazardous Waste Management
System: Identification and Listing of Hazardous Waste: Carbon Dioxide
(CO2) Streams in Geologic Sequestration Activities (76 FR 48073, August
8, 2011). Following publication of the proposed rule, the Agency invited
the public to comment over a 60-day comment period, which ended on
October 7, 2011. EPA received 29 unique comments on the proposed rule.
These comments are available at:  HYPERLINK "http://www.regulations.gov"
www.regulations.gov  (EPA-HQ-RCRA-2010-0695), under “Public
Submissions.”  This document presents extractions of each comment for
each individual commenter. Agency responses are presented for each
individual commenter. The document is organized as follows:

Section 1.0, Introduction (this section), briefly describes the
organization of this document and explains the procedures used to
analyze and categorize the comments. 

 HYPERLINK \l "_2.0_Summary_of" Section 2.0, List of Comments Submitted
, identifies the commenters. 

 HYPERLINK \l "_3.0_Extracted_Comments" Section 3.0, Individual Comments
and Agency Responses , includes the verbatim public comments, some of
which are divided into shorter individual comments that address
particular topics. Each individual comment is followed by the Agency
response for that comment letter or topic.

 HYPERLINK \l "_Appendix_A:_" Appendix A  contains substantive data
submitted by one commenter.

Comment Analysis Procedures

	

The following provides a brief overview of the procedures used to
analyze and organize the public comments, prior to the development of
our responses:

Each comment letter was assigned an EPA Document ID that corresponds to
the last four digits of the docket number of the original comment (as
posted on  HYPERLINK "http://www.regulations.gov" www.regulations.gov ).

As necessary, comments were converted to text using Optical Character
Recognition (OCR) software. As a result, there may be some typographical
or formatting errors attributable to OCR issues. 

As necessary, special formatting was converted to plain text. Examples
of these conversions include the following: 

Footnotes: Square parentheses were used to identify footnotes. Example:
[FN1: This is a footnote.]. 

Tables and other Graphics: Square brackets are used to point the reader
to the original text. Example: [Table 1. see PDF Docket ID EPA-HQ….].

Bullets: Asterisks (*) replace bullets.

Deletions: Deletions are marked with “<” and “>” on either side
of the deletion.

Additions: Some commenters recommended changes to the proposed
regulatory text. Proposed additions are presented either as originally
submitted (underlined) or in ALL CAPITAL LETTERS.

The content of longer comments was divided into topic areas. List of
Comments Submitted 

	Table 1 identifies the EPA Document ID for each public comment (i.e.,
EPA-HQ-RCRA-2010-0695-xxxx), the name of the organization or individual
associated with each public comment, and the section number of Section
3.0 where each comment can be found. 

Table 1

List of Commenters

EPA Document ID	Organization Name	Section Number

-0077	  HYPERLINK  \l "API"  American Petroleum Institute (API) 	3.1

-0084	  HYPERLINK  \l "CSC"  Carbon Sequestration Council (CSC)  	3.2

-0063**	  HYPERLINK  \l "AEP"  American Electric Power (AEP) 	3.3

-0073*	  HYPERLINK  \l "C12"  C12 Energy 	3.4

-0082	  HYPERLINK  \l "NRDC"  Natural Resources Defense Council (NRDC)  
3.5

-0089* 	  HYPERLINK  \l "CATF"  Clean Air Task Force 	3.6

-0066	  HYPERLINK  \l "USWAG"  Utility Solid Waste Activities Group
(USWAG) 	3.7

-0083	  HYPERLINK  \l "CCS"  CCS Alliance 	3.8

-0086	  HYPERLINK  \l "Utah"  State of Utah 	3.9

-0065	  HYPERLINK  \l "NMA"  National Mining Association (NMA) 	3.10

-0068	  HYPERLINK  \l "TPA"  Texas Pipeline Association (TPA) 	3.11

-0071	  HYPERLINK  \l "Roundtable"  Western Business Roundtable 	3.12

-0074	  HYPERLINK  \l "GHP"  Greater Houston Partnership (GHP) 	3.13

-0078	  HYPERLINK  \l "NACCSA"  North American Carbon Capture & Storage
Assoc. (NACCSA) 	3.14

-0080	  HYPERLINK  \l "EEI"  Edison Electric Institute (EEI) 	3.15

-0085	  HYPERLINK  \l "TxCCSA"  Texas Carbon Capture & Storage
Association (TxCCSA) 	3.16

-0055	  HYPERLINK  \l "TriState"  Tri-State Generation &Transmission
Association, Inc. (Tri-State) 	3.17

-0061	  HYPERLINK  \l "Southern"  Southern Company 	3.18

-0072	  HYPERLINK  \l "Xcel"  Xcel Energy, Inc. 	3.19

-0076	  HYPERLINK  \l "Basin"  Basin Electric Power Cooperative (Basin
Electric) 	3.20

-0088*	  HYPERLINK  \l "Spectra"  Spectra Energy (Spectra) 	3.21

-0060	  HYPERLINK  \l "WETA"  Western Environmental Trade Association
(WETA) 	3.22

-0064	  HYPERLINK  \l "_Chevron_1"  Chevron 	3.23

-0067	  HYPERLINK  \l "TxOGA"  Texas Oil and Gas Association (TxOGA) 
3.24

-0059	  HYPERLINK  \l "Florida"  Florida Department of Environmental
Protection 	3.25

-0081	  HYPERLINK  \l "Dillard"  Joyce Dillard  	3.26

-0058	  HYPERLINK  \l "Anon1"  Anonymous 1 	3.27

-0069	  HYPERLINK  \l "Anon2"  Anonymous 2 	3.28

-0070	  HYPERLINK  \l "Anon3"  Anonymous 3 	3.29

* This comment letter was received after the close of the public comment
period, and therefore, EPA does not have an obligation to respond.
However, in the interest of completeness, EPA is choosing to provide the
responses below.

** EPA’s response to this comment (EPA-HQ-RCRA-2010-0695-0063) is
considered to be a response to comment EPA-HQ-RCRA-2010-0695-0062 as
well.  These comments are identical except for a typographical error in
Table 2-3 in EPA-HQ-RCRA-2010-0695-0062, which was corrected by the
commenter in comment EPA-HQ-RCRA-2010-0695-0063.



Individual Comments and Agency Response 

This section contains the verbatim text of the 29 unique public comments
submitted on the proposed rule. Longer public comments were divided into
smaller comments so that EPA could respond to one issue at a time. 

Note that, due to the nature of the comments and common themes in the
submitted comments, there is a great deal of issue repetition. 

American Petroleum Institute (API)

Document ID: EPA-HQ-RCRA-2010-0695-0077

Comment 3.1.1:

The American Petroleum Institute (“API”), is pleased to provide the
Environmental Protection Agency (“EPA” or the “Agency”) with
these comments on the proposed rule entitled “Hazardous Waste
Management System: Identification and Listing of Hazardous Waste: Carbon
Dioxide (“CO2”) Streams in Geologic Sequestration Activities.” 76
Fed. Reg. 48073 (Aug. 8, 2011). [FN1: A technical correction was
published on September 9, 2011. 75 Fed. Reg. 55846].

The American Petroleum Institute (API) represents more than 470 oil and
natural gas companies, leaders of a technology-driven industry that
supplies most of America’s energy, supports more than 9.2 million U.S.
jobs and 7.5 percent of the U.S. economy, and, since 2000, has invested
nearly $2 trillion in U.S. capital projects to advance all forms of
energy, including alternatives. API has a strong interest in the
development of the Underground Injection Control (UIC) program for
Geologic Sequestration wells.

Adequate enforcement mechanisms currently exist to protect human health
and the environment from CO2 streams under the Clean Air Act’s
reporting requirements and to protect underground sources of drinking
water, the primary route for any threats to human health and the
environment from CO2 streams, under the UIC Class VI Rule. Additional
RCRA regulation is redundant, not necessary, and will likely lead to
unintended consequences that would undermine beneficial uses of CO2
streams for carbon capture and sequestration (“CCS”) and enhanced
recovery (“ER”) of oil and gas. Therefore, EPA should enact a
blanket exclusion of all CO2 streams from the Resource Conservation &
Recovery Act’s (“RCRA”) definition of solid waste at this time.
Under EPA’s “adaptive approach,” if evidence arises in the future
that shows CO2 streams may be solid wastes or hazardous, then EPA may
initiate another rulemaking based on those actual findings.

Response: The commenter cites both the Clean Air Act GHG reporting
rules, and the UIC Class VI rule, in support of their statement that
“additional RCRA regulation is redundant, not necessary, and will lead
to unintended consequences.”  In fact, in support of its proposed
conditional exclusion, EPA evaluated these existing regulatory
requirements, along with others (e.g., Department of Transportation, or
DOT requirements) and concluded that management of CO2 streams under the
terms of the conditional exclusion do not present a substantial risk to
human health and the environment, and that therefore, under these
conditions additional regulation pursuant to RCRA’s hazardous waste
regulations is unnecessary. See Section V of the final rule preamble;
see also the proposed rule, 76 FR at 48080-87.  

However, EPA is not addressing the status of ‘all CO2 streams’ in
this rulemaking; the scope of this rule is expressly limited to CO2
streams sent to a permitted UIC Class VI well for purposes of GS.  EPA
has also explained in its proposed and final rule preambles its view
that a supercritical CO2 stream injected into a permitted UIC Class VI
well for purposes of GS is a RCRA solid waste, because it is a
“discarded material” within the plain meaning of the term in RCRA
§1004(27).  That is, a supercritical CO2 stream is a solid waste when
it is to be discarded through abandonment by disposing of the material
in a UIC Class VI well.

However, in the interest of public transparency and in light of the
several public comments on this issue, EPA does note that (based on the
limited information provided in the public comments), should CO2 be used
for its intended purpose as it is injected into UIC Class II wells for
the purpose of EOR/EGR, it is EPA’s expectation that such an injection
process would not generally be a waste management activity.  EPA would
encourage persons to consult with the appropriate regulatory authority
to address any fact-specific questions they may have regarding the
status of CO2 in situations that are beyond the scope of this final
rule.

Finally, regarding the commenter’s references to “unintended
consequences” of additional regulation under RCRA, the commenter did
not provide specific information or examples of these, and therefore,
while EPA acknowledges these comments it cannot provide more specific
responses. 

Comment 3.1.2:

Alternatively, API supports a conditional exclusion of CO2 streams from
the RCRA hazardous waste regulations definition of “solid waste”
because of CO2’s unique properties and uses, coupled with the fact
that these CO2 streams are not “discarded.” Failure of EPA to
clarify that CO2 streams are not “solid wastes” will leave enhanced
oil and gas recovery (“ER”) and carbon capture and sequestration
(“CCS”) projects with unnecessary regulatory uncertainty while doing
little to advance public health and environmental protection, given the
rigorous requirements of the UIC Class VI rule under the Safe Drinking
Water Act (“Class VI Rule”). Any potential that CO2 streams could be
deemed solid wastes, with the enormous potential regulatory burdens
associated with that designation, will discourage companies from
handling CO2 streams, to the detriment of EPA’s efforts to remove CO2
emissions from the atmosphere. This discouragement is manifesting itself
already in the dearth of states seeking Class VI primacy and industries
attempting CO2 capture. 

If EPA elects to retain the proposed approach of a conditional exclusion
for CO2 streams from RCRA’s hazardous waste regulations, we recommend
that the proposed regulation be clarified to remove as much regulatory
ambiguity as possible, including application of the conditional
exclusion to concurrent ER/storage under the transition provisions of
the Class VI Rule and declaration that CO2 streams used for non-geologic
sequestration purposes are not solid wastes, as we set forth in detail
below.

Response: See Response to Comments 3.1.1, 3.1.7, 3.1.8. 

EPA disagrees with the commenter that supercritical CO2 streams injected
into Class VI wells for purposes of GS are not discarded, and that that
should be the basis for the conditional exclusion. EPA bases its
conditional exclusion on its analysis demonstrating that management of
supercritical CO2 streams in accordance with the rule’s conditions
does not present a substantial risk to human health or the environment.
With respect to injection in other than UIC Class VI wells, as EPA noted
in the response to comment 3.1.1., this conditional exclusion is not
intended to affect the regulatory status of CO2 streams that are
injected into wells other than UIC Class VI wells, which is beyond the
scope of this rule.  Today’s rule only applies to CO2 injected into
UIC Class VI wells, which would include any well that has transitioned
to a UIC Class VI well under the provisions of the UIC Class VI rule. 
EPA would encourage persons to consult with the appropriate regulatory
authority to address any fact-specific questions they may have regarding
the status of CO2 in situations that are beyond the scope of this final
rule.

The commenter did not provide any specific information to support its
assertions regarding “enormous potential regulatory burdens” and
negative impacts on industries attempting CO2 capture and states seeking
UIC Class VI primacy.  

Comment 3.1.3:

Specific Comments on the Proposed Rule Entitled “Hazardous Waste
Management System: Identification and Listing of Hazardous Waste: Carbon
Dioxide Streams in Geologic Sequestration Activities” 

EPA proposes to “conditionally” exclude “CO2 streams” [FN2: A
“Carbon dioxide (CO2) stream” is defined at 40 CFR 146.81(d) as
“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.” 76 Fed. Reg.
at 48075.] that “are hazardous from the definition of hazardous waste,
provided these hazardous CO2 streams are captured from air emission
sources, are injected into Class VI *UIC+ wells for purposes of geologic
sequestration … and meet certain other conditions.” 76 Fed. Reg. at
48074. EPA explains that it is taking this action because it “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.” Id. EPA notes that the conditional
exclusion will provide additional regulatory certainty. 

API supports the proposed “conditional exclusion” - as far as it
goes - because it endeavors, albeit incompletely, to clarify the
regulatory regime for CCS while ensuring stringent protection of human
health and the environment. API nonetheless believes that the
“conditional exclusion” falls short of what is needed to provide
adequate regulatory certainty for owners and operators in the ER and CCS
industries for the following reasons.

Response: EPA thanks the commenter for its support of the conditional
exclusion, and addresses any specific comments on how the rule ‘falls
short’ of what is needed below in EPA’s responses below. 

Comment 3.1.4:

A. CO2 Streams Are Appropriately Addressed under other Laws 

EPA’s proposal is premised on the notion that RCRA potentially applies
to “CO2 streams” in the first instance. This premise is false for
two reasons. 

First, Congress, in enacting RCRA, never envisioned regulation of a gas
molecule such as CO2. In comparison to other materials regulated under
RCRA, CO2 is unique. It performs a variety of beneficial and ubiquitous
roles in a variety of natural (e.g., uptake by plants) and industrial
(e.g., ER) functions. Several states already have declared CO2 to be a
“commodity” for these reasons. [FN3: See, e.g., Oklahoma SB 1610
(“Carbon dioxide is a valuable commodity to the citizens of the
state”)]. It is currently regulated under both the Clean Air Act and
Safe Drinking Water Act and should remain regulated this way without
redundancy under RCRA. CO2 from natural sources and natural gas
processing plants is widely used as a valuable product to enhance oil
and gas production; captured CO2 has this same potential use and EPA’s
evidence shows that it is substantially similar to existing streams of
CO2. This rule has the potential to make beneficial products derived
from captured CO2 into solid wastes, which would be a terrible
disincentive for undertaking any climate control activities.

Response: See response to comments 3.1.1 and 3.1.2. Although, as the
commenter pointed out, CO2 may be regulated under other environmental
statutes (such as the CAA and SDWA), EPA disagrees that this means RCRA
does not apply in the circumstances relevant to this rule.  As already
stated, the CO2 being injected into UIC Class VI wells for purposes of
GS is discarded and a solid waste, therefore RCRA does apply.  That CO2
may be useful (or a “commodity”) in other contexts has no bearing on
the RCRA regulatory status of CO2 sent for GS in a Class VI well.
Regarding the applicability of other statutory provisions to CO2, EPA
did consider the effect of other statutory requirements – indeed, this
conditional exclusion is based upon EPA’s determination that the
management of hazardous CO2 streams under other requirements (e.g., the
UIC Class VI rule) provides protection to human health and the
environment and therefore, additional regulation pursuant to RCRA
hazardous waste regulations is unnecessary.  

Comment 3.1.5:

Second, and similarly, RCRA was never meant to apply to air emissions or
productive materials with beneficial uses, thus the statute provides a
poor tool to regulate CCS activity. Nothing in RCRA or its regulations
purports to apply to CCS generally or geologic sequestration
specifically. Existing laws dealing with air and injection wells are
appropriate vehicles to address any health and environmental concerns
and there is no need for additional RCRA regulation. The RCRA model is
prospective “cradle-to-grave” waste management and tracking of
materials that pose a potential hazard to human health and the
environment. CO2 is a common constituent of air, with no inherent hazard
besides its ability to displace oxygen. The chief concern with CO2
according to the IPCC is its impacts on climate. Special identification
of a gas with no toxic or hazardous impacts in a special rulemaking will
have the result of additional misinformation and worry about CO2 in both
operational and sequestration settings. 

CCS is regulated under the Safe Drinking Water Act with strict technical
standards for the injection of CO2 for purposes of sequestration to
ensuring environmental protection. That activity, moreover, is
envisioned to involve mixed streams of CO2 from multiple sources, with
injection of CO2 into multiple formations, especially saline or oil and
gas, thereby defeating the notion of tracking wastes through manifests
and the like. Trying to treat CO2 as a waste stream as it transitions
between being contained in trucks or pipelines to uncontained in the
subsurface will result in a chaotic regulatory situation that will not
fit well into the RCRA framework. CO2 is handled as, and considered, a
valuable product now and should continue to be so, regardless of its
source. There also is no standardized test method to evaluate
supercritical CO2. For these and other reasons, trying to specially
treat CO2 streams and fit CCS under RCRA is unnecessary and a poor
regulatory fit.

Response: EPA disagrees with the commenter’s broad statement that
“RCRA was never meant to apply to air emissions or productive
materials with beneficial uses…” While not necessarily determinative
in this conditional exclusion rulemaking, EPA clarifies that as a
general matter RCRA subtitle C authorizes EPA to address air emissions
in certain circumstances, such as emissions at hazardous waste
treatment, storage, and disposal facilities.  RCRA 3004(n).  RCRA
subtitle C also provides EPA with authority over recycling involving
solid and hazardous wastes.  With respect to this rulemaking
specifically, EPA has already explained why in its view supercritical
CO2 streams being injected into Class VI wells for purposes of GS are
solid wastes under RCRA. See Response to Comments 3.1.1, 3.1.7, 3.1.8.  

Regarding the comment that CO2 is “…a gas with no toxic or hazardous
impacts…” EPA notes that the conditional exclusion applies to CO2
streams, which are not necessarily pure CO2 – in fact, “CO2
stream” as defined in the final rule includes “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”, see 40 CFR 260.10, and based on information EPA
presented in the proposed rule (to which the comment does not provide
information to the contrary), it is possible for these streams to
contain hazardous constituents derived from the source materials and the
capture process.  See also response to comment 3.1.4.

Regarding the comment, “Trying to treat CO2 as a waste stream as it
transitions between being contained in trucks or pipelines to
uncontained in the subsurface will result in a chaotic regulatory
situation…” while EPA agrees that a chaotic regulatory situations
should be avoided, it is unclear from this specific comment how the
commenter reaches this conclusion.  Indeed, it is EPA’s intent through
this rule to provide regularity to CCS management activities, by
providing a straightforward framework for the regulated community to
follow, should they determine (or are concerned) that their CO2 streams
qualify as RCRA hazardous wastes. Regarding the possibility of CO2 from
multiple sources being injected into different well classes or different
formations, see Responses to Comments 3.2.3 and 3.2.4.  

How the CO2 streams are described in the subsurface is not relevant to
the conditional exclusion rulemaking (i.e., CO2 streams that have been
injected into the subsurface via a UIC Class VI well have already been
disposed). EPA need not decide whether CO2 injected for purposes of GS
is “uncontained” in the subsurface in this context. See Response to
Comment 3.1.7.

Regarding the cited lack of a standardized test method, EPA notes that
analytical methods do exist to analyze supercritical CO2 streams, and
that generators may also use knowledge to determine whether a waste
exhibits a RCRA characteristic.  Also, EPA has indicated it could not
unequivocally conclude that supercritical CO2 streams will never exhibit
any RCRA hazardous waste characteristic.  

Comment 3.1.6:

B. CO2 Streams Are Not “Solid Wastes” 

The conditional exclusion is rooted on the unsupported premise that
captured anthropogenic CO2 is a “solid waste.” EPA attempts to limit
the scope of its erroneous premise by asserting that 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 § 1004(27).” 76 Fed. Reg. at
48077-78. [FN4: Relevant provisions of RCRA § 1004(27) define “solid
waste” as “other discarded material, including solid, liquid,
semisolid, or contained gaseous material resulting from … industrial
operations ….”]. While EPA’s attempt to narrow the scope is
recognized, this preamble language (including footnotes 16 and 54), and
the proposed rule itself, leaves an inference that other CO2 streams are
solid wastes. EPA states that “once a 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.” Id. at
48078. But this begs the question of what is the status of a
“supercritical CO2 stream that is not injected into a Class VI well”
or “a decision is made that the supercritical CO2 stream will be
sent” elsewhere. EPA should flatly declare that no CO2 streams are
solid wastes and avoid these ambiguities, as these streams are
adequately addressed by existing law. If EPA refuses to make this flat
declaration, it should at least clarify in its final rule that CO2
streams are not solid wastes when they are injected into Class II wells
in connection with ER operations or used for any other beneficial
purpose; in these cases they are commodities or products used in
business processes that produce valuable end products, like oil and gas,
and should not be regulated under RCRA.

Response: The commenter is correct that EPA has determined that a
supercritical CO2 stream injected into a permitted UIC Class VI well for
purposes of GS is a RCRA solid waste, because it is a “discarded
material” within the plain meaning of the term in RCRA §1004(27).  As
EPA noted in the response to comment 3.1.1., this conditional exclusion
is not intended to affect the regulatory status of CO2 streams that are
injected into wells other than UIC Class VI wells, which is beyond the
scope of this rule.  Regarding the commenter’s request for
clarification on the status of CO2 streams injected into UIC Class II
wells for purposes of EOR, see Response to Comment 3.1.1. Today’s rule
only applies to CO2 injected into UIC Class VI wells, which would
include any well that has transitioned to a UIC Class VI well under the
provisions of the UIC Class VI rule.  EPA would encourage persons to
consult with the appropriate regulatory authority to address any
fact-specific questions they may have regarding the status of CO2 in
situations that are beyond the scope of this final rule.

Comment 3.1.7:

To be regulated as a “solid waste,” a material must satisfy three
criteria, two of which are relevant: (1) it must have the physical form
of a solid waste; and (2) it must be “discarded.” [FN5: T. Garrett,
ed., “The RCRA Practice Manual,” at 33]. Neither of these criteria
is met here. 

CO2 Streams Do Not Have the Physical Form of a Solid Waste. In relevant
part, RCRA defines “solid waste” as “other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and agricultural
operations…” 42 U.S.C. § 6903(27) (emphasis added). Supercritical
states of material, such as is relevant for CO2, are not explicitly
listed. Before it is compressed, at standard pressure and temperature,
CO2 is a gas.

Response: As EPA noted in the proposed rule, the CO2 streams are
delivered by pipeline and injected into UIC Class VI wells for GS in a
supercritical state, which EPA stated at proposal was “…rather
unique in that it has properties intermediate between a liquid and a
gas.” 76 FR at 48078. The scientific term used to describe or define
this supercritical state (i.e., when a substance is at or above its
critical temperature and critical pressure) is as a “supercritical
fluid.”  See Section V. A. in the preamble to the final rule.  The
RCRA statutory definition of solid waste specifically refers to “other
discarded material, including solid, liquid, semisolid, or contained
gaseous material resulting from industrial, commercial, mining, and
agricultural operations, and from community activities . . .” While
EPA has indeed interpreted the meaning of specific terms listed,
including “contained gaseous material,” the RCRA definition of solid
waste encompasses “other discarded material” and does not speak to
materials such as supercritical fluids. Like the listed “solid,
liquid, semisolid, or contained gaseous material” specifically
referenced, CO2 streams sequestered for purposes of GS are “other
discarded material” from industrial and commercial operations and,
therefore, are of a similar kind to the other types of wastes
specifically referenced by the definition. They are, therefore, RCRA
statutory solid wastes. 

Comment 3.1.8:

Most CO2 Streams Are Not Discarded. EPA does not offer a detailed
justification for its claim that CO2 streams are “discarded,” so we
begin with an analysis of how RCRA and its regulations define that term.
RCRA defines “solid waste” as “other discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations ….” 42
U.S.C. § 6903(27) (emphasis added). EPA’s regulations explain that a
“solid waste” is any “discarded material” that is “not
excluded under § 261.4(a) [FN6: 40 C.F.R. § 261.4(a) excludes through
numerous specific listings “[m]aterials which are not solid
wastes.”] or that is not excluded by a variance granted under §§
260.30 [FN7: 40 C.F.R. § 260.30 deals with non-waste determinations and
variances from classification as a solid waste] and 260.31 [FN8: 40
C.F.R. § 260.31 sets forth standards and criteria for variances from
classification as a solid waste.] or that is not excluded by a non-waste
determination under §§ 260.30 [FN9: See note 8, supra.] and 260.34
[FN10: 40 C.F.R. § 260.34 sets forth standards and criteria for
non-waste determinations.].” [FN11: 40 C.F.R. § 261.2 (definition of
“solid waste”) (emphasis and internal footnote references added)]. A
“discarded material,” in turn, is “any material” that is: (1)
abandoned; (2) recycled; or (3) considered inherently waste-like. [FN12:
40 C.F.R. § 261.2(a)(2)(i)]. 

Although they do not define the term “material,” EPA’s regulations
set forth detailed criteria that must be met before a material is deemed
to be “discarded” via the “abandoned,” “recycled,” or
“inherently waste-like” regulatory paths: 

*Abandoned. Materials are “solid waste” if they are abandoned by
being: (a) disposed of; (b) burned or incinerated; or (c)
“[a]ccumulated, stored or treated (but not recycled) before or in lieu
of being abandoned by being disposed of, burned, or incinerated.”
[FN13: 40 C.F.R. § 261.2(b)]. 

*Recycled. Materials separately are “solid waste” if they are
recycled – or accumulated, stored, or treated before recycling – if
they fall into one of the following four categories: (a) used in a
manner constituting disposal; (b) burned for energy recovery; (c)
reclaimed; or (d) accumulated speculatively. [FN14: 40 C.F.R. §
261.2(c)]. 

*Inherently waste-like. Specifically identified materials, not including
CO2, also are “solid waste” if they are recycled in any manner, and
thus deemed to be “inherently waste-like materials.”[FN15: 40 C.F.R.
§ 261.2(d)].

 “CO2 streams” do not meet any of these three RCRA regulatory
requirements. 

*CO2 streams are not abandoned. CO2 streams are not burned or
incinerated, nor are they “disposed of.” “CCS” means
“Carbon” is “Captured” from air emissions, transported in CO2
product pipelines, then “Stored” or “Sequestered” in secure
geologic formations. “Capture” and either “Storage” or
“Sequestration” do not contemplate “disposal.” The
Merriam-Webster Dictionary defines “capture” as “to gain control
over or take possession of” and “sequester” as “to set apart,
segregate” or to “seclude, withdraw.”[FN16:
http://www.merriam-webster.com/dictionary/sequestered?show=0&t=131585997
4]. Synonyms for “sequestration” include “isolation” and
“seclusion.”[FN17:
http://www.merriam-webster.com/dictionary/sequestration].
“Disposal,” on the other hand, is defined as the act of
“disposing,” which means “to get rid of.”[FN18:
http://www.merriam-webster.com/dictionary/disposing]. Based on a
“plain meaning” analysis, CCS does not contemplate abandonment or
“disposal.” In fact, CCS prevents air emissions from being abandoned
or disposed into the environment. 

*CO2 streams are not recycled. RCRA’s provisions regarding
“recycle” are detailed, and none of them apply to CO2 streams –
nor has EPA claimed they do. [FN19: The fact that CO2 is recycled in EOR
operations is not directly relevant for the RCRA regulatory concept of
“recycle.”] In order for the recycle rules to apply, a material must
first be deemed a secondary material. Among other things, secondary
materials do not include “co-products.” Since in current commercial
practice CO2 that is geologically injected is transacted as a valuable
commodity as “co- products,” the recycle regulations do not apply.
[FN20: T. Garrett, ed., “The RCRA Practice Manual,” at 36]. 

*CO2 streams are not “inherently waste-like.” RCRA’s provisions
regarding “inherently waste-like” materials also are detailed, and
none of them applies to CO2 streams – nor has EPA claimed they do. 

The concept of “disposal” is also inconsistent with the ways that
most CO2 is currently being managed commercially. With the exception of
demonstration and related projects, most if not all CO2 that is
geologically injected today is used for ER. In that application, it is
purchased and transacted as a valuable commodity, product, or
co-product. When the oil and gas are produced, some CO2 comes to the
surface as well, where the ER operator captures it again and returns it
to the formation mixed with newly-purchased CO2. Some of this newly
purchased CO2 comes from natural gas processing facilities that remove
and capture CO2 from natural gas production in order to meet pipeline
specifications. EPA’s proposed rule has the potential to erroneously
deem both these sources of captured CO2 as generators of a solid waste,
and force them into hazardous waste evaluations, which would create huge
regulatory burdens for no environmental benefit. To avoid this
unintended consequence, EPA must exclude all CO2 streams from the solid
waste definition. As explained further below, EPA’s Class VI rule
envisions that concurrent ER/storage may be conducted under Class II as
either ER “business-as-usual” or as an ER transition to GS if it
does not increase risk to underground sources of drinking water –
usages that flatly contradict EPA’s assertion that injection is a
“disposal activity.” 

CO2 that is injected in saline reservoirs under Class VI also is not
“disposed of.” It is conceivable, for example, that such CO2 may be
later withdrawn and put to a beneficial, but still
non-atmospheric-emitting, use. Such CO2 may also be used for reservoir
maintenance as part of concurrent long-term storage/desalination
operations, as explained by William Bourcier of Lawrence Livermore
National Laboratory at the August 18, 2010 meeting of the California CCS
Review Panel.
[FN21:http://www.climatechange.ca.gov/carbon_capture_review_panel/meetin
gs/2010-08-18/presentations/01_Bourcier_Cal_CCS-Panel.pdf].

CCS-related offset credits are also transacted on various carbon
registries, such as the American Carbon Registry. This activity is
inconsistent with the notion of “disposal.” It is also worth noting
that the terms “disposal” and “dispose” do not appear in any
relevant portion of the Class VI rule or EPA’s preamble to the same.
Because geologic sequestration/storage does not contemplate
“disposal,” the regulatory “abandonment” provisions dealing with
“[a]ccumulated, stored or treated” also are inapplicable. 

In the alternative - and despite the arguments above - if EPA concludes
that a CO2 stream injected into a Class VI well for GS purposes is a
solid waste, EPA should clarify in express language that CO2 streams
intended for other purposes, such as ER, are not solid wastes and need
not be evaluated for hazardous characteristics. Without this
clarification, an inference could be made that all CO2 streams are solid
wastes and only those intended for Class VI injection wells are excluded
from hazardous waste regulation, leaving all others to be tested for
hazardous characteristics under RCRA. This cannot be EPA’s intent,
therefore EPA should make it clear that this reading is not appropriate.
As noted above, captured CO2 is a valuable product that is used
beneficially; it should be clearly identified as such and not
inferentially identified as a waste.

Response: EPA disagrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are not solid waste. As was stated in the preamble to the
proposed rule, GS is an option to reduce CO2 emissions to the atmosphere
by injecting the CO2 streams into deep subsurface geologic formations,
with the express purpose of isolating the CO2 so that it does not return
to the atmosphere (August 8, 2011; 76 FR at 48075). Therefore, EPA views
these CO2 streams as “discarded material” within the plain meaning
of the term in RCRA §1004(27). That is, a supercritical CO2 stream is a
solid waste when it is to be discarded through abandonment by disposing
of the material in a UIC Class VI well (see 40 CFR 261.2(a)(2)(i) and
(b)(1)). To use the commenter’s phrasing, injection of a CO2 stream
into a Class VI well for purposes of GS is effectively “getting rid
of” the CO2 stream by keeping it underground indefinitely. The fact
that the sequestration of CO2 streams into deep geologic formations is
at times labeled as “long-term containment” or “long-term
storage,” or that offset credits may be transacted, does not change
this view.  

Regarding the comment that CO2 streams injected into saline formations
under UIC Class VI wells are not disposal, because they can later be
withdrawn, EPA disagrees and reiterates that CO2 streams injected into
UIC Class VI wells are solid wastes. EPA adds that the RCRA conditional
exclusion does not preclude the removal of CO2 at a later date.  How
this activity is regulated would be a determination separate from the
terms of the conditional exclusion in this rule. That EPA chose not to
discuss the RCRA concepts of “disposal” or “dispose” in the UIC
Class VI rulemaking, in the context of injection into UIC Class VI
wells, is consistent with the facts that that rulemaking did not make
any RCRA applicability determations for CO2 streams intended for Class
VI GS, and that that rule was issued solely under the SDWA.  This
approach in no way implied an EPA determination on the RCRA status of
CO2 streams at the time of the UIC Class VI rulemaking.  Rather, EPA has
discussed questions of whether CO2 streams can be a RCRA solid waste, in
the appropriate context – that is, for the limited set of
circumstances addressed through today’s final conditional exclusion.

EPA acknowledges that the underground injection of CO2 has largely been
(and continues to be) for the purpose of EOR, and does not disagree that
CO2 can and does have a variety of commercial and manufacturing uses
(e.g., urea yield boosting, enhanced oil recovery, food processing and
packaging, beverage carbonation, and wine making), but this does not
affect the regulatory status of CO2 streams when they are to be injected
into UIC Class VI wells for the purpose of GS, which is the focus of
this final rule.  Regarding the commenter’s request for clarification
on the status of CO2 streams injected into UIC Class II wells for
purposes of EOR, see Response to Comment 3.1.1.  EPA would encourage
persons to consult with the appropriate regulatory authority to address
any fact-specific questions they may have regarding the status of CO2 in
situations that are beyond the scope of this final rule.

Regarding the comment that the CO2 streams injected into a UIC Class VI
well are not abandoned or disposed because “CCS prevents air emissions
from being abandoned or disposed into the environment” EPA notes that
the RCRA program has historically addressed analogous situations, where
materials that would otherwise be released to the air are instead
captured and removed for subsequent disposal (e.g., contaminants
captured by air pollution control devices).

Finally, the comment appears to raise questions relating to when a CO2
stream must be evaluated to determine whether a CO2 stream exhibits a
RCRA hazardous waste characteristic. These issues are discussed in
response to comment 3.1.9, below.

Comment 3.1.9:

C. CO2 Streams Are Not “Hazardous” 

Assuming arguendo that CO2 streams injected into Class VI wells for GS
purposes are “solid wastes” – and they are not, as described above
– they are definitely not “hazardous wastes.” Subtitle C of RCRA,
which regulates hazardous wastes, applies only to “solid waste” that
is “hazardous.” [FN22: T. Garrett, ed., “The RCRA Practice
Manual,” at 2, 2nd ed. (ABA 2004)].

EPA states that it has “little information to conclude that CO2
streams would qualify as RCRA hazardous waste.” 76 Fed. Reg. at 48077.
The Agency also acknowledges that “CO2 streams are not listed
hazardous wastes” under subpart D of part 261. Id. [FN23: Accord 76
Fed. Reg. at 48078 (“EPA reiterates that no hazardous waste listings
apply specifically to CO2 streams”)]. The Agency nonetheless believes
that the “RCRA hazardous waste regulations can apply to CO2 streams”
based upon two hypothetical scenarios: (1) a CO2 stream exhibits
hazardous characteristics [FN24: 40 C.F.R. § 261.20(a)]; or (2) a CO2
stream is mixed with a listed hazardous waste, thus triggering
application of the so-called “mixture rule.” Id.

Both of these hypothetical scenarios are already clearly covered by the
current regulations, so there is no need for new regulatory action.
However it is important to note that neither scenario is particularly
plausible. With respect to whether a CO2 stream exhibits hazardous
characteristics, EPA seems to grudgingly acknowledge that there is no
available standardized analytical test method for supercritical
materials such as CO2 or a “CO2 stream.” [FN25: 76 Fed. Reg. at
48078 n. 22 (“EPA notes that existing analytical test methods … are
available to quantify the levels of various hazardous constituents in
gaseous streams, although sampling a supercritical CO2 stream may
require particular sampling protocols”) (emphasis added)]. EPA may
only define a characteristic of a hazardous waste if the characteristic
can be: (1) measured by an “available standardized test method which
is reasonably within the capability of generators or solid waste or
private sector laboratories that are available to serve generators of
solid waste,” or (2) “reasonably detected by generators of solid
waste through their knowledge of their waste.” [FN26: 40 C.F.R. §
261.10(a)(2)]. This two-factor test simply cannot currently be met for
supercritical CO2 streams based on available standards.

Even if a standardized analytical test method were available for
supercritical CO2, API is not aware of any information which would
suggest that supercritical CO2 meets any of EPA’s hazard
characteristics. Supercritical CO2 is not: (1) ignitable under 40 C.F.R.
§ 261.21; (2) corrosive under 40 C.F.R. § 261.22 [FN27: Supercritical
CO2 is non-aqueous, so § 261.22(a)(1) does not apply, and §
261.22(a)(2) only applies if the material is “liquid and corrodes
steel.” Supercritical CO2 is not a “liquid” and does not corrode
steel pipelines, through which it has been transported safely for
several decades. EPA hints that corrosivity could be an issue down hole
through interaction with in-situ reservoir fluids, but that scenario is
not contemplated by 40 C.F.R. §261.22 and would be an issue for only
the owner or operator of the reservoir, not the generator or
transporter. EPA’s remark at 76 Fed. Reg. 48087 that all actors in the
product chain could be implicated if down-hole interactions convert a
non-hazardous CO2 stream to hazardous waste should be withdrawn, as it
creates an enormous expansion of RCRA liability and could chill CCS
activity.]; (3) reactive under 40 C.F.R. § 261.23; or (4) toxic under
40 C.F.R. § 261.24. [FN28: Toxicity is assessed under Test Method 1311,
the so-called Toxicity Characteristic Leaching Procedure (TCLP). 40
C.F.R. § 261.24(a). The TCLP is inapplicable to supercritical CO2 and
CO2 streams, as the TCLP was “intended to reflect the potential for
leaching to groundwater that results from the co-disposal of toxic
wastes in an actively decomposing municipal landfill generating an
acidic leachate.” T. Garrett, ed., “The RCRA Practice Manual,” at
52. With reference to a 2006 paper from Lawrence Livermore National
Laboratory, EPA suggests that certain impurities are “relevant” for
toxicity regulation under § 261.24(a). However, all of the impurities
referenced by EPA as potentially being present in certain CO2 streams
are at levels that are orders of magnitude lower than the relevant
regulatory levels set forth in the regulations]. In the preamble to the
final Class VI rule, EPA stated that it had reviewed estimates of CO2
injectate quality, and based upon that assessment, “captured CO2 could
contain some impurities.” [FN29: 75 Fed. Reg. 77230, 77260 (Dec. 10,
2010)]. The possible presence of “impurities” does not trigger any
of EPA’s hazard characteristic tests.

In the absence of an available standardized analytical test method, the
Agency asserts that the RCRA 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.”
[FN30: 76 Fed. Reg. 48078]. Section 262.11(c)(2) of the RCRA regulations
provides that, in lieu of the use of a standardized analytical test
method, the generator of a hazardous waste may determine whether a
material is hazardous by “[a]pplying knowledge of the hazardous
characteristic of the waste in light of the materials or processes
used.” Based upon industry’s knowledge of CCS-related materials and
processes, coupled with current uses of CO2, a capturing generator is
unlikely to have a reasonable belief that its CO2 stream is hazardous.

EPA references the following March 2006 study by Lawrence Livermore
National Laboratory to support an inference that certain
“impurities” could be present in CO2 streams from coal-based
facilities: Apps, J.A., “A Review of Hazardous Chemical Species
Associated with CO2 Capture from Coal-Fired Power Plants and Their
Potential Fate in Geologic Storage.”[FN31: 76 Fed. Reg. at 48079 n.
24]. Contrary to EPA’s suggestion that the study supports the notion
that regulators should be concerned about the inadvertent constituents
of CO2 streams, the study proves just the opposite (id. at p. 44): 

“The preceding evaluation shows quite clearly that the concentrations
of other chemical components accidentally incorporated in CO2, when
captured from conventional coal fired power plants, or from advanced
coal-fired IGCC plants, will be at most, relatively insignificant. For
minor volatile species of S, N, F. and CL, the concentration of CO2 from
conventional power plants is unlikely to exceed 5% of the base
concentration in the original coal feed, i.e., between 0 and 250 ppmv.
For potentially hazardous trace elements, such as As, B, Ba, Be, Cd, Co,
Cr, Cu, Ge, Hg, Mn, Mo, Ni, P, Pb, Sb, Sc, Sn, Sr, U, V, and Zn, with
the possible exception of Hg, the percentage concentrations are
currently predicted to be at least two orders of magnitude less in
concentration than was originally present in the coal. However, given
that the concentrations of most of these elements were only in the ppm
range in the original coal, accidentally incorporated concentrations are
unlikely to exceed the range from 0.01 to 10 ppmv.” (emphasis added). 


Significantly, the paper ultimately concludes that “the concentrations
of inadvertent contaminants in the injected CO2 would probably be
comparable to the ambient concentrations in confining shales of the
injection zone.” Id. at 1 (emphasis added). [FN32 : The rest of the
Lawrence Livermore paper deals with the “mixture rule” scenario
which, as noted above, is not relevant as that activity is already
prohibited by the Class VI rule.]

With respect to the hypothetical scenario based on the mixture rule
route of regulation, EPA has advanced no record evidence to support this
case. Furthermore, the Class VI rule itself prohibits the co-injection
of RCRA hazardous waste, so the mixture rule scenario is already
prohibited.[FN33: 75 Fed. Reg. at 77260 (“Class VI wells may not be
used for the co-injection of RCRA hazardous wastes”)].

Response: First, regarding the commenter’s overall conclusion that EPA
has not shown that CO2 streams are hazardous waste, EPA emphasizes that
it is not required to affirmatively demonstrate, as part of this
rulemaking, that a particular CO2 stream, or a portion of all CO2
streams, necessarily qualifies as RCRA hazardous waste. Rather, under
the conditional exclusion concept, EPA considers whether RCRA subtitle C
regulation is necessary to protect human health and the environment.  As
explained in the preamble to the final rule, after consideration of
public comment, EPA has reached the conclusion that management of CO2
streams under existing standards, including the UIC requirements for
Class VI wells, as well as DOT standards, will protect human health and
the environment from potential risks associated with CO2 streams
(including associated constituents that might be present).  This
conclusion is based on EPA’s analysis of those other regulatory
programs directly.  EPA’s analysis and conclusions are independent of,
and thus unaffected by, the question of whether a stream is classified
as a hazardous waste under EPA’s RCRA regulations.

Below, EPA addresses specific hazardous waste comments submitted by the
commenter.

The commenter seems to suggest that if it is not “particularly
plausible” for CO2 streams to either exhibit a RCRA characteristic, or
become mixed with listed hazardous waste, that CO2 streams are not (or
cannot be) hazardous waste.  EPA disagrees with this logic – under the
terms of the RCRA regulations generally, a solid waste is a hazardous
waste if it exhibits a RCRA characteristic, or is (or is mixed with) a
listed waste. The RCRA regulations do not require an evaluation of the
plausibility of either occurring.  

Regarding the applicability of the RCRA characteristics, the commenter
seems to suggest that the criteria in 40 CFR 261.10(a)(2)(i) or (ii)
determine the applicability of the hazardous characteristics regulations
to a solid waste.  However, the introductory language at §261.10(a)
clearly identifies that the requirements in subsequent paragraphs (a)(1)
and (a)(2) apply to the EPA administrator when defining characteristics
of hazardous waste.  While EPA acknowledges that it may be difficult to
determine whether CO2 streams exhibit a RCRA characteristic, EPA
clarifies here that the 40 CFR 261.10 criteria do not determine the
applicability of the current hazardous waste characteristics regulations
to a particular waste – the characteristics apply to solid wastes that
are not otherwise excluded from the RCRA regulations, in accordance with
the tests in §261.21-.24. 40 CFR 261.20(a).  Any CO2 streams determined
to be solid wastes under RCRA and not excluded from RCRA regulation are
subject to a hazardous waste determination under 40 CFR 262.11 as to
whether they are hazardous waste. 

The commenter also seems to suggest that in the absence of analytical
test methods, “generator knowledge” would lead to the finding that
CO2 streams are not characteristic hazardous waste.  Specifically, they
state that “based upon industry’s knowledge of CCS-related materials
and processes, coupled with current uses of CO2, a capturing generator
is unlikely to have a reasonable belief that its CO2 stream is
hazardous.”  The commenter also cites the March 2006 study by Lawrence
Livermore National Laboratory as evidence that CO2 streams are not
hazardous waste because of the relatively low predicted concentrations
of contaminants.  First, the Lawrence Livermore study was cited by EPA
to illustrate that, at a minimum, CO2 streams could contain TC
contaminants and therefore EPA cannot unequivocally conclude that
supercritical CO2 streams will never exhibit any RCRA hazardous waste
characteristic – particularly in light of the early state of data
development in this area.  Regarding the comment that generators are
unlikely to have a reasonable belief that their CO2 stream is hazardous,
EPA notes that generators may make this determination under the existing
RCRA regulations for any waste they generate, and if they determine they
are not managing a hazardous waste, they need not avail themselves of
this conditional exclusion. EPA sought to bring additional clarity to
the regulatory regime through this rule, by establishing a conditional
exclusion from the definition of hazardous waste that would apply in the
event a generator determines that its CO2 streams exhibit a RCRA
hazardous characteristic.

Regarding the commenter’s statement that “EPA’s remark at 76 Fed.
Reg. 48087 that all actors in the product chain could be implicated if
down-hole interactions convert a non-hazardous CO2 stream to hazardous
waste should be withdrawn, as it creates an enormous expansion of RCRA
liability and could chill CCS activity” the commenter is incorrectly
interpreting EPA’s discussion in the cited preamble.  EPA believes
that the scenario described by the commenter regarding the potential
behavior of CO2 streams after injection into a UIC Class VI well would
not affect the availability of the conditional exclusion, because the
exclusion requires injection into a UIC Class VI well (in compliance
with all of the conditions), and any potential issues with the
corrosiveness of the CO2 stream post-injection would be addressed as
part of the site-specific UIC Class VI permit. EPA notes that
corrosiveness is a consideration that is addressed in the UIC Class VI
requirements (see, for example, injection well construction requirements
in 40 CFR 146.86(b) and corrosion monitoring requirements in 146.90(c)).

In summary, EPA does not conclude that supercritical CO2 streams that
are solid wastes would, as a class, exhibit a RCRA characteristic.
However, EPA also indicated in the proposed rule that it could not
unequivocally conclude that supercritical CO2 streams will never exhibit
any RCRA hazardous waste characteristic. Generators of non-hazardous
waste CO2 streams are not subject to the RCRA subtitle C regulations,
and they are not obligated to make use of this conditional exclusion
(although they may still choose to do so in situations where, for
example, the generator may be uncertain regarding the hazardous waste
status of the CO2 stream). Moreover, because use of the conditional
exclusion is voluntary, even those generators who characterize their
streams as RCRA hazardous waste may continue to manage their streams as
RCRA hazardous wastes from the point of generation. The only effect is
upon those persons who choose to comply with the terms of the
conditional exclusion.

Regarding the applicability of the RCRA listings, the commenter stated
that EPA has provided no evidence that CO2 streams have been mixed with
listed hazardous waste, and also pointed out that the UIC Class VI rule
prohibits such mixing.  The commenter then seems to suggest that
therefore CO2 streams cannot ever be identified as a listed waste.  EPA
disagrees because the RCRA regulations provide that a solid waste is a
hazardous waste if it is mixed with a listed hazardous waste, and do not
require a showing of the plausibility of the mixing occurring.  

Comment 3.1.10:

D. API Otherwise Supports the Proposed Conditional Exclusion, But
Believes That EPA Could Provide Further Regulatory Clarity 

EPA’s conditional exclusion is largely premised on the notion that CO2
streams already are subject to stringent regulation. API agrees. 

As to generators, in the vast majority of commercial scenarios, there
will be no on-site storage of CO2. Instead, as EPA states, captured CO2
will be immediately transported offsite via pipeline. [FN34: 34 76 Fed.
Reg. at 48081]. From a geologic sequestration point of view, the
industrial source’s role is rather perfunctory, aside from complying
with the terms and conditions of the relevant CO2 offtake contract.
[FN35: A typical CO2 offtake contract obligates the source to deliver
specified volumes or quantities of CO2 under minimum pressure and
quality specifications at a nominated delivery point.] Subparts UU/RR to
the GHG reporting rule also provide EPA with relevant information. [FN36
: 76 Fed. Reg. at 48082].

EPA also notes, and API agrees, the transportation of CO2 is also
stringently and effectively regulated by the U.S. Department of
Transportation (“DOT”). [FN37: We do not entirely agree with EPA’s
characterization of DOT’s regulation, however. Although the RCRA
proposal refers to “CO2 streams,” EPA shifts gear here and refers
only to “CO2.” Also, supercritical CO2 does not appear in DOT’s
hazmat table. The hazmat table instead lists three forms of CO2: (1) gas
(UN 1013); (2) refrigerated liquid (UN 2187); and (3) solid or dry ice
(UN 1845). 49 C.F.R. § 172.101. Finally, EPA should emphasize, as it
already suggests, that DOT does not regulate the pipeline transportation
of CO2 under the status of a “hazardous liquid.” 76 Fed. Reg. at
48082.] These regulations apply to all modes of transport, including but
not limited to pipelines. DOT regulates the interstate pipeline of CO2
as a non-hazardous liquid, and relevant States apply comparable
standards for intrastate pipelines. [FN38: Nordhaus, R., “Carbon
Dioxide Pipeline Regulation,” Energy Law Journal, Vol. 30:85 (2009).]

Response: EPA thanks the commenter for its support for the conditional
exclusion, and the information provided.  EPA notes that pipeline
transportation of CO2 is subject to the DOT’s Pipeline Hazardous
Materials Safety Administration (PHMSA) requirements in 49 CFR part 195,
which apply to pipeline facilities used in the transportation of
hazardous liquids or supercritical CO2.  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.  This final rule does not change the status under DOT of
supercritical CO2, nor does it change the manner in which supercritical
CO2 is regulated under DOT.  The points made by the commenter do not
affect EPA’s assessment of applicable DOT regulations (as confirmed
through discussions with DOT staff) for both pipelines and non-pipeline
transportation for CO2 streams. Finally, EPA has noted in the final rule
preamble (and by amending the relevant regulatory text in the final
rule) the applicability of relevant state standards for intrastate
pipelines.

Comment 3.1.11:

API agrees with the Agency that the Class VI and Class II provides a
comprehensive management regime for CO2 streams that renders duplicative
any potential additional regulation under RCRA. [FN39: 76 Fed. Reg.
48084-48085]. 

Response: EPA is not addressing the status of all CO2 streams in this
rulemaking; the scope of this rule is limited to CO2 streams injected
into a permitted UIC Class VI well for purposes of GS. EPA clarifies
that the conditional exclusion only applies to carbon dioxide streams
injected into Class VI wells, and only when the conditions of 40 CFR
261.4(h)(1) through (4) are met.  While the requirements for each UIC
injection well class address the specific practices and unique risks to
USDWs posed by a specific well class, the Class VI requirements are
tailored to the unique aspects of carbon dioxide injection for GS (e.g.,
large CO2 injection volumes, the buoyant and mobile nature of the
Injectate, etc.) and EPA developed its RCRA conditional exclusion based
upon injection in a UIC Class VI well.  EPA’s analysis supporting the
conditional exclusion did not include an evaluation of the UIC Class II
well (or other well class) requirements, as those wells are beyond the
scope of the rule as proposed. EPA does note that nothing in the
conditional exclusion would prevent a Class VI well, that had previously
transitioned from a Class II well, from being eligible for the RCRA
conditional exclusion.

Comment 3.1.12:

API also agrees that CO2 streams subject to the conditional exclusion
would not be subject to RCRA’s land disposal restrictions or separate
provisions regarding corrective action. [FN40: 76 Fed. Reg.
48085-48086.]

Response: EPA acknowledges the comment.

Comment 3.1.13:

API does not understand why EPA proposes to make the conditional
exclusion subject to the additional requirement that no hazardous wastes
may be mixed with, or otherwise co-injected with, the CO2 stream, given
that those activities are already barred under the Class VI rule. [FN41:
76 Fed. Reg. at 48086.] 

EPA states that the conditional exclusion may be lost at any time, a
situation which may serve to substantially weaken the exclusion’s
salutary effects given that the Agency appears to be holding out the
potential for down-hole formation of carbonic acid at some future date
in a storage facility’s lifetime [FN42: 76 Fed. Reg. 48087]: 

“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 the CO2 stream being subject to all
applicable subtitle C regulatory requirements, from the point of
generation.” 

This suggests that all entities involved in CCS – generator,
transporter, and injector – could be held liable for RCRA violations
if at some future date conditions down-hole, due to no fault of any
party, could be deemed to have created or liberated a material that a
future regulator or claimant considers to be of concern. This situation
will increase, not decrease, regulatory certainty.

Response:  EPA notes that the prohibition on mixing hazardous waste is a
condition of the exclusion (and not an independent requirement).  EPA
also notes that the applicability of this final rule includes activities
upstream of the UIC facility; therefore, EPA believes that the
certification can help ensure compliance with the mixing prohibition by
other entities (e.g., the CO2 stream generator). In EPA’s view, the
mixing prohibition is entirely consistent with the prohibition in the
UIC Class VI rule; and, given that this rule excludes certain materials
from the definition of hazardous waste, it is entirely appropriate to
prohibit mixing the excluded waste with other hazardous wastes from
point of capture to injection in a UIC Class VI well, irrespective of
the similar UIC Class VI provision. 

 

EPA is not clear on what is the commenter’s concern when they state
the Agency is “holding out the potential for down-hole formation of
carbonic acid at some future date…” As stated in response to comment
number 3.1.9, EPA believes that the potential behavior of CO2 streams
after injection into a UIC Class VI well would not affect the
conditional exclusion (assuming the conditions are otherwise met).  

Comment 3.1.14:

EPA emphasizes that the generator is responsible for the initial, and
perhaps sole, hazard determination, but this conflicts with the
definition of “CO2 stream” which suggests that the injector may add
materials to facilitate injection. What happens in the scenario where
the industrial source effectively delivers pharmaceutical grade CO2 to a
storage site via a pipeline transporter, and the site owner/operator
thereafter adds incidental materials to facilitate injection? It would
be unfair in that situation to hold the industrial source liable for the
site owner/operator’s activities in the absence of an agreement to the
contrary.

The conditional exclusion is premised on a linear model of CCS
operations under which a single source delivers CO2 to a single
transporter who in turn delivers the CO2 to a site owner/operator. While
that scenario may apply in some circumstances, it is equally likely that
one or more sources may be delivering CO2 into the same pipeline, which
in turn will deliver the CO2 to a storage site that receives and stores
CO2 from multiple sources. That storage site may also already hold, or
accept for delivery, volumes of natural CO2. [FN43: This situation
further supports our position that RCRA was never intended to apply to
CCS.] Since CO2 streams will be intermingled, and CO2 molecules are
identical, this sets up a “Superfund-esque” situation under which
all parties, even the innocent, have the potential of being held liable.
And unlike Superfund, where at least there is the hope of finding labels
on drums to identify sources and parties, no such hope exists for
intermingled CO2 molecules, particularly after they have already been
injected into the subsurface. Furthermore, as Superfund is triggered by
“hazardous substances,” regardless of concentration, released after
an “arrangement for disposal,” there is an increased likelihood of
Superfund liability if transmissions of CO2 streams are considered
disposals of solid wastes.

Response: Regarding the comment that the generator is responsible for
the initial and “perhaps sole” determination of whether any waste is
a hazardous waste, as EPA noted in the proposed rule, while a hazardous
waste determination must be made when a waste is first generated,
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 76 FR at 48078,
Footnote 19.  

The commenter describes a hypothetical scenario where a generator sends
a very clean CO2 stream to a UIC Class VI owner or operator, who in turn
adds “incidental materials to facilitate injection” to the CO2
stream.  In this situation, the commenter suggests that the generator is
“liable” for the well owner/operator actions.  While EPA is at
present unaware of actual examples of where substances are added to
facilitate supercritical CO2 injection, because the definition of “CO2
stream” includes the possible addition of materials to facilitate
injection, there does not appear to be any violation of the conditional
exclusion in this hypothetical scenario (assuming that the addition of
these materials is otherwise in compliance with the UIC Class VI permit,
and that addition of these materials does not violate the prohibition on
mixing or co-injecting hazardous wastes – assuming these materials are
not hazardous wastes – with the CO2 stream).  EPA has revised the
certification statements such that the generator is certifying to
activities that are under their control, namely, that they have not
mixed their CO2 stream with hazardous waste, and that they have
delivered (or arranged for delivery) of the stream to a UIC Class VI
facility.

Nonetheless, EPA can appreciate the commenter’s concern over the loss
of the conditional exclusion due to the actions of subsequent handlers
of the CO2 stream (in this instance, mixing of hazardous waste into the
CO2 stream downstream of the “…previous producer or manager of the
CO2 stream.”).  However, EPA maintains that the rule conditions, taken
together, ensure that the excluded CO2 streams are being managed in a
protective manner such that subtitle C regulations are not
necessary. EPA’s Office of Enforcement and Compliance Assurance
(OECA) is unable to provide definitive assurances outside the context
of a formal enforcement proceeding that the government will not proceed
with an enforcement response for a specific individual violation of an
environmental protection statute, regulation, or legal
requirement. However, EPA can (and has previously done so for other
RCRA rules) exercise discretion to decide when and how to respond or not
respond to a given violation, based on the Agency’s normal
priorities. In RCRA penalty actions, the factors that EPA considers in
assessing the gravity-based portion of the penalty are the potential for
harm and the extent of deviation from a statutory or regulatory
requirement. The penalty can be adjusted for numerous factors,
including good faith efforts to comply, degree of willfulness and
negligence, and history of noncompliance. Additional information can be
found in the 2003 RCRA Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf). 

Regarding the comment which raises concerns about liability in a
hypothetical situation where multiple sources of CO2 streams are
delivered in a shared pipeline being injected into a single facility,
this example illustrates why EPA is committed to an adaptive approach on
CCS generally, so that the Agency may identify and address additional
information and respond, including via rulemaking, should that be
necessary (see Response to Comment 3.2.3 and 3.2.4).  However, in the
example above, the terms of the conditional exclusion would not prevent
an arrangement where a single UIC Class VI facility receiving both
conditionally-excluded CO2 streams and other non-hazardous CO2 streams
from multiple sources, through a shared pipeline.  Issues surrounding
potential Superfund liability related to GS are beyond the scope of this
rulemaking.

Comment 3.1.15:

EPA states that the conditional exclusion only applies to “CO2
streams” that have been captured for purposes of “geologic
sequestration.” [FN44: 76 Fed. Reg. at 48086.] There may be several
destinations for the captured CO2, each with a different purpose. If
there are different regulatory requirements for each purpose, there
could be major complications for the shipper of the common stream.
Again, this argues for a uniform, blanket exclusion of all CO2 streams
from the solid waste definition. The Agency explains that [FN45: 76 Fed.
Reg. at 48078 n. 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.” 

This limitation provides no regulatory clarity for Class II concurrent
ER/storage projects that qualify for the risk-based factor test of 40
C.F.R. § 144.19 under the Class VI rule, which allows sequestration to
occur under Class II if there is no increased risk to USDWs. [FN46: 75
Fed. Reg. at 77245.] It is imperative that EPA make clear either that:
(1) the conditional exclusion also applies to ER operators under 40
C.F.R. § 144.19, or (2) the RCRA status of ER operators under 40 C.F.R.
§ 144.19 is identical to that of business-as-usual ER operators under
Class II without claims of sequestration [FN47: “The agency has
decided not to regulate oil and gas industry exploration and production
wastes and mineral extraction and beneficiation and certain mineral
processing under RCRA Subtitle C.” T. Garrett, ed., “The RCRA
Practice Manual,” at 3].

Again, EPA needs to make clear that CO2 streams used for ER are not
solid wastes. [FN48: Likewise, EPA needs to make clear that CO2 streams
injected into experimental Class V wells are not solid wastes. Failing
to do so would retard the research and development needed to advance
understanding of storage.] ER operators using Class II wells may be the
largest immediate customers of CO2 capturers and they currently handle
their CO2 as a valuable product. If handled as a solid waste, CO2
injected into Class II wells would not receive the benefit of the
conditional exclusion and the capturers would need to evaluate if those
streams are hazardous before shipping them to ER customers. These same
capturers would not need to determine if their CO2 streams are hazardous
for Class VI well operator customers. This disparity will likely create
regulatory confusion and administrative nightmares in dealing with two
different customers for the same CO2 stream. As the regulatory burdens
would be greater for ER customers, capturers may not deal with ER
customers, who may not receive sufficient supplies, thereby undermining
both ER and CCS operations. The best solution is to declare that all CO2
streams are not solid waste.

Response:  EPA does note that (based on the limited information provided
in the public comments), should CO2 be used for its intended purpose as
it is injected into UIC Class II wells for the purpose of EOR/EGR, it is
EPA’s expectation that such an injection process would not generally
be a waste management activity.  EPA would encourage persons to consult
with the appropriate regulatory authority to address any fact-specific
questions they may have regarding the status of CO2 in situations that
are beyond the scope of this final rule. EPA also notes that nothing in
the conditional exclusion would prevent a Class VI well, that had
previously transitioned from a Class II well from being eligible for the
RCRA conditional exclusion. See also responses to comment 3.1.2 and
3.1.11. 

Comment 3.1.16:

EPA states that RCRA’s § 7003 imminent hazard authorities would
continue to apply under the conditional exclusion. [FN49: 76 Fed. Reg.
at 48088.] For the reasons stated above, “CO2 streams” are neither
solid nor hazardous wastes, so § 7003 – which only applies to solid
or hazardous wastes -- should not apply to CO2 streams with the
recommended changes. For the same reason, EPA should clarify that
RCRA’s citizen suit provision -- § 7002 – also does not apply to
CO2 streams.

Response: EPA disagrees with the commenter. For purposes of RCRA 7002
and 7003 imminent hazard authorities, the statutory, not regulatory,
definitions of solid and hazardous waste are relevant. See, e.g.,
Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., 989
F.2d 1305, 1314-15 (2d Cir. 1993); Comite Pro Rescate De La Salud v.
Puerto Rico Aqueduct and Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1989)
(Breyer, J.). It is EPA’s position that a supercritical CO2 stream
injected into a permitted UIC Class VI well for purposes of GS is a RCRA
statutory solid waste, because it is a “discarded material” within
the plain meaning of the term in RCRA §1004(27), and therefore RCRA
§§ 7002 and 7003 are available. As explained in response to comment
3.1.11, EPA is not addressing the status of all CO2 streams in this
rulemaking; the scope of this rule is limited to CO2 streams injected
into a permitted UIC Class VI well for purposes of GS. 

Comment 3.1.17:

API encourages EPA to clarify that CO2 streams subject to the
conditional exclusion also are not subject to Superfund. [FN50: A CERCLA
“hazardous substance” is defined to include all RCRA hazardous
wastes, and because CO2 streams are not hazardous wastes, it is
appropriate for EPA, in this rulemaking, to provide critical regulatory
clarity for CCS under the Superfund statute, too]. 

Response: EPA is promulgating this rule under the authority of RCRA. To
the extent the commenter is seeking interpretations of CERCLA, such
interpretations are beyond the scope of this rulemaking.

Comment 3.1.18:

For the reasons stated above, EPA should exclude all CO2 streams as
solid waste, by enacting the following section as a new § 261.4(a)(26)
as follows [FN51: Suggested additions are {capitalized}.]: 

(a) Materials which are not solid wastes. 

* * *

(26) CARBON DIOXIDE (CO2) STREAMS. CARBON DIOXIDE STREAMS AS DEFINED IN
40 CFR 146.81(D) ARE NOT A SOLID WASTE 

Alternatively, as API’s second preference, if this is rejected we
recommend instead that EPA make clear that particular “CO2 streams”
are neither solid nor hazardous wastes. The Agency could do so by
promulgating a new § 261.4(a)(26) as follows [FN52: Suggested additions
are {capitalized}]:

(a) Materials which are not solid wastes. * * *

(26) CARBON DIOXIDE (CO2) STREAMS. CARBON DIOXIDE STREAMS AS DEFINED IN
40 CFR 146.81(D) THAT ARE CAPTURED AND TRANSPORTED FOR PURPOSES OF
INJECTION INTO AN UNDERGROUND INJECTION WELL SUBJECT TO THE REQUIREMENTS
FOR CLASS II, CLASS V, OR CLASS VI UNDERGROUND INJECTION CONTROL WELLS,
INCLUDING THE REQUIREMENTS OF 40 CFR PARTS 144 (INCLUDING § 144.19) AND
146 OF THE UNDERGROUND INJECTION CONTROL PROGRAM OF THE SAFE DRINKING
WATER ACT, ARE NOT A SOLID WASTE PROVIDED THAT THE GENERATOR ALSO
COMPLIES WITH THE FOLLOWING REQUIREMENTS: 

(i) TRANSPORTATION OF THE CARBON DIOXIDE STREAM MUST BE IN COMPLIANCE
WITH APPLICABLE DEPARTMENT OF TRANSPORTATION (OR ANALOGOUS STATE)
REQUIREMENTS; 

(ii) INJECTION OF THE CARBON DIOXIDE STREAM MUST BE IN COMPLIANCE WITH
THE APPLICABLE REQUIREMENTS FOR CLASS II, CLASS V, OR CLASS VI
UNDERGROUND INJECTION CONTROL WELLS, INCLUDING THE APPLICABLE
REQUIREMENTS IN 40 CFR PARTS 144 (INCLUDING § 144.19) AND 146; 

(iii) NO OTHER HAZARDOUS WASTE MAY BE MIXED WITH, OR OTHERWISE
CO-INJECTED WITH, THE CARBON DIOXIDE STREAM AT THE GENERATOR’S
FACILITY OR SITE; AND 

(iv) ANY GENERATOR OF A CARBON DIOXIDE STREAM, AND ANY CLASS II, CLASS
V, OR CLASS VI UNDERGROUND INJECTION CONTROL WELL OWNER OR OPERATOR, WHO
CLAIMS THAT A CARBON DIOXIDE STREAM IS EXCLUDED UNDER THIS PARAGRAPH,
MUST HAVE AN AUTHORIZED REPRESENTATIVE (AS DEFINED IN 40 CFR 260.10)
SIGN A CERTIFICATION STATEMENT WORDED 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(A)(26) MEETS ALL 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 (IF
LOCATED IN AN AUTHORIZED STATE), OR THEIR DESIGNEE, ANDSHALL BE RENEWED
EVERY YEAR. THIS YEARLY RENEWABLE OF A CERTIFICATION STATEMENT UNDER
THIS PARAGRAPH MEANS THAT AN AUTHORIZED REPRESENTATIVE MUST ANNUALLY
PREPARE AND SIGN A NEW COPY OF THE CERTIFICATION STATEMENT. 

As API’s third preference, if the first two are rejected and EPA
elects to continue to pursue the conditional exclusion route, we suggest
that the proposed exclusion in § 261.4(h) be revised to read as follows
[FN53: The full text of EPA’s proposed conditional exclusion is shown,
with suggested additions {capitalized}. We propose no textual
deletions]. 

(h) Carbon Dioxide Stream Injected for Geologic Sequestration. Carbon
dioxide streams that are captured and transported for purposes of
GEOLOGIC SEQUESTRATION injection into an underground injection well
subject to the requirements for Class II and Class V (as applicable) and
Class VI Underground Injection Control wells, including the requirements
of 40 CFR parts 144 and 146 (AND § 144.19 FOR APPLICABLE CLASS II
WELLS) 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 (OR ANALOGOUS STATE)
requirements; 

(ii) Injection of the carbon dioxide stream for geologic sequestration
purposes must be in compliance with the applicable requirements for
Class II, Class V, or Class VI Underground Injection Control wells,
including the applicable requirements in 40 CFR parts 144 (INCLUDING §
144.19) and 146; 

(iii) No other hazardous waste may be mixed with, or otherwise
co-injected with, the carbon dioxide stream AT THE GENERATOR’S
FACILITY OR SITE; and 

(iv) Any generator of a carbon dioxide stream, and any Class II, Class
V, or Class VI Underground Injection Control well owner or operator for
geologic sequestration purposes, 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: 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. 

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 (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). This
yearly renewable of a certification statement under this paragraph means
that an authorized representative must annually prepare and sign a new
copy of the certification statement. 

In addition, as a necessary part of the foregoing changes, EPA should
clarify that CO2 streams that are used for non-geologic sequestration
purposes, or are not injected into Class VI wells (or applicable Class
II wells under § 144.19), are not solid wastes by adding the following
section as a new § 261.4(a)(26) as follows [FN54: Suggested additions
are {capitalized}]. 

(b) Materials which are not solid wastes. 

* * *

(26) CARBON DIOXIDE (CO2) STREAMS. CARBON DIOXIDE STREAMS THAT ARE
CAPTURED AND TRANSPORTED FOR A PRIMARY PURPOSE OTHER THAN GEOLOGIC
SEQUESTRATION OR FOR PURPOSES OF INJECTION INTO AN UNDERGROUND INJECTION
WELL THAT IS NOT SUBJECT TO THE REQUIREMENTS FOR CLASS VI UNDERGROUND
INJECTION CONTROL WELLS, INCLUDING THE REQUIREMENTS OF 40 CFR PARTS 144
AND 146 (AND § 144.19 FOR APPLICABLE CLASS II WELLS) OF THE UNDERGROUND
INJECTION CONTROL PROGRAM OF THE SAFE DRINKING WATER ACT, ARE NOT A
SOLID WASTE.

Response:  See responses to comments 3.1.1 – 3.1.17.  Regarding the
commenter’s suggested language to include reference to ‘analogous
state’ transportation requirements, EPA has addressed this in the
regulatory text of the final rule, see Response to Comment 3.2.26. 
Regarding the commenter’s suggested language prohibiting mixing of
hazardous waste only at the generator site, EPA disagrees, see response
to comment 3.1.13.

Comment 3.1.19:

API appreciates the opportunity to submit comments. Any further requests
by the Agency for additional information or comment should be directed
to (see docket for contact information).

Response: EPA acknowledges the comment.

Carbon Sequestration Council (CSC) 

Document ID: EPA-HQ-RCRA-2010-0695-0084

Comment 3.2.1:

The Carbon Sequestration Council (the CSC) is pleased to submit these
comments in response to the notice of proposed rulemaking (NPRM)
entitled Hazardous Waste Management System: Identification and Listing
of Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities, 76 Fed. Reg. 48073 (August 8, 2011), Docket ID
No. EPA–HQ–RCRA–2010–0695. The CSC is a multi-industry
Association [FN1: Members of the Carbon Sequestration Council are
American Electric Power, BHP Billiton, BP Alternative Energy North
America Inc., ConocoPhillips, Denbury Resources Inc., Duke Energy, LG&E
and KU Energy LLC, Occidental Petroleum Corporation, Shell Exploration
and Production, and Southern Company] formed to provide a forum for
inter-industry communication around key issues of carbon capture and
sequestration or storage (CCS) including policy, funding, and messaging.
CSC facilitates information sharing and consensus building to more
effectively promote policies, legislation and regulatory frameworks that
foster the use of anthropogenic CO2 for enhanced oil recovery (EOR) as
well as the early use and commercial deployment of geologic
sequestration (GS) as a means of addressing greenhouse gas mitigation. 

We appreciate the importance of this proposal, as many commenters on the
proposed underground injection control (UIC) program rule for GS urged
the Environmental Protection Agency (EPA) to provide clarification on
the potential applicability to CCS of the Resource Conservation and
Recovery Act (RCRA) regulations governing management of hazardous waste.
EPA noted in the preamble to the proposal: “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.” 76
Fed. Reg. at 48077. As we will explain here and in our attached detailed
comments, there are better ways to provide the regulatory certainty
needed. The proposed conditional exclusion will not provide the
necessary certainty because, in the form proposed, it will create
additional unnecessary uncertainties.

The best way to provide the necessary certainty is to conclude—as we
believe EPA must—that captured gaseous carbon dioxide emissions are
not solid waste and are, therefore, outside of RCRA’s statutory
purview under section 1004(27) because supercritical carbon dioxide is
not “contained gaseous material”; it constitutes uncontained gaseous
material and cannot be solid waste under both the statute and current
EPA policy. 42 USC §6903(27) (2010). As explained in our attached
detailed comments, EPA has already concluded that air emissions captured
by an emissions control device fall outside the jurisdiction of RCRA,
especially when that gaseous material is a gas at standard temperature
and pressure. Since 1982 EPA has consistently adhered to the policy that
“our authority to identify or list a waste as hazardous under RCRA is
limited to containerized or condensed gases (i.e., section 1004(27) of
RCRA excludes all other gases from the definition of solid wastes and
thus cannot be considered hazardous wastes).” 54 Fed. Reg. 50968,
50973 (December 11, 1989).

The carbon capture devices currently available and under development
operate in a similar manner to capture a gaseous emission stream as air
pollution control equipment. Accordingly, captured carbon dioxide
streams could not be considered “discarded material”. The status of
captured carbon dioxide streams was verified in the preamble to EPA’s
final GS UIC rule, where EPA explained: “carbon dioxide is first
captured from fossil-fueled power plants or other emission sources.”
75 Fed. Reg. 77230, 77233 (December 10, 2010) (emphasis added). As
captured air emissions [FN2: See 76 Fed. Reg. at 48082: “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”], these carbon dioxide streams
are uncontained gases and were statutorily excluded from RCRA by
Congress.

Response: EPA agrees with the commenter that providing regulatory
clarity is an important goal of this rule. However, EPA disagrees that
CO2 streams sent to UIC Class VI wells for purposes of GS are not solid
wastes, and therefore, disagrees that that is a basis to provide
regulatory clarity.  A supercritical CO2 stream injected into a
permitted UIC Class VI well for purposes of GS is a RCRA solid waste,
because it is a “discarded material” within the plain meaning of the
term in RCRA §1004(27). That is, a supercritical CO2 stream is a solid
waste when it is to be discarded through abandonment by disposing of the
material in a UIC Class VI well (see 40 CFR 261.2(a)(2)(i) and (b)(1)). 

 As EPA noted in the proposed rule, the CO2 streams are delivered by
pipeline and injected into UIC Class VI wells for GS in a supercritical
state, which EPA stated at proposal was “…rather unique in that it
has properties intermediate between a liquid and a gas.” 76 FR at
48078.  The scientific term used to describe or define this
supercritical state (i.e., when a substance is at or above its critical
temperature and critical pressure) is as a “supercritical fluid.”
The RCRA statutory definition of solid waste specifically refers to
“other discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities . .
.” While EPA has indeed interpreted the meaning of specific terms
listed, including “contained gaseous material,” the RCRA definition
of solid waste encompasses “other discarded material” and does not
speak to materials such as supercritical fluids. Like the listed
“solid, liquid, semisolid, or contained gaseous material”
specifically referenced, CO2 streams sequestered for purposes of GS are
“other discarded material” from industrial and commercial operations
and, therefore, are of a similar kind to the other types of wastes
specifically referenced by the definition. They are, therefore, RCRA
statutory solid wastes. While the commenter points out that CO2 capture
devices are similar to air pollution control equipment, as a basis for
concluding that captured CO2 emissions should be defined as uncontained
gases (and therefore not solid waste), EPA’s finding (as described
above) is with respect to CO2 as a supercritical fluid, and does not
view the comment as relevant to that determination.  Finally, with
regard to the commenter’s citation from the UIC Class VI final rule,
that rulemaking did not make any RCRA applicability determinations for
CO2 streams intended for Class VI GS, consistent with the fact that that
rule was issued solely under the SDWA.

Comment 3.2.2:

Even if these captured carbon dioxide streams were not gaseous, the
carbon dioxide is a commodity that has so many beneficial uses that it
would be difficult to consider it to be discarded in any traditional
sense because the carbon dioxide stored underground would be available
for use in enhanced oil recovery (EOR), in support of geothermal
operations and for numerous other beneficial activities. Indeed,
captured carbon dioxide streams from some sources could even be used for
food grade carbonation with little or no further purification.

Consistent with these considerations, if EPA were to proceed with
promulgation of a regulatory exclusion from RCRA (notwithstanding the
congressional exclusion already in the statute), it should be an
exclusion from the definition of solid waste rather than an exclusion
from the definition of hazardous waste. As noted in the preamble, “EPA
has little information about whether carbon dioxide streams would
exhibit a RCRA hazardous waste characteristic (in particular, the
TC).” 76 Fed. Reg. at 48083. Given the current status of the
development of carbon capture technologies and the lack of knowledge
about the specific characteristics of captured carbon dioxide emission
streams, EPA is not in the position to develop the full range of RCRA
criteria and requirements that would be necessary to regulate these
streams as potentially hazardous wastes particularly because such
streams are quintessentially different from anything else currently
managed under RCRA as hazardous waste.

Response: Regarding the comment that carbon dioxide is a commodity that
has many beneficial uses, EPA acknowledges that CO2 can and does have a
variety of commercial and manufacturing uses.  That CO2 may be useful
(or even a “commodity”) in other contexts has no bearing on the RCRA
regulatory status of CO2 sent for GS in a UIC Class VI well. As was
stated in the preamble to the proposed rule, GS is an option to reduce
CO2 emissions to the atmosphere by injecting the CO2 streams into deep
subsurface geologic formations, with the express purpose of isolating
the CO2 so that it does not return to the atmosphere (August 8, 2011; 76
FR at 48075). This is the express purpose of the UIC Class VI well;
therefore, EPA views these CO2 streams as “discarded material”
within the plain meaning of the term in RCRA §1004(27). The fact that
the sequestration of CO2 streams into deep geologic formations is at
times labeled as “long-term containment” or “long-term storage”
does not change this view.  In addition, the RCRA conditional exclusion
does not preclude the removal of CO2 from underground at a later time
– how this activity is regulated, would be a determination separate
from the terms of the conditional exclusion, and is thus outside the
scope of this rulemaking.  As already stated, EPA is not addressing the
status of all CO2 streams in this rulemaking, as the scope of this rule
is expressly limited to CO2 streams injected  in a permitted UIC Class
VI well for purposes of GS.  

Regarding the comment that EPA is not in the position to develop
“…the full range of RCRA criteria and requirements that would be
necessary to regulate these streams as potentially hazardous
wastes…” EPA points out that it did not set out to do so.  Instead,
in the development of the conditional exclusion, EPA evaluated other
applicable requirements, and reached the conclusion that additional
regulation under RCRA subtitle C was not warranted for CO2 streams (that
would otherwise be defined as hazardous waste) that are injected in a
permitted UIC Class VI well for purposes of GS, when they are managed in
accordance with the conditions in the final rule.

Regarding the comment that if EPA were to proceed with promulgation of a
regulatory exclusion from RCRA, it should be an exclusion from the
definition of solid waste rather than an exclusion from the definition
of hazardous waste, EPA disagrees.  A solid waste regulatory exclusion
would need to be based upon a finding that CO2 streams sent to a UIC
Class VI well for purposes of GS are not being discarded, and based on
the information available to EPA, as explained elsewhere, EPA does not
agree with such a conclusion.

Comment 3.2.3:

Moreover, any exclusion that EPA fashions needs to address carbon
dioxide streams for the full range of scenarios under which the uses of
captured anthropogenic carbon dioxide streams are likely to occur. In
the proposal, EPA presumes a scenario where, “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 injected underground for purposes of sequestration”. 76 Fed. Reg.
at 48076. But it is not appropriate to presume such a limited single
source to single injector scenario. Because geologic sequestration
without EOR is still very much in the experimental stage, it is not
useful to simply consider current demonstration project scenarios.
Instead, it is likely that each of the following scenarios would occur
once the technology is implemented on more than an experimental
developmental scale: 

*Capture of a carbon dioxide stream at a single emission source followed
by transport via pipeline to an injection well or wells onsite or
offsite through a dedicated pipeline [FN3: 76 Fed. Reg. at 48076
(“[T]he majority of CO2 is expected to be delivered to the
sequestration site by dedicated pipeline”)]. 

*Capture of carbon dioxide streams at multiple emission sources followed
by delivery to a commercial interstate pipeline network [FN4: 76 Fed.
Reg. at 48082 (“[M]oving the enormous quantities of CO2 implied by a
widespread implementation of CCS technologies would likely require a
dedicated interstate pipeline network”.), citing CRS Report for
Congress. Carbon Dioxide (CO2) Pipelines for Carbon Sequestration:
Emerging Policy Issues. Paul W. Parfomak and Peter Folger. January 17,
2008. Id., n. 37] for transport to multiple recipients, some of which
will be using the carbon dioxide for enhanced recovery of oil and gas by
injecting it through UIC Class II wells, and some of which will be
operating UIC Class VI wells for geologic sequestration. 

*Capture of carbon dioxide streams at one or more emission sources
followed by delivery to a commercial interstate pipeline network where
those multiple anthropogenic streams are comingled with naturally
sourced carbon dioxide from one or more sources for delivery to multiple
recipients, some of which will be using the carbon dioxide for enhanced
recovery of oil and gas by injecting it through UIC Class II wells, some
of which will be operating UIC Class VI wells for geologic sequestration
(and even to other recipients who will be using carbon dioxide for a
variety of other activities, including in the production of foods and
beverages or for agricultural and other uses). 

The scenarios can get more and more complicated, but the point we want
to make is that it cannot be assumed that any producer of carbon dioxide
through capture of emissions will always be sending that carbon dioxide
stream to a single UIC Class VI injection well operation for geologic
sequestration. Nor should any regulatory scheme be designed to force
that type of singularity upon the nascent industry of carbon dioxide
producers. To do so would stifle the potential use of EOR to provide
incentives for the production of anthropogenic carbon dioxide streams by
saddling both the producers and the operators of EOR projects with new
barriers of uncertainty about the potential applicability of RCRA and
related or derivative regulatory programs. 

Response: EPA appreciates the commenter’s request, and notes that
currently there is a lack of sufficient information to inform the agency
on how to best address the “full range of scenarios” presented by
the commenter because many of such scenarios are still under
development.  EPA notes that the purpose of developing this final rule
was to provide for the option of a conditional hazardous waste exclusion
that could be used, where necessary, to provide clarity as to the
applicability of RCRA subtitle C, and in particular with respect to
removing barriers to initiating near-term CCS projects. EPA does not
wish to delay the issuance of the rule, until the types of situations
outlined by the commenter already exist, because that would defeat
EPA’s purpose, in particular with respect to removing barriers to
initiating near-term CCS projects.

These examples illustrate why EPA is committed to an adaptive approach
on CCS generally, so that the Agency may identify and address additional
information and respond, including via rulemaking, should that be
necessary.  EPA emphasizes that where additional information may
increase protectiveness, streamline implementation, or otherwise inform
the requirements for GS injection of CO2, EPA may need to evaluate
whether changes are necessary.  Thus, the Agency commits to reviewing,
in a manner similar to the adaptive approach planned for the UIC Class
VI rule, new research, data, and information related to today’s
conditional exclusion.

In addition, EPA notes that the conditional exclusion as finalized is
not as rigid as the comment suggests. For example, as described in
section V.F. of the final rule preamble, the terms of the conditional
exclusion would include CO2 streams generated from two or more
independently-produced CO2 streams, provided that the conditions of the
exclusion are met for all streams being for which it is claimed.

EPA acknowledges the commenter’s identification of other possible
scenarios, but notes that the scope of this final conditional exclusion
was developed to complement the UIC Class VI rulemaking, rules which
were recently developed with geologic sequestration activities in mind. 
As EPA noted in the preamble to the proposed rule, this conditional
exclusion is not intended to affect the regulatory status of CO2 streams
that are injected into wells other than UIC Class VI wells, and EPA did
not develop information for inclusion in the proposal on well classes
other than UIC Class VI wells.  

Finally, EPA also notes that this conditional exclusion is voluntary,
and generators are not obligated to make use of this conditional
exclusion.  For example, generators of non-hazardous waste CO2 streams
are not subject to the RCRA subtitle C regulations, and they are not
obligated to make use of this conditional exclusion (although they may
still choose to do so in situations where, for example, the generator
may be uncertain regarding the hazardous waste status of the CO2
stream).  Even those generators who characterize their streams as RCRA
hazardous waste may manage their streams as RCRA hazardous wastes from
the point of generation.   Finally, as noted in Response to Comment
3.2.2, EPA acknowledges that CO2 can and does have a variety of
commercial and manufacturing uses. However, this does not affect the
regulatory status of CO2 streams when they are to be injected into UIC
Class VI wells for the purpose of GS.  

Comment 3.2.4:

Having declared that captured carbon dioxide emission streams are solid
waste “when discarded”, EPA should not simply dismiss the potential
use of such streams by UIC Class II enhanced production well operators
[FN5: 76 Fed. Reg. at 48078, n. 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.”] We know that the use of captured
carbon dioxide emission streams as process inputs for enhanced recovery
will not be subject to the RCRA solid waste provisions because those
materials are not being discarded, but we think EPA will not provide the
intended “needed certainty” unless EPA states that the use of carbon
dioxide streams for enhanced recovery does not subject those streams to
RCRA now or in the future.

To understand the importance of providing this certainty, it is only
necessary to consider the following potential scenarios:

*As noted, it is likely that once CCS becomes commercial, dedicated
carbon dioxide interstate and intrastate commercial pipeline networks
will accept carbon dioxide from both natural and anthropogenic sources
for delivery to UIC Class II enhanced recovery operations.

*Some of these EOR operations will have begun years or decades before by
receiving only naturally sources carbon dioxide streams and then will
receive anthropogenic or mixed source streams.

*Other EOR projects will have already received anthropogenic carbon
dioxide either alone or in combination with natural carbon dioxide.

*Some EOR operations can be expected to also operated co-located UIC
Class VI wells for GS so that the project can receive constant streams
of carbon dioxide from anthropogenic sources regardless of the
quantities needed at any particular time exclusively for the EOR
operations; any excess carbon dioxide received would be injected into
the Class VI wells for GS.

*Some EOR operations may eventually transition to UIC Class VI GS
operations under the UIC program and continue to operate inject carbon
dioxide streams for GS.

*Some EOR operations may continue to operate as UIC Class II EOR
projects and account for the mass of carbon dioxide sequestered in
accordance with the provisions of 40 CFR Part 95, subpart RR.

*Still other EOR operations may cease operations as UIC Class II EOR
projects while leaving in producing reservoirs substantial quantities of
carbon dioxide (originally received from various natural and
anthropogenic sources and then recycled through the EOR process for many
years).

If EPA declares that captured gaseous carbon dioxide emission streams
can be solid waste, then providing the necessary certainty will require
a verification of the RCRA status of carbon dioxide streams under the
full range of scenarios described in the preceding discussions. The
producer who captures carbon dioxide emissions and compresses and then
ships those supercritical carbon dioxide streams through pipelines in
which those streams will be commingled with other streams before being
delivered to the recipient(s) with whom that producer has
contracts—and that producer’s investors, financiers, insurers, and
other financial assurance providers—will need to know with certainty
the circumstances, if any, under which those operations might be subject
to RCRA solid and/or hazardous waste requirements.

Response:  See response to comment 3.2.3. EPA did not have information
to address these scenarios, such as information regarding the operation
of extensive, shared CO2 pipeline networks, in terms of how CO2 streams
might be distributed among different end users, or how separate CO2
streams might be accounted for, etc.  EPA did not, therefore, attempt to
address all scenarios, and EPA is committed to using an adaptive
approach regarding CCS going forward.

As discussed, EPA did not develop information for inclusion in the
proposal of well classes other than UIC Class VI wells.  However, in the
interest of public transparency and in light of the several public
comments on this issue, EPA does note that (based on the limited
information provided in the public comments), should CO2 be used for its
intended purpose as it is injected into UIC Class II wells for the
purpose of EOR/EGR, it is EPA’s expectation that such an injection
process would not generally be a waste management activity.  EPA would
encourage persons to consult with the appropriate regulatory authority
to address any fact-specific questions they may have regarding the
status of CO2 in situations that are beyond the scope of this final
rule. 

Comment 3.2.5:

As we have noted, the best and—considering that Congress chose not to
bring uncontained gases within the definition of solid waste—the only
permissible approach would be to confirm that captured gaseous carbon
dioxide emission streams are not solid waste. Failing that, EPA needs to
consider and explain how its final action will affect the use of carbon
dioxide streams under all of the likely scenarios described above. This
could conceivably be done by confirming that the use of carbon dioxide
streams for EOR and similar activities has not ever been subject to RCRA
and then crafting an exclusion that fully addresses the circumstances
under which carbon dioxide streams are managed and injected for GS.

Response: EPA disagrees with the commenter’s suggestion that CO2
streams sent to UIC Class VI wells for purposes of GS are not solid
waste, for reasons already explained in response to comments 3.2.1 and
3.2.2.

Regarding the commenter’s statement that EPA must explain how its
final action will affect the use of CO2 streams under all of the
scenarios described by the commenter, EPA refers to its responses to
Comments 3.2.3 and 3.2.4.  The commenter does describe one scenario
that EPA points out is already covered by the UIC Class VI regulations
at 40 CFR 144.19 – and EPA notes that nothing in the conditional
exclusion would prevent a Class VI well that had previously transitioned
from a Class II well from being eligible for the RCRA conditional
exclusion.  Otherwise, most of these scenarios do not yet exist, and
many are clearly outside the scope of this rulemaking (because they deal
with UIC Class II wells).  With respect to the RCRA status of CO2
injected into a Class II well, EPA reiterates that this is beyond the
scope of this final rule, and EPA did not develop information for
inclusion in the proposal on well classes other than UIC Class VI
wells.  However, in the interest of public transparency and in light of
the several public comments on this issue, EPA does note that (based on
the limited information provided in the public comments), should CO2 be
used for its intended purpose as it is injected into UIC Class II wells
for the purpose of EOR/EGR, it is EPA’s expectation that such an
injection process would not generally be a waste management activity. 
EPA would encourage persons to consult with the appropriate regulatory
authority to address any fact-specific questions they may have regarding
the status of CO2 in situations that are beyond the scope of this final
rule.

Again, as EPA has responded elsewhere to this commenter, these examples
illustrate why EPA committed to an adaptive approach, so that the Agency
may identify and address new information and respond, including via
rulemaking should that be necessary.

Comment 3.2.6:

As explained in our detailed comments and as reflected in the scenarios
described above, EPA’s proposed certification approach is unworkable
because the producer of carbon dioxide streams will not always be able
to state that its captured gaseous carbon dioxide emission streams are
going exclusively to UIC Class VI wells. Instead, it should be
sufficient for the producer to determine that the recipients with which
the producer has contracted to take the carbon dioxide streams hold UIC
permits for the underground injection of carbon dioxide. 

Response: See responses to Comments 3.2.3 and 3.2.4. Under the
conditions in this final rulemaking, if a generator decides to make use
of the conditional exclusion, the excluded CO2 stream must be injected
into a UIC Class VI well, which is the only class of UIC well EPA
considered in its proposed conditional exclusion.  EPA acknowledges that
under the commenter’s scenarios, in particular where CO2 streams for
which the conditional exclusion is being claimed are put into a CO2
pipeline that has the potential to deliver to both UIC Class II and UIC
Class VI wells (a scenario that EPA notes does not exist at this time),
a generator claiming the conditional exclusion might not be able to
confirm with certainty that their CO2 stream was injected into a UIC
Class VI well.  However, this should not prevent EPA from proceeding
with this final conditional exclusion rule, to provide certainty on
near-term CCS projects by providing the option of a conditional
exclusion specific to UIC Class VI well injection.  Nonetheless, as EPA
has responded elsewhere to this commenter, these examples illustrate why
EPA committed to an adaptive approach, so that the Agency may identify
and address new information and respond, including via rulemaking should
that be necessary.

Comment 3.2.7:

Under EPA’s newly promulgated regulatory scheme, those UIC permits
could be issued under Class I, Class II, Class V or Class VI. The
assurances that EPA discusses in the preamble as being provided by the
UIC Class VI program are provided as well by the other portions of the
UIC program. In promulgating the final Class VI rule, EPA reviewed the
operation of Class II EOR wells in comparison with Class VI wells and
provided for the application of appropriate requirements, including
requirements that govern the transition of Class II wells to Class VI
wells as and when appropriate. EPA also considered and provided for the
circumstances under which carbon dioxide streams could be injected into
permitted Class I and Class V wells [FN6: 75 Fed. Reg. at 77234
(December 10, 2010): “Today’s final rule provides minimum Federal
requirements for the injection of CO2 to protect USDWs from endangerment
as this key climate mitigation technology is developed and deployed. It
clarifies requirements that apply to CO2 injection for GS, provides
consistency in requirements across the US, and affords transparency
about what requirements apply to owners or operators”]. As EPA stated
in the preamble to the RCRA proposal, “[p]ursuant to § 1421(d)(2),
the UIC program requirements for all well classes, promulgated under the
authority of the [Safe Drinking Water Act], 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.” 76 Fed. Reg. at 48084 (emphasis added). Accordingly, EPA can
conclude for all UIC classes “that the elimination of exposure routes
through these requirements will ensure protection of human health and
the environment” and that RCRA requirements would not “provide any
substantial, additional protection for CO2 streams which . . . are
disposed in UIC [Class II or] Class VI wells.” 76 Fed. Reg. 48085.

The development of CCS technologies and the completion of experiments to
demonstrate the feasibility of GS in saline reservoirs stands at a
critical point, and the future of these technologies is clouded by
uncertainties—including primarily the lack of economic drivers.
Nevertheless, progress can be made by completing the ongoing experiments
involving GS in saline reservoirs as well as GS in combination with EOR.
In addition, further development will be substantially aided by the
incentives and opportunities provided for the anthropogenic production
of carbon dioxide streams for EOR operations. Given the other
uncertainties that hinder the progress of CCS and GS, EPA should avoid
imposing new uncertainties that will undercut the use of anthropogenic
carbon dioxide streams for EOR.

Response: EPA disagrees that it can conclude that the conditional
exclusion should apply equally to CO2 streams to be injected into Class
I, Class II, Class V and Class VI wells on the basis established by the
commenter.  While all classes of UIC wells are intended to protect USDWs
from endangerment, EPA strongly emphasizes that the requirements for
each UIC injection well class are designed to address the specific
practices and unique risks to USDWs posed by each specific well class. 
Taken to its logical conclusion, the commenter’s reasoning would
appear to eliminate the need for different well classes altogether.  
Instead, EPA developed the UIC Class VI requirements that are tailored
to the unique aspects of carbon dioxide injection for GS (e.g., large
CO2 injection volumes, the buoyant and mobile nature of the injectate,
etc.); in turn, EPA developed its RCRA conditional exclusion based upon
the condition that an owner or operator would inject the CO2 streams
into a UIC Class VI well (among other conditions).  EPA further explains
its reasons for focusing on UIC Class VI wells in this rulemaking in
response to comment 3.2.3.  In the event that a Class II or Class V well
transitions to a Class VI well pursuant to the requirements at 40 CFR
144.19, CO2 streams that are to be injected into the Class VI well may
then be eligible for the RCRA conditional exclusion.  Although outside
the scope of this rulemaking, for the reader’s reference, EPA notes
that a more detailed explanation of how existing classes of injection
wells are affected by the promulgation of the new UIC Class VI
requirements can be found in preamble to the final UIC Class VI rule
(December 10, 2008 Federal Register; 75 FR at 77243-46).

Regarding the comment describing the conditional exclusion as imposing
new uncertainties, EPA acknowledges the commenter’s concern regarding
the uncertainties associated with CCS.  EPA, through this rule, intends
to address some of those uncertainties, specifically the uncertainty
associated with managing these CO2 streams under RCRA subtitle C, for
CO2 streams sent to a Class VI well for purposes of GS.  

Comment 3.2.8:

We have expressed serious concerns about the final geologic
sequestration rules both separately in our comments on the proposed GS
UIC and GHG reporting rules and in our comments on the draft guidance
documents for the Class VI rule and together with other
Multi-Stakeholder Discussion (MSD) participants in our letter to you on
May 20, 2011. Nevertheless, if EPA adheres to its enunciated principles
and implements the program consistent with its intended design and
objectives, we believe that EPA’s final GS rules can provide a
workable framework for the development and deployment of carbon capture
and storage (CCS) as a key mitigation technology for achieving national
greenhouse gas reduction goals while prevent endangerment of underground
sources of drinking water (USDWs) and thereby protecting human health
and the environment.

		

Response: Where these comments relate only to the UIC Class VI
rulemaking and the greenhouse gas reporting rule, these comments are
outside the scope of this rulemaking.  If by “EPA’s final GS
rules” the commenter is referring to this RCRA conditional exclusion,
EPA acknowledges the commenter’s support for CCS.

Comment 3.2.9:

The Carbon Sequestration Council enthusiastically supports the following
statement that EPA presented in the preamble to this RCRA proposal:

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. 76 Fed. Reg. at 48077.

This letter and the attached detailed comments present our ideas and
recommendations for achieving this objective through the current
proposed rulemaking, and we have provided additional comments and
recommendations for achieving this important goal through the other
“[t]wo important EPA rulemakings that directly address GS
activities”—namely the GS UIC rule and the greenhouse gas reporting
rule for injection of carbon dioxide. We have strived and stand ready to
work with EPA and the other stakeholders interested in these rules to
achieve this announced goal while prevent endangerment of underground
sources of drinking water and protecting human health and the
environment.

Thank you for the opportunity to comment on the RCRA GS proposal. If you
have any questions or need any additional information about these
comments, please contact me at (see docket for contact information).

Response: EPA agrees with the commenter that regulatory certainty is
important to facilitate future deployment of CCS.  To the extent these
comments relate only to the UIC Class VI rulemaking and the greenhouse
gas reporting rule, these comments are outside the scope of this
rulemaking.

The remaining comments in this section (Section 3.2) were presented by
the commenter in table format (Table 1, see Docket ID:
EPA-HQ-RCRA-2010-0695-0084) and begin with a page number citation from
the Federal Register proposed rule, followed by a line space and then
the commenter’s specific comment(s) to EPA.

Comment 3.2.10:

EPA NPRM Statements pg 48077

A supercritical CO2 stream injected into a permitted UIC Class VI well
for purposes of GS is a RCRA solid waste…

 

The Environmental Protection Agency (EPA) should not determine that a
supercritical stream of captured gaseous carbon dioxide emissions is a
solid waste. Instead, EPA should state in the final notice that such
streams are not solid waste. 

The determination that carbon dioxide (CO2) streams are solid waste is
not supportable because captured CO2 streams are gaseous emission
streams that are not subject to EPA’s authority under the Resource
Conservation and Recovery Act (RCRA), RCRA §1004(27), 42 U.S.C.
§6903(27). The decision not to include uncontained gases within RCRA
section 1004(27) was made by Congress when it enacted RCRA. As noted in
the preamble with respect to the streams at issue here, “CO2 is first
captured from fossil-fueled power plants or other emission sources.”
75 Fed. Reg. 77230, 77233 (December 10, 2010) (emphasis added). In 1982,
EPA noted with respect to “fume incinerators” that “[f]ume
incinerators which are used to destroy gaseous emissions from various
industrial processes, for example, are not subject to regulation under
RCRA.” 47 Fed. Reg. 27520, 27530 (June 24, 1982). Clarifying, EPA went
on to state: “In general, the RCRA standards do not apply to fume
incinerators since the input is not identifiable as a solid waste,
according to the definition set forth in § 261.2.” 47 Fed. Reg. at
27530. The point is that “gaseous emissions” do not constitute solid
waste under RCRA. 

EPA reiterated and elucidated this point in 1987 in conjunction with its
“listing of two generic categories of wastes generated during the
manufacture of chlorinated aliphatic hydrocarbons as hazardous
wastes”. 54 Fed. Reg. 50968 (December 11, 1989). In the preamble to
the final rule, EPA explained that “[t]he proposed listing included
light ends, spent filter and filter aids, and desiccant wastes (49 FR
5313-5315).” 54 Fed. Reg. at 50969. But the final rule did not include
all of the “light ends” covered by the proposal. Instead, “[t]he
category of light ends [was] narrowed in scope in this final rule to
include only those light ends that have been condensed.” 54 Fed. Reg.
at 50969 (emphasis added). In explaining the reason for this change, EPA
noted that “[s]everal commenters objected strongly to the Agency's
proposal to list light ends which are in the gaseous state” even
though these were “condensable by currently feasible technology to
liquids at ambient temperature and pressure.” 54 Fed. Reg. at 50972.
EPA elaborated, saying: “Several commenters stated that the Agency
does not have authority under RCRA to regulate gaseous process
emissions, since these are not solid wastes (i.e., they are not
‘contained gaseous material’) as stated in the definition of solid
waste. See RCRA section 1004(27).” In the end, EPA concluded as
follows: 

“Upon reconsideration of this issue (with the benefit of the comments
received on the proposed rulemaking), EPA now believes our authority to
identify or list a waste as hazardous under RCRA is limited to
containerized or condensed gases (i.e., section 1004(27) of RCRA
excludes all other gases from the definition of solid wastes and thus
cannot be considered hazardous wastes).” 54 Fed. Reg. at 50973
(emphasis added). 

Thus, EPA did not follow through on its “proposal to list light ends
which are in the gaseous state but condensable by currently feasible
technology to liquids at ambient temperature and pressure” and only
listed light ends actually condensed into liquid form. As noted by EPA,
supercritical CO2 streams are not in liquid form. “EPA . . . decided
not to regulate these uncondensed light ends.” 54 Fed. Reg. at 50973.

Response: EPA disagrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are not solid waste. As EPA noted in the proposed rule,
the CO2 streams are delivered by pipeline and injected into UIC Class VI
wells for GS in a supercritical state, which EPA stated at proposal was
“…rather unique in that it has properties intermediate between a
liquid and a gas.” 76 FR at 48078. The scientific term used to
describe or define this supercritical state (i.e., when a substance is
at or above its critical temperature and critical pressure) is as a
“supercritical fluid.” The RCRA statutory definition of solid waste
specifically refers to “other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from
community activities . . .” While EPA has indeed interpreted the
meaning of specific terms listed, including “contained gaseous
material,” the RCRA definition of solid waste encompasses “other
discarded material” and does not speak to materials such as
supercritical fluids. Like the listed “solid, liquid, semisolid, or
contained gaseous material” specifically referenced, CO2 streams
sequestered for purposes of GS are “other discarded material” from
industrial and commercial operations and, therefore, are of a similar
kind to the other types of wastes specifically referenced by the
definition. They are, therefore, RCRA statutory solid wastes.

Comment 3.2.11:

EPA NPRM Statements pg 48077-78 

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 § 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.

EPA cannot universally consider captured CO2 gaseous emission streams to
be discarded when sent for either geologic sequestration (GS) or for use
in enhanced oil recovery (EOR) of hydrocarbons. CO2 is a commodity and
is used as a process input for EOR projects. It is used to pressure up
the target hydrocarbon reservoir and/or to reduce the miscibility of the
hydrocarbons themselves to enhance recovery through the production
wells. In addition, CO2 that is injected for long-term storage in saline
reservoirs is also susceptible to future production. Moreover, CO2
storage in underground reservoirs is done with a definitive and
beneficial purpose: to keep it from increasing atmospheric
concentrations of CO2, incurring very high costs in the process – with
commensurate benefits in mind. This is contrary to the plain meaning of
the phrase discarded material. CO2 that is used for EOR and CO2 used for
other industrial uses (such as freezing food/ carbonating beverages) and
CO2 sequestered underground are indistinguishable from a producer’s
standpoint. Therefore all CO2 should be treated the same. That is, CO2
is not “solid waste” and also not “hazardous” exhibiting none of
the toxicity characteristics. Other uses of CO2 will also emerge from
the numerous development efforts currently underway. Some of these
efforts are detailed by the Department of Energy (DOE) with respect to
its CO2 Use and Reuse research and development program:

“CO2 use and reuse efforts focus on pathways and novel approaches for
reducing CO2 emissions by developing beneficial uses for the CO2, such
as the conversion of CO2 to useable products and fuels, and other
breakthrough concepts that will mitigate CO2 emissions in areas where
geologic storage may not be an optimal solution. Applicable approaches
include:

*“Use CO2 as one of the feedstocks to produce chemicals (including
fuels and polymers) and find applications for the end products. 

*“Non-Geologic Storage of CO2 – Use CO2 from an effluent stream to
immobilize the CO2 permanently by producing stable solid material that
are either useful products with economic value or a low cost produced
material. This approach could be viewed as an effective carbon storage
method. 

*“Indirect Storage – Promote indirect carbon storage by removing CO2
in the air (such as enhanced photosynthesis) or by enhancing carbon
intakes in terrestrial vegetations and soils. 

*“Beneficial Use of Produced Water – for produced water from CO2
storage in saline formations, develop novel methods to use CO2 to react
with metallic ions to form less soluble carbonates that can be removed
– and then find useful applications for the desalinated water. 

*“Breakthrough Concepts – Develop novel applications of CO2 that
would limit its emissions into the air and novel approaches using
microbes that consume CO2 and other materials to produce useful products
or fuels. 

“Processes or concepts that undertake this CO2 reduction must take
into account the life cycle of the processes to ensure that additional
CO2 is not produced beyond what is already being removed from or going
into the atmosphere. Several other challenges exist in using/reusing
CO2. One involves determining how best to tap energy sources, since
turning CO2 into fuels and chemicals would require energy input. In
photosynthesis, solar energy is the obvious energy source. However, for
solar applications as well as other approaches such as chemical
processes or the use of microbes, consideration has to be given as to
how best to tap solar or other energy sources. Another challenge is to
find new reaction paths, including new catalysts and enzymes. This is
important for many approaches in using CO2 to make new products, such as
polymers. For some of these reactions, especially those involved in
biological systems, the rate of reactions need to be improved.”[FN1:
http://www.fossil.energy.gov/programs/sequestration/CO2_Use_and_Reuse.ht
ml (accessed on October 7, 2011)].

Response: See responses to Comments 3.2.2, 3.2.3 and 3.2.4.  EPA is not
addressing the status of all CO2 streams in this rulemaking. As stated
above, EPA acknowledges that CO2 is used for EOR and does not disagree
that CO2 can and does have a variety of commercial and manufacturing
uses (e.g., urea yield boosting, enhanced oil recovery, food processing
and packaging, beverage carbonation, and wine making). However, these
activities are beyond the scope of this final rule and do not affect the
regulatory status of CO2 streams when they are to be injected into UIC
Class VI wells for the purpose of GS.

The commenter is incorrect that the meaning of “discarded material”
is contrary to the fact that there are benefits and costs to discarding
material, including the sequestration of CO2 streams underground. That
there may be benefits and costs does not change the fact that
fundamentally, a decision to discard is being made when a CO2 stream is
sent to a UIC Class VI well for geologic sequestration purposes, with
the express purpose of isolating the CO2 so that it does not return to
the atmosphere. That decision to discard brings the CO2 stream within
the RCRA definition of solid waste.EPA acknowledges the commenter’s
references to various DOE research projects related to reuse of CO2.

Comment 3.2.12:

EPA NPRM Statements pg 48078

[fn 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.]

 

EPA should not simply dismiss the use of CO2 for EOR/EGR with a
footnote. It is important for EPA to clarify the status of captured CO2
emission streams in every context in which such streams might be used
because the same streams may be used for multiple purposes and sent to
diverse operations. Although it is probably not possible at this point
to indicate exactly how all of the potential carbon capture, utilization
and storage processes will ultimately evolve and work together, there
are anticipated scenarios that would create complications for the
proposed RCRA exclusion. It cannot be presumed that a single CO2
emission source will capture its CO2 stream and send it through a
dedicated pipeline to a single injection well operator with a Class VI
permitted GS project. It is anticipated that some operators of
facilities that capture CO2 emission streams will send those streams to
multiple operations, some of which may be GS operations while others
will be using the CO2 stream for ER and still other recipients may be
using the CO2 to produce various products. It is also anticipated that
some producers of CO2 streams will be connecting into a common carrier
CO2 pipeline where the streams will become commingled with other CO2
streams from various producers. In the near term, most of the recipients
of the CO2 will likely either be EOR operations or GS operations, but
eventually other uses of CO2 may emerge.

Response:  See responses to Comments 3.2.3 and 3.2.4.  

EPA agrees that it is not possible at this point to know how all of the
potential carbon capture, utilization, and storage processes will
ultimately evolve and work together.  EPA is committed to an adaptive
approach on CCS generally, so that the Agency may identify and address
additional information and respond, including via rulemaking, should
that be necessary.  EPA emphasizes that where additional information may
increase protectiveness, streamline implementation, or otherwise inform
the requirements for GS injection of CO2, EPA may need to evaluate
whether changes are necessary. 

Comment 3.2.13:

EPA NPRM Statements pg 48078

[fn 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.]

 

It is also expected that some CO2 recipient projects will have both EOR
Class II injection wells completed in oil and gas reservoirs into which
CO2 is injected for EOR and Class VI GS wells completed in saline
reservoirs that will be used for storage. In that case, the supplier of
the CO2 is not likely to have much control over whether any particular
CO2 stream or portion thereof is directed to Class II wells or Class VI
wells or divided between them.

Response:  See responses to Comments 3.2.3 and 3.2.4.  Under the
conditions in this final rulemaking, if a generator decides to make use
of the conditional exclusion, the excluded CO2 stream must be injected
into a UIC Class VI well, which is the only class of UIC well EPA
considered in its proposed conditional exclusion.  EPA acknowledges that
under the commenter’s hypothetical scenarios, in particular where CO2
streams for which the conditional exclusion is being claimed are put
into a CO2 pipeline that has the potential to deliver to both UIC Class
II and UIC Class VI wells (a scenario that EPA notes does not exist at
this time), a generator claiming the conditional exclusion might not be
able to confirm with certainty that their CO2 stream was injected into a
UIC Class VI well.  However, this should not prevent EPA from proceeding
with this final conditional exclusion rule, which provides the option of
a conditional exclusion specific to UIC Class VI well injection, and as
EPA has responded elsewhere to this commenter, these examples illustrate
why EPA is committed to an adaptive approach on CCS generally, so that
the Agency may identify and address additional information and respond,
including via rulemaking, should that be necessary.  EPA emphasizes that
where additional information may increase protectiveness, streamline
implementation, or otherwise inform the requirements for GS injection of
CO2, EPA may need to evaluate whether changes are necessary.

Comment 3.2.14:

EPA NPRM Statements pg 48078

[fn 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.]

 

To address the full range of utilization for captured CO2 emission
streams, EPA should discuss the status of all CO2 streams to clarify
whether those CO2 streams sent to EOR are subject to RCRA. These CO2
streams should not be subject to RCRA for the same reason that the
streams are captured gaseous emissions and therefore cannot be solid
waste. In addition, the CO2 used for enhanced recovery of any kind (ER)
is a process input. The CO2 is used both to reduce the miscibility of
the targeted hydrocarbons and to pressure up the reservoir. Furthermore,
CO2 streams used for ER are not discarded, and this is certainly true
for as long as the production field is in operation. (Captured CO2
streams used for food grade beverage carbonation and other purposes is
also not discarded.)

Response: See responses to Comments  3.2.1, 3.2.3 and 3.2.4.  .  

Comment 3.2.15:

EPA NPRM Statements pg 48078

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.

 

It will not be feasible for this determination to be made if a producer
of a CO2 stream cannot apply any of the established tests or criteria
for making the determination. For example, existing toxicity criteria
are not directly applicable to concentrations that would be present in
gaseous emissions. If EPA expects to require producers to make
assessments and determinations of toxicity for gaseous emission streams
of CO2, the Agency will need to develop an entire set of toxicity
criteria at least for all of the constituents that might be present in
CO2 streams. That might conceivably be done by reassessing each current
toxicity criterion for each such constituent, but it would not be
appropriate to simply presume that toxicity criteria based on ground
water releases from landfills would also be applicable to gaseous
emissions.

Response: The Agency recognizes that there are potential questions
associated with applying the RCRA definition of hazardous waste to
sequestered CO2 streams. EPA does not apply any significant technical
limitations on sampling and analyzing a CO2 stream, even if it has been
compressed to supercritical stage. Generators can conduct analyses to
characterize the physical and chemical properties of their CO2 streams,
e.g., whether the CO2 contains certain impurities, what the
concentrations of the impurities are, and whether the CO2 stream may be
corrosive, or apply their knowledge of the hazard characteristic of a
waste, in light of the materials or processes used in order to determine
whether a waste exhibits a RCRA characteristic. 

Comment 3.2.16:

EPA NPRM Statements pg 48078

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.

 

It is not a mystery as to why CO2 was not considered by these studies.
CO2 was not even a regulated air pollutant at the time of these studies.
See EPA’s endangerment decision: 

“Under the Clean Air Act EPA is responsible for addressing air
pollutants from motor vehicles. On April 2, 2007, the U.S. Supreme Court
issued its opinion in Massachusetts v. EPA,12 a case involving a 2003
order of the Environmental Protection Agency (EPA) denying a petition
for rulemaking to regulate greenhouse gas emissions from motor vehicles
under section 202(a) of the Clean Air Act (CAA).13 The Court held that
greenhouse gases were air pollutants for purposes of the Clean Air Act
and further held that the Administrator must determine whether or not
emissions from new motor vehicles cause or contribute to air pollution
which may reasonably be anticipated to endanger public health or
welfare, or whether the science is too uncertain to make a reasoned
decision. The Court further ruled that, in making these decisions, the
EPA Administrator is required to follow the language of section 202(a)
of the CAA. The Court rejected the argument that EPA cannot regulate CO2
from motor vehicles because to do so would de facto tighten fuel economy
standards, authority over which has been assigned by Congress to DOT.
The Court stated that ‘‘[b]ut that DOT sets mileage standards in no
way licenses EPA to shirk its environmental responsibilities. EPA has
been charged with protecting the public‘s ‘health’ and
‘welfare’, a statutory obligation wholly independent of DOT’s
mandate to promote energy efficiency.’’ The Court concluded that
‘‘[t]he two obligations may overlap, but there is no reason to think
the two agencies cannot both administer their obligations and yet avoid
inconsistency.’’ The Court remanded the case back to the Agency for
reconsideration in light of its findings.”[FN2: Proposed Rulemaking To
Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Proposed Rule, 74 Fed. Reg.
49454, 49459 (September 28, 2009).] 

In response to this decision, EPA has stated that “the Administrator
exercised her judgement, based on an exhaustive review and analysis of
the science, to conclude that ‘‘six greenhouse gases taken in
combination endanger both the public health and the public welfare of
current and future generations.’’ 74 FR 66496. The Administrator
also found ‘‘that the combined emissions of these greenhouse gases
from new motor vehicles and new motor vehicle engines contribute to the
greenhouse gas air pollution that endangers public health and welfare
under CAA section 202(a).’’ Id.[FN3: ‘‘Endangerment and Cause or
Contribute Findings for Greenhouse Gases Under Section 202(a) of the
Clean Air Act.’’ 74 FR 66496 (December 15, 2009)] 

Prior to these developments, there would have been no reason for EPA to
include CO2 captured for purposes of GS in either of its Regulatory
Determinations on the management and use of coal and other fossil fuel
combustion products, or in the underlying studies upon which those
determinations were based.

Response: The exemption at 40 CFR 261.4(b)(4) does not apply to CO2
streams captured for purposes of GS, for the reasons given in the
proposed rule preamble (76 FR at 48078), irrespective of why CO2 streams
were not included in either of Regulatory Determinations related to
wastes from the combustion of coal and fossil fuel.

Comment 3.2.17:

EPA NPRM Statements pg 48078

[fn 18] EPA notes that even if CO2 streams from the combustion of fossil
fuels were exempt from regulation as hazardous waste under §
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.

 

Notwithstanding the notation in footnote 18, it remains true that the
Bevill exemption does apply to CO2 generated from the combustion of
materials in boilers to generate steam for the purpose of generating
energy. The assertion that some other CO2 streams might not be subject
to the same exemption does not deprive the Bevill exemption of its
validity as to those CO2 streams that clearly come within the ambit of
that exemption. This provides yet another justification for excluding
all captured gaseous emission streams of CO2. Given that some of these
streams will be exempt anyway, it makes good sense to exclude all of the
streams ab initio as not constituting solid wastes. 

EPA must at least recognize and reaffirm that CO2 streams from the
combustion of fossil fuels are exempt from regulation as hazardous waste
under § 261.4(b)(4).

Response: See response to comment 3.2.16.

Comment 3.2.18:

EPA NPRM Statements pg 48078

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)).

 

This statement might conceivably raise potentially serious implications
about CO2 streams used for EOR because CO2 will remain in the previously
producing oil and gas formations when production is completed and the
filed operator plugs and abandons all of the production and injection
wells. Because the CO2 streams used as process input for EOR operations
are not discarded and not solid waste, there should never be any
question about the status of CO2 that remains contained in an oil and
gas reservoir following plugging and abandonment of the production and
injection wells for those operations. But EPA has not addressed the
status of CO2 used for EOR. EPA should clarify that these streams would
not ever be considered solid and hazardous waste either during EOR
operations or after the close of those production operations. It is
important for the producers of CO2 streams used for EOR to know that
those streams will not be subjected to RCRA requirements at any time,
including after EOR operations are completed. If CO2 streams sent to
Class VI wells are excluded as proposed, these streams used for EOR and
remaining contained in oil and gas reservoirs should also be addressed
in EPA’s final action. Again, we urge EPA to conclude that none of
these captured gaseous emission streams constitute solid waste. 

Placing this issue in another context, it is quite possible that an EOR
operator will receive captured gaseous emission CO2 streams to use for
EOR for a period of time, after which the operator will decide to
convert that project from being primarily an EOR operation to become
primarily a GS operation, transitioning the injection wells from Class
II to Class VI and then continue to operate for many years as a GS
operation. At the close of that operation, there should not be any
question as to whether the CO2 streams used for EOR prior to conversion
should be viewed any differently from the CO2 streams injected through
many of the same wells following their conversion to Class VI.
Uncertainties about how CO2 streams used for EOR will be treated under
RCRA will have a chilling effect on the willingness of both CO2
producers and EOR operators to use captured gaseous emission streams for
EOR. Instead, the overall program for the regulation of carbon capture,
utilization and storage of CO2 emission streams should be encouraging
and fostering the use and sequestration of those streams.

Response: As EPA noted in the preamble to the proposed rule, this
conditional exclusion is not intended to affect the regulatory status of
CO2 streams that are injected into wells other than UIC Class VI wells. 
EPA reiterates that these issues are beyond the scope of this final
rule, and EPA did not develop information for inclusion in the proposal
on well classes other than UIC Class VI wells.  However, in the interest
of public transparency and in light of the several public comments on
this issue, EPA does note that (based on the limited information
provided in the public comments) should CO2 be used for its intended
purpose as it is injected into UIC Class II wells for the purpose of
EOR/EGR, it is EPA’s expectation that such an injection process would
not generally be a waste management activity.  EPA would encourage
persons to consult with the appropriate regulatory authority to address
any fact-specific questions they may have regarding the status of CO2 in
situations that are beyond the scope of this final rule.

  

Comment 3.2.19:

EPA NPRM Statements pg 48078

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. 40 CFR 262.11(c)(2). [fn 21
Any persons claiming that a waste is nonhazardous, based on knowledge in
lieu of testing, should be prepared to substantiate this claim.] . . .
EPA acknowledges the commenters’ underlying concerns related to RCRA
characterization, and requests comment on this issue. 

 

EPA acknowledges that CO2 streams cannot be tested by any existing test
to determine whether those streams – even if a solid waste – are
hazardous. How is the capturer of a CO2 stream supposed to make this
assessment if the existing tests cannot be used? If a CO2 producer were
required to classify a material based on “knowledge” rather than
testing, what standard can be used to substantiate this claim? How then
can any claim be deemed valid or not in the absence of applicable
criteria? This is particularly pertinent because CO2 is something we
breathe day in and out without adverse effects, and we place large
quantities of it in massively consumed beverages and other food
products.

These streams are not going to demonstrate the characteristic of
ignitability or reactivity. Captured gaseous CO2 streams will not meet
either of the criteria set forth in section 261.22(a) of 40 CFR.
Moreover, pipeline operators will not accept a CO2 stream that would
prove corrosive to the pipelines used to transport these streams to
either EOR or GS operators. Consequently, these streams could only
potentially be considered to exhibit a toxicity characteristic. But
captured gaseous CO2 emission streams cannot be tested with the Toxicity
Characteristic Leaching Procedure, test Method 1311 in ‘‘Test
Methods for Evaluating Solid Waste, Physical/Chemical Methods,’’ EPA
Publication SW–846 as contemplated by section 261.24(a). Accordingly,
the producers of CO2 streams are left by EPA to determine whether a CO2
stream is toxic – presumably by assessing whether the gaseous CO2
emission stream contains any of the forty section 261.24(b) contaminants
at concentrations greater than those listed in that subsection. Nor are
those concentration levels directly applicable to supercritical CO2
streams. EPA cannot expect CO2 producers to be able to do that without
providing more detailed instructions on how that determination should be
made. Again, we recommend that EPA dispense with the need for developing
any such instructions by concluding that captured gaseous CO2 emission
streams do not constitute solid waste.

Response: EPA appreciates these commenters’ concerns regarding the
application of the hazardous waste regulations to supercritical CO2
streams being sequestered.  EPA believes these concerns exist as a
result of the unique circumstances associated with addressing the
applicability of RCRA to CCS at such an early stage in the development
of CCS.  However, it is important to note that EPA did not set out in
this rulemaking to conclude that those supercritical CO2 streams that
are solid wastes would, as a class, exhibit a RCRA characteristic. 
Indeed, EPA indicated in the proposed rule that it could not
unequivocally conclude that supercritical CO2 streams will never exhibit
any RCRA hazardous waste characteristic and commenters provided no
information to the contrary. Alternatively, EPA acknowledges that some
RCRA hazardous characteristics are unlikely to apply to a waste composed
of >90% CO2, such as ignitability (i.e., RCRA Waste Code D001).  EPA
acknowledges that additional guidance in determining when supercritical
CO2 streams would be defined as hazardous under the Toxicity
Characteristic may be useful, however EPA also notes that in light of
the early state of data development in this area, EPA intends to bring
additional clarity to the regulatory regime through this rule, by
establishing a conditional exclusion from the definition of hazardous
waste that would apply in the event a generator determines that its CO2
streams exhibit a RCRA hazardous characteristic, or, where a generator
chooses to comply with the conditional exclusion as a precautionary
matter, if they are unsure of the hazardous waste status of their CO2
stream. See also Responses to Comments 3.2.21 and 3.17.11.

With respect to the comment that EPA should conclude that captured
gaseous CO2 emission streams do not constitute solid waste, see Response
to Comment 3.2.2.

Comment 3.2.20:

EPA NPRM Statements pg 48079

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. 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. 

 

It is certainly true that any further regulation of CO2 streams is
completely unnecessary because the UIC regulations for all classes of
wells that might receive CO2 streams provide for all of the necessary
regulation. EPA has promulgated a comprehensive UIC program that
addresses CO2 injected for EOR as well as GS. Because of the
comprehensive scope of the UIC program, EPA’s RCRA requirements—to
the extent that any exclusion is adopted—should provide an exclusion
for any CO2 stream sent to any well that holds a valid UIC permit to
inject CO2. That should be sufficient to provide that the recipient is
covered within the UIC program, and EPA can rely on the UIC program
Directors to enforce the applicable requirements to assure proper
injection of those streams without trying to impose enforcement
responsibilities on the CO2 producer. EPA need not add all of the CO2
stream producers to the enforcement personnel in the UIC program,
thereby imposing on those producers all of the burdens and costs of UIC
program implementation meant to be shouldered by the respective UIC
program Directors and their agencies.

Response: See responses to Comments 3.2.7, 3.2.24 and 3.2.44.

Comment 3.2.21:

EPA NPRM Statements pg 48079

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. 

 

The presence of “sulfur dioxide (SO2), hydrogen sulfide (H2S), nitrous
oxides (NOX), carbon monoxide (CO), methane (CH4), other hydrocarbons,
or water vapor (H2O)” will not render a CO2 stream hazardous for
exhibiting the toxicity characteristic.  Only the “hazardous
contaminants in 40 CFR 261.24, such as arsenic, mercury, and selenium”
could do that, but it is not clear how CO2 producers should be assessing
their captured gaseous emission streams for the presence of these
contaminants.

Response: See response to 3.2.19.  Also, the preamble language from the
proposed rule cited by the commenter was part of a discussion on how the
Agency expects to obtain additional data on CO2 streams, and was
intended to describe the kinds of constituents that might be measured or
identified as part of the UIC Class VI requirement to characterize CO2
streams, which would include constituents that are not part of the
Toxicity Characteristic (as the commenter points out) as well as
constituents that are.  The point EPA was making was that these data
will allow EPA to gain a better understanding of the nature and
characteristics of captured CO2 streams generally, and not solely in the
context of the Toxicity Characteristic.  The Agency recognizes that
there are potential questions associated with applying the RCRA
definition of hazardous waste to sequestered CO2 streams.  Generators
can conduct analyses to characterize the physical and chemical
properties of their CO2 streams, e.g., whether the CO2 contains certain
impurities, and what the concentrations of the impuries are, or apply
their knowledge of the hazard characteristic of a waste, in light of the
materials or processes used in order to determine whether a waste
exhibits a RCRA characteristic. 

Comment 3.2.22:

EPA NPRM Statements pg 48079

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.

 

Some of this type of information is provided in the IOGCC report on
carbon dioxide pipelines. IOGCC, A Policy, Legal, and Regulatory
Evaluation of the Feasibility of a National Pipeline Infrastructure for
the Transport and Storage of Carbon Dioxide 21, Table 4 – “CO2
Stream Compositions from Various Processes” (September 2010)
(Attachment A). We understand that American Electric Power (AEP) intends
to submit data from its Mountaineer project [FN4:
http://www.aep.com/environmental/climatechange/carboncapture/ (accessed
on October 6, 2011)] that has already been submitted to the West
Virginia Department of Environmental Protection (DEP) and that Southern
Company intends to submit data from its Plant Barry capture process..

Response: EPA thanks the commenter for its response.

Comment 3.2.23:

EPA NPRM Statements pg 48079

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.

 

That is not true because EPA does not address the situation where a CO2
stream is captured and sent for either EOR or GS. Moreover, EPA has
proposed an illusory exclusion because the least noncompliance with the
DOT transportation requirements or the Class VI requirements could
result not only in a violation of those regulatory provisions but also
in a potential transformation of the CO2 stream into a hazardous waste
by negating its exclusion.

Response: EPA disagrees with the commenter. Regarding the comment about
CO2 streams “…sent for either EOR or GS…” EPA refers to its
responses to Comments 3.2.3 and 3.2.4. 

Regarding the comment about loss of the conditional exclusion, EPA
refers to its response to comments 3.2.24, 3.2.35, and 3.2.44.

Comment 3.2.24:

EPA NPRM Statements pg 48079

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.

 

It does not present a substantial risk, but the requirements for
compliance impose a virtual impossibility. As described by the DC
Circuit in its decision in Assn. of Battery Recyclers, Inc. v. EPA, 208
F.3d 1047, (D.C. Cir. 2000), the proposed provision “describes what is
not a solid waste, unless it complies with the other provision. But the
other provision . . . is an exclusion, and the consequence of not
complying with the provision is, of course, loss of exclusion. In other
words, read together, the provisions seem to say that something is not a
solid waste unless it is not excluded from being a solid waste. Lewis
Carroll would be proud.” 208 F. 3d at 1051.

Response:  EPA notes that the comment does not provide a basis for its
conclusion that “the requirements for compliance impose a virtual
impossibility.” EPA believes that it is possible for generators and
UIC Class VI well owners or operators to comply with the conditions of
the conditional exclusion.  The conditions EPA is establishing for this
conditional exclusion largely follow existing requirements with which
persons must already comply – compliance with DOT provisions, and
injection into UIC Class VI wells in compliance with UIC Class VI
requirements (including a prohibition on mixing CO2 streams with
hazardous waste).  

 

Comment 3.2.25:

EPA NPRM Statements pg 48082

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.

 

Storage of CO2 before injection is extremely unlikely given the large
volumes we are talking about (multiple millions of tons per year for
commercial operations). Temporary on site storage of such volumes is
impractical. For example, the AEP Mountaineer project did not store CO2
after capture. It was either injected or sent back to the stack. The
plans for the 235 MW scale-up of that project also did not include an
option for storage of CO2 before injection.

Response: This comment (along with several others) supports EPA’s
conclusion in the proposed rule (see 76 FR at 48081-82) that storage
would not be expected to occur prior to delivery to a UIC Class VI
facility, because storage would be technically infeasible.

Comment 3.2.26:

EPA NPRM Statements pg 48082

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. 

 

As further explained by IOGCC: “The federal Pipeline Safety
Reauthorization Act of 1988 included a provision to regulate the safety
of CO2 pipelines. Pipelines that both ‘start and stop’ within a
state boundary are considered intrastate and would be regulated by the
state authority if that authority has adopted regulations that are at
least as stringent as the applicable federal safety regulations.
Pipelines traversing more than one state are interstate pipelines and
their safety is regulated by the Federal Pipeline and Hazardous
Materials Safety Administration (PHMSA) within the DOT. PHMSA also would
regulate those intrastate facilities within a state that has not adopted
regulations as stringent as federal safety regulations.” IOGCC, A
Policy, Legal, and Regulatory Evaluation of the Feasibility of a
National Pipeline Infrastructure for the Transport and Storage of Carbon
Dioxide 24 (September 2010) (citations omitted) (Attachment A).

Response: EPA consulted with DOT and confirmed that with respect to the
DOT regulations in 49 CFR Part 195 (which apply to pipeline facilities
used in the transportation of hazardous liquids or supercritical CO2),
while some states have adopted regulations that apply to the
transportation of supercritical CO2 and are certified by DOT to directly
regulate these intrastate pipelines, many states do not have such a
certification, and DOT remains the direct regulator of both interstate
and intrastate pipelines in those states.  EPA notes that state pipeline
regulations are required to be at least as stringent as the federal DOT
requirements; therefore, compliance with either the applicable DOT
regulations or the applicable certified state regulations has the same
effect under the proposed conditional exclusion. Because the proposed
condition at §261.4(h)(1) only referred to compliance with applicable
DOT regulations, EPA decided to modify the wording of the condition to
add language that also refers to compliance with “pipeline safety
regulations adopted and administered by a state authority pursuant to a
certification under 49 U.S.C. § 60105” to reflect situations where a
pipeline facility must comply with state, rather than federal,
regulation. Again, EPA is making this change in order to more accurately
describe how pipeline facilities are already regulated under applicable
pipeline regulations (be they state or federal). EPA also made a
conforming change to the related certification language so as to mirror
the revised condition in §261.4(h)(1).

Comment 3.2.27:

EPA NPRM Statements pg 48082

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.

 

This statement also makes an important distinction that should be
emphasized. Supercritical carbon dioxide is not considered or regulated
as a hazardous liquid under the PHMSA regulations. That distinction is
further emphasized in footnote 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.” 76 Fed. Reg. at 48082, n. 39.

It is important to emphasize this distinction to avoid the notion that
supercritical CO2 is regulated as a hazardous liquid. This problem and
solution are explained in a recent report from the Interstate Oil and
Gas Compact Commission: 

“Some confusion has arisen from the fact that regulations applicable
to CO2 pipelines are included under the heading entitled "Transportation
of Hazardous Liquids by Pipeline." 49 C.F.R. pt. 195. This led some
commentators to assume, erroneously, that CO2 is a "hazardous liquid"
under the regulations. This is not accurate. The Department of
Transportation proposed safety regulations for CO2 pipelines in 1989
precisely because the regulations governing transportation of "hazardous
liquids" did not apply to CO2. See Notice of Proposed Rulemaking,
"Transportation of Carbon Dioxide by Pipeline", 54 Fed. Reg. 41912
(October 12, 1989). The term " ‘hazardous liquid’ is defined at 49
C.F.R. § 195.2, and does not include carbon dioxide. Commentators were
concerned that including CO2 pipeline regulations under the section
heading for "hazardous liquids" would lead to confusion. In response,
the Office of Pipeline Safety said it had ‘no good reason to
dispute’ this notion, and indeed it agreed that carbon dioxide
‘should not be included in the definition of “hazardous
liquids”’. Id. Nevertheless, the Department said it would not change
the title heading ‘because it would result in an awkward title’ Id.
The distinction between carbon dioxide and hazardous liquids is
maintained at 49 C.F.R. § 195.0 which essentially provides that
‘[t]his part prescribes safety standards and reporting requirements
for pipeline facilities used in the transportation of hazardous liquids
or carbon dioxide.’ Id. (emphasis added) Although CO2 is listed as a
Class 2.2 (non-flammable gas) hazardous material under DOE regulations
(49 C.F.R. § 172.101), the agency applies nearly the same safety
requirements to CO2 pipelines as it does to pipelines carrying hazardous
liquids such as crude oil, gasoline, and anhydrous ammonia (49 C.F.R. §
195).’ IOGCC, A Policy, Legal, and Regulatory Evaluation of the
Feasibility of a National Pipeline Infrastructure for the Transport and
Storage of Carbon Dioxide 24-25, n.70 (September 2010).

Response: EPA acknowledges the comment, and does not believe that the
factual descriptions and citations of the DOT regulations applicable to
supercritical CO2 should result in any confusion as to how supercritical
CO2 is regulated by DOT.  EPA also notes that this final rule does not
change the status under DOT regulations of supercritical CO2, nor does
it change the manner in which supercritical CO2 is regulated by DOT.  

Comment 3.2.28:

EPA NPRM Statements pg 48082

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 system.

 

With CCS not required, the captured stream would be returned to the
stack and vented. If and when CCS is required, this is an issue that
will need to be addressed in regulations and/or permits. Temporary
storage of volumes generated during full scale operations will not
likely occur.

Response: EPA thanks the commenter for the information.. 

Comment 3.2.29:

EPA NPRM Statements pg 48083

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
onsite 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 detailed in an article by Philip Marston and Patricia Moore, the
regulatory status of CO2 pipelines under existing law “was settled
many years ago with respect to the Federal agencies charged with
economic regulation under the Natural Gas Act and the Interstate
Commerce Act, with findings that those statutes did not confer
regulatory jurisdiction over CO2 pipelines. The Bureau of Land
Management (BLM), on the other hand has been found to have the legal
authority to impose common carrier obligations on certain CO2 pipelines
that cross federal land. With regard to state law, the situation is more
complex, with varying forms of carriage responsibilities being imposed
on CO2 pipelines depending on a number of different factors.” P.
Marston & P. Moore, From EOR to CCS: The Evolving Legal and Regulatory
Framework for Carbon Capture and Storage, 29 Energy L. J. 421, 451
(2008) [See Attachment PDF on policy, legal, and regulatory evaluation
of feasibility of a national pipeline infrastructure for the transport
and storage of CO2 Docket ID: EPA-HQ-RCRA-2010-0695-0084]. 

Response: EPA thanks the commenter for the information. 

Comment 3.2.30:

EPA NPRM Statements pg 48083

EPA still requests comment on the appropriateness of applying the RCRA
subtitle C standards to these non-DOT regulated pipelines. 

 

EPA should not apply RCRA subtitle C standards to any pipelines
associated with the transportation of captured CO2 emission streams
because, as EPA has noted on numerous occasions, the pipeline
transportation of uncontained gaseous emissions is outside the
jurisdiction of RCRA. In addition, onsite piping will be covered by ASME
B31.1, which is included in the engineering standards for the
fabrication and installation of piping on-site. In accordance with ASME
B31.1, these pipelines are built to conform to a very protective set of
standards, and that additional regulation is not necessary. [FN4: “The
B31.1 code prescribes minimum requirements for the design, materials,
fabrication, erection, test, inspection, operation, and maintenance of
piping systems typically found in electric power generating stations,
industrial institutional plants, geothermal heating systems, and central
and district heating and cooling systems. The code also covers boiler
external piping for power boilers and high temperature, high pressure
water boilers in which steam or vapor is generated at a pressure of more
than 15 psig; and high temperature water is generated at pressures
exceeding 160 psig and/or temperatures exceeding 250 degrees F.”]

Response: EPA agrees that RCRA subtitle C standards should not be
applied to non-DOT regulated pipelines. While EPA acknowledges that ASME
standards are not by themselves regulatory requirements, these standards
(e.g., ASME B31) are designed to ensure that the piping and associated
equipment meet certain quality and safety criteria. In addition, that
these ASME B31 standards have been incorporated by reference in various
federal and state regulatory programs illustrates the high degree of
confidence and acceptance placed on these standards. Ultimately, EPA did
not find a compelling reason to require RCRA subtitle C standards to
on-site piping associated with supercritical CO2 streams. Regarding the
statement that “as EPA has noted on numerous occasions, the pipeline
transportation of uncontained gaseous emissions is outside the
jurisdiction of RCRA[,]” see Response to Comment 3.2.1.

Comment 3.2.31:

EEPA NPRM Statements pg 48083

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.

We do not think that non-pipeline transportation will be feasible for
any GS projects other than small scale pilot projects conducted for
experimental purposes or test injections conducted to determine the
appropriateness of a particular reservoir or formation to serve as an
injection zone. In these cases, as in the case of pilot scale Phase II
DOE Regional Carbon Sequestration Partnership projects, food grade CO2
will be trucked in for injection. The information on these projects is
available at the DOE NETL website. [FN6:
http://www.netl.doe.gov/technologies/carbon_seq/infrastructure/rcsp.html
(accessed October 5, 20110].

Response: EPA thanks the commenter for the information. 

Comment 3.2.32:

EPA NPRM Statements pg 48084

Pursuant to § 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. 

This statement reflects a fundamentally correct assessment of the UIC
program and provides a strong foundation for reframing any exclusion
that might be adopted to rely on the effectiveness of the UIC program in
its entirety—and not just Class VI—as the basis for any exclusion.
Thus, it should be sufficient to require that the producer of a CO2
stream send that stream to an injection well operator who holds a valid
UIC permit to inject CO2. That permit may be a Class II EOR permit, a
Class V experimental permit or a Class VI permit (or even conceivably a
Class I permit if the CO2 stream is a hazardous waste through being
combined with a listed hazardous waste stream). Under any of these
circumstances, the injection well operator will be under the control of
the UIC program and will hold a permit and be subject to requirements
that can be enforced by the UIC program Director as necessary.

Response: EPA disagrees that the conditional exclusion should be
extended to UIC well classes beyond Class VI, and refers to its response
to comment 3.2.7.

Comment 3.2.33:

EPA NPRM Statements pg 48084

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.

This statement reflects the nature of the determinations that EPA made
in promulgating the Class VI requirements. EPA also determined how these
requirements should relate to the Class II requirements for EOR wells
and established specific provisions for determining when the
requirements applicable to the operation of those wells should be
changed in order to provide the necessary protections of USDWs.
Accordingly, it is completely appropriate to rely on the UIC program
provisions applicable to any injection of CO2 streams.

Response: See response to comment 3.2.7.  

Comment 3.2.34:

EPA NPRM Statements pg 48084

[T]he 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.

 

By the same token, EPA decided that it was not necessary to apply the
same modifications to CO2 injection for EOR. There is no reason for EPA
to question that determination at this point and in this regulatory
provision.

Response: See response to comment 3.2.7.

Comment 3.2.35:

EPA NPRM Statements pg 48085

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.

 

This is a perfectly acceptable and completely justifiable requirement,
but one that is already achieved by the Class VI UIC requirements. 40
CFR 146.81(d) (emphasis added): “Carbon dioxide stream means 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. This subpart does not
apply to any carbon dioxide stream that meets the definition of a
hazardous waste under 40 CFR part 261.” This definition effectively
precludes the addition of a hazardous waste stream to a CO2 stream for
injection into a Class VI well.

Nevertheless, we do not oppose inclusion of the provision if it is
appropriately limited by recognizing that the hazardous waste resulting
from such a mixture is generated at the time of mixture and by whoever
does the mixing without eliminating the exclusion as applicable to any
previous producer or manager of the CO2 stream. This is important
because the CO2 producer cannot control the actions of subsequent
handlers of the CO2 stream.

Response: 

Regarding the comment that the UIC Class VI rule already prohibits the
mixing of hazardous waste with CO2 streams, see Response to Comment
3.1.13.

EPA can appreciate the commenter’s concern over the loss of the
conditional exclusion due to the actions of subsequent handlers of the
CO2 stream (in this instance, mixing of hazardous waste into the CO2
stream downstream of the “…previous producer or manager of the CO2
stream.”).  However, EPA maintains that the rule conditions, taken
together, ensure that the excluded CO2 streams are being managed in a
protective manner such that subtitle C regulations are not
necessary. EPA’s Office of Enforcement and Compliance Assurance
(OECA) is unable to provide definitive assurances outside the context
of a formal enforcement proceeding that the government will not proceed
with an enforcement response for a specific individual violation of an
environmental protection statute, regulation, or legal
requirement. However, EPA can (and has previously done so for other
RCRA rules) exercise discretion to decide when and how to respond or not
respond to a given violation, based on the Agency’s normal
priorities. In RCRA penalty actions, the factors that EPA considers in
assessing the gravity-based portion of the penalty are the potential for
harm and the extent of deviation from a statutory or regulatory
requirement. The penalty can be adjusted for numerous factors,
including good faith efforts to comply, degree of willfulness and
negligence, and history of noncompliance. Additional information can be
found in the 2003 RCRA Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf). 

EPA has also made revisions to the certification statement better
reflect actions over which each party has control. EPA has modified the
certification requirement in the final rule so that there are now two
separate certification statements worded slightly differently – one
for generators and another for UIC Class VI well owners or operators
claiming this conditional exclusion. EPA is making these revisions to
better reflect actions over which each party has control.  See EPA
response to comment 3.2.54.

Comment 3.2.36:

EPA NPRM Statements pg 48086

EPA is proposing that a certification statement be executed by an
authorized representative of the generator and the Class VI injection
facility owner/operator.

 

It is asking too much to expect these individuals or companies to assure
compliance by others not within their control with every regulatory
provision of each of these other regulatory regimes. It should be
sufficient for the capturer and injector to assure that the other links
in the chain have the necessary permits. Further enforcement should come
from the regulators implementing those programs.

Response: EPA agrees that it may be difficult for generators and UIC
Class VI well owners or operators to assure compliance by others not
within their control. Therefore, EPA has made revisions to better
reflect actions over which each party has control. EPA has modified the
certification requirement in the final rule so that there are now two
separate certification statements worded slightly differently – one
for generators and another for UIC Class VI well owners or operators
claiming this conditional exclusion. EPA is making these revisions to
better reflect actions over which each party has control.  See EPA
response to comment 3.2.54

Comment 3.2.37:

EPA NPRM Statements pg 48087

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.

 

The certification statement goes too far in the extent of policing that
is required of the certifying company. Producers of CO2 streams are not
in a position to police the compliance of transporters with all of the
applicable state or federal requirements. Nor can CO2 producers police
the compliance of Class VI injection well operators with all of the
individual requirements of Parts 144 and 146 of the UIC program
regulations. EPA has already undertaken extensive training to prepare
state and federal UIC program officials to carry out enforcement [FN7:
See http://water.epa.gov/type/groundwater/uic/class6/gsinformation.cfm
“Rule Implementation Workshops”]. It would be expecting too much for
CO2 producers to possess the same capabilities. Moreover, the imposition
of such an exacting compliance restriction really renders the exclusion
ephemeral. As worded, it could be argued that any instance of
noncompliance with the recently delineated 57 pages of individual Class
VI program requirements [FN8: Draft UIC Program Class VI Primacy
Application and Implementation Manual for State Directors, EPA
816-D-11-001 at Appendix A-3 through A- 60 (June 2011).] would
extinguish the exclusion and potentially expose the CO2 producer to the
full range of RCRA liability.

Response: See EPA responses to Comment 3.2.24, 3.2.35 and 3.2.54.

Comment 3.2.38:

EPA NPRM Statements pg 48087

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.

 

As noted previously, it is unrealistic to expect the CO2 producer to be
able to assure any more than that it has a contract for the operator of
a UIC injection well to receive and inject a specific quantity of CO2
into a well covered by a valid UIC permit to inject CO2. The expectation
that the type of assurance required by the proposed language could be
provided is unrealistic because transportation is as likely—if not far
more likely—to be through a common carrier pipeline as through a
dedicated pipeline running from a single source to a single recipient.

Response: See responses to comments 3.2.3, 3.2.4, 3.2.6 and 3.2.7.

Comment 3.2.39:

EPA NPRM Statements pg 48087

Finally, EPA requests comment on whether transporters, as well as
pipeline owners and operators, should also sign such a certification
statement. 

 

It is neither reasonable nor necessary to have transporters, pipeline
owners, or pipeline operators sign such a certification statement. It is
sufficient to rely on the state or federal officials who have
enforcement responsibility to police the transporters and pipeline
operators. Indeed, it is most unlikely that these CO2 streams will be
transported by means other than pipelines except when small quantities
are used in experimental wells, and most of those CO2 streams have been
food grade CO2 that will not be hazardous waste under any circumstances.

Response: 

EPA agrees that a certification by the transporter is not necessary, and
the final rule does not include a transporter/pipeline owner or operator
certification. First, if EPA were to require such a certification, under
the approach where EPA limits the scope of the certification to the
conditions within the control of pipeline owners and operators or other
transporters (the approach taken in the final rule for CO2 stream
generators and UIC Class VI well owners and operators), the
certification would essentially address: 1) compliance with applicable
DOT requirements, and 2) to not mix hazardous waste into the CO2
streams. Regarding compliance with DOT requirements, EPA is persuaded by
comments received on this issue that if persons transporting
supercritical CO2 must comply with the applicable transportation
requirements for all supercritical CO2 being moved, it seems unnecessary
to require that they certify compliance with DOT requirements for a
specific material (i.e., supercritical CO2 streams to be sequestered).
Regarding mixing with hazardous waste, EPA does not have information,
nor did commenters provide any new information, indicating that CO2
pipeline owners and operators or other transporters would mix hazardous
waste into CO2 streams being delivered to UIC Class VI facilities. EPA
expects that pipeline owners and operators engaged in delivering
supercritical CO2 have strong disincentives to mix any hazardous waste
into their pipeline system, both in order to honor their contractual
arrangement with customers, and also to maintain their equipment.  Also,
as EPA stated in the proposed rule premable, PHMSA requires that
pipeline owners and operators ensure that supercritical CO2 streams be
chemically compatible with the pipeline and any commodities in the
pipeline and will not corrode the pipeline and pipeline system.  For
these reasons, EPA does not see the need for a transporter
certification, and is not changing its proposed approach and
transporters and pipeline owners and operators will not be required to
sign a certification statement as a condition of the exclusion.

Comment 3.2.40:

EPA NPRM Statements pg 48087

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.

 

The extensive existing requirements of the UIC program are sufficient
and will be further supported by the requirements that will be routinely
imposed by pipeline operator specifications.

Response: As noted by this commenter, EPA had requested comment on what
additional monitoring, recordkeeping, and reporting requirements on the
CO2 stream composition would help ensure compliance with the condition
that hazardous waste is not be mixed with excluded CO2 streams. EPA
received several comments in response to this specific request, all
stating that additional monitoring, recordkeeping, and reporting
requirements were not necessary with respect to CO2 stream composition
and the condition that hazardous waste not be mixed with excluded CO2
streams.  Lacking any other information, EPA did not amend the final
rule to include any additional monitoring, recordkeeping, and reporting
requirements related to CO2 stream composition. See Response to Comment
3.2.55. 

Comment 3.2.41:

EPA NPRM Statements pg 48087

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 should not use this means to impose any content restrictions.

Response: EPA received very little substantive comment on its specific
request regarding whether adding a minimum CO2 content as an additional
condition would enhance compliance with the no mixture condition.
Therefore, lacking any other information, EPA did not amend the final
rule to include a condition in the final rule related to a minimum CO2
content as an additional condition to enhance compliance with the no
mixture condition.  One commenter injecting on-site (AEP) did provide
information on the monitoring of their CO2 streams, and stated that
additional monitoring requirements were not necessary, but did not
address the issue of setting a minimum CO2 content as part of the RCRA
rulemaking.  

Comment 3.2.42:

EPA NPRM Statements pg 48087

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.

 

It is neither reasonable nor necessary to have transporters, pipeline
owners, or pipeline operators sign such a certification statement. It is
sufficient to rely on the state or federal officials who have
enforcement responsibility to police the transporters and pipeline
operators. Indeed, it is most unlikely that these CO2 streams will be
transported by means other than pipelines except when small quantities
are used in experimental wells, and most of those CO2 streams have been
food grade CO2 that will not be hazardous waste under any circumstances.

Response: 

EPA agrees that a certification by the transporter is not necessary, and
the final rule does not include a transporter/pipeline owner or operator
certification. First, if EPA were to require such a certification, under
the approach where EPA limits the scope of the certification to the
conditions within the control of pipeline owners and operators or other
transporters (the approach taken in the final rule for CO2 stream
generators and UIC Class VI well owners and operators), the
certification would essentially address: 1) compliance with applicable
DOT requirements, and 2) to not mix hazardous waste into the CO2
streams. Regarding compliance with DOT requirements, EPA is persuaded by
comments received on this issue that if persons transporting
supercritical CO2 must comply with the applicable transportation
requirements for all supercritical CO2 being moved, it seems unnecessary
to require that they certify compliance with DOT requirements for a
specific material (i.e., supercritical CO2 streams to be sequestered).
Regarding mixing with hazardous waste, EPA does not have information,
nor did commenters provide any new information, indicating that CO2
pipeline owners and operators or other transporters would mix hazardous
waste into CO2 streams being delivered to UIC Class VI facilities. EPA
expects that pipeline owners and operators engaged in delivering
supercritical CO2 have strong disincentives to mix any hazardous waste
into their pipeline system, both in order to honor their contractual
arrangement with customers, and also to maintain their equipment. Also,
as EPA stated in the proposed rule premable, PHMSA requires that
pipeline owners and operators ensure that supercritical CO2 streams be
chemically compatible with the pipeline and any commodities in the
pipeline and will not corrode the pipeline and pipeline system.  For
these reasons, EPA does not see the need for a transporter
certification, and is not changing its proposed approach and
transporters and pipeline owners and operators will not be required to
sign a certification statement as a condition of the exclusion.

Comment 3.2.43:

EPA NPRM Statements pg 48087

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. 

Such additional requirements are not necessary.

Response: While EPA agrees that new monitoring, recordkeeping or
reporting requirements are not necessary for pipeline owners or
operators, EPA has added a provision in the final rule for the signed
certification statement to be posted prominently on the signatory’s
publicly-available website, as discussed further in EPA’s Response to
Comment 3.2.55.

Comment 3.2.44:

EPA NPRM Statements pg 48087-88

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 § 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 [fn 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 setting up precisely the situation that the United States Court
of Appeals for the District of Columbia Circuit has forewarned would
likely be viewed as untenable. Assn. of Battery Recyclers, Inc. v. EPA,
208 F.3d 1047, 1051 (D.C. Cir. 2000): “The new § 261.4(a)(17) gave a
so-called ‘conditional exclusion’: if the provision's criteria were
met, reclaimed mineral processing secondary materials would not be
classified as solid waste. We have trouble making sense of these two
provisions. The first provision (§ 261.2(c)(3)) broadly describes what
is not a solid waste, unless it complies with the other provision. But
the other provision-§261.4(a)(17)-is an exclusion, and the consequence
of not complying with the provision is, of course, loss of exclusion. In
other words, read together, the provisions seem to say that something is
not a solid waste unless it is not excluded from being a solid waste.
Lewis Carroll would be proud.”

It is also worth noting that the exclusion under consideration in that
case was far less demanding of regulatory perfection than the one
proposed here. Assn. of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047,
1051-52 (D.C. Cir. 2000): As to the conditions set forth in §
261.4(a)(17), EPA's dividing line between “waste” and nonwaste is
the manner of storage. If the mineral processor stores secondary
material destined for recycling in tanks, containers, buildings, or on
properly maintained pads, the materials are not considered “solid
waste.” See id. § 261.4(a)(17)(iii), (iv). Given our assumption (and
that of the parties), if by-products and sludges exhibiting a
characteristic of hazardous waste are not stored in such a manner prior
to being recycled, they may be regulated as hazardous “waste.”

Response: In the first place, EPA is not quite certain what this comment
means.  However, based on the EPA preamble text to which the comment
refers, the Agency interprets this comment to mean that the conditions
of the rule that would render a waste not hazardous are not appropriate.
 In addition, the comment appears to say that the CO2 should not be a
hazardous waste for the generator if another person handling the waste
violates one or more of the conditions.  

EPA disagrees with the comment as the Agency understands it.  The
straightforward response is that the rule conditions, taken together,
ensure that the excluded CO2 streams are being managed in a protective
manner such that subtitle C regulations are not necessary. Therefore, it
follows that any management not in accordance with those conditions does
not qualify for the exclusion. 

Further, EPA’s Office of Enforcement and Compliance Assurance
(OECA) is unable to provide definitive assurances outside the context
of a formal enforcement proceeding that the government will not proceed
with an enforcement response for a specific individual violation of an
environmental protection statute, regulation, or legal
requirement. However, EPA can (and has previously done so for other
RCRA rules) exercise discretion to decide when and how to respond or not
respond to a given violation, based on the Agency’s normal
priorities. In RCRA penalty actions, the factors that EPA considers in
assessing the gravity-based portion of the penalty are the potential for
harm and the extent of deviation from a statutory or regulatory
requirement. The penalty can be adjusted for numerous factors,
including good faith efforts to comply, degree of willfulness and
negligence, and history of noncompliance. Additional information can be
found in the 2003 RCRA Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf).

EPA fails to understand the relevance of this comment's rather vague
reference to Association of Battery Recyclers, Inc., v. EPA, 208 F.3d
1047 (D.C. Cir. 2000) (“ABR”).  First, ABR applies to whether the
material in question is a waste or not.  This rule applies to material
that is a waste, but is not a hazardous waste.  Thus, the case is not on
point.  Second, nothing in ABR addresses whether a waste may lose its
non-hazardous designation (and become a hazardous waste), from the point
at which it is generated if either the generator or another person who
handles the material should violate one or more of the conditions.  

Comment 3.2.45:

EPA NPRM Statements pg 48088

EPA requests comment on the types and characteristics of substances that
are added to CO2 streams to enable or improve the injection process.

 

There are not current examples of substances that have been added to CO2
streams to improve injectivity. The language contained in the Class VI
rule has been included in recognition that substances have been added to
improve the injection process under other UIC well classes. The rule
preserves the ability to do this, subject to appropriate permit
conditions. A number of pilot and other projects have added tracers not
to improve injectivity, but to improve the monitoring and plume tracking
processes.

Response: EPA acknowledges the comment. 

Comment: 3.2.46

EPA NPRM Statements pg 48090

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.

 

The economic analysis conducted in support of the proposal is inadequate
and fails to consider the considerable costs that would be imposed on
CO2 producers if they are saddled with the burden to determine on a
regular basis the comprehensive compliance status of pipeline operators
and of Class VI injection well operators. As noted in these comments, it
is completely unrealistic and unreasonable to impose such burdens. But
it is also inadequate to estimate that the only cost of providing a
certification is the cost of typing and signing the forms. The current
formulation of the conditions would impose substantial auditing
requirements for anyone choosing to claim the proposed conditional
exclusion. We have not attempted to estimate the costs of conducting
such auditing, but we believe that the cost of requiring CO2 producers
to essentially enforce the Class VI UIC requirements will be substantial
and may run as high as 50 to 75 million dollars. The Ground Water
Protection Agency (GWPC) has estimated that “UIC funding may need to
be increased by as much as $75 million annually to effect full
implementation” of the Class VI UIC program.[FN9: GWPC, An Assessment
of State Needs for Regulating Geologic Sequestration of Carbon Dioxide
2-3 (2011) (Attachment C): “Based on an analysis of expected staffing
needs for states to implement the Class VI program, UIC funding may need
to be increased by as much as $75 million annually to effect full
implementation.”] As presently worded, the proposed exclusion would
require CO2 producers to undertake the same level of compliance
assessment, if not more.

Response:  EPA disagrees with this comment.  The Economic Assessment
document does not attempt to assess costs associated with CO2 producers
who may seek to determine the status of pipeline operators and Class VI
UIC injection well owner/operators because this is not a requirement of
the final rule.  Moreover, this conditional exclusion is voluntary, and
CO2 producers (generators) are not obligated to make use of this
conditional exclusion.  CO2 producers who choose to use the conditional
exclusion may conduct whatever level of oversight they believe
appropriate.

Comment 3.2.47:

pg 48092

Under existing RCRA statutory and regulatory requirements EPA must
conclude that captured gaseous emission streams of CO2 are not solid
waste for the reasons detailed throughout these comments.

Response: See EPA response to comments 3.2.1 and 3.2.2.  

Comment 3.2.48:

EPA NPRM Statements pg 48092

§ 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. 

If EPA insists instead on concluding that CO2 streams can be solid
waste, we recommend for the reasons stated above that the exclusion be
revised as follows:

§ 261.4 Exclusions.

(a) Materials which are not solid wastes. The following materials are
not solid wastes for the purpose of this part:

* * * * *

(26) Carbon Dioxide Stream Injected for Geologic Sequestration.

Carbon dioxide streams that are captured and transported for purposes of
injection into an underground injection well holding a valid permit for
the injection of carbon dioxide under the Underground Injection Control
Program of the Safe Drinking Water Act, are not solid waste, provided
the following conditions are met.

Response: EPA disagrees with the commenter’s suggested alternative
regulatory approach to exclude these CO2 streams from the definition of
solid waste, including when they are injected into any class of UIC well
“holding a permit for the injection of carbon dioxide[,]” and EPA
does not agree that an exclusion from the definition of solid waste for
CO2 streams injected into UIC Class VI wells is appropriate, for the
reasons EPA provides in response to comments 3.2.1, 3.2.2, 3.2.3, 3.2.4,
3.2.5 and 3.2.7. 

Comment 3.2.49:

pg 48093

Consistent with our comments, we recommend the following rewording:

(1) Carbon dioxide streams that meet all of the following conditions are
excluded from the definition of solid waste: 

Response: See response to comment 3.2.48.

Comment 3.2.50:

EPA NPRM Statements pg 48093

(i) Transportation of the carbon dioxide stream must be in compliance
with applicable Department of Transportation requirements;

 

This is not something that the capturer of CO2 can assure because it is
within the control of the pipeline operator. The capturer or producer
can only assure that the pipeline is [permitted]. It is not reasonable
to require the capturer or producer and the injection well operator to
police the transporter or pipeline operator. 

Consistent with our comments, we recommend the following revision:

(i) Transportation of the carbon dioxide stream must be by means
authorized in compliance with applicable Department of Transportation
requirements or alternatively applicable state pipeline requirements;

Response: With respect to the suggested alternative language addressing
‘applicable state pipeline requirements’ please see response to
comment 3.2.26.

Regarding the comment that compliance with DOT regulations is “…not
something that the capturer of CO2 can assure because it is within the
control of the pipeline operator” and the parallel suggested
regulatory language “by means authorized” EPA refers to its
Responses to Comments 3.2.35 and 3.2.54.

Comment 3.2.51:

EPA NPRM Statements pg 48093

(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;

 

This is not something that the capturer of CO2 can assure because it is
within the control of the Class VI injection well operator to assure
compliance with all of the requirements. The capturer or producer can
only assure that the injection well operation has obtained the necessary
Class VI permits. The assurance of compliance should reside with the
operator and the enforcement mechanisms of the UIC program. 

Consistent with our comments, we recommend the following revised
wording: 

(ii) Injection of the carbon dioxide stream must be in a well permitted
to inject carbon dioxide in compliance with the applicable requirements
for Underground Injection Control wells, including the applicable
requirements in 40 CFR parts 144 and 146;

Response: 

EPA disagrees with the commenter’s suggested alternative regulatory
approach to exclude these CO2 streams from the definition of solid
waste, including when they are injected into any class of UIC well
“permitted to inject carbon dioxide[,]” and EPA does not agree that
an exclusion from the definition of solid waste for CO2 streams injected
into UIC Class VI wells is appropriate, for the reasons EPA provides in
response to comments 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5 and 3.2.7.

Regarding the comment that compliance with applicable UIC Class VI
requirements is the responsibility of the well owner/operator under the
UIC program, and is “…not something that the capturer of CO2 can
assure because it is within the control of the Class VI injection well
operator…” EPA refers to its responses to Comments 3.2.35 and
3.2.54.  

Comment 3.2.52:

EPA NPRM Statements pg 48093

(iii) No other hazardous wastes may be mixed with, or otherwise
co-injected with, the carbon dioxide stream; and

 

Why does the language say “other” when it excludes CO2 streams? We
question whether “other” is appropriate. Otherwise, this is most
appropriate to require of the capturer or producer but only insofar as
the captured CO2 remains within the control of the producer.
Accordingly, we request a clear explanation that whoever combines a CO2
stream with a hazardous waste is the generator of the waste and this
does not cause the original producer of the CO2 stream to be subjected
to RCRA hazardous waste provisions if the CO2 stream has passed out of
the producer’s control.

Response: 

With respect to the comment requesting a clear explanation as to who is
the generator, under the approach described in the proposed rule for
implementing this conditional exclusion, the addition of hazardous waste
to a conditionally excluded CO2 stream at any point (including at a
point after it leaves the control of the capture facility) would result
in a loss of the exclusion back to the point of generation. EPA
maintains that the rule conditions, taken together, ensure that the
excluded CO2 streams are being managed in a protective manner such that
subtitle C regulations are not necessary.  

However, EPA can appreciate the commenter’s concern over the loss of
the conditional exclusion due to actions outside the control of the
generator.  While EPA’s Office of Enforcement and Compliance
Assurance (OECA) is unable to provide definitive assurances outside the
context of a formal enforcement proceeding that the government will not
proceed with an enforcement response for a specific individual violation
of an environmental protection statute, regulation, or legal
requirement, EPA can (and has previously done so for other RCRA rules)
exercise discretion to decide when and how to respond or not respond to
a given violation, based on the Agency’s normal priorities. In RCRA
penalty actions, the factors that EPA considers in assessing the
gravity-based portion of the penalty are the potential for harm and the
extent of deviation from a statutory or regulatory requirement. The
penalty can be adjusted for numerous factors, including good faith
efforts to comply, degree of willfulness and negligence, and history of
noncompliance. Additional information can be found in the 2003 RCRA
Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf).  

Regarding the commenter’s issue with the term “other,” EPA notes
that this comment appears to contradict the commenter’s opinion of
this condition (provided with caveats not related to the use of the term
“other” in Comment 3.2.35) (“This is a perfectly acceptable and
completely justifiable requirement, but one that is already achieved by
the Class VI UIC requirements.”).  Nonetheless, for other reasons –
primarily due to Agency concerns that the term ‘other’ may be
confusing – EPA decided to revise the wording of the condition and is
finalizing the following language: “No hazardous wastes shall be mixed
with, or otherwise co-injected with, the carbon dioxide stream.”

Comment 3.2.53:

EPA NPRM Statements pg 48093

(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:

 

The injection well operator can be expected to provide such a
certification for sole-sourced CO2 streams but not for integrated
streams received through a common carrier pipeline.

Consistent with our comments, we recommend rewording the certification
as follows:

(iv) Any generator of a carbon dioxide stream, and any Underground
Injection Control well owner or operator, who claims that a carbon
dioxide stream is excluded under paragraph (a)(26) of this section, must
have an authorized representative (as defined in 40 CFR 260.10) sign a
certification statement worded as follows:

Response: EPA disagrees with the commenter’s suggested alternative
regulatory approach to exclude these CO2 streams from the definition of
solid waste, including when they are injected into any class of UIC
holding a permit for the injection of carbon dioxide. EPA does not agree
that an exclusion from the definition of solid waste for CO2 streams
injected into UIC Class VI wells is justified, for the reasons EPA
provides in response to comments 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5 and
3.2.7.

Comment 3.2.54:

EPA NPRM Statements pg 48093

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.

 

This depends on how the language of the provision is revised. This is
not an appropriate certification to expect under the proposed language
because the assurances are beyond the capabilities of the responsible
persons.

Response: EPA agrees that it may be difficult for generators and Class
VI Underground Injection Control (UIC) well owners or operators to
certify to actions beyond their control.  Therefore, in the final rule,
the certification statement has been revised so that there are now two
separate certification statements worded slightly differently – one
for generators and another for UIC Class VI well owners or operators
claiming this exclusion.  As revised, the generator certification
statement reads as follows:

I certify under penalty of law that the carbon dioxide stream that I am
claiming to be excluded under 40 C.F.R. §261.4(h) has not been mixed
with hazardous wastes, and I have transported the carbon dioxide stream
in compliance with (or have contracted with a pipeline operator or
transporter to transport the carbon dioxide stream in compliance with)
Department of Transportation requirements, including the pipeline safety
laws (49 U.S.C. § 60101 et seq.) and regulations (49 C.F.R. Parts
190-199) of the U.S. Department of Transportation, and the pipeline
safety regulations adopted and administered by a state authority
pursuant to a certification under 49 U.S.C. § 60105, as applicable, for
injection into a well subject to the requirements for the Class VI
Underground Injection Control Program of the Safe Drinking Water Act.

As revised, the UIC Class VI well owner or operator certification reads
as follows:

I certify under penalty of law that the carbon dioxide stream that I am
claiming to be excluded under 40 C.F.R. §261.4(h) has not been mixed
with, or otherwise co-injected with, hazardous waste at the Underground
Injection Control (UIC) Class VI permitted facility, and that injection
of the carbon dioxide stream is in compliance with the applicable
requirements for UIC Class VI wells, including the applicable
requirements in 40 CFR parts 144 and 146.

EPA is making these revisions to better reflect actions over which each
party has control.  EPA emphasizes that these revisions do not change
how the conditional exclusion is implemented – that a CO2 stream that
is hazardous must meet all the conditions in 261.4(h)(1)-(4) to qualify
for and maintain the exclusion from the hazardous waste regulations.

Comment 3.2.55:

EPA NPRM Statements pg 48093

The signed certification statement must be kept onsite 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 statement.

 

Requiring production within 72 hours is too short. In addition, this
requirement should reflect modern electronic filing systems where a
paper copy may not be held in a file drawer. Making an electronic
document available and submitting it electronically should both be
allowed.

Response: EPA believes that 72 hours is sufficient time to provide a
copy of the certification statement, since the generator and UIC Class
VI well owner or operator should already have the statement on file.
However, in the final rule, EPA has added a provision for the statement
to be posted prominently on the signatory’s publicly-available
website, if such website exists.  As EPA made clear in the proposed
rule, one of its key concerns with the certification statement was to
ensure compliance with the terms of the conditional exclusion.  Posting
the signed certification statements on-line will promote compliance and
accountability by providing efficient access by regulatory authorities
and interested members of the public (consistent with the intent of the
RCRA Enhanced Public Participation Rule cited by one commenter) to the
exclusion certifications and the identities of the responsible
officials.  Moreover, EPA expects that posting the certifications
on-line will simplify the reporting obligation for the regulated
community because accessible internet posting obviates the need for a
regulatory agency to request a hard copy.

EPA notes that it is not requiring the creation of any new corporate or
other website.  Entities without a website thus would not be required to
post their certifications on-line.  EPA expects, however, that most, if
not all, affected entities already operate external websites to
communicate to the public and, therefore, the posting requirement will
be useful to regulators, the public, and the regulated community.  The
public disclosure of information is an increasingly common and important
regulatory tool.   In 2010, the Office of Management and Budget (OMB)
issued guidance with principles to assist agencies in using information
disclosure to achieve regulatory objectives,  and EPA believes that
regulatory information disclosure can cost-effectively improve
compliance and accountability.

American Electric Power (AEP)

Document ID: EPA-HQ-RCRA-2010-0695-0063 

Comment 3.3.1:

American Electric Power (AEP) appreciates this opportunity to provide
comments on the proposed regulation, “Hazardous Waste Management
System: Identification and Listing of Hazardous Waste: Carbon Dioxide
(CO2) Streams in Geologic Sequestration Activities,” which was issued
by the agency on August 8, 2011, 76 Fed. Reg. 48073. The U.S.
Environmental Protection Agency (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, and AEP agrees, that this amendment to
the RCRA hazardous waste rules, if finalized, will reduce the
uncertainty associated with defining and managing these CO2 streams
under RCRA Subtitle C. EPA has stated in the proposed rule that it has
little information to conclude that CO2 streams would qualify as RCRA
hazardous wastes; therefore, AEP would like to take this opportunity to
provide the agency with information obtained from AEP’s experience
with sequestering and injecting CO2 streams, as well as comment on the
proposed rule.

AEP appreciates the efforts EPA has made to engage and meet with
stakeholders, not only during the Class VI rulemaking process, but also
during the development of the guidance documents to date. As you know,
AEP, along with its strategic partners, is a leader in the development
of technology to capture CO2 from flue gas emissions and inject the
resulting supercritical CO2 into deep subsurface formations for long
term storage. AEP’s pilot project for this technology is located at
the company’s Mountaineer Plant in New Haven, West Virginia. AEP is in
a unique position with its developing expertise to provide comments on
the proposed rule (attached) and hopes to continue this constructive
dialogue as future rules and guidance documents are developed and
issued.

If you have any questions or need any additional information regarding
these comments, please contact (see docket for contact information).

Response: EPA acknowledges the comment.

Comment 3.3.2:

Comments to EPA’s Preliminary Statements Regarding the Nature of the
Proposed Rulemaking

In EPA’s background to the proposed rule, EPA should consider adopting
or referring to the definition of geologic sequestration (GS) found at
40 CFR § 144.3 to describe the process of GS. By referring to the UIC
materials in the background information EPA can accurately characterize
the sequestration process since these terms were vetted through the UIC
rulemaking process.

Response: EPA does not see a need to define “geologic sequestration”
in the final conditional exclusion because one of the conditions is that
the excluded CO2 stream be sent to, and injected “incompliance with
the applicable requirements for Class VI Underground Injection Control
wells, including the applicable requirements in 40 CFR Parts 144 and
146” of the Underground Injection Control Program of the Safe Drinking
Water Act.”  

Comment 3.3.3:

2. EPA’s Application of RCRA to CO2 Streams Injected into Permitted
UIC Class VI Wells for Purposes of Geologic Sequestration is
Inappropriate and Unnecessary

EPA proposes that injected CO2 may be considered a hazardous waste for
RCRA purposes, if it exhibits any of the hazardous waste characteristics
found in 40 CFR Part 261, Subpart C. 76 Fed. Reg. at 48078. While AEP
believes that regulatory certainty in this area is critical to the
successful deployment of the GS technology, AEP does not agree that the
CO2 supercritical fluid should be assumed to be a hazardous waste.

Response: EPA disagrees with the commenter but notes that EPA does not
assume all CO2 supercritical fluid is hazardous waste.  In EPA’s view,
CO2 streams that are sent to UIC Class VI wells for purposes of GS are
RCRA solid wastes, and the RCRA hazardous waste regulations may apply to
CO2 streams in the absence of the conditional exclusion. However, EPA
does not conclude that supercritical CO2 streams that are solid wastes
would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated
in the proposed rule that it could not unequivocally conclude that
supercritical CO2 streams will never exhibit any RCRA hazardous waste
characteristic. Generators who are not managing a hazardous waste are
not obligated to make use of this conditional exclusion and are not
subject to the RCRA subtitle C regulations. 

Comment 3.3.4:

EPA notes “it has little information to conclude that CO2 streams
would qualify as RCRA hazardous wastes” and EPA does not have full
knowledge of the range of possible CO2 stream compositions (76 Fed. Reg.
48079). According to EPA, a supercritical CO2 stream injected into a
permitted UIC Class VI well for purposes of geologic sequestration (GS)
qualifies as a RCRA solid waste, as that term is defined in RCRA §
1004(27) by considering the stream to be a “discarded material”
within the plain meaning of the term. EPA acknowledges that the CO2
streams under consideration are not specifically identified in 40 CFR
Part 261, Subpart D as listed hazardous waste and the agency believes
that the stream could be classified as hazardous if it exhibited any of
the hazardous characteristics in 40 CFR Part 261, Subpart C. It is not
known how a supercritical gas could be tested to determine if it had any
of the hazardous characteristics, but EPA notes that the hazardous waste
regulations allow generators to apply their knowledge, in lieu of
testing, of the hazard characteristic of a waste, to determine whether
that waste is a characteristic hazardous waste under RCRA. In light of
the underlying concerns with characterizing this supercritical fluid,
EPA specifically requests comments related to RCRA characterization.

The Carbon Sequestration Council (CSC), of which AEP is a member,
addressed the issue of RCRA applicability for CO2 streams in its
comments on the agency’s proposed rule for geologic sequestration of
carbon dioxide under the Safe Drinking Water Act (SDWA) “Federal
Requirements Under the Underground Injection Control (UIC) Program for
Carbon Dioxide (CO2) Geologic Sequestration (GS)Wells,” 73 Fed. Reg.
4349 1-541 (July 25, 2008), Docket ID No. EPA–HQ–OW–2008–0390
[See Attachment PDF on Comments of the Carbon Sequestration Council on
Proposed UIC Program for Carbon Dioxide Geologic Sequestration Docket
ID: EPA-HQ-RCRA-2010-0695- 0063].

The CSC noted that in light of the current uses and potential future
uses of CO2 for enhanced oil/gas recovery, EPA had taken a sensible
approach by proposing to create a new Class VI well category based on
the injection of the CO2 stream as a fluid without characterizing that
stream as a waste. It was neither necessary nor helpful to categorize
CO2 as a pollutant or waste, and such a determination would have likely
proved detrimental to the development of CCS technology. The CSC was
concerned that EPA’s discussion of the potential for injected CO2
streams to be characterized as hazardous waste (or some type of
hazardous release) was causing apprehension and possibly having a
significant detrimental effect on any future deployment of carbon
capture and sequestration technologies. Through the work of engineers
and scientists familiar with capture technologies and the types of power
plant flue gases likely to be sources of CO2 for sequestration, the CSC
did not believe that captured CO2 streams should trigger the application
of RCRA. Accordingly, it encouraged EPA to dispel concerns that geologic
sequestration should be encumbered with those requirements.

AEP shares these concerns, agrees with the CSC position, reiterates
those comments here and encourages EPA to consider them as well. While
the agency is proposing an exemption from RCRA for injected CO2 streams,
the very consideration of such an exemption unnecessarily suggests that
these streams could be hazardous.

Response: In EPA’s view, a supercritical CO2 stream sent to a
permitted UIC Class VI well for purposes of GS is a RCRA solid waste,
because it is a “discarded material” within the plain meaning of the
term in RCRA §1004(27). Also, it is important to note that EPA did not
set out in this rulemaking to conclude that those supercritical CO2
streams that are solid wastes would, as a class, exhibit a RCRA
characteristic. As EPA indicated in the proposed rule, EPA could not
unequivocally conclude that supercritical CO2 streams will never exhibit
any RCRA hazardous waste characteristic. In light of these
circumstances, EPA thus seeks to bring additional clarity to the
regulatory regime through this rule, by establishing a conditional
exclusion from the definition of hazardous waste that would apply in the
event a generator determines that its CO2 streams exhibit a RCRA
hazardous characteristic. As EPA pointed out in the proposed rule,
analytical methods are available to characterize CO2 streams (76 FR at
48078). EPA also notes that the Class VI Rule has several different CO2
stream characterization requirements, that require sampling and analysis
(see 40 CFR 146.82(a)(7)(iv) and 146.90(a)). EPA notes that generators
who are not managing a hazardous waste are not obligated to make use of
this conditional exclusion and are not subject to the RCRA subtitle C
regulations. Finally, EPA made clear in the proposal that this final
rule does not reopen the UIC Class VI rule, and that EPA would not
respond to comments related only to that rule. To the extent that the
Carbon Sequestration Council’s (CSC) comments discussed by the
commenter relate to the UIC Class VI regulation, they are beyond the
scope of this rule. Consistent with this, EPA will also not provide
additional responses to the CSC’s comments on that rule, attached to
the AEP comments.

Comment 3.3.5:

Further, in its comments, the CSC noted that there were important
categorical determinations that EPA could and should make with respect
to the RCRA status of CO2. The CSC urged, and AEP again asks, EPA to
make these determinations as follows:

 

“First, EPA should clarify that gas-phase CO2 is not solid or
hazardous waste for RCRA purposes and is not subject to any RCRA waste
determination requirements. The RCRA definition of “solid waste”
does not include gaseous material unless it is “contained.” RCRA
1004(27), 42 U.S.C. 6903(27). EPA has long taken the position that
gasses do not qualify as “solid waste” under this definition unless
they are “contained” in a cylinder or similar container. 54 Fed.
Reg. 50968 at 50970, 50973 (December 11, 1989). It follows that
gas-phase CO2 streams are not solid waste, are not subject to the waste
determination requirements of 40 C.F.R. 262.11, and cannot be considered
hazardous waste for RCRA purposes. Second, EPA should clarify that
supercritical CO2 is not solid or hazardous waste for RCRA purposes and
is not subject to any RCRA waste determination requirements.”

Response: 

EPA disagrees with the commenter. First, the commenter’s discussion of
“contained gaseous material” is not on-point. Rather, as EPA noted
in the proposed rule, the CO2 streams that are delivered by pipeline and
injected into UIC Class VI wells for GS are in a supercritical state,
which EPA stated at proposal was “…rather unique in that it has
properties intermediate between a liquid and a gas.” 76 FR at 48078.
The scientific term used to describe or define this supercritical state
(i.e., when a substance is at or above its critical temperature and
critical pressure) is as a “supercritical fluid.” The RCRA statutory
definition of solid waste specifically refers to “other discarded
material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural
operations, and from community activities . . .” While EPA has indeed
interpreted the meaning of specific terms listed, including “contained
gaseous material,” the RCRA definition of solid waste encompasses
“other discarded material” and does not speak to materials such as
supercritical fluids. Like the listed “solid, liquid, semisolid, or
contained gaseous material” specifically referenced, CO2 streams
sequestered for purposes of GS are “other discarded material” from
industrial and commercial operations and, therefore, are of a similar
kind to the other types of wastes specifically referenced by the
definition. They are, therefore, RCRA statutory solid wastes. Second, as
was stated in the preamble to the proposed rule, GS is an option to
reduce CO2 emissions to the atmosphere by injecting the CO2 streams into
deep subsurface geologic formations, with the express purpose of
isolating the CO2 so that it does not return to the atmosphere (August
8, 2011; 76 FR at 48075). Therefore, EPA views these CO2 streams as
“discarded material” within the plain meaning of the term in RCRA
§1004(27). That is, a supercritical CO2 stream is a solid waste when it
is to be discarded through abandonment by disposing of the material in a
UIC Class VI well (see 40 CFR 261.2(a)(2)(i) and (b)(1)).   

EPA does not conclude that supercritical CO2 streams that are solid
wastes would, as a class, exhibit a RCRA characteristic. Indeed, EPA
indicated in the proposed rule that it could not unequivocally conclude
that supercritical CO2 streams will never exhibit any RCRA hazardous
waste characteristic. Generators that are not managing a hazardous waste
are not obligated to make use of this conditional exclusion and are not
subject to the RCRA subtitle C regulations. Moreover, because use of the
conditional exclusion is voluntary, even those generators who
characterize their streams as RCRA hazardous waste may continue to
manage their streams as RCRA hazardous wastes from the point of
generation. The only effect is upon those persons who choose to comply
with the terms of the conditional exclusion. Finally, EPA made clear in
the proposal that this final rule does not reopen the UIC Class VI rule,
and that EPA would not respond to comments related only to that rule. To
the extent that the Carbon Sequestration Council’s (CSC) comments
discussed by the commenter relate to the UIC Class VI regulation, they
are beyond the scope of this rule.

Comment 3.3.6:

The CSC went on to explain, and AEP agrees, that,

“the RCRA definition of solid waste is limited to “solid, liquid,
semi-solid, or contained gaseous material.” RCRA 1004(27). Because
supercritical CO2 is none of these things; a plain reading of the
statutory text suggests that supercritical CO2 should not be considered
“solid waste.” This reading of the statute makes sense, because RCRA
is primarily aimed at the kind of material that could end up being
dumped into a landfill. Uncontained supercritical CO2 is not such a
material. Instead, the physical properties of supercritical CO2 are such
that it would immediately vaporize – becoming an uncontained gas –
before it could contribute to the contents of a landfill. A related
practical consideration is the fact that the hazardous characteristics
– the broad waste determination criteria that provide a primary means
for determining when solid waste is hazardous waste – are based
largely on test methods that are inapplicable to materials such as
supercritical CO2. In particular, the toxicity characteristic depends on
test methods that can only be applied to materials that are solids or
liquids at standard temperatures and pressures. This is unsurprising,
because the toxicity characteristic was designed to assess the threat
waste would have in a municipal landfill disposal scenario, a scenario
that – as already discussed – is inherently inapplicable to
uncontained supercritical CO2. Accordingly, it makes no legal, policy,
or practical sense to treat uncontained supercritical CO2 as “solid
waste” for RCRA purposes. EPA should therefore confirm that
uncontained supercritical CO2 is not “solid waste” and is not
subject to RCRA waste determination requirements.”

“It follows that a CO2 stream would only qualify as “solid waste”
if it is actually in the form of a liquid (i.e., a liquid containing
dissolved CO2). In such a case, the liquid would meet the statutory
definition of “solid waste,” the requirement to perform a RCRA waste
determination would be triggered, and the familiar test methods for
waste determinations could be applied.”

AEP encourages the agency to reconsider the comments of CSC and to
confirm that it is not necessary to apply RCRA hazardous waste
determinations to CO2 streams intended for GS.

Response: See response to comment 3.3.5. As stated there, EPA noted in
the proposed rule that the CO2 streams are delivered by pipeline and
injected into UIC Class VI wells for GS in a supercritical state, which
EPA stated at proposal was “…rather unique in that it has properties
intermediate between a liquid and a gas.” 76 FR at 48078. The
scientific term used to describe or define this supercritical state
(i.e., when a substance is at or above its critical temperature and
critical pressure) is as a “supercritical fluid.” The RCRA statutory
definition of solid waste specifically refers to “other discarded
material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural
operations, and from community activities . . .” While EPA has indeed
interpreted the meaning of specific terms listed, including “contained
gaseous material,” the RCRA definition of solid waste encompasses
“other discarded material” and does not speak to materials such as
supercritical fluids. Like the listed “solid, liquid, semisolid, or
contained gaseous material” specifically referenced, CO2 streams
sequestered for purposes of GS are “other discarded material” from
industrial and commercial operations and, therefore, are of a similar
kind to the other types of wastes specifically referenced by the
definition. They are, therefore, RCRA statutory solid wastes. 

EPA recognizes that there are potential questions regarding the
application of the hazardous waste regulations to supercritical CO2
streams being sequestered. While EPA could develop a toxicity test
tailored for supercritical CO2 streams, that is not necessary for the
finalization of this rule. EPA does not apply any significant technical
limitations on sampling and analyzing a CO2 stream, even if it has been
compressed to supercritical stage. Generators can conduct analyses to
characterize the physical and chemical properties of their CO2 streams,
e.g., whether the CO2 contains certain impurities, what the
concentrations of the impurities are, and whether the CO2 stream may be
corrosive, or apply their knowledge of the hazard characteristic of a
waste, in light of the materials or processes used in order to determine
whether a waste exhibits a RCRA characteristic. EPA notes that the Class
VI Rule has several different CO2 stream characterization requirements
that require sampling and analysis (i.e., at 40 CFR 146.82(a)(7)(iv) and
146.90(a)), and EPA did not receive comments that indicated that meeting
these requirements would not be possible. 

Finally, EPA made clear in the proposal that this final rule does not
reopen the UIC Class VI rule, and that EPA would not respond to comments
related only to that rule. To the extent that the Carbon Sequestration
Council’s (CSC) comments discussed by the commenter relate to the UIC
Class VI regulation, they are beyond the scope of this rule.

Comment 3.3.7:

3. Status of AEP Mountaineer CCS Project

The AEP Mountaineer CCS project in New Haven, West Virginia, is no
longer in operation and plans for a 1.5 million metric tons per year
scale-up from an emission slipstream representing 235 MW, have been
cancelled. Because of AEP’s experience with the supercritical CO2
stream, we are providing the following information in response to
EPA’s request for comments regarding CO2 stream analytical data.

Physical and Chemical Characteristics of Captured CO2

EPA is requesting 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.
These data will allow EPA to gain a better understanding of the nature
and characteristics of captured CO2 streams and support a determination
by EPA that RCRA is inapplicable to these CO2 streams.

On September 30, 2009, prior to the start of CO2 injection at the AEP
Mountaineer project, five samples of the CO2 injection gas stream were
collected and analyzed for parameters of interest including CO2, oxygen
(O2), moisture, and ammonia (NH3). Results are provided in Table 2-1
[See PDF Docket ID: EPA-HQ-RCRA-2010-0695-0063]. Procedures specified in
United States Environmental Protection Agency (U.S. EPA) Method 3A (CO2
and O2), Method 4 (moisture), and CTM-027 (NH3) were used to determine
these parameters. Analyses for CO2 and O2 were performed onsite by Shaw
Environmental, Inc. using the MIDAC Fourier transform infrared analyzer.
NH3  analyses were performed by an off-site laboratory (ALS Laboratory
Group, Cincinnati, Ohio). Moisture is a calculated parameter.

Response: EPA acknowledges the comment. See Responses to Comments 3.3.9
through 3.3.16.

Comment 3.3.8:

Table 2-1 [See PDF Docket ID: EPA-HQ-RCRA-2010-0695-0063]

The chemical specification for the CO2 injection stream, as provided in
the Testing and Monitoring Plan (Battelle, 2009), is provided in Table
2-2 [See PDF Docket ID: EPA-HQ-RCRA-2010-0695-0063]. During the baseline
sampling event, all tested parameters were within their anticipated
operating range and met their design specification. CO2 levels in all
five samples exceeded the design specification of 99.7%, which is a
minimum limit during normal operating conditions. Moisture was below its
design specification of 0.2%, which is a maximum limit during normal
operating conditions. NH3 was below its design specification of 50 parts
per million by volume (ppmv), which is a maximum limit during normal
operating conditions. All of these data have been provided to the West
Virginia Department of Environmental Protection (WVDEP) through annual
and semiannual monitoring reports.

Table 2-2 [See PDF Docket ID: EPA-HQ-RCRA-2010-0695-0063]

Response: EPA acknowledges the comment.

Comment 3.3.9:

Sampling After CO2 Injection Began

Since the beginning of CO2 injection in October 2009, the injectate
stream has been sampled and analyzed on five occasions: January 27,
2010, April 6, 2010, June 16, 2010, December 21, 2010, and April 25,
2011. No testing/analysis of the CO2 stream was conducted during the
three-month period from October 2009 through December 2009 due to the
small amount of CO2 that was injected during this period. Similarly, a
sampling event was not conducted during the period from September
through November 2010 because the CO2 capture and injection system was
shut down for the annual monitoring and well workover event.

During this period, the MIDAC Fourier transform infrared analyzer was
not operating properly; therefore, analyses for O2 and CO2 were obtained
by off-site laboratory analysis (Isotech) of CO2 stream samples. Results
are reported on Table 2-3 [See PDF Docket ID:
EPA-HQ-RCRA-2010-0695-0063]. As indicated on Table 2-3, the CO2 content
of the injection stream was within the expected operational range (97%
to 99.7%) and above the design specification of 99.7%. Ammonia was below
its design specification of 50 ppmv. The moisture content of the CO2
stream was below its design specification of 50 ppmv.

Table 2-3 [See PDF Docket ID: EPA-HQ-RCRA-2010-0695-0063]

Response: EPA acknowledges the comment.

Comment 3.3.10:

4. On-site Storage of Captured CO2 Prior to Injection

EPA is requesting information on whether the agency’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 is requesting detailed
information on the duration and method of storage, and what existing
regulatory or voluntary controls and standards apply to such storage.
EPA is also requesting 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 is requesting comment and information on
the procedures that have been or are expected to be used during
maintenance and upset circumstances of a carbon capture system (76 Fed.
Reg. 48082).

During the operation of its CCS project in New Haven, WV, AEP did not
“store” the CO2 after it was captured from the flue-gas slip stream.
The CO2was sent directly from the compressor to the pipelines for
injection or was vented back to the stack. In addition, plans for a 235
MW commercial scale project did not include a storage unit for CO2 after
capture. Based on AEP’s experience, it is difficult to envision a
storage unit for CO2 due to the large volumes involved. In cases of
upsets or maintenance, it would be better to vent the CO2 back to the
stack.

Response: EPA thanks the commenter for the information, and agrees
(based on this and other public responses confirming EPA’s similar
expectations as discussed in the proposal) that the process of capturing
and compressing CO2 prior to delivery to a UIC Class VI facility, which
would likely occur via a pipeline, will not involve on-site storage at
the generator facility (i.e., at the CO2 source) but rather will occur
in a continuous fashion.

Comment 3.3.11:

5. Regulation of Pipelines that are not subject to DOT requirements

EPA has requested information on pipelines that are not subject to DOT
requirements, including any design and operating standards that apply to
such pipelines. EPA is also requesting information on the
appropriateness of applying RCRA subtitle C standards to these non-DOT
regulated pipelines. For its CCS project, AEP used piping that met ANSI
31.3 chemical process piping standards. The CO2 did not leave the plant
property, therefore DOT standards did not apply.

Response: EPA thanks the commenter for the information.

Comment 3.3.12:

6. Non-pipeline Transportation and Certification

EPA is requesting 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 a 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 (76 Fed. Reg. 48083). EPA should determine the likelihood
that supercritical CO2 will be a hazardous waste. AEP appreciates
EPA’s recognition of other regulatory programs that govern CO2
activities and its efforts to avoid duplication, but requiring a
certification amounts to a duplication of effort for the
generator/operator. See AEP’s monitoring comments below.

Due to the large volumes of CO2 that are handled during GS operations,
it would be preferable to use pipelines to transport the gas. The use of
trucks for CO2 transportation was not considered for the AEP GS projects
and pipelines are being constructed for Southern Company’s Plant Berry
project in Alabama. Pipelines are also the primary mode of bulk
transportation for EOR projects. Trucks can be used for small-scale CO2
test injections, but they are impractical for large scale projects
involving millions of tons of CO2 per year.

Response: EPA thanks the commenter for the information. 

EPA does not agree that the certification statement is a “duplication
of effort” for the generator/operator, as there is no similar
requirement of which EPA is aware, nor does the commenter describe
specifically how the certification statement is duplicative. 

Regarding the comment that EPA should “determine the likelihood that
supercritical CO2 will be a hazardous waste,” EPA notes that it is not
required to affirmatively demonstrate, as part of this rulemaking, that
a particular CO2 stream, or a portion of all CO2 streams, necessarily
qualifies as RCRA hazardous waste. EPA acknowledges that some RCRA
hazardous characteristics are unlikely to apply to a waste composed of
>90% CO2, such as ignitability (i.e., RCRA Waste Code D001).

 

See also responses to comments 3.3.3 and 3.3.13.

Comment 3.3.13:

7. Signature Requirements for Certification Statements

Use of a certification statement is to ensure compliance with the
conditions of the proposed conditional exclusion, EPA is requesting
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 § 270.11
(a)(1)(i), or, plant managers for facilities over a certain size as
defined in § 270.11 (a)(1 )(ii); by a general partner or proprietor
(for general partnerships or sole proprietorships, respectively) as
specified in § 270.11 (a)(2); or, for public agencies, the chief
executive officer, or certain other senior officers of that agency, as
defined in § 270.1 1(a)(3). Accountability and enforceability may be
improved when signatories to these types of certifications are at the
highest levels of an organization.

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 is, therefore, requesting
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 (76 Fed. Reg.
48087).  Injected CO2 is not hazardous; therefore, a certification
statement is not necessary. Current signatory requirements are
sufficient. If CO2 were mixed with hazardous waste prior to injection,
AEP would agree that RCRA requirements may be applicable, but EPA should
evaluate the likelihood of this scenario occurring and whether existing
regulations already apply to and discourage this practice.

Response: With respect to the signature requirements for certification
statements, it appears the commenter is quoting from EPA’s preamble
discussion on this issue, and then concludes (without explanation) that
“Current signatory requirements are sufficient.”  EPA received no
other comments specifically with respect to whether the certification
should be signed by persons as described in 40 CFR 270.11 (as required
for RCRA permit applications), rather than by “authorized
representatives” as defined in 40 CFR 260.10. Lacking any other
comments on this specific issue, EPA has decided to maintain the
proposed approach that certifications must be signed by “authorized
representatives” of the facility (in situations where the conditional
exclusion is being used).  Authorized representatives are defined as 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” and EPA
believes that as defined, these “authorized representatives” will
have both sufficient knowledge of, and responsibility for, the
facility’s operations to be able to certify that the conditions are
being met.

 

With respect to the commenter’s conclusion that “injected CO2 is not
hazardous” EPA disagrees with the comment. The comment does not
provide any basis for its conclusion, and as EPA has explained
elsewhere, the RCRA hazardous waste regulations can apply to CO2 streams
sent to UIC Class VI wells for geologic sequestration. Because of this
possibility, EPA is providing the final conditional exclusion, and has
included the certifications as a means to ensure compliance with the
terms of the exclusion. Moreover, as the commenter states, the RCRA
hazardous waste regulations could also apply as a result of mixing
hazardous wastes with CO2 streams. For similar reasons, then, EPA also
believes that a certification requirement is appropriate to ensure
compliance with the mixing prohibition in today’s rule. Thus, these
comments provide no reason for EPA to modify its approach.

While mixing hazardous wastes with CO2 streams is also prohibited by the
UIC Class VI rules, EPA notes that this final rule applies upstream of
the UIC facility; therefore, EPA believes that the certification can
help ensure compliance with the mixing prohibition by other entities
(e.g., the CO2 stream generator). This difference in scope exists
regardless of the likelihood of hazardous wastes being mixed with CO2
streams.

Comment 3.3.14:

8. Monitoring of CO2 Composition

EPA is requesting 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 (76 Fed. Reg. 48087).

Based on its experience with the Mountaineer CCS project in New Haven,
West Virginia, AEP believes that the CO2 monitoring program, developed
for the project, in conjunction with the West Virginia Department of
Environmental Protection, was adequate to ensure the integrity of the
injected CO2. This monitoring program required, among other analyses,
quarterly analysis of the carbon dioxide stream, continuous recording of
injection pressure, rate and volume, quarterly corrosion monitoring,
quarterly groundwater monitoring and additional monitoring as required
by the agency [See Attachment PDF on Appalachian Power Company
Mountaineer Plant Underground Injection Control Permit Docket ID
EPA-HQ-RCRA-2010-0695-0063]. Monitoring results were to be reported to
the agency on a semiannual and annual basis and any changes to the
physical, chemical or other relevant characteristics of the CO2 stream
were to be noted [See Attachment PDF on Appalachian Power Company
Mountaineer Plant Underground Injection Control Permit Docket ID
EPA-HQ-RCRA-2010-0695-0063]. Procedures were also established to report
any conditions which would have endangered underground sources of
drinking water, public health or the environment.

This testing was adequate to ensure the quality and integrity of the CO2
stream, which met the design criteria of 99.7% CO2 (see Tables 2-1 and
2-3) [See PDF Docket ID: EPA-HQ-RCRA-2010-0695-0063] and the PHMSA
requirements for the pipeline transportation of supercritical carbon
dioxide, which specifies a CO2 content of greater than ninety percent.
Groundwater testing included analysis of inorganic parameters, such as
calcium, magnesium and potassium, metals, such as aluminum, barium,
iron, and manganese, as well as alkalinity, DOC and pH. All chemical
analyses were to be performed by a West Virginia certified laboratory.
Had injection of the CO2 created a potentially hazardous condition due
to the leaching of metals, it would have been detected by the extensive
monitoring program designed for the project.

Monitoring records for the project, including the nature and composition
of all injected fluids, must be retained by AEP for the life of
injection and after injection cessation, unless they are delivered to
the agency. Permission for record disposal may be granted by the agency
upon request, however, the agency may extend the period of record
retention as its discretion [See Attachment PDF on Appalachian Power
Company Mountaineer Plant Underground Injection Control Permit Docket ID
EPA-HQ-RCRA- 2010-0695-0063]

Response: EPA thanks the commenter for the information.  See Responses
to Comments 3.2.40 and 3.2.41.

Comment 3.3.15:

9. Types and Characteristics of Substances Added to CO2 Streams

EPA has requested comments on the types and characteristics of
substances that are added to CO2 streams to enable or improve the
injection process. During the operation of its CCS project, AEP did not
add any substances to the CO2 stream to improve its injectivity.

Response: EPA thanks the commenter for the information.

Comment 3.3.16:

Conclusion

In addition to these comments, AEP also supports the comments submitted
to EPA on this proposed rule by the Edison Electric Institute, the
Carbon Sequestration Council, and the Utility Solid Waste Activities
Group or USWAG. AEP appreciates EPA’s intent to provide regulatory
certainty to the CO2 stream and GS technology. AEP requests that EPA
recognize that while the GS technology is still in the demonstration
phase there is analytical information available on the CO2 streams some
of which AEP is providing as part of these comments. This data indicates
that the CO2 streams do not pose the same risk as contemplated by RCRA.
AEP urges EPA to consider the information submitted herein and determine
whether the CO2 streams justify the imposition of management under RCRA.
A sufficient regulatory and operational structure exists to ensure that
hazardous wastes are not mixed with CO2 streams. AEP fears that further
regulatory requirements put upon the generator could have the unintended
effect of discouraging the deployment of these types of projects in the
future. AEP urges EPA to exclude CO2 streams from RCRA hazardous waste
regulations, but also recommends that the rule be revised as an
exclusion of CO2 streams from the definition of “solid waste”. Due
to their unique properties, coupled with the fact that they are not
“discarded,” CO2 streams cannot be considered “solid waste”.

Response: With respect to the comments from Edison Electric Institute,
the Carbon Sequestration Council, and the Utility Solid Waste Activities
Group or USWAG, please see responses to comments 3.15, 3.2, and 3.7,
respectively. With respect to the comment regarding the mixing
prohibition, see response to comment 3.3.13. EPA disagrees with the
commenter’s suggested regulatory approach to exclude these CO2 streams
from the definition of solid waste because CO2 streams that are injected
for purposes of GS in Class VI UIC wells are solid wastes for the
reasons stated in response to comment 3.3.5. With respect to the comment
that this rule could discourage the deployment of GS, EPA disagrees. EPA
notes that the conditional exclusion has a limited effect on the
regulated community directly and the exclusion imposes no affirmative
obligations upon them. The only effect is upon those persons who choose
to comply with the terms of the conditional exclusion. Moreover, EPA
believes this rule 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. Thus, EPA disagrees that it will have the effect of
discouraging the deployment of GS.

Finally, the commenter asks EPA to “consider the information
submitted…and determine whether the CO2 streams justify the imposition
of management under RCRA.”  The commenter states that the submitted
analytical data on the composition of their CO2 streams “indicates
that the CO2 streams do not pose the same risk as contemplated by
RCRA.”  While EPA acknowledges that the CO2 concentration in these CO2
streams is very high (97 to 99.7% CO2), EPA notes that these CO2 stream
composition data are limited (e.g., they do not include information on
potential concentrations of hazardous constituents). Regardless, if any
particular CO2 stream is a hazardous waste, RCRA subtitle C would apply
– but EPA has concluded that management of a hazardous CO2 stream
under the conditions in today’s rule is protective such that RCRA
subtitle C requirements are not necessary.

C12 Energy

Document ID: EPA-HQ-RCRA-2010-0695-0073

Comment 3.4.1:

C12 Energy firmly believes in thorough regulation of geologic carbon
dioxide (CO2) sequestration. As leaders in this industry, we will take
every step to ensure that CO2 is stored safely in geologic formations.
[FN1: C12 Energy is the leading CO2 storage project developer in the
United States. To date, we have secured CO2 storage rights to
approximately 400,000 acres of privately-owned land with 13 projects in
10 different states, corresponding to approximately 10 billion tons of
CO2 storage capacity distributed throughout the nation. To put this in
context, our sites are currently sufficient to permanently store CO2
emissions from approximately 15% of the nation’s fleet of coal plants
for the next 30 years, and we’re developing more capacity every day].
We consider the recently finalized UIC Class VI Rules to provide a
thorough regulatory system for CO2 storage, and strongly support the
proposed Hazardous Waste Management System: Identification and Listing
of Hazardous Waste: Carbon Dioxide (CO2) Stream in Geologic
Sequestration Activities (RCRA CO2 Conditional Exclusion or Conditional
Exclusion). As outlined in the comments below, the potential for
additional regulation of CO2 streams under the Resource Conservation and
Recovery Act (RCRA) would not provide any additional protections for
public health or the environment, but it would almost certainly create a
serious impediment to aggressive implementation of carbon sequestration,
which represents one of the most significant opportunities to reduce CO2
emissions in the United States. 

For the reasons outlined below, we strongly support the proposed CO2
Conditional Exclusion.

Response: EPA thanks the commenter for its support of the proposed rule.

Comment 3.4.2:

1 Introduction 

C12 Energy believes that risks associated with CO2 storage projects
should be minimized, especially at the early stages of the industry. As
a result of this view, we support the Class VI rules as they provide
appropriate protections – in fact, more stringent protections than
Class I rules – to prevent potential environmental harm associated
with CO2 sequestration.

 

As leaders in this industry, we are concerned that the uncertainty
surrounding whether CO2 streams would be subject to regulation under
RCRA Subtitle C would create a serious impediment to widespread
implementation of CO2 sequestration, which is essential to reduce U.S.
CO2 emissions. As EPA notes in the Proposed Rule: [F]ossil 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.[FN2: Proposed Rule, Section
III.B, Why is Geologic Sequestration Being Considered as Climate Change
Mitigation Technology?]

Commercial entities involved in the CCS industry, including utilities,
equipment manufacturers, pipeline operators, and others, are very
concerned about the potential for RCRA regulation of CO2 streams as it
creates significant regulatory uncertainty. In the absence of the
Conditional Exclusion, this uncertainty would act as a further barrier
to widespread implementation of CO2 storage without creating any
additional environmental benefit. However, as EPA recognizes in the
proposed rule, Class VI rules provide appropriate environmental
protections, and it is thus appropriate to conditionally exclude CO2
streams disposed of in injection wells permitted under the Class VI
program from RCRA Subtitle C. We strongly support the proposed rule as
it will accelerate the widespread deployment of CO2 sequestration and
thus greatly reduce our CO2 emissions.

Response: EPA acknowledges the comment. EPA believes this rule 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.  With
respect to the commenter’s statement that “the Class VI
rules…provide appropriate protections – in fact, more stringent
protections than Class I rules – to prevent potential environmental
harm associated with CO2 sequestration” EPA notes that each UIC well
class is designed for particular purposes, see response to comment
3.2.7.

Comment 3.4.3:

2 Authority for Conditional Exclusion 

2.1.1 Description 

EPA cites the following as authority for the Conditional Exclusion: 

* RCRA §§3001(a), 3002(a), 3003(a), 3004(a), 1004(5)(B) 

* Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998) 

* NRDC v. EPA, 25 F.3d 1063, (D.C. Cir 1994) 

* Edison Electric Institute v. EPA, 2F.3d 438 (D.C. Cir. 1993) 

* H. Rep. No. 94-1491, 94th Cong, 2d Sess. 6 (1976) [FN3: Proposed Rule,
Section IV.A. Authority for Conditional Exclusion from RCRA Subtitle C
Requirements].

We agree that these authorities and others provide EPA with the adequate
authority to promulgate the Conditional Exclusion.

2.1.2 Requested Changes 

Fully support; no changes requested. 

Response: EPA agrees with the commenter that under its interpretation of
RCRA, it has the authority to issue conditional exclusions from the
hazardous waste regulations. EPA’s authority to issue the rule is
described in section II.B. of the final rule preamble.

Comment 3.4.4:

3 CO2 Capture, Transportation, and Storage 

3.1.1 Description 

EPA requests further information on the process by which CO2 will be
captured, transported, and stored, particularly with regard to whether
CO2 will be stored at the point of capture and whether CO2 will be
transported in trucks or by pipeline. EPA notes that: 

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 -> compression/dehydration -> 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. [FN4: Proposed Rule,
Section IV.B, CO2 Streams Managed Prior to Underground Injection]. 

EPA goes on to observe 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 RCRA subtitle C requirements applicable to this activity.
[FN5: Proposed Rule, Section IV.B, CO2 Streams Managed Prior to
Underground Injection] 

* 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. [FN6: Proposed Rule, Section IV.B, CO2 Streams Managed
Prior to Underground Injection].

We make the following comments: 

* EPA is exactly right that the volumes involved in CO2 storage are
simply too large to allow for anything other than direct pipeline
transport. Commercial-scale CO2 storage volumes are too large for
on-site storage or transport by truck. [FN7: See
http://www.dakotagas.com/CO2_Capture_and_Storage/index.html].

* EPA is also right that any additional requirements for pipeline
transport would not improve public health and safety as the existing
PHMSA have proven effective in minimizing risks associated with CO2
pipelines, of which hundreds of miles of CO2 pipelines currently exist
in the United States. [FN8: See
http://petrolog.typepad.com/climate_change/2009/09/us-power-plant-emissi
ons-and-CO2-pipelines.html].

3.1.2 Requested Changes 

Fully support; no changes requested. 

Response: EPA acknowledges the comment and agrees (based on this and
other public responses confirming EPA’s similar expectations as
discussed in the proposal) that the process of capturing and compressing
CO2 prior to delivery to a UIC Class VI facility, which would likely
occur via a pipeline, will not involve on-site storage at the generator
facility (i.e., at the CO2 source) but rather will occur in a continuous
fashion. Regarding truck transportation, EPA notes that other commenters
stated that truck transport was either not considered (3.3.12) or was
used in a pilot or research (i.e., non-commercial) scale situations
(e.g., 3.2.31, 3.20.12) or would be used under very limited occurrences
(3.17.4).  Finally, EPA agrees that additional RCRA requirements for
pipeline transportation beyond the existing DOT requirements are not
necessary. As explained in section VI of the final rule preamble, the
changes EPA made to the condition on compliance with DOT regulations
only focused upon adding a reference to state pipeline regulations that
may apply in lieu of DOT regulations.  

Comment 3.4.5:

4 Class VI Rules Contain Appropriate Protections 

4.1 Description 

EPA notes that: 

[C]ompliance 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. [FN9: Proposed Rule, Section IV.C,
Underground Injection of CO2 Streams at UIC Class VI Wells]. 

EPA further states that: 

The Class VI rule … 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. [FN10: Id.]. 

 

EPA finally notes that: 

[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, form 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. [FN11: Proposed Rule, Section IV.E., Loss of
the Conditional Exemption].

 

EPA also proposes to add to the definition of CO2 stream “any
substances added to the stream to enable or improve the injection
process.” [FN12: Proposed Rule, Definition of “Carbon dioxide
stream”]. 

We fully agree and make the following comments: 

*UIC Class I, which would be the alternative regulatory system if CO2
streams were classified as hazardous, does not include the same level of
protection as Class VI particularly with regard to the Area of Review.
Under the Class VI Rules, Area of Review is determined with regards to
the maximum extent of the separate-phase plume or pressure front
(MESPOP) [FN13: Area of Review Guidance, p. 31,
http://water.epa.gov/type/groundwater/uic/class6/upload/GS_AoR_CA_Guidan
ce_DRAFT_FINAL_031611.pdf]. The Class I Rules contain no such detailed
description of Area of Review, and would likely result in an Area of
Review being defined using the default quarter-mile radius Area of
Review determination under Class I, which would be much less protective
than the delineation required under the Class VI Rules.

* The Class VI Rules contain other provisions particular to CO2
injection that would provide greater protection than would be provided
under the Class I program. For example, the Class VI rules provide
protections particular to CO2 buoyancy, monitoring to ensure appropriate
CO2 plume tracking, and potential corrective action associated with CO2
injection that would not be included were CO2 regulated under Class I.

Response: EPA thanks the commenter for its statements of support for the
cited EPA statements. The Class VI requirements are tailored to the
unique aspects of carbon dioxide injection for GS (e.g., large CO2
injection volumes, the buoyant and mobile nature of the injectate) and
EPA developed its RCRA conditional exclusion based upon injection in a
UIC Class VI well. See section V.C. of the final rule preamble for a
discussion of why EPA does not think it is appropriate to compare the
UIC Class I and Class VI requirements point-by-point.  However, if the
carbon dioxide stream is considered to be hazardous and does not meet
the requirements of the conditional exclusion, it would need to be
disposed of in a manner appropriate for hazardous waste, such as
injection into a Class I hazardous waste well.  Regarding the
comment’s citation to EPA’s discussion on the loss of the
conditional exclusion, see response to comment 3.4.6. Regarding the
phrase, “any substances added to the stream to enable or improve the
injection process,” see response to comment 3.4.7. 

Comment 3.4.6:

* The Conditional Exclusion is predicated on appropriate management of
the CO2 stream under Class VI, and we fully agree that a breach of the
UIC permit – in particular, the migration of the CO2 beyond the Area
of Review – should result in a loss of the exclusion. It may be
difficult to manage a CO2 stream that migrates beyond the Area of
Review, and in such a case, full regulatory authority, including RCRA,
should apply to that stream. Consequently, we request that EPA expressly
recognize the loss of the exclusion if a CO2 stream migrates beyond the
Area of Review.

Response:  A CO2 stream must meet all the conditions to qualify for and
maintain the exclusion from the definition of hazardous waste, including
the condition that 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.

Comment 3.4.7:

* It may be necessary to add substances to the CO2 stream to improve
injectivity, including substances to reduce viscosity, inhibit reactions
with brine or formation rocks, or otherwise improve permeability.
Consequently, we fully support the addition of “substances added to
the stream to enable or improve the injection process” to the CO2
stream definition.

Response: EPA clarifies that any addition of substances to CO2 streams
to enable or improve the injection process would be occurring as part of
the UIC Class VI permitted activity (subject to that program’s
oversight) and thus ultimately implemented in a manner to prevent the
endangerment of underground sources of drinking water. EPA notes that
this rule’s definition of carbon dioxide stream is consistent with the
one in the UIC Class VI final rule, in order to provide the regulatory
clarity sought through this rule. It is from the UIC Class VI rule
definition of “CO2 stream” that this phrase is drawn. 

Comment 3.4.8:

4.2 Requested Changes 

We request that the proposed rule expressly recognize that the
Conditional Exclusion is revoked if a CO2 stream migrates beyond the
Area of Review as determined under the Class VI permitting program.

Response: See response to comment 3.4.6.

Comment 3.4.9:

5 Necessary Changes 

We fully support the Conditional Exclusion for the reasons stated above.
We, however, request the following necessary revisions to improve the
Proposed Rule. 

5.1 Listed Wastes 

5.1.1 Description 

The Proposed Rule states in several places that the Conditional
Exclusion applies to characteristic wastes. For example, EPA notes that:


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. [FN14: Proposed Rule, Section IV.C.4,
Underground Injection of CO2 Streams at UIC Class VI Wells, Subtitle C
Corrective Action]. 

5.1.2 Necessary Changes 

The Conditional Exclusion should not only apply to CO2 streams that may
meet the definition of a characteristic waste but also streams that
include incidental substances that may be listed wastes. Consequently,
the Proposed Rule should remove any reference to characteristic wastes
unless also accompanied by a reference to listed wastes.

Response: EPA’s discussion in the preamble to the proposed rule does
reference characteristic hazardous wastes because as EPA explained at
proposal, there are no listed hazardous CO2 streams and the only way EPA
can foresee a listing as applying to a CO2 stream is where prohibited
mixing occurs, which would be a violation of one of the conditions (thus
the exclusion would not apply).  Based on the information EPA used in
developing the proposed rule, as well as information obtained in public
comments, EPA does not anticipate incidental associated substances that
are derived from the source materials, which are captured together with
the CO2, to be listed hazardous wastes.  See also response to comment
3.28.1.

Comment 3.4.10:

5.2 Pipeline certification 

5.2.1 Description 

EPA proposes to require any generator of a CO2 stream who claims the
Conditional Exclusion to certify that the stream meets the conditions of
the exclusion, including “the prohibition on mixing hazardous wastes
with the CO2 stream.” [FN15: Proposed Rule, Section IV.D, Prohibition
on Introduction of Other RCRA Hazardous Wastes]. 

EPA further requests comment on “whether transporters, as well as
pipeline owners and operators, should also sign such a certification
statement.” [FN16: Id]. 

We fully support the certification requirement as it is necessary to
ensure unscrupulous operators do not seek to sidestep appropriate
regulation by purposefully mixing hazardous wastes into a CO2 stream. We
further support a requirement that the pipeline operator, or other CO2
transporter, sign a similar statement as it is necessary to ensure that
such wastes are not inappropriately mixed into the CO2 stream. Absent
such certifications by both generators and pipeline operators, a CO2
storage operator would face an undue burden of demonstrating that
hazardous wastes had not been inappropriately mixed into the CO2 stream.


5.2.2 Necessary Changes 

Require the pipeline operator, or other transporter of the CO2 stream,
to certify that hazardous wastes have not been purposefully mixed into
the CO2 stream.

Response: The final rule maintains the condition that the generator and
the UIC Class VI well owner or operator each sign a certification
statement, which have been revised so that each party certifies to
actions over which they have control. However, EPA disagrees that a
certification by the transporter or pipeline owner or operator is
necessary. First, if EPA were to require such a certification, under
the approach where EPA limits the scope of the certification to the
conditions within the control of pipeline owners and operators or other
transporters (the approach taken in the final rule for CO2 stream
generators and UIC Class VI well owners and operators), the
certification would essentially address: 1) compliance with applicable
DOT requirements, and 2) to not mix hazardous waste into the CO2
streams. Regarding compliance with DOT requirements, EPA is persuaded
by comments received on this issue that if persons transporting
supercritical CO2 must comply with the applicable transportation
requirements for all supercritical CO2 being moved, it seems unnecessary
to require that they certify compliance with DOT requirements for a
specific material (i.e., supercritical CO2 streams to be
sequestered). Regarding mixing with hazardous waste, EPA does not have
information, nor did commenters provide any new information, indicating
that CO2 pipeline owners and operators or other transporters would mix
hazardous waste into CO2 streams being delivered to UIC Class VI
facilities. EPA expects that pipeline owners and operators engaged in
delivering supercritical CO2 have strong disincentives to mix any
hazardous waste into their pipeline system, both in order to honor their
contractual arrangement with customers, and also to maintain their
equipment. Also, as EPA stated in the proposed rule premable, PHMSA
requires that pipeline owners and operators ensure that supercritical
CO2 streams be chemically compatible with the pipeline and any
commodities in the pipeline and will not corrode the pipeline and
pipeline system.  For these reasons, EPA does not see the need for a
transporter certification, and is not changing its proposed approach and
transporters and pipeline owners and operators will not be required to
sign a certification statement as a condition of the exclusion.

Natural Resources Defense Council (NRDC) 

Document ID: EPA-HQ-RCRA-2010-0695-0082

Comment 3.5.1:

A. Introduction

The Natural Resources Defense Council and Environmental Defense Fund
thank the United States Environmental Protection Agency (EPA) for the
opportunity to comment on the proposal 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.

The Natural Resources Defense Council (NRDC) is a national, nonprofit
organization of scientists, lawyers and environmental specialists
dedicated to protecting public health and the environment. Founded in
1970, NRDC has more than 1.2 million members and online activists
nationwide, served from offices in New York, Washington D.C., San
Francisco, Los Angeles, Chicago and Beijing.

The Environmental Defense Fund (EDF), founded in 1967, is a non-profit
organization that represents more than 500,000 members. EDF links
science, economics and law to create innovative, equitable and
cost-effective solutions to society’s most urgent environmental
problems.

Response: EPA thanks the commenter for the information. 

Comment 3.5.2:

NRDC and EDF continue to believe strongly that geologic sequestration of
CO2 (GS), correctly implemented, must be a component of the U.S. climate
mitigation portfolio. We have supported deployment of CCS technologies
and have shared the objective of establishing economic incentives for
the technology.

Deployment of CCS must, however, take place safely and effectively
without threatening human health or the environment. The governing
regulatory framework is of primary importance to that effect. We have
been actively working with EPA and other entities to ensure that the
rules and regulations that govern CCS ensure that it is performed safely
and effectively, without posing unacceptable risks. Ultimately, we
believe that proper regulation is in the interests of CCS development,
as it assures the public of adequate oversight and guards against
sub-standard projects that could jeopardize further deployment.

Response: EPA agrees that the geologic sequestration of CO2 in Class VI
UIC wells should be done safely and effectively without threatening
human health or the environment and that a consistent regulatory
approach to GS will help facilitate development and deployment of CCS
technologies in the United States. EPA intends to bring additional
clarity to the regulatory regime through this rule, by establishing a
conditional exclusion from the definition of hazardous waste.

Comment 3.5.3:

Accordingly, we urge caution against using regulatory easements and
exemptions in order to facilitate the deployment of CCS technologies.
Unlike economic incentives that encourage deployment, regulatory relief
approaches carry a real danger of adverse environmental consequences.
Environmental statutes such as the Resource Recovery and Conservation
Act (RCRA) offer important safeguards and exemptions should not be
granted except in very specific situations.

Response: EPA agrees that RCRA provides safeguards to protect human
health and the environment. However, after consideration of public
comment, EPA has reached the conclusion that management of CO2 streams
under existing standards, including the UIC requirements for Class VI
wells, as well as DOT standards, will protect human health and the
environment from potential risks associated with CO2 streams (including
associated constituents that might be present). Additional RCRA subtitle
C regulation is, therefore, unnecessary in these circumstances. EPA
notes that this exclusion is specific to the terms outlined in the rule.

Comment 3.5.4:

B. General Comments

1. EPA correctly identifies supercritical CO2 as a solid waste.

EPA correctly identifies a supercritical CO2 stream injected in a Class
VI well as a solid waste under RCRA. [FN1: Federal Register, Vol. 76,
No. 152, Monday August 8, 2011, p. 48077 and p. 48079]. 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 […]”. [FN2: RCRA 1004(27), 42 U.S.C.
6903(27)]. Supercritical CO2 is a fluid that behaves like a gas but has
the density of a liquid. In addition, Class VI wells are defined as
“[w]ells that are not experimental in nature that are used for
geologic sequestration of carbon dioxide […]” [FN3: 40 CFR §146.5
(f)], where geologic sequestration is in turn defined as “the
long-term containment of a gaseous, liquid, or supercritical carbon
dioxide stream in subsurface geologic formations” [FN4: 40 CFR
§146.81(d).]. Thus, CO2 injected in Class VI wells clearly constitutes
“discarded material”.

Response: EPA agrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are solid waste. 

Comment 3.5.5:

C. Specific Comments on the Proposed Conditional Exemption

1. Prohibiting the mixing or co-injection of other hazardous wastes in
Class VI wells is appropriate, but also implies that subtitle C
regulation offers a greater degree of protection compared to Class VI
regulation.

If the proposed conditional exemption were to become final rule, EPA is
correct in prohibiting the intentional co-mingling of hazardous waste.
The purpose of Class VI regulations is not to permit the construction
and operation of hazardous waste disposal wells, but specifically the
injection of CO2 for geologic sequestration. However, in prohibiting the
intentional co-mingling of hazardous wastes, EPA is implicitly accepting
that regulation under subtitle C of RCRA and injection in Class I
Hazardous wells is indeed more appropriate for hazardous wastes than
regulation under Class VI of the UIC Program. This can only be the case
by virtue of subtitle C and Class I hazardous regulation offering
greater safeguards than Class VI. This becomes important in ways that we
outline directly below.

Response: EPA does not agree that the hazardous waste mixing prohibition
implies that UIC Class VI wells offer lesser safeguards than UIC Class I
hazardous waste wells, for CO2 streams that are the subject of this
conditional exclusion. This conditional exclusion is limited to a
specific, unique waste – CO2 streams that are hazardous waste
themselves (i.e., that exhibit a characteristic of hazardous waste due
to the presence of impurities) – therefore, EPA needed to make clear
that any other type of hazardous waste injection must continue to occur
in UIC Class I hazardous waste wells.

EPA agrees that if the carbon dioxide stream is considered to be
hazardous and does not meet the requirements of the conditional
exclusion, it would need to be disposed of in a manner appropriate for
hazardous waste, such as injection into a Class I hazardous waste well. 

	 

Comment 3.5.6:

2. EPA’s clear admission that it “has little or no information to
conclude that CO2 streams would qualify as RCRA hazardous wastes”
[FN5: Federal Register, Vol. 76, No. 152, Monday August 8, 2011, p.
48077-48078] renders the conditional exemption premature.

EPA does not argue that CO2 streams would likely qualify as RCRA
hazardous wastes. Instead the Agency admits the lack of information that
would enable it to conclude whether this is likely to happen or not.
This directly calls in to question the need for the proposed conditional
exemption. If there is no evidence that such streams would qualify, then
the proposed exemption ranges from redundant, in that a clear need has
not been identified, to unjustified, in that this very lack of knowledge
may result in streams that do exhibit hazardous characteristics being
exempt from RCRA subtitle C requirements.

Response: EPA disagrees that the conditional exclusion is premature or
unjustified. As explained in response to comment 3.5.3, EPA has
concluded that the injection of CO2 streams, including incidental
associated substances derived from the source materials and the capture
process, can be performed in a protective manner under the conditions
identified in this rule. Nor is the exclusion redundant. Several
commenters have stated concerns regarding the application of the
hazardous waste regulations to supercritical CO2 streams being
sequestered. In light of the early state of data development in this
area, EPA intends to bring additional clarity to the regulatory regime
through this rule, by establishing a conditional exclusion from the
definition of hazardous waste that would apply in the event a generator
determines that its CO2 streams exhibit a RCRA hazardous characteristic.
Generators may also choose to make use of the conditional exclusion in
situations where, for example, the generator may be uncertain regarding
the hazardous waste status of the CO2 stream.  

Comment 3.5.7:

3. EPA should not exempt CO2 streams from subtitle C regulation without
a better understanding of their composition, their potentially hazardous
(or otherwise) characteristics in all plausible environments, and
without identifying allowable contaminants and setting limits for their
concentration in these streams.

Expanding on the point above, EPA’s admission clearly indicates a lack
of knowledge of the probable composition of those CO2 streams, their
exact properties (in terms of corrosivity, ignitability, toxicity and
reactivity or other potentially hazardous characteristics). In fact, EPA
admits that little published data exists on the likely composition of
those streams, that a previous call for data during the Class VI
rulemaking process yielded little additional information, and makes a
renewed call for “analytical data on the physical and chemical
characteristics of hazardous contaminants, CO2 content, information on
the type of CO2 capture process used, and how the samples were collected
and analyzed” [FN6: Federal Register, Vol. 76, No. 152, Monday August
8, 2011, p. 48079] in order to “allow EPA to gain a better
understanding of the nature and characteristics of captured CO2
streams” [FN7: Id.].

EPA should not grant an exemption from RCRA subtitle C regulations for
streams that contain unknown concentrations of potentially hazardous
contaminants, and without knowledge of the exact nature of their
hazardous characteristics. The definition of a CO2 stream, which
includes “incidental associated substances derived from the source
materials and the capture process” is extremely broad and open ended,
and may cover an unacceptably broad spectrum of substances and
concentrations. These are likely to vary by facility depending on the
particulars of the technology and plant layout, so it is especially
important for EPA to be in possession of reliable information on the
nature and concentration of these contaminants before it institutes an
exemption from subtitle C regulation. Class VI regulations do require an
analysis of the composition of the injected CO2 stream, but those
regulations are new and there is no database or experience base yet. EPA
should wait for the collection of a reliable data set before proceeding
with the proposed conditional exemption.

If EPA proceeds with the conditional exemption, then it would provide a
direct pathway for the co-control of pollutants that occur in capture
plants (such as SOx, NOx and Hg) in Class VI injection wells. This would
be a direct alternative to the conventional control of these substances
through commonly established control methods. This would constitute a
major policy shift which EPA should not undertake without a thorough
review of the possible risks to the subsurface environment and
groundwater, as well as to the air, land, and human health from their
possible releases. The fact that control of some of these substances may
be necessitated through pipeline regulations or by the nature of some
CO2 capture processes [FN8: Some of today’s CO2 scrubbing solvents are
sensitive to contamination by sulfur oxides and mercury, for example]
does not constitute sufficient protection of human health and the
environment, and in no way justifies EPA’s proposed exemption.

Response: While EPA agrees that obtaining more data on the composition
of CO2 streams that will be injected into UIC Class VI wells is
important overall, EPA disagrees with the commenter that the conditional
exclusion should not be finalized without more information on the
"…concentrations of potentially hazardous contaminants, and without
knowledge of the exact nature of their hazardous characteristics." The
particular inquiry before EPA in this rulemaking is whether RCRA
subtitle C regulation is necessary to protect human health and the
environment. EPA has concluded that the injection of CO2 streams,
including incidental associated substances derived from the source
materials and the capture process, can be excluded from the definition
of hazardous waste under conditions that will ensure that CO2 streams
are managed in a manner that addresses the potential risks to human
health and the environment.  This is the case regardless of the precise
nature of the CO2 stream. EPA therefore has not altered its conclusion
that the conditional exclusion is appropriate, and sees no need to delay
further action on the conditional exclusion to gather additional data.
EPA notes that the commenters did not identify the plausible
environments to which they were referring. 

Comment 3.5.8:

Accordingly, if EPA were to finalize a conditional exemption of the
nature contemplated in the proposal, it should identify a list of
allowable contaminants that the CO2 stream may contain, and set maximum
limits for them. The list of allowable contaminants must be derived from
well-founded science and data that clearly demonstrates that they will
not pose undue risk to the subsurface environment, water, land, air and
public health in their location of disposal or in the event of a release
from Class VI wells or other potential leakage pathways in their
vicinity. Appropriate tests and criteria must be identified to that
effect. These may or may not be based on the existing TCLP test, but
must capture the potentially hazardous nature of contaminants in the CO2
stream in all possible environments where they may find themselves
present intentionally or unintentionally.

Response: EPA disagrees it needs to identify a list of allowable
contaminants that the CO2 stream may contain and set maximum limits for
them. EPA has concluded that the injection of CO2 streams, including
incidental associated substances derived from the source materials and
the capture process, can be performed in a protective manner at a
permitted UIC Class VI well. This is the case regardless of the precise
contaminants, and their concentrations, because the UIC Class VI
permitting requirements will take into account the physical and chemical
characteristics of the CO2 streams before any injection may occur, as
part of establishing the appropriate conditions for the successful
confinement of CO2 in a manner that is protective of USDWs. EPA
emphasizes that the UIC Class VI regulations themselves require that the
chemical composition and physical characteristics of the CO2 streams be
known as part of the initial permitting process, as well as during
operation of the well, in order to ensure that these CO2 streams can be
injected in a manner that is protective of human health and the
environment. EPA expects that this will provide a full understanding of
the properties of the CO2 streams being injected, including specific
contaminants and their concentrations. EPA intends to monitor any data
on the chemical composition and physical characteristics of the CO2
streams being injected by the UIC Class VI permitting program and to use
that information to determine whether changes to the conditional
exclusion may be appropriate.

Comment 3.5.9:

4. If EPA were to finalize the conditional exemption, it must provide
further evidence and present a thorough analysis on a point-by-point
basis showing that requirements for Class VI wells are at least as
protective as those for Class I hazardous wells.

While Class VI is the appropriate class of well for geologic
sequestration of CO2, EPA has not sufficiently demonstrated that it will
be equally protective as Class I hazardous regulations if the CO2 stream
also contains hazardous constituents. Class VI does not contemplate the
injection of hazardous CO2 streams nor does it require operators to
evaluate whether the presence of hazardous material in the CO2 stream
could result in increased endangerment to USDWs, or to develop
strategies to mitigate any increased endangerment. That is not to say,
however, that some requirements of Class VI are not at least as, or
more, protective that Class I requirements – but EPA has not provide
adequate justification to that affect.

Although EPA provides a summary of key elements of the Class VI rule and
its requirements [FN9: Federal Register, Vol. 76, No. 152, Monday August
8, 2011, p. 48084-44085], its description of Class I requirements is far
more scant and does not enable a reliable enough comparison of
requirements of the two well classes. In addition, it is not sufficient
for EPA to use general descriptions of these requirements as support for
the assertion that Class VI well regulations are as protective as those
for Class I hazardous wells. For example, in asserting that “Class VI
wells must meet the same stringent injection well construction standards
as Class I hazardous waste wells”, EPA provides no references to these
requirements or state what they are. In order for EPA to credibly claim
an equivalent level of protection, it must provide a thorough,
analytical comparison of rule requirements, ideally in tabulated manner,
with references to and quoting the rule language verbatim. This may take
place in the form of a comparison table in an appendix or in another
form that enables the reader to compare requirements for the two
injection well classes directly.

Response:  EPA disagrees that it needs to compare the UIC Class I
hazardous waste and Class VI requirements point-by-point in order to
demonstrate that the requirements for UIC Class VI wells are at least as
protective as UIC Class I hazardous waste wells for CO2 streams. 
Determining whether a conditional exclusion is appropriate includes
consideration of whether a waste may not present a hazard because it is
already subject to adequate regulation. In determining whether existing
regulation is adequate, EPA does not necessarily need to show that each
existing requirement has a corresponding analogue in the RCRA subtitle C
regulations. While the Class VI requirements were not developed to
address hazardous waste streams, EPA believes that the Class VI
requirements provide the most appropriate and protective environmental
management of carbon dioxide streams (including those streams that may
be hazardous under RCRA subtitle C) by addressing each technical aspect
of injection well siting, construction, operation, and closure. 

The Class I hazardous waste requirements, available at Subpart G of 40
CFR Part 146, were developed for certain types of hazardous wastes
(typically liquid wastes, predominantly water), while the UIC Class VI
requirements are designed to ensure that the CO2 streams (which may
include low concentrations of hazardous constituents) 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 views the
elimination of exposure routes through these requirements 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. See response to comment 3.5.8

Moreover, in some instances, a point-by-point comparison may not even be
appropriate. For example, the UIC Class VI requirements are designed for
the unique characteristics of CO2, including its large volume and its
buoyancy relative to other fluids in the subsurface, unlike the typical
fluids injected into UIC Class I hazardous waste wells. Finally, EPA
also notes that the commenters, despite their general criticism that EPA
did not undertake a particular enough analysis of the respective
regulatory regimes, did not actually reject EPA’s ultimate conclusion
that the UIC Class VI requirements are sufficiently protective, nor did
they provide any evidence of gaps in protection or other deficiencies in
the analysis that only a more particularized analysis would reveal.

Comment 3.5.10:

5. If EPA were to finalize the conditional exemption, the signed
certification must be submitted to the UIC Program Director and be
available publicly.

EPA’s current proposal only requires the signed certification to be
kept on site. We believe that this requirement is not sufficient,
especially given that requirements under RCRA’s Enhanced Public
Participation Rule would not apply. The certification should be
submitted to the UIC Program Director and be made publicly available on
the regulator’s website.

Response: EPA agrees that provision should be made for public
availability of the certification, and has added a provision for the
statement to be posted prominently on the signatory’s
publicly-available website, if such website exists. As EPA made clear in
the proposed rule, one of its key concerns with the certification
statement was to ensure compliance with the terms of the conditional
exclusion. Posting the signed certification statements on-line will
promote compliance and accountability by providing efficient access by
regulatory authorities and interested members of the public (consistent
with the intent of the RCRA Enhanced Public Participation Rule) to the
exclusion certifications and the identities of the responsible
officials. Moreover, EPA expects that posting the certifications on-line
will simplify the reporting obligation for the regulated community
because accessible internet posting obviates the need for a regulatory
agency to request a hard copy. EPA notes that it is not requiring the
creation of any new corporate or other website. 

In the final rule, EPA is not requiring that the signed certification
statement be submitted to the UIC Program Director. EPA does not believe
that an additional submission requirement will be necessary because the
signed certification statement will in most circumstances be directly
accessible on the injection facility’s website. EPA also notes that as
part of the process of obtaining a UIC Class VI permit, owners and
operators who plan to claim the conditional exclusion may choose to
submit the certification to the UIC Program Director to provide the
necessary clarity on the status of the CO2 streams under RCRA.

Comment 3.5.11:

D. Conclusion 

Due to the reasons listed above, we believe that EPA has not
sufficiently demonstrated that conditionally excluding CO2 streams that
are hazardous from the definition of hazardous waste is warranted or
appropriate. Additional analysis is needed to determine whether CO2
streams may contain hazardous material, the exact nature of the hazard
in different environments and the potential concentrations of such
material in CO2 streams. In addition, EPA has not provided sufficient
justification that disposing of such streams in Class VI wells will be
as protective as those methods specifically designed for the disposal of
hazardous waste under subtitle C of RCRA.

Response: See responses to comments 3.5.6 - 3.5.9. The Agency commits to
reviewing, in a manner similar to the adaptive approach planned for the
UIC Class VI rule, new research, data, and information related to this
conditional exclusion, particularly with respect to compliance with the
conditions of the exclusion and the nature and composition of CO2
streams.

Clean Air Task Force

Document ID: EPA-HQ-RCRA-2010-0695-0089

Comment 3.6.1:

The Clean Air Task Force (CATF) thanks the United States Environmental
Protection Agency (EPA) for the opportunity to respond to EPA's proposed
rules concerning Hazardous Waste Management System: Identification and
Listing of Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities, 76 Fed. Reg. 48,073 (August 8, 2011). We
appreciate your consideration of these comments.[FN1: Solite Corp. v.
EPA, 952 F.2d 473, 485 (D.C. Cir. 1991), holds that the Agency can
consider and rely on information received after the close of a public
comment period on a rule, where the added information is used to check
or confirm prior assessments]. 

Founded in 1996, CATF is a nonprofit organization dedicated to restoring
clean air and healthy environments through scientific research, public
education, and legal advocacy. CATF strongly believes that geologic
sequestration of CO2 (GS), correctly implemented, must be a component of
the U.S. climate change mitigation portfolio. CATF recognizes the
important goal that this rulemaking seeks to foster, i.e. to
"substantially reduce the uncertainty associated with identifying CO2
streams under RCRA Subtitle C, and will also facilitate the deployment
of GS by providing additional regulatory certainty.” 76 Fed. Reg. at
48,074.

Response: EPA acknowledges the comment. 

Comment 3.6.2:

Specifically, CATF can support a conditional exclusion, for CO2 streams
injected for the purpose of sequestration, from the RCRA definition of
hazardous waste, and we recognize that EPA has provided with its
proposal a good deal of support for many aspects of the conditional
exclusion.

Response: EPA thanks the commenter for its support of the conditional
exclusion.

Comment 3.6.3:

EPA asserts that Class VI well regulations under the Safe Drinking Water
Act’s Underground Injection Control Program (UIC) provide more
protection than Class I well regulations to which the CO2 streams would
be subjected absent the exclusion; EPA asserts that the Class VI well
regulations’ corrective action planning and enforcement program can
take the place of the RCRA Land Disposal Regulatory Scheme (because
Class VI rules are developed specifically for CO2 streams as defined in
the Class VI rules).

Based on these assertions, EPA proposes to exclude CO2 injected for
sequestration from RCRA Subtitle C requirements that would otherwise
apply, provided that:

1) Transportation of the CO2 stream is in compliance with Department of
Transportation (DOT) regulations;

2) Injection is in compliance with the Class VI well requirements;

3) No other hazardous wastes may be mixed with or co-injected with the
CO2 stream; and

4) A certification statement is signed by the generator, and the well
owner or operator that these conditions are met.

See 76 Fed. Reg. at 48,092-93 (proposed 40 C.F.R. § 261.4(h)).

Implicit in the first condition is the satisfaction of the DOT
requirement in 49 CFR §195.2, that CO2 consists of “more than 90
percent carbon dioxide molecules compressed to a supercritical state
….” Id. at 48,082. This regulation addresses the need for sufficient
CO2 purity levels to avoid pipeline corrosion. Class VI wells and
reservoirs are, in turn designed to handle CO2 and “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.” Id. at 48,088, 48,092 (proposed new RCRA
definition, tracking class VI definition of “carbon dioxide
stream”). Taken all together, CATF reads the proposed RCRA exclusion
to be available to CO2 streams with a purity level of 90 percent CO2
commingled with incidental other substances up to 10%, but not
commingled with or co-injected with other substances that are listed or
characteristic hazardous wastes. CATF notes that this is not clear from
the proposed regulatory text. CATF also notes that the Agency requests
further information about “the types and characteristics of substances
that are added to CO2 streams to enable or improve the injection
process,” id. at 48,088, and about “whether there are other
conditions, such as a minimum CO2 content, that could enhance compliance
with the proposed “no mixture” condition. Id. at 48,087.

Response: The commenter summarizes how they generally interpret the
conditional exclusion.  With regard to the commenter’s statement that
“EPA asserts that Class VI well regulations under the Safe Drinking
Water Act’s Underground Injection Control Program (UIC) provide more
protection than Class I well regulations to which the CO2 streams would
be subjected absent the exclusion” EPA clarifies that the UIC Class VI
requirements are more appropriate for CO2 streams than UIC Class I
hazardous waste requirements, as the latter were developed for certain
types of hazardous wastes (typically liquid wastes, predominantly
water), while the UIC Class VI requirements are designed to ensure that
the CO2 streams (which may include low concentrations of hazardous
constituents) 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. See response to comment 3.5.9. 

EPA also clarifies that the proposed conditional exclusion did not
specify an minimum CO2 content (nor does this final rule), rather, as
EPA pointed out in the preamble to the proposed rule, the DOT
requirements for supercritical CO2 streams sent via pipeline limits the
CO2 content to 90 percent or greater.  EPA believes the regulatory
language finalized today is clear.

Comment 3.6.4:

CATF suggests that EPA can and should go further in demonstrating in its
final rule that there is sufficient protection in the provisions of the
UIC Class VI rules combined with the DOT regulation’s purity
requirements, to replace the provisions of RCRA – specifically with
respect to the question whether Class VI regulations governing CO2
streams as defined in the conditions precedent to the exclusion are as
or more protective than the RCRA provisions which will no longer apply
to these CO2 streams when the exclusion is finalized. To that end, CATF
engaged in a preliminary review of the history of acid gas injection
(AGI) in the US and Canada, which appears to support EPA's position that
the proposed conditional exclusion is sufficient to replace RCRA
protections. As described in more detail below, in the US, AGI projects
can involve mixtures of CO2 and other materials where the CO2 is less
than 90 percent of the injectate (by volume). These projects are
permitted under UIC Class II wells, (which we believe are also less
protective than Class VI wells and subpart RR requirements for
sequestration). We understand that Canada has a similar regulatory
scheme, although a comparative analysis of the US/Canadian permitting
scheme was not undertaken by CATF. We note however, the existence of a
body of Canadian technical research evaluating the 48 Alberta Basin AGI
sites, which concludes that at no time during the three decades of AGI
in Alberta was public safety at risk, including after over 2 million
tons of injections.[FN2: Stefan Bachu & Theresa L. Watson, Review of
Failures for Wells used for CO2 and Acid Gas Injection in Alberta,
Canada, 1 Energy Procedia 3531 (2009), attached as Exhibit 1].
Therefore, CATF suggests that EPA more closely examine the AGI
experience in the US and Canada and evaluate it, in the record of the
rule finalizing the proposed RCRA exemption for CO2 streams in Class VI
wells.

We describe the Canadian technical research below. Additionally, we
suggest specific amendments to the proposed rule text in order to
provide clarity to three specific aspects of the rule.

Response: Regarding the comment referencing Acid Gas Injection (AGI),
EPA agrees that AGI experience can inform GS injection activities, and
EPA examined AGI as part of its research to support options selection
for the Class VI Rule.  Many of the findings of this research supported
EPA’s final requirements for the construction and testing of Class VI
wells, including the use of carbon dioxide-compatible materials,
corrosion monitoring, and continuous pressure, volume, and temperature
monitoring to verify internal mechanical integrity. EPA notes that
comments on the UIC Class VI rulemaking are beyond the scope of this
final rule, and EPA did not consider AGI in developing the proposed
hazardous waste exclusion.  While the Agency acknowledges that AGI takes
place in the energy industry, it takes place using UIC Class II wells,
not UIC Class VI wells, which were the focus of EPA’s analysis in
support of the conditional exclusion. Because AGI wells occur under well
classes other than UIC Class VI wells, the protectiveness of those
operations are beyond the scope of this rule. 

Regarding the commenter’s reference to the protectiveness of UIC Class
II wells and subpart RR requirements, EPA did not develop information
for inclusion in the proposal on well classes other than UIC Class VI
wells.  EPA did not compare the UIC Class II well regulations with the
UIC Class VI well regulations, and such a comparison is irrelevant to
this rulemaking. EPA notes that it did not propose to rely on, nor as
part of the final rule did rely on, Clean Air Act controls as
conditions. EPA does not believe this is necessary, as for reasons
explained elsewhere, it believes the final rule conditions are
appropriate in themselves.

Comment 3.6.5:

A. EPA authority to create conditional exclusions from RCRA hazardous
waste requirements 

CATF recognizes that EPA has discretion under the Resource Conservation
and Recovery Act (RCRA) to create regulatory exclusions for particular
wastes that would otherwise be qualified as "hazardous waste" under
RCRA. See e.g., Military Toxics Project., v. EPA 146 F.3d 948 (D.C. Cir.
1998)(holding Agency has broad discretion to issue conditional
exclusions that exempt waste streams from RCRA's definition of a
hazardous waste). Additionally, CATF supports EPA's proposed reliance on
DOT requirements, the Safe Drinking Water Act’s UIC Class VI well
regulations, and the Clean Air Act’s Green House Gas Reporting Rule,
Subpart RR (GHG) requirements to manage CO2 injected for the purpose of
permanent sequestration, when utilizing such controls in conjunction
with RCRA regulations would be repetitive and overly burdensome.[FN3: 40
CFR §261.11(a)(3)(x): After considering factors, including, action
taken by other governmental agencies or regulatory programs based on the
health or environmental hazard posed by the waste or waste constituent,
the Administrator may create an exclusion.]. 

RCRA provides a "cradle-to-grave" approach to the treatment, storage,
and disposal of hazardous waste. [FN4: 42 U.S.C. §6921]. Under 42
U.S.C. §6921(a), the Administrator of the EPA is charged to "develop
and promulgate criteria for identifying the characteristics of hazardous
waste, and for listing hazardous waste, which should be subject to
provisions of Subtitle C." While CATF acknowledges that under RCRA
Congress has left discretion to EPA to determine how and when substances
are classified as a hazardous waste, that authority is, of course, not
unbounded. [FN5: NRDC v. EPA, 25 F.3d 1063, 1070 (D.C.D.C.
1994)(stating, "of course, however reasonable the agency's
interpretation of its regulations, we must not give those regulations
effect if they conflict with the governing statute.")]. EPA must base
its final exclusion on considerations of whether the rules that will
effectively replace RCRA requirements when an exclusion is created will
be sufficient to protect human health and the environment. 40 CFR
§261.11(a)(3)(x).

Response: EPA has the authority to issue conditional exclusions from the
hazardous waste regulations. EPA’s authority to issue the rule is
described in section II.B. of the final rule preamble. EPA also believes
that it appropriately concluded that management of CO2 streams under the
terms of the final rule does not present a substantial risk to human
health and the environment, making additional regulation under RCRA
unnecessary. EPA notes that it did not propose to rely on, nor as part
of the final rule did rely on, Clean Air Act controls as conditions. EPA
does not believe this is necessary, as for reasons explained elsewhere,
it believes the final rule conditions are appropriate in themselves. 

Comment 3.6.6:

B. CATF suggests that EPA consider and evaluate the AGI experience in
finalizing the conditional exclusion. 

The experience to date with acid gas injections in Class II UIC wells,
by the oil and gas industry in the US, as well as the acid gas injection
experience in Canada, may provide a basis of support for EPA’s
proposed conditional exclusion from RCRA’s hazardous waste definition
for CO2 sequestered in GS wells governed by the protections offered by
Class VI, Subpart RR and DOT pipeline regulatory limits on CO2 quality.

CATF suggests that EPA should review the experience with AGI projects
undertaken under Class II well regulations over the past two decades.
Although EPA states, "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" 76 Fed. Reg. at 48,077, 48,079, in fact AGI
projects that have occurred in the United States and Canada for many
years may provide EPA with evidence that the conditional exclusion is
appropriate.

U.S. AGI activity involves injections of CO2 streams mixed with up to 76
percent hydrogen sulfide (H2S), has occurred for many years in Class II
wells. [FN6: J. Kenneth Klewicki et al., Acid Gas Injection in the
United States. Proceedings of the Fifth Annual Conference on Carbon
Capture and Sequestration, DOE/NETL (2006) attached as Exhibit 2]. By
comparison, as described above, CO2 streams injected for permanent
subsurface containment in Class VI wells are governed by DOT standards
requiring at least 90% CO2. Furthermore, EPA notes that UIC Class VI and
CAA Subpart RR rules provide more regulatory protection for the
sequestered CO2 than does the Class II regulatory scheme, alone. The
Class VI/Subpart RR/DOT regulatory framework embodied in the conditions
EPA proposes for the RCRA exclusion therefore should be sufficiently
protective of human health and the environment to justify the proposed
conditional exclusion from the RCRA regulatory scheme for hazardous
waste for GS CO2 streams.

AGI operations in the United States are regulated under the Class II
well standards of the Safe Drinking Water Act’s Underground Injection
Control Program. Although EPA has classified H2S as a hazardous waste,
[FN7: 40 CFR 261.33, Hydrogen sulfide is designated as Hazardous Waste
No. U135]. Congress amended RCRA in 1980 to exempt drilling fluids,
produced waters, and other wastes associated with oil and gas [FN8: 40
C.F.R. §261.4(b)(5), provides that "Drilling fluids, produced waters,
and other wastes associated with the exploration, development, or
production of crude oil, natural gas or geothermal energy" are solid
wastes that are not hazardous wastes. Additionally, AGI is an activity
that is characterized “underground injection for the secondary or
tertiary recovery of oil and natural gas” or is associated with the
“underground injection of brine or other fluids which are brought to
the surface in connection with oil or natural gas production or natural
gas storage operations,” and therefore in accordance with 42 U.S.C.
§300h (b)(2), “Regulations of the Administrator under this section
[the UIC program] …may not prescribe requirements which interfere with
or impede (A) The underground injection of brine or other fluids which
are brought to the surface in connection with oil or natural gas
production or natural gas storage operations, or (B) Any underground
injection for the secondary or tertiary recovery of oil or natural gas,
unless such requirements are essential to assure that underground
sources of drinking water will not be endangered by such injection] from
the RCRA definition of hazardous waste; [FN9: The Solid Waste Disposal
Act Amendment of 1980 (SWDA), Pub. L. 96- 482, 94 Stat. 2334, added the
Bevill amendment to §3001 of RCRA, "temporarily" suspending regulation
of certain "special" wastes from oil and gas, mining, and utility
industries] and therefore, AGI occurs in Class II rather than Class I
wells, despite the hazardous characteristics of acid gas streams. As
noted above, U.S. AGI activity involves injections of CO2 mixed with up
to 80 percent H2S by volume.

For comparative purposes Table 1.1 provides compositions (by volume) of
anthropogenic CO2 streams derived from carbon capture facilities. These
capture stream compositions suggest that today’s pre- and
post-combustion capture techniques yield CO2 streams that characterized
by purity levels on the order of 95% or greater CO2, and 5 percent or
less (by volume) of other impurities. CATF’s literature search
suggests CO2 purity levels for oxyfuel combustion occupy a broader
range, from 85-99%, however, these streams are also characterized by
several percent or more of the inert, non-reactive gas argon by volume,
thereby increasing their effective purities.

TABLE 1.1[See PDF Docket ID EPA-HQ-RCRA-2010-0695-0089]

Additionally, CATF’s preliminary literature search uncovered several
studies documenting AGI experience in the Alberta Basin in western
Canada, where 48 AGI injection sites were active. [FN13: Stefan Bachu &
Kristine Hague, In Situ Characteristics of Acid Gas Injection Operations
in the Alberta Basin, Western Canada: Demonstration of Geological
Storage, Vol. 2, Carbon Dioxide Capture for Storage in Deep Geologic
Formations— Results From the CO2 Capture Project, 867 (Sally M.
Benson, et al., eds.) (2005), attached as Exhibit 4; see also Stefan
Bachu et al., Evaluation of the Spread of Acid Gas Plumes Injected in
Deep Saline Aquifers in Western Canada as an Analogue for CO2 Injection
in Continental Sedimentary Basins, Published in: 1 Proceedings of 7th
International Conference on Greenhouse Gas Control Technologies 479- 487
(E.S.Rubin, D.W.Keith and C.F.Gilboy, eds.,) (2005); available at:
http://uregina.ca/ghgt7/PDF/papers/peer/012.pdf.], [FN14: H.L. Longworth
et al., Underground Disposal of Acid Gas in Alberta, Canada. Regulatory
Concerns and Case Histories, SPE 35584 (1996), attached as Exhibit 5],
[FN15: Bachu, supra note 2.] Well over two million tons of acid gas have
been injected in these wells, in accordance with Alberta’s regulatory
requirements [FN16: See Alberta Canada ERCB Guide, G-51, available at:
http://www.ercb.ca/docs/documents/directives/Directive051.pdf]
assertedly without any reported safety or leakage incidents. [FN17:
Bachu, supra note 2]. 

And, insofar as CATF has been able to determine, there have been no
reported incidents of groundwater contamination associated with AGI in
the United States over the past several decades. [FN18: Review of the
available scientific literature and searches for published legal cases
involving the release of AG from Class II injection wells did not result
in information documenting such releases, or evidence of any litigation
over damages from any such releases. CATF suggests that EPA closely
review any reports of H2S releases, given the recent lifting of the
administrative stay under EPCRA of §313 reporting requirements for
hydrogen sulfide. See 76 Fed. Reg. 64,022 (Oct. 17, 2011)]. CATF
suggests that because injected CO2 streams have been commingled with
volumes of H2S that are far greater – and therefore more corrosive –
than would be characteristic of CO2 capture streams for Class VI wells
(Table 1.1), and that because the Class II wells have apparently not
experienced any harmful releases, the provisions of the proposed
conditional exclusion may be sufficient. That is, the proposed Class
VI/Subpart RR/DOT scheme can be shown to be sufficiently protective of
human health and the environment by comparison, and this comparison
offers further support for the conditional exclusion from RCRA
regulation EPA has proposed. As we assume much of the data on AGI
resides with the Agency, however, EPA will need to confirm this in the
final rule.

Response: EPA thanks the commenter for the information. See responses to
comments 3.6.3 – 3.6.5. Acid gas injection (AGI) has indeed been
conducted through the Agency’s UIC Class II program. However, the
scope of this rule is expressly limited to CO2 streams sent to a
permitted UIC Class VI well for purposes of GS. Protections afforded by
the GS-specific requirements of the UIC Class VI Rule include extensive
site characterization, assessments of potential mineralization reactions
between the carbon dioxide and subsurface rocks and fluids,
identification of additional confining zones where needed, geomechanical
assessment, and use of CO2-resistant well construction materials. The
UIC Class VI requirements are designed for the unique characteristics of
CO2, including its buoyancy relative to other fluids in the subsurface
and potential presence of impurities (including hazardous contaminants
which could cause the waste to be identified as hazardous) in captured
CO2.

EPA disagrees with the commenter’s statement that EPA has noted that
“UIC Class VI and CAA Subpart RR rules provide more regulatory
protection for the sequestered CO2 than does the Class II regulatory
scheme, alone.”   See specifically response to comment 3.6.4.

Comment 3.6.7:

C. CATF suggests specific revisions to the proposed regulatory text, to
reference subpart RR, to clarify that the CO2 itself is not hazardous,
under the exclusion, and to conform the certification requirements with
other Class VI recordkeeping requirements

i. CATF suggests that the regulatory conditional exclusion should
conform to the requirements of the UIC Rules and the Clean Air Rules
that govern Class VI wells As written, the proposed conditional
exclusion does not conform to or cross reference the language of the UIC
or Clean Air Monitoring and Reporting Rules that govern Class VI wells.
In an effort to promote clarity and consistency CATF suggests modifying
the proposed conditional exclusion.

EPA's proposed rule now states that, "Carbon Dioxide streams that are
captured and transported for purposes of injection into an underground
injection well subject to the requirements of 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."

CATF suggests that this portion read as follows "Carbon Dioxide streams
that are captured and transported for THE PRIMARY purposes of injection
into an underground injection well subject to the requirements of 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, AND THE GREEN HOUSE GAS REPORTING PROGRAM
CONTAINED IN 40 CFR PARTS 86, 87, 89, are not a hazardous waste,
provided the following conditions are met."

CATF suggests inserting the word "primary" in this portion because this
language would help mirror 40 CFR §144.19 regarding Class II wells that
transition into Class VI wells, [FN19: 40 CFR §144.19 states that:
Owners or operators that are injecting carbon dioxide for the primary
purpose of carbon storage into an oil and gas reservoir must apply for
and obtain Class VI geologic sequestration permit when there is an
increased risk to USDWs compared to Class II operations. In determining
if there is an increased risk to USDWs, the owner or operator must
consider the factors specified in §144.19(b)] and therefore will help
make it clear that it is the Class VI protections and other
environmental regulations that will adequately address any risk posed by
any plausible mismanagement of the CO2 after injection. Using "primary
purpose" in the conditional exclusion will provide clarification and
consistency for Class II operators, as well.

CATF also suggests inserting the reference to the Green House Gas
Reporting Rule Subpart RR in this section because the preamble to the
proposed rule states that the GHG Rule is an important rule that
directly addresses GS, and provides additional protections for CO2
sequestered in Class VI wells. 76 Fed. Reg. at 48,077. The GHG Rule
contains reporting requirements that are important to GS activity in the
context of the exclusion since they require analysis of the composition
of the injectate.

Response: EPA has not included the commenter’s suggested edits into
the rule. EPA clarifies that 40 CFR 144.19 does not allow GS under the
Class II requirements. Rather, it recognizes that construction of
EOR/EGR wells could be grandfathered, but identifies criteria on which
to base a determination that the project is no longer an EOR/EGR project
and requires a Class VI permit. Injection projects that meet the
criteria at 40 CFR 144.19 must be pre-permitted as Class VI. If a
determination is made under 40 CFR 144.19 that there is increased risk
to USDWs and the operator cannot demonstrate that large-scale injection
for GS can be performed without endangering USDWs, the site cannot
receive a Class VI permit and would not be eligible for the conditional
exclusion.

Again, EPA did not develop information for inclusion in the proposal on
well classes other than UIC Class VI wells. EPA notes that it did not
propose to rely on, nor as part of the final rule did rely on, Clean Air
Act controls as conditions. EPA does not believe this is necessary, as
for reasons explained elsewhere, it believes the final rule conditions
are appropriate in themselves.

Additionally, EPA points out that the UIC Class VI regulations
themselves require that the chemical composition and physical
characteristics of the CO2 streams be known as part of the initial
permitting process, as well as during operation of the well, in order to
ensure that these CO2 streams can be injected in a manner that is
protective of human health and the environment.

Comment 3.6.8:

ii. EPA must clarify that although no hazardous waste may be
intentionally mixed with CO2 qualifying for the exclusion, that the CO2
itself is not “hazardous” under the exclusion 

The proposed conditional exclusion requires owner/operators and
generators to sign a certification form that states their actions have
conformed with all of the conditions, including the third condition that
"no other hazardous wastes may be mixed with, or otherwise co-injected
with, the carbon dioxide stream." This sentence has grammatical issues
that should be modified to avoid confusion, and it also makes complying
with the certification form problematic for generators, as explained
below in part iii.

The use of the word "other" in this sentence is confusing because the
purpose of the exclusion is to provide that the CO2 stream is classified
as non-hazardous, provided all conditions are met. Including the word
"other" indicates that a carbon dioxide stream is itself a hazardous
waste and that no additional "other" hazardous wastes may be added to
the hazardous carbon dioxide stream. Therefore, the word "other" should
be removed from this sentence and the word "may" should be replaced with
the word "shall." By using "may" rather than "shall" EPA is not, as it
must, prohibiting knowingly commingling hazardous wastes with the CO2
stream. Therefore, the CATF suggests that the conditional exclusion
should read, "NO HAZARDOUS WASTE SHALL BE MIXED WITH, OR OTHERWISE
CO-INJECTED WITH, THE CARBON DIOXIDE STREAM."

Response: The Agency has concerns that the term ‘other’ may be
confusing. EPA fails to see why the use of “may” instead of
“shall” somehow makes the proposed mixing prohibition any less
mandatory, since the proposed rule’s phrasing “No . . . hazardous
wastes may be mixed with . . .” is clearly language of a prohibition.
Nevertheless, to remove any doubt about this, EPA is changing the
phrasing to “shall.” EPA does not understand this change to alter
the meaning of the mixing prohibition, but merely to clarify it.
Therefore, EPA decided to revise the wording of the condition and is
finalizing the following language: “No hazardous wastes shall be mixed
with, or otherwise co-injected with, the carbon dioxide stream.” 

Comment 3.6.9:

iii. CATF suggests that the certification statement for the exclusion be
kept on-site during the relevant operating and post-closure period under
UIC Class VI, and that the certification statement should be modified to
promote clarity. 

The proposed conditional exclusion only requires that the signed
certification statement be kept on-site for a minimum of three years
after the injection of a CO2 stream, and that it be made available
within 72 hours of a written request from the Regional Administrator or
state Director (if located in an authorized state). Additionally, the
certification statement must be renewed every year that the exclusion is
claimed. By contrast, Class VI rules require site closure records to be
kept for 10 years. 40 C.F. R. § 146.93(f).

CATF suggests that EPA require owners/operators and generators to
maintain certification forms for the same period for which Class VI well
site closure records must be maintained. This will ensure that there is
a complete record in the event that there is a release and questions
regarding liability ensue. 40 CFR § 146.93(f) requires that
post-closure site care records must be retained for 10 years. CATF
suggests that certification statements be kept for the full period of
injection, and as well, remain for the 10 years post closure, or the
amount of time that the Director determines is appropriate, consistent
with class VI regulations.

Response: EPA is not entirely clear what type of release and resultant
liability to which the commenter refers, however, EPA still believes
that the 3-year recordkeeping requirement for the certification
statement is sufficient for purposes of allowing access to these
documents. EPA notes that the conditional exclusion certification is not
a one-time requirement, but must be renewed annually, so that there is
essentially a rolling 3-year record retention requirement (for as long
as the conditional exclusion is being claimed).

The 3-year period is consistent with several other recordkeeping
requirements under RCRA subtitle C.  Generators and UIC Class VI well
owners and operators can certainly maintain these records for a longer
period if they wish to do so, to help document their efforts to comply
with the exclusion.  In addition, the final conditional exclusion also
requires that the certification statement be posted prominently on the
signatory’s publicly-available website, if such website exists. EPA
believes makes this will make them more accessible to both the public
and state directors.  Finally, under the UIC Class VI regulations, UIC
Directors have the option of requesting additional information from the
permit applicant under 40 CFR 146.82(a)(21).  Such information may
include the certification (if the exclusion is being claimed at that
time) and thus it would be maintained for a period of 10 years after
site closure (see §146.91(f)(1)).

Comment 3.6.10:

Furthermore, the certification form in its current form is overly
burdensome for generators. The purpose of the certification form is to
ensure that both generators and owners/operators attest that they meet
the all of the conditions required to obtain the exclusion. The proposed
rule, however, requires generators not only to guarantee that they have
met all of the conditions, but they must also to certify that the
owner/operator that the generator contracts with has not comingled any
hazardous waste with the generator's CO2 stream. But the generator has
no way of determining whether an owner/operator has co-mingled its CO2
stream with hazardous waste. This creates an undue burden for generators
to police owner/operators to ensure that owners/operators are complying
with the conditions. For example an injection operator may add well
stimulants to the CO2 stream. Generators should be required to determine
that the owner/operator that accepts the generator's CO2 waste stream is
properly permitted as a Class VI well; however, the generator should not
be required to monitor all downstream owners/operators to ensure that
the owner/operator does not co-injecting hazardous waste with the
generator's CO2 stream. Therefore, CATF suggest EPA modify the
certification form language to ensure that generators are not unfairly
burdened by this rule.

Response: EPA agrees that it may be difficult for generators to certify
compliance by the well owner or operator with the rule’s conditions.
Therefore, EPA has modified the certification requirement in the final
rule so that there are now two separate certification statements worded
slightly differently – one for generators and another for UIC Class VI
well owners or operators claiming this conditional exclusion. EPA has
made these revisions to better reflect actions over which each party has
control. Under the final rule, the certification statement that the
generator would sign is specific to the activities within the
generator’s control; likewise, the certification statement that the
UIC Class VI well owner or operator would sign is specific to the
activities within the owner or operator’s control. 

Comment 3.6.11:

Conclusion:

CATF supports EPA’s issuance of a final rule providing for a
conditional exclusion of CO2 from the RCRA definition of a hazardous
waste, as further supported by additional scientific data gleaned from
experience with the successful implementation of AGI projects. CATF also
suggests that EPA modify the rule language promulgating the final
conditional exclusion to promote clarity.

Response: EPA believes it has brought additional clarity to the
regulatory regime through this rule, by establishing a conditional
exclusion from the RCRA subtitle C requirements that would apply in the
event a generator determines that its CO2 streams are hazardous waste.
See responses to comments 3.6.3-3.6.10.

Utility Solid Waste Activities Group (USWAG)

Document ID: EPA-HQ-RCRA-2010-0695-0066

Comment 3.7.1:

The Utility Solid Waste Activities Group (“USWAG”) submits these
comments on EPA’s proposal to conditionally exclude carbon dioxide
(“CO2”) streams that exhibit a hazardous characteristic from the
definition of hazardous waste under the Resource Conservation and
Recovery Act (“RCRA”), provided those streams are captured from
emission sources, are injected into underground injection wells for the
purposes of geologic sequestration (“GS”) under the Underground
Injection Control (“UIC”) program, and meet certain other
conditions. 76 Fed. Reg. 48073 (Aug. 8, 2011) (“the RCRA Proposal”).
USWAG is an association of over one hundred and ten energy utilities,
utility operating companies, energy companies and associations,
including the Edison Electric Institute (“EEI”), the American Public
Power Association (“APPA”), and the National Rural Electric
Cooperative Association “NRECA”). [FN1: EEI is the principal
national association of investor-owned electric power and light
companies. APPA is the national association of publicly-owned electric
utilities. NRECA is the national association of rural electric
cooperatives. Together, USWAG members represent more than 73 percent of
the total electric generating capacity of the United States and service
more than 95 percent of the nation’s consumers of electricity and 91
percent of the nation’s consumers of natural gas. Throughout these
comments, we refer to our industry as the “utility” or “electric
utility” industry. This term is intended to include those portions of
the industry and those USWAG members that generate electricity but do
not directly provide electricity to the public and are technically not
“utilities.”]. As the leading utility organization responsible for
interacting with EPA and other federal and state agencies concerning the
management of materials from the combustion of coal and other fossil
fuels, USWAG submitted comments in 2008 on EPA’s proposal to regulate
CO2 GS under the UIC program (see 73 Fed. Reg. 43492 (July 25, 2008))
and on the 2009 Notice of Data Availability (“NODA”) for CO2 GS (see
74 Fed. Reg. 44802)).

Response: EPA thanks the commenter for the information. 

Comment 3.7.2:

As expressed in our earlier comments on CO2 GS issues, USWAG recognizes
that the development of a viable carbon capture and sequestration (“
CCS”) regulatory program has been cited by many as a prerequisite to
the implementation of energy reform initiatives involving carbon
reduction measures on both the federal and state level. EPA predicts
that the electric power sector, including USWAG members, “will most
likely be the largest potential market for [CCS] technologies,” and
predicts that CCS technology could lead to CO2 reductions of
approximately 80-90% at a single plant. 73 Fed. Reg. 44354, 44492 (July
30, 2008). USWAG’s decades of involvement with the management of
fossil fuel combustion materials, as well as our members’ experiences
in the field, provide us with a valuable knowledge base and perspective
from which to provide meaningful input to EPA as the Agency continues to
reassess and refine its UIC regulations for CO2 GS. We believe that the
current RCRA Proposal to conditionally exclude CO2 streams captured and
injected for GS from RCRA’s stringent hazardous waste controls is an
important step in shaping more practicable – and therefore more
effective – CCS regulations.

Response: EPA believes this rule 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.

Comment 3.7.3:

I. Background: USWAG Comments on the 2008 CO2 GS Proposal 

USWAG’s comments on the original CO2 GS proposal urged EPA to craft
regulations that would prove flexible enough to be adapted as regulators
and industry acquired data on, and experience with, large-scale CO2 GS
projects. USWAG also emphasized the need for regulatory certainty on
particular issues of concern, noting that the lack of such certainty
could serve as a significant disincentive to industry implementation of
CO2 GS projects. USWAG highlighted the need for Agency clarification of
what application, if any, RCRA could have to CO2 streams injected for
GS. USWAG noted that the proposal prematurely assumed that CO2 injected
for GS is being “discarded” within the meaning of RCRA and is
therefore a solid waste under RCRA. The USWAG comments added that, to
the extent there is any possibility that CO2 GS injection operations
could be subject to RCRA controls, EPA should either establish a
conditional exclusion from the definition of solid waste for CO2 GS
streams or should exempt such activities from RCRA hazardous waste
regulation under the well-established contingent management concept
since UIC permit conditions would provide adequate protection for
injected CO2.

The portions of USWAG’s comments on the 2008 proposal relevant to RCRA
applicability are attached hereto (Attachment A) and hereby incorporated
by reference in these comments on the RCRA Proposal.

Response: EPA, through this rule, is establishing a conditional
exclusion for CO2 streams sent to UIC Class VI wells for purposes of GS,
under certain conditions. EPA believes this rule 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. The Agency commits to
reviewing, in a manner similar to the adaptive approach planned for the
UIC Class VI rule, new research, data, and information related to this
conditional exclusion, particularly with respect to compliance with the
conditions of the exclusion and the nature and composition of CO2
streams.  See response to comment 3.2.3.

EPA notes that, despite the commenter’s statement that an Attachment A
to their letter was submitted to EPA, EPA did not receive that
attachment. EPA has provided extensive discussions of RCRA applicability
questions in Section V of the final rule preamble, in response to
USWAG’s other comments in this section 3.7, and in response to other
commenters.  

Comment 3.7.4:

II. EPA Inappropriately Assumes that CO2 Captured and Injected for CO2
GS is a “Solid Waste” 

EPA incorrectly assumes in the preamble to the RCRA Proposal that
supercritical CO2 injected for GS is “clearly” a “discarded
material” within the meaning of RCRA [Section] 1004(27) and is
therefore a RCRA solid waste. 76 Fed. Reg. at 48077-78. This statement
is overly broad. As a threshold matter, supercritical CO2 is best
described as an “uncontained gas,” and as such is not included
within RCRA’s statutory definition of solid waste. See RCRA [Section]
1004(27) (including only “contained gaseous material” within the
statute’s definition of a solid waste); see also, e.g., in re BP
Chemicals America, Inc., RCRA Appeal No. 89-4, 1991 WL 208971, at *2
(EPA, Aug. 20, 1991) (explaining that only contained gaseous material is
a solid waste under RCRA). [FN2: See also 47 Fed. Reg. 27520, 27530
(fume incinerators “ used to destroy gaseous emissions from various
industrial processes … are not subject to regulation under RCRA”
because “ the input [i.e., gaseous emissions to the fume incinerators]
is not identifiable as a solid waste, according to the definition set
forth in [Section] 261.2.” (emphasis added).]. Therefore,
supercritical CO2 is not subject to RCRA jurisdiction in the first
instance.

Response: EPA disagrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are not solid waste. See response to comments 3.1.1
through 3.1.8.

Comment 3.7.5:

Assuming for the purposes of argument that CO2 can be viewed as a
contained gas, and thus potentially subject to RCRA regulation, EPA
mistakenly categorizes all CO2 captured, transported, and injected for
sequestration in a Class VI well as a solid waste under the rationale
that it has been discarded. As USWAG stated in its comments on the 2008
CO2 GS Proposal, CCS technology and implementation are still in a
nascent stage; EPA should refrain from making categorical assumptions
associated with this still-emerging technology, including with respect
to the status (i.e., discarded or retaining value) of CO2 captured and
injected for CO2 GS.

A series of relevant judicial decisions holds that Congress intended to
extend EPA’s authority to regulate “solid waste” under RCRA
“only to materials that are truly discarded, disposed of, thrown away,
or abandoned.” American Mining Congress v. EPA, 824 F.2d 1177, 1190
(D.C. Cir. 1987) (emphasis added); see also, e.g., Assn. of Battery
Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051-52 (D.C. Cir. 2000). As EPA
is well aware, CO2 is a valuable commodity used in a variety of
manufacturing operations, including in the enhanced oil recovery
(“EOR”) and enhanced gas recovery (“EGR”) production process.
When used in these commercial applications, CO2 is not “discarded”
and therefore is not a solid waste. While large volumes of CO2 will be
produced and captured for injection under the new UIC Class VI
regulations, it is premature for EPA to presume that these additional
volumes of CO2 will not retain commercial value and that their
sequestration in Class VI wells automatically means that they have been
“discarded” as that term has been defined under RCRA.

 

This flawed assumption, if incorporated into a final rule, could have
far-reaching consequences for CCS, including opening the door for
unfounded citizen suits under section 7002 of RCRA that would only serve
to frustrate the successful implementation of CO2 sequestration
technologies across the country. Indeed, it has been reported that
citizen groups have already identified RCRA’s citizen suit provisions
as a vehicle to hamper the future deployment of CO2 sequestration
technologies. B. DiCosmo, “Activists Say EPA Plan for CCS Waiver
Leaves Door Open to Citizen Suits,” InsideEPA (Aug. 10, 2011)
(available online at www.insideepa.com). To avoid this
counter-productive result, EPA should refrain from categorizing all
sequestered CO2 as “discarded” and potentially subject to
unwarranted and disruptive RCRA citizen suits.

Response: See Responses to Comments 3.1.1 through 3.1.8.  Regarding the
commenter’s statement about section 7002 of RCRA, EPA believes that
the correct finding is that these CO2 streams injected into UIC Class VI
wells for purposes of GS are discarded for the reasons EPA has explained
throughout its responses to public comments, and any citizen suit will
succeed or fail on its own merits.

Comment 3.7.6:

III. A Conditional Exclusion for CO2 Streams Captured and Injected for
GS is Both Necessary and Justified 

Assuming that a CO2 stream captured, transported, and injected for GS is
a “solid waste,” EPA has appropriately exercised its authority under
RCRA to conclude that such a waste stream will not be mismanaged in
manner that poses “a substantial present or potential hazard to human
health or the environment” and, as such, does not warrant regulation
as a hazardous waste under subtitle C. See 76 Fed. Reg. at 48080-81.
Therefore, issuance of the conditional exclusion is fully authorized by
the statute. [FN3: In fact, USWAG believes the conditional exclusion
should exclude from the definition of solid waste, rather than from the
definition of hazardous waste, CO2 streams captured, transported, and
injected for GS. This is important to help protect against unwarranted
and disrupted citizen suits as described in section II, above].

Response: See Responses to Comments 3.2.2. and 3.7.9.

Comment 3.7.7:

EPA acknowledges that there is little evidence suggesting “that CO2
streams would even qualify as RCRA hazardous wastes.” Id. at 48077.
[FN4: EPA emphasizes in the preamble to the Proposal that no hazardous
waste listings apply specifically to CO2 streams; therefore, “ a CO2
stream could only be defined as a hazardous waste [if it has been
discarded and] if it exhibits a hazardous waste characteristic as
defined in 40 CFR Part 261, subtitle C.” 76 Fed. Reg. at 48078].
Regarding whether CO2 streams may exhibit the hazardous waste toxicity
characteristic (“TC”), EPA considers in the preamble that it may be
inappropriate to subject sequestered CO2 to the TC regulation “because
the TC was designed to assess the threat waste would have in a municipal
solid waste landfill (“MSWLF”) disposal scenario, a scenario that is
inherently inapplicable to uncontained supercritical CO2.” Id. at
48078 (internal quotations omitted). Because there is no record evidence
that sequestered CO2 is managed in a MSWLF – in fact, the conditional
exclusion is premised on the material being managed in a UIC Class VI
well – there is no basis for applying the TC to sequestered CO2. See
Assn. of Battery Recyclers, 208 F.3d at 1064 (vacating the use of the
Toxicity Characteristic Leaching Procedure (TCLP) as applied to MGP
wastes because EPA failed to demonstrate that such wastes are likely to
be disposed of in MSWLFs); see also EPA Memorandum from Elizabeth
Cotsworth to EPA Regions, “Implication of Vacature of TCLP Use for
Evaluating Manufactured Gas Plant (MGP) Wastes in the Battery Recyclers
Case,” R.O. 14492. Therefore, subjecting CO2 that is captured,
transported, and injected for GS to the TCLP for purposes of assessing
whether it is a hazardous waste would be contrary to law.

Response: EPA disagrees with the commenter. First, EPA notes that the
commenter appears to have inaccurately quoted some of EPA’s
statements, and misconstrued other statements, in the proposed rule
preamble. For example, in the proposed rule preamble, EPA was
summarizing the concerns of others when it when it stated,
“[c]ommenters 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.’”. For its part, EPA noted in the preamble 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. 40 CFR 262.11(c)(2). 

EPA appreciates commenters’ concerns regarding the application of the
hazardous waste regulations to supercritical CO2 streams being
sequestered. EPA believes these concerns exist as a result of the unique
circumstances associated with addressing the applicability of RCRA to
CCS at such an early stage in the development of CCS. However, it is
important to note that EPA did not set out in this rulemaking to
conclude that those supercritical CO2 streams that are solid wastes
would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated
in the proposed rule that it could not unequivocally conclude that
supercritical CO2 streams will never exhibit any RCRA hazardous waste
characteristic and commenters provided no information to the contrary.
Alternatively, EPA acknowledges that some RCRA hazardous characteristics
are unlikely to apply to a waste composed of >90% CO2, such as
ignitability (i.e., RCRA Waste Code D001). Thus, in light of the early
state of data development in this area, EPA intends to bring additional
clarity to the regulatory regime through this rule, by establishing a
conditional exclusion from the definition of hazardous waste that would
apply in the event a generator determines that its CO2 streams exhibit a
RCRA hazardous characteristic.

EPA notes that it is not required to affirmatively demonstrate, as part
of this rulemaking, that a particular CO2 stream, or a portion of all
CO2 streams, necessarily qualifies as RCRA hazardous waste. Rather,
under the conditional exclusion concept, EPA considers whether RCRA
subtitle C regulation is necessary to protect human health and the
environment. As explained in today’s rule, after consideration of
public comment, EPA has reached the conclusion that management of CO2
streams under existing standards, including the UIC requirements for
Class VI wells, as well as DOT standards, will protect human health and
the environment from potential risks associated with CO2 streams
(including associated constituents that might be present). This
conclusion is based on EPA’s analysis of those other regulatory
programs directly. EPA’s analysis and conclusions are independent of,
and thus unaffected by, the question of whether a stream is classified
as a hazardous waste under EPA’s RCRA regulations. 

Comment 3.7.8:

Moreover, as USWAG and others pointed out in 2008, and as EPA
recognizes, uncertainty regarding the potential RCRA status of CO2 GS
streams and the associated implications for the type of UIC permit
required (i.e., Class I or Class VI) would be “a significant
impediment to widespread deployment of CCS technologies.” 76 Fed. Reg.
at 48077. Because the final UIC Class VI rules do not contain the
requested clarification regarding applicability of RCRA to the injection
of CO2, this regulatory uncertainty remains a significant concern to
USWAG as it is likely to have a chilling effect on participation in CO2
GS projects. The proposed conditional exclusion is necessary to remove
this regulatory uncertainty and remove an unnecessary impediment to the
successful development and employment of CO2 sequestration technologies.

Response: See response to comment 3.7.3.

Comment 3.7.9:

EPA’s authority to issue conditional exemptions from the RCRA subtitle
C requirements where “a waste might pose a hazard only under limited
management scenarios, and [where] other regulatory programs already
address such scenarios” derives from RCRA itself and is supported by
case law. See id. at 48080. Section 3001(a) of RCRA requires EPA, prior
to listing a waste as hazardous, to consider whether the waste “should
be subject to” subtitle C’s hazardous waste requirements. RCRA
[Section] 3001, 42 U.S.C. [Section] 6921 (emphasis added). RCRA’s
statutory definition of “hazardous waste,” in turn, provides that
“a solid waste … which because of its quantity, concentration, or
physical, chemical or infectious characteristics may … pose a
substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed.” RCRA [Section] 1004(5)(B), 42 U.S.C.
[Section] 6903(4)(B) (emphasis added); see also 76 Fed. Reg. at 48080.
In other words, as EPA properly explains, “a waste that is otherwise
hazardous does not require regulation [under subtitle C] so long as it
is properly managed.” Id. at 48080. Put another way, if a waste is
managed in a manner that ensures that it will not “be improperly
treated, stored, transported, or disposed of, or otherwise
mismanaged,” it does meet the statutory definition of “hazardous
waste” and does not warrant regulation under RCRA subtitle C. See id.
at 48081 (“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” (emphasis added)).

EPA’s longstanding practice in its administration of RCRA is based on
this concept. As explained in the preamble, 

EPA has consistently interpreted section 3001 of RCRA to give [the
Agency] 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. 

Id. at 48080 (emphasis added). This interpretation of the statute has
been repeatedly upheld by the courts in litigation involving other
conditional exclusions from hazardous waste regulation. For example, the
United States Court of Appeals for the District of Columbia Circuit held
in Military Toxics Project v. EPA that EPA’s exemption from subtitle C
of military munitions, where those munitions were transported and stored
in compliance with DOT and Department of Defense regulations, was “a
permissible construction of [RCRA].” 146 F.3d 948 (D.C. Cir. 1998);
see also 76 Fed. Reg. at 48080. The D.C. Circuit upheld similarly
justified exemptions (i.e., based on existing regulatory controls
independent from RCRA) in Natural Resources Defense Council v. EPA, 25
F.3d 1063 (D.C. Cir. 1994), and Edison Electric Institute v. EPA, 2 F.3d
438 (D.C. Cir. 1993); see also 76 Fed. Reg. at 48080.

In this case, EPA has established a rulemaking record demonstrating that
CO2 (that is discarded and would otherwise exhibit a hazardous waste
characteristic) managed in accordance with the proposed conditional
exclusion will not be mismanaged and therefore should not be regulated
under RCRA subtitle C. 76 Fed. Reg. at 48081. In the preamble, EPA
provides an overview of the alternative regulatory controls that would
be applicable to the transport and sequestration of CO2 that will ensure
its proper management. These include comprehensive DOT regulations
applicable to the transportation of the captured CO2 stream (id. at
48082-83) and imposition of the UIC requirements governing permitting,
construction, operation, and closure of Class VI wells (id. at 48083-85)
on the CO2 stream. Moreover, as EPA correctly points out, the UIC
regulations authorize the permit-issuing authority to attach “any
additional conditions to the [Class VI UIC] permit, as necessary, to
assure compliance with applicable SDWA requirements (40 CFR
146.52(b)).” Id. at 48079. This broad permitting authority allows
regulators to address, on a case-by-case basis, any additional concerns
raised by the potential presence of hazardous constituents in individual
CO2 streams intended for GS. In short, a full range of alternative,
pre-existing regulatory controls apply to the management of CO2 that
will ensure that this material is not mismanaged in a way that poses a
threat to human health and the environment. As such, it does not warrant
regulation as a hazardous waste.

Accordingly, because EPA has determined that CO2 streams will be
properly managed under alternative regulatory regimes and will not be
mismanaged, EPA has properly exercised its authority to exempt such
streams from RCRA subtitle C and, in doing so, remove a significant
barrier to this “key climate change mitigation technology.” Id. at
48077.

Response: EPA has the authority to issue conditional exclusions from the
hazardous waste regulations. EPA’s authority to issue the rule is
described in section II.B. of the final rule preamble. EPA also believes
that it appropriately concluded that management of CO2 streams under the
terms of the final rule does not present a substantial risk to human
health and the environment, making additional regulation under RCRA
unnecessary. 

Comment 3.7.10:

IV. EPA Should Clarify Certain Issues in Finalizing a Conditional
Exclusion from RCRA’s Subtitle C Regulations for CO2 Streams Captured
and Injected for GS 

If promulgated, the RCRA Proposal would exclude from RCRA hazardous
waste regulation any CO2 GS streams that exhibit a hazardous
characteristic from the definition of “hazardous waste” under RCRA,
provided the following conditions are met:

(i) The CO2 stream is captured from emission sources and transported for
purposes of injection into an underground injection well subject to the
requirements for UIC Class VI wells;

 

(ii) Transportation of the CO2 GS stream is in compliance with
applicable Department of Transportation (“DOT”) requirements;

 

(iii) Injection of the CO2 stream is in compliance with the applicable
UIC requirements for Class VI wells, including the requirements set
forth at 40 C.F.R. Parts 144 and 146;

(iv) No other hazardous wastes are mixed with, or otherwise co-injected
with, the CO2 stream; and 

(v) Any generator of a CO2 stream, and any Class VI UIC well owner or
operator who claims that a CO2 stream is excluded under the conditional
exclusion, has an authorized representative sign a certification
statement and keep that signed statement on-site for at least three
years, to be made available within 72 hours of a written request from
the regulating authority, and to be renewed every year by the person
claiming the exclusion.

Id. at 48092-93 (proposed to be codified at 40 C.F.R. [Section]
261.4(h)).

USWAG supports a conditional exclusion from RCRA’s hazardous waste
requirements for discarded CO2 GS streams, and believes that such an
exclusion, provided it is crafted carefully, will provide much-needed
regulatory certainty and promote participation in CO2 GS projects.
However, certain issues raised in (or neglected by) the RCRA Proposal
require attention and/or revision. These issues are raised below.

Response: EPA has made some changes to the proposed rule, as summarized
in Section IV of the final rule preamble. EPA believes the rule as
finalized 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. See responses to comments 3.7.11 – 3.7.14. 

Comment 3.7.11:

A. “Incidental Associated Substances”

The RCRA Proposal provides that CO2 GS streams are ineligible for the
conditional exclusion if they have been “mixed with, or otherwise
co-injected with,” any other hazardous waste stream. 76 Fed. Reg. at
48093. At the same time, the definition of “Carbon dioxide (CO2)
stream” in the preamble mirrors that in the current Class VI UIC
regulations in that it includes not only the captured CO2 but also
“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.” Id. at 48075 (emphasis
added); see also 40 C.F.R. § 146.81(d). This component of the
definition is critical to ensure that the conditional exclusion is
practicable, as captured CO2 will necessarily include associated
substances included in the stream from the capture process, as well as
substances intentionally added to the stream to facilitate injection
operations.

While the RCRA Proposal provides some information on estimated
concentrations of certain constituents in the CO2 stream (76 Fed. Reg.
48079), it is important that EPA make clear in the final rule that these
values are not intended to be regulatory limits or otherwise interpreted
to identify the amount or scope of “incidental associated
substances” that may be included in an excluded CO2 stream. Because
the employment of CO2 capture operations is still in the formative
stages and CO2 may be captured from a variety of industrial sources, EPA
must be careful not to inadvertently restrict the scope of CO2 materials
eligible for the conditional exclusion by inappropriately limiting the
type of “incidental associated substances” and related substances
that are legitimately included in a sequestered CO2 stream.

Response: The commenter makes the point that because of the condition
that there can be no mixing of hazardous waste with the excluded CO2
stream, together with the fact that excluded CO2 streams may still
contain (by definition) “incidental associated substances” and
“substances added to the stream to enable the facilitate injection”
EPA should clarify that the estimated constituent concentrations
discussed in the preamble to the proposed rule (76 FR at 48079) are not
intended to represent in some manner limits on allowable concentrations
of incidental associated substances in excluded CO2 streams.  EPA
clarifies that this was not the purpose of presenting these constituent
concentrations; rather, they were presented as part of the preamble
discussion on the types of constituents that could be present in CO2
streams captured from coal-fired power plants. EPA is not identifying
the amount or scope of “incidental associated substances” that may
be included in an excluded CO2 stream in this final rule. EPA has
concluded that the injection of CO2 streams, including incidental
associated substances derived from the source materials and the capture
process, can be performed in a protective manner at a permitted UIC
Class VI well. This is the case regardless of the precise contaminants,
and their concentrations, because the UIC Class VI permitting
requirements will take into account the physical and chemical
characteristics of the CO2 streams before any injection may occur, as
part of establishing the appropriate conditions for the successful
confinement of CO2 in a manner that is protective of USDWs. EPA intends
to monitor any data on the chemical composition and physical
characteristics of the CO2 streams being injected by the UIC Class VI
permitting program and to use that information to determine whether
changes to the conditional exclusion may be appropriate.

Comment 3.7.12:

B. Prohibition on Mixing/Co-Injecting Other Hazardous Wastes with CO2
Stream

It is clear that substances naturally occurring underground would not be
“discarded” and therefore could not be hazardous wastes under RCRA.
Nonetheless, to avoid a scenario in which the applicability of the
conditional exclusion might be jeopardized as the result of
post-injection mixing of the CO2 stream and other underground
substances, EPA should clarify that such a scenario would not run afoul
of the exclusion’s condition that injected CO2 not be mixed or
otherwise co-injected with other hazardous wastes.

Response: EPA believes that the scenario described by the commenter
regarding the potential behavior of CO2 streams after injection into a
UIC Class VI well would not affect the availability of the conditional
exclusion, because the exclusion requires injection into a UIC Class VI
well (in compliance with all of the conditions), and any potential
issues with the CO2 stream post-injection would be addressed as part of
the site-specific UIC Class VI permit. 

Comment 3.7.13:

C. Consequences of Minor/Technical Non-Compliance

As currently written, the terms of the proposed conditional exclusion
would mean that non-compliance with any aspect of the conditional
exclusion at any point in the management of the CO2 stream results in
the material being subject to all applicable subtitle C requirements
beginning at the point of generation. Id. at 48087. This would mean, for
instance, if there is minor paperwork violation by the Class VI UIC well
operator, the CO2 (assuming it is hazardous) would have been subject to
all subtitle C generator and transportation requirements from the
instant it was captured at the power facility, and that the well
operator must be in immediate compliance with a different set of UIC
Class I permit conditions. Clearly, this is not practical and, most
importantly, not necessary.

Compliance with existing applicable regulatory programs is the
foundation of this conditional exemption. However, both the DOT
regulations and UIC regulations potentially applicable to CO2 streams
captured for GS are complex, and contain a number of requirements that
are administrative, rather than protective or risk-based, in nature
(e.g., the recordkeeping requirements for Class VI wells set forth at 40
C.F.R. [Section] 146.91(f)). As noted above, it is possible that an
owner/operator could be deemed ineligible for the conditional exclusion
as the result of a mistake that has no bearing on risk or environmental
safety but nonetheless results in an immediate conversion of the entire
CO2 management stream to an entirely new set of controls that would be
virtually impossible to meet.

To avoid this kind of scenario, EPA should, a minimum, make clear that
any noncompliance occurring during a specific phase of the CCS process
(i.e., capture, storage, transportation, or injection) would only
implicate that specific phase of CCS management for purposes of
determining applicability of the exclusion to a given CO2 stream. More
generally, EPA should make clear that only a “material
noncompliance” with applicable DOT and UIC regulations results in
subjecting the CO2 stream to any applicable subtitle C requirements. In
particular, EPA should amend the language of the proposed conditional
exclusion to clarify that non-compliance that is administrative in
nature and is not knowing or willful on the part of the owner/operator
will not alone render the CO2 stream ineligible for the conditional
exclusion. In addition, EPA should include in the conditional exclusion
a provision granting the EPA (or, where applicable, state regulator)
discretion to, on a case-by-case basis, apply the conditional exclusion
even where some level of non-compliance with DOT or UIC regulations
exists or has existed.

Response: In the final rule, EPA maintains that a CO2 stream must meet
all the conditions to qualify for and maintain the exclusion from the
hazardous waste regulations, and a violation of a condition at any point
in the management of a CO2 stream (that is otherwise hazardous) would
result in that CO2 stream being subject to all applicable subtitle C
regulatory requirements, from the point of generation. The rule
conditions, taken together, ensure that the excluded CO2 streams are
being managed in a protective manner such that subtitle C regulations
are not necessary. Therefore, it follows that any management not in
accordance with those conditions does not qualify for the exclusion. 

However, EPA can appreciate the commenter’s concern over the loss of
the conditional exclusion due to, for example, small administrative or
clerical errors. EPA’s Office of Enforcement and Compliance Assurance
(OECA) is unable to provide definitive assurances outside the context of
a formal enforcement proceeding that the government will not proceed
with an enforcement response for a specific individual violation of an
environmental protection statute, regulation, or legal requirement.
However, EPA can (and has previously done so for other RCRA rules)
exercise discretion to decide when and how to respond or not respond to
a given violation, based on the Agency’s normal priorities. In RCRA
penalty actions, the factors that EPA considers in assessing the
gravity-based portion of the penalty are the potential for harm and the
extent of deviation from a statutory or regulatory requirement. The
penalty can be adjusted for numerous factors, including good faith
efforts to comply, degree of willfulness and negligence, and history of
noncompliance. Additional information can be found in the 2003 RCRA
Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf).  

Comment 3.7.14:

D. Certification Statement

One of the proposed conditions on which the exclusion would be based is
that “[a]ny 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” the conditional exclusion,
must have an authorized representative certify “ under penalty of
law” that the CO2 stream “ meets all of the conditions set forth in
[40 C.F.R. [Section] 261.4(h)(1)].” 76 Fed. Reg. at 48093 (proposed to
be codified at 40 C.F.R. [Section] 261.4(h) (iv)). This certification
statement is overly broad and impracticable.

As discussed above, compliance with [Section] 261.4(h)(iv) includes
compliance with all applicable DOT and UIC regulations, including 40
C.F.R. Parts 144 and 146. Because a generator will in many cases not own
or operate the Class VI well at which the CO2 stream is injected and
sequestered, this certification provision would require an individual to
attest, under penalty of law, to facts which are not readily known to
him and/or which are not under his control. Similarly, a Class VI well
owner or operator may not have access to information regarding any
potential non-compliance with DOT regulations that occurred while the
CO2 stream was in transit. It is fundamentally unfair and would create a
regulatory disincentive to engage in CO2 sequestration to require
persons engaged in these operations to certify under penalty of law
compliance with obligations which are not applicable to their particular
activities and for which they have no direct control. For these reasons,
the certification statement should be amended to require parties to
attest compliance with only those conditions for which they have
responsibility under the proposed exclusion (e.g., in the case of
generators, a certification that the CO2 stream was captured from an
emission source and transported for purposes of injection into an
underground injection well subject to the requirements for UIC Class VI
wells).

Response: EPA agrees and has modified the certification requirement in
the final rule so that there are now two separate certification
statements worded slightly differently – one for generators and
another for UIC Class VI well owners or operators claiming this
conditional exclusion. EPA has made these revisions to better reflect
actions over which each party has control. Under the final rule, the
certification statement that the generator would sign is specific to the
activities within the generator’s control; likewise, the certification
statement that the UIC Class VI well owner or operator would sign is
specific to the activities within the owner or operator’s control. 

Comment 3.7.15:

We appreciate the opportunity to comment on important proposal. If you
have any questions regarding these comments, please contact USWAG
counsel Douglas Green (see docket for contact information).

Response: EPA acknowledges the comment.

CCS Alliance

Document ID: EPA-HQ-RCRA-2010-0695-0083

Comment 3.8.1:

The CCS Alliance, a multi-industry group of entities whose mission is to
address barriers to the potential deployment of carbon capture and
sequestration, submits these comments in support of the Environmental
Protection Agency's ("EPA" or "the Agency") proposed rule to
conditionally exclude geologically sequestered CO2 from regulation under
the Resource Conservation and Recovery Act's ("RCRA") hazardous waste
program.

Response: EPA thanks the commenter for its support of the conditional
exclusion.

Comment 3.8.2:

Introduction

The CCS Alliance favors a single, clear regulatory structure for
geologic sequestration ("GS") of carbon dioxide, as opposed to a
structure composed of multiple regulatory laws with overlapping
enforcement regimes and penalty provisions. Unlike with other spheres of
commercial activity, with GS the nation has the opportunity to establish
a regulatory framework before the practice becomes widespread. Thus
government may take into account the factors that specially characterize
GS before regulating, as well as the public policy objectives
surrounding it.

GS is a practice the government desires to encourage, or at least
desires not to discourage, to reduce emission of CO2 into the
atmosphere. We submit that a single, clear structure of regulation and
enforcement suits this interest better than confusing requirements under
multiple statutes. EPA already has established a detailed, comprehensive
regulatory framework for GS through the Underground Injection Control
("UIC") program of the Safe Drinking Water Act. We agree with the
Agency's commentary in the proposed rule that the UIC Class VI program
for GS wells that EPA established in 2010 is sufficient to protect the
environmental and safety interests that RCRA was enacted to protect.
Applying burdensome RCRA hazardous waste regulation on top of the UIC
regulations not only would not advance the interests served by RCRA, but
could drive up costs for and discourage deployment of GS, frustrating
EPA's carbon dioxide emission reduction goals.

Response: EPA agrees that management of CO2 streams under existing
standards, including the UIC requirements for Class VI wells, as well as
Department of Transportation (DOT) standards, will protect human health
and the environment from potential risks associated with CO2 streams,
making additional regulation pursuant to the Resource Conservation and
Recovery Act’s (RCRA) hazardous waste regulations unnecessary.

Comment 3.8.3:

EPA itself has acknowledged the burden of RCRA and the fact that many of
its requirements are poorly suited to at least some of the activities to
which they apply. EPA initiated a rulemaking in 2002 to reduce the
burdens associated with the RCRA hazardous waste program. [FN1: Resource
Conservation and Recovery Act Burden Reduction Initiative, 67 Fed. Reg.
2518 (proposed Jan. 17,2002); see also RCRA Burden Initiative; Final
Rule, 71 Fed. Reg. 16,862 (Apr. 4, 2006)]. The Agency noted, "[t]he
existing hazardous waste regulations require the submittal of 334
notifications, reports, certifications, demonstrations, and plans from
generators and TSDFs to demonstrate compliance with the RCRA
regulations." [FN2: RCRA Burden Reduction lnitiative; Notice of Data
Availability, 68 Fed. Reg. 61,662, 61,644 (Oct. 29, 2003)].

Reporting requirements are just one example of RCRA' s burdens.
Construction, permitting, operating, monitoring, and post-site closure
requirements are much more burdensome for Class I hazardous wells than
for the other types of injection wells. For instance, Class I hazardous
wells have a requirement that there be no migration for 10,000 years.
Such strict requirements may be appropriate to protect USDWs and the
environment from certain hazardous wastes, but were not established with
the circumstances of GS of CO2 in mind.

Furthermore, if a facility were required to obtain a Class I UIC
hazardous waste injection permit, all other waste management units at
the facility could be subject to the full extent of RCRA's Subtitle C
corrective action program, which is an extremely costly and
administratively complex program. Determining that CO2 constitutes a
hazardous waste and subjecting CO2 injection and storage to the
burdensome Class I well requirements would not promote underground
injection and storage of CO2.

Imposing extensive, burdensome RCRA regulations likely to have little
benefit for human health and the environment may result in larger
atmospheric releases of CO2 if GS is not as widely deployed.

Response: See response to comment 3.8.2. Where these comments relate
only to the general burden of the RCRA requirements, as the commenter
states, and the UIC Class I hazardous wells, these comments are outside
the scope of this rulemaking. EPA agrees that while the requirements for
each UIC injection well class address the specific practices and unique
risks to USDWs posed by a specific well class, the Class VI requirements
are tailored to the unique aspects of carbon dioxide injection for GS
(e.g., large CO2 injection volumes, the buoyant and mobile nature of the
injectate), and EPA developed its RCRA conditional exclusion based upon
injection in a UIC Class VI well. EPA believes this rule will facilitate
the deployment of GS by providing additional regulatory certainty.

Comment 3.8.4:

Issues with the Proposed Rule

The CCS Alliance supports a conditional exclusion from RCRA hazardous
waste regulation for geologically sequestered CO2 streams. This is an
appropriate regulatory approach that we and others recommended in
comments on the UIC Class VI proposed rule in 2008. Nonetheless, there
is one threshold issue the Agency needs to address, and there are
several issues with the proposed exclusion that merit revision or
clarification. 

Response: EPA thanks the commenter for its support of the conditional
exclusion, and addresses the commenter’s further comments below.

Comment 3.8.5:

Applicability of RCRA

EPA has not clearly explained in this proposed rule why RCRA is
applicable at all to GS. RCRA's detailed regulatory scheme applies to
"solid wastes." However, RCRA's definition of "solid waste" includes a
"contained gaseous material" but does not include an uncontained gaseous
material. [FN3: 42 U.S.C. 6903(27)] Does the Agency assert that CO2 that
is captured from a generation source - an electric generating facility,
a gas processing facility, manufacturing facility, etc. - that is to be
geologically sequestered is a contained gas?

Geologically sequestered CO2 should be considered an uncontained gaseous
material and therefore not a solid waste, based on agency precedent. In
In re BP Chemicals America, Inc., RCRA Appeal No. 89-4, 1991 WL 208971
(Admin., Aug. 20, 1991), the Agency held that uncondensable hydrogen
cyanide from an acrylonitrile manufacturing plant that is "contained"
within piping and other equipment within the plant and thermally
destroyed is not a solid waste subject to RCRA because it is not a
contained gaseous material. Rejecting EPA Region V's argument for
applying hazardous waste regulation, the Agency found:

[T]he Agency views gaseous material to be "solid waste" only when it is
containerized. Region V argues that BP's HCN vapor is "contained" by the
various process units through which it passes, by associated piping, and
by the plant as a whole. The Region's reading of the term "contained,"
however, cannot be reconciled with the Agency's treatment of fume
incinerators. Such incinerators are used to treat vapors that are
"contained" in the broad sense of being bound or controlled and not
being emitted to the atmosphere, but the Agency considers such vapors to
be outside the scope of the "solid waste" definition because they are
not containerized in the narrower sense of being in an individual
container such that the gas is amenable to shipment. [FN4: In re BP
Chemicals America. Inc., RCRA Appeal No. 89-4, 1991 WL 208971 (Admin.,
Aug. 20, 1991), p.2-3]. 

Similarly, in the case of CO2 for GS, the CO2 will be "contained" only
in the sense that it is within piping and associated equipment inside,
and ultimately outside, the industrial facility where it is captured. It
will be shipped via pipeline, and the Agency precedent makes clear that
such containment does not render a material a contained gas. Once it is
sequestered in a geologic formation, it is subject to regulations to
ensure that it remains within that formation, but it will not be
"containerized in the narrower sense of being in an individual container
such that the gas is amenable to shipment."

We note that EPA earlier this year confirmed its interpretation of the
"contained gaseous material" portion of the definition of "solid waste."
In response to questions raised by industry about whether an Agency
document issued earlier this year was reinterpreting the term, EPA
acknowledged the document 

has created concerns among the regulated community that the [EPA] has
changed a long-standing interpretation of what constitutes a "contained
gaseous material" for purposes of defining the term "solid waste" under
the Resource Conservation and Recovery Act (RCRA). We have not changed
our prior interpretation. . .. We clarify here that the Agency's
previous statements and interpretations remain effective. [FN5: Letter
from Suzanne Rudzinski, Director, Office of Resource Conservation and
Recovery, to Tim Hunt, American Forest and Paper Association, May 13,
2011].

Response: EPA disagrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are not solid wastes. See Responses to Comments 3.2.1 and
3.2.10.

Comment 3.8.6:

Contours of Conditional Exclusion

Incidental Associated Substances

We note that the Agency did not consider it necessary to clarify in the
proposed rule the term "incidental associated substances," which
features in the definition of the term "carbon dioxide stream" in both
the UIC Class VI regulation and the proposed rule. We believe that the
context of the proposed rule makes clear that other substances captured
together with the CO2 from a gas stream are "incidental associated
substances." If this is not the Agency's intent, we recommend that this
term be clarified. The proposed rule states:

[T]oday's conditional exclusion would apply to CO2 streams that are
otherwise RCRA hazardous wastes .... EPA intends ... 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
nonhazardous CO2 streams may be injected into a UIC Class VI well. [FN6:
Proposed rule, 76 Fed. Reg. 48073, at 48088]. 

The motivation behind proposing the conditional exclusion is the fact
that the presence of other substances in the CO2 stream could trigger
the definition of hazardous waste. Thus it is essential in order for the
exclusion to be effective that the scope of the non-CO2 substances that
may be part of the CO2 stream is clear.

As the proposed rule notes, the purity of the CO2 stream will depend on
a variety of factors, including the source material and the capture
process employed. Furthermore, depending on the scope of future
regulation, CO2 streams may be captured from a variety of industrial
facilities. The proposed rule lists estimated concentrations of
hazardous constituents, such as mercury and chromium, that may be
expected to be present in the CO2 stream. EPA does not appear to suggest
that these estimated concentrations are limits, and that higher
concentrations or the presence of other incidentally captured materials
would void the exclusion. They merely inform EPA's decision that the
conditional exclusion is protective of the environment.

The type and amount of such substances that may be included in the
stream is of critical importance, because the consequences of voiding
the conditional exclusion could be severe. One might anticipate that a
GS facility that inadvertently sequesters a CO2 stream that is not
subject to the conditional exclusion could be forced to meet the more
stringent Class I hazardous regulations, which could require the
facility to shut down temporarily or perhaps permanently. This may have
"upstream" effects, as discussed below.

Response: EPA confirms that “incidental associated substances derived
from the source materials and the capture process” is intended to
refer to those substances that are captured together with the CO2. EPA
also confirms that it did not intend that the numerical concentrations
of hazardous constituents described in the proposal’s discussion of
RCRA characterization issues define what constitutes “incidental
associated substances” in the proposed rule or in the final
conditional exclusion. In the final rule, EPA is not identifying the
type and amount of substances that may be included as "incidental
associated substances" in the carbon dioxide stream. EPA has concluded
that the injection of CO2 streams, including incidental associated
substances derived from the source materials and the capture process,
can be performed in a protective manner at a permitted UIC Class VI
well. This is the case regardless of the precise contaminants, and their
concentrations, because the UIC Class VI permitting requirements will
take into account the physical and chemical characteristics of the CO2
streams before any injection may occur, as part of establishing the
appropriate conditions for the successful confinement of CO2 in a manner
that is protective of USDWs. EPA emphasizes that the UIC Class VI
regulations themselves require that the chemical composition and
physical characteristics of the CO2 streams be known as part of the
initial permitting process, as well as during operation of the well, in
order to ensure that these CO2 streams can be injected in a manner that
is protective of human health and the environment. EPA intends to
monitor any data on the chemical composition and physical
characteristics of the CO2 streams being injected by the UIC Class VI
permitting program and to use that information to determine whether
changes to the conditional exclusion may be appropriate.

A RCRA hazardous CO2 stream that does not meet the conditions of this
rule 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 acknowledges that there would be
implications to changing the regulatory status of a UIC Class VI well to
that of a UIC Class I hazardous well.  See Responses to Comments 3.8.7
and 3.21.3.

Comment 3.8.7:

Paperwork and other Minor Violations

The proposed rule makes clear EPA's intention that the consequences of
failing to maintain compliance with the conditions for the exclusion
will end the exclusion: 

Failure to meet the conditions [of the proposed rule] 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 requirements, from the point
of generation. [FN7: Id. at 48087].

Among the conditions that must be maintained is a requirement that
"[i]njection 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 C.F.R. parts 144 and
146.” [FN8: Id. at 48093]. The requirements of these parts encompass
dozens of pages of regulatory text and hundreds of individual
requirements (many subject to interpretation of the EPA or the State,
whichever may be implementing the program), including recordkeeping and
reporting requirements, and others the violation of which may have no
consequence to safety.

If violation of a regulatory requirements results in closure of a GS
facility, and that closure means that electric generators must shut down
because they would be unable to operate without violating Clean Air Act
carbon emission regulations, there could be serious impacts to electric
reliability, with potential impacts to public health. An affected power
plant may be vital to reliability not only because of the power it
generates, but for the voltage support it provides to the transmission
grid in the region. Note that the fossil-fueled generating units that
produce CO2 typically are baseload generating units that typically are
the primary source of reactive power that provides voltage support. This
concern about reliability would be attenuated if EPA were to choose
another means to preclude the applicability of RCRA that could not
result in the facility being potentially subject to hazardous waste
regulation for minor violations.

It is understood that full compliance with Class VI UIC regulation is
expected, in addition to being legally required. What is unclear is what
enforcement discretion the Agency has and intends to be applied (by EPA
and the States) in implementing the regulations. We recommend that EPA
provide guidance that in considering enforcement options, UIC program
directors should take into account the broad consequences of those
options, such as electric reliability and operation of "upstream" CO2
generating facilities.

Response: It is unclear to EPA the extent to which these comments relate
to terms of the RCRA conditional exclusion, or the UIC Class VI rules
themselves. To the extent that these comments relate to the UIC program,
they are beyond the scope of this rulemaking.

With respect to the comment regarding minor violations resulting in the
loss of the conditional exclusion, EPA maintains that a CO2 stream must
meet all the conditions to qualify for and maintain the exclusion from
the hazardous waste regulations, and a violation of a condition at any
point in the management of a CO2 stream (that is otherwise hazardous)
would result in that CO2 stream being subject to all applicable subtitle
C regulatory requirements, from the point of generation. The rule's
conditions, taken together, ensure that the excluded CO2 streams are
being managed in a protective manner such that subtitle C regulations
are not necessary. Therefore, it follows that any management not in
accordance with those conditions does not qualify for the exclusion.

However, EPA can appreciate the commenter’s concern over the loss of
the conditional exclusion due to, for example, small administrative or
clerical errors. EPA’s Office of Enforcement and Compliance Assurance
(OECA) is unable to provide definitive assurances outside the context of
a formal enforcement proceeding that the government will not proceed
with an enforcement response for a specific individual violation of an
environmental protection statute, regulation, or legal requirement.
However, EPA can (and has previously done so for other RCRA rules)
exercise discretion to decide when and how to respond or not respond to
a given violation, based on the Agency’s normal priorities. In RCRA
penalty actions, the factors that EPA considers in assessing the
gravity-based portion of the penalty are the potential for harm and the
extent of deviation from a statutory or regulatory requirement. The
penalty can be adjusted for numerous factors, including good faith
efforts to comply, degree of willfulness and negligence, and history of
noncompliance. Additional information can be found in the 2003 RCRA
Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf).  

Comment 3.8.8:

Overbroad Certification Requirement

Among the conditions for being subject to the proposed conditional
exclusion is the requirement that well owners and operators and CO2
stream generators have an authorized representative sign the following
statement: 

I certify under penalty of law that the carbon dioxide stream that I am
claiming to be excluded under 40 C.F.R. 261.4(h)( 1) meets all of the
conditions set forth in that paragraph. [FN9: Id.]. 

As noted above, one condition is that the sequestration well must be in
compliance with 40 C.F.R. parts 144 and 146. It is broadly recognized
that in many instances, perhaps even the majority of the time, a
generator will not own or operate the GS facility at which the
generator's CO2 stream is sequestered. One of many features in the
regulatory structure that will contribute to safe operation of GS
facilities is encouragement for generators to contract with competent,
reputable GS facility operators. However, it is neither practicable nor
appropriate for a generator to certify that a facility operator is in
compliance with each UIC regulatory requirement. That should be the
operator's obligation. Nor is it possible for a generator to certify to
the compliance of other generators who send their CO2 streams to the
facility.

The certification in proposed 40 C.F.R. 261.4(h)(1)(iv) should be
limited to the regulatory obligations that are the responsibility of the
party making the certification. For a generator, we believe there is
only one such obligation, which is that the injectate be qualified as a
CO2 stream. We recommend that the certification obligation for
generators be amended to read as follows: 

I certify under penalty of law that the material being delivered is
qualified as a carbon dioxide stream under 40 C.F.R. 146(d).

Response: EPA agrees that the certification statement should better
reflect the activities within the signatory’s control. EPA has revised
the certification statement in the final rule so that there are now two
separate certification statements – one for CO2 stream generators and
another for UIC Class VI well owners or operators. Under the final rule,
the certification statement that the generator would sign is specific to
the activities within the generator’s control; likewise, the
certification statement that the UIC Class VI well owner or operator
would sign is specific to the activities within the owner or
operator’s control. The certification statement EPA is finalizing for
generators includes the prohibition on hazardous waste mixing and
delivery (or arranging for delivery) of the CO2 stream to a UIC Class VI
facility in compliance with applicable DOT (or state) requirements,
which EPA finds would be in the generator’s control. The commenter
provides no reasons to conclude that these are not in the generator’s
control. Therefore, EPA does not agree that the generator certification
should be limited to certifying that the injectate qualifies as a CO2
stream. Note that these revisions do not change how the conditional
exclusion is implemented – that a CO2 stream that is hazardous must
meet all the conditions in 261.4(h)(1)-(4) to qualify for and maintain
the exclusion from the hazardous waste regulations. 

Comment 3.8.9:

Potential Applicability of CERCLA

We note that the issue of whether the CO2 stream is considered to be a
hazardous waste not only determines whether RCRA would apply, but also
would influence whether the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA" or "Superfund") may apply.
[FN10: 42 U.S.C. 9601 et seq.].

Under CERCLA, the President may compel cleanup actions "when the
President determines that there may be an imminent and substantial
threat to the public health or welfare or the environment because of an
actual or threatened release of a hazardous substance from a facility
....”[FN11: 42 U.S.C. 9606.]. In such cases, Superfund's joint,
strict, several and retroactive liability scheme applies, a system that
has been widely criticized for its expense, delay, and contentious legal
wrangling. In fact, cleanups have been completed at fewer than
one-quarter of the sites placed on Superfund's National Priorities List
since its inception in 1983.

CERCLA defines a "hazardous substance" to include "any hazardous waste
having the characteristics identified under or listed pursuant to
Section 3001 of [RCRA].” [FN12: 1242 U.S.C. 9601(14) [Emphasis
added]].

The CCS Alliance and many others commented in response to the Class VI
UIC proposed rule that the Superfund liability scheme would deter
deployment of CCS. Furthermore, were an incident requiring remediation
to occur at a Class VI facility, applicability of Superfund could doom
the cleanup to delays. Only 350 of the nearly 1,700 sites placed on
Superfund's National Priorities List since its inception in 1983 have
been cleaned up sufficiently to be removed from the list. [FN13:
http://www.epa.gov/superfund/sites/npl/, accessed September 23, 2011].

Response: EPA notes that CERCLA and its related provisions are beyond
the scope of this rulemaking.

Comment 3.8.10:

Conclusion

We are pleased that the Agency has proposed this conditional exclusion
from hazardous waste regulation. A legally justified and more effective
means of precluding hazardous waste regulation would be to determine,
consistent with Agency precedent, that CO2 streams that are geologically
sequestered are an uncontained gas. If EPA persists with a conditional
exclusion, it should provide clarification with respect to the points
noted above.

Response: EPA thanks the commenter for its support of the conditional
exclusion. For the reasons stated above, it is EPA’s position that a
supercritical CO2 stream sent to a UIC Class VI well for purposes of GS
is a RCRA solid waste. EPA is finalizing the conditional exclusion as
described.

State of Utah

Document ID: EPA-HQ-RCRA-2010-0695-0086

Comment 3.9.1:

The State of Utah, through the Public Lands Policy Coordination Office
(PLPCO), has reviewed this project. Utah Code (Section 63J-4-601, et.
seq.) designates PLPCO as the entity responsible to coordinate the
review of technical and policy actions that may affect the physical
resources of the state, and to facilitate the exchange of information on
those actions among federal, state, and local government agencies. As
part of this process, PLPCO makes use of the Resource Development
Coordinating Committee (RDCC). The RDCC includes representatives from
the state agencies that are generally involved or impacted by public
lands management.

Response: EPA acknowledges the comment.

Comment 3.9.2:

The Department of Environmental Quality, Division of Water Quality is
supportive of the rule change and offers one singular comment for your
consideration: The conditional exclusion should extend to Class V
Experimental Technology CO2 wells for DOE's Phase III pilot projects.
See foot note 54. Since EPA has made the following statement with regard
to Class VI wells, "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" (see Summary at the top of
the Federal Register Notice), the statement must surely apply to Class V
Experimental Technology CO2 wells.

Response: EPA disagrees that the conditional exclusion should be
extended to experimental projects that have been issued Class V
experimental technology well permits. EPA simply did not include UIC
Class V wells in its evaluation. The Class VI requirements are tailored
to the unique aspects of carbon dioxide injection for GS (e.g., large
CO2 injection volumes, the buoyant and mobile nature of the Injectate),
and EPA developed its RCRA conditional exclusion based upon injection in
a UIC Class VI well. EPA’s analysis supporting the conditional
exclusion did not include an evaluation of the UIC Class V well
requirements, as those wells are beyond the scope of the rule as
proposed. 

Comment 3.9.3:

If you have any questions relative to this comment or requirement please
contact William E. Damery, P.G., NEPA Compliance Coordinator at [see
docket for contact information].

The State of Utah appreciates the opportunity to review this proposal
and we look forward to working with you on future projects. Please
direct any other written questions regarding this correspondence to the
Public Lands Policy Coordination Office at the address below, or call
[see docket for contact information].

Response: EPA acknowledges the comment.

National Mining Association (NMA)

Document ID: EPA-HQ-RCRA-2010-0695-0065

Comment 3.10.1:

The National Mining Association (NMA) appreciates the opportunity to
provide comments on the U.S. Environmental Protection Agency’s (EPA)
proposed rule that would conditionally exclude carbon dioxide (CO2)
streams that are hazardous from comprehensive hazardous waste management
regulations under the Resource Conservation and Recovery Act (RCRA). 76
Fed. Reg. 48,073 (Aug. 8, 2011). Specifically, CO2 streams that are
captured, transported and injected for geologic sequestration would not
be treated as a hazardous waste under RCRA if the following requirements
are met: (1) the transportation of the CO2 stream is in compliance with
applicable Department of Transportation (DOT) requirements; (2)
injection of the CO2 stream is in compliance with the requirements for
Class VI Underground Injection Control (UIC) wells; (3) no other
hazardous wastes are mixed with, or otherwise co-injected with, the CO2
stream; and (4) an authorized representative of the generator of the CO2
stream and the UIC Class VI well owner certify in writing that all the
conditions are met. See Proposed § 261.4, 76 Fed. Reg. at 48,092-93. 

NMA is a national trade association representing the producers of most
of America’s coal, metals, industrial and agricultural minerals; the
manufacturers of mining and mineral processing machinery, equipment and
supplies; and engineering, transportation, financial and other
businesses that serve the mining industry. NMA strongly supports the
development and use of carbon capture and storage (CCS) technologies
given that they represent one of the most promising and effective
long-term options for large-scale reductions in CO2 emissions from
coal-based generation. NMA further believes that regulatory impediments
must be removed to support investment in and development of CCS and
thereby enable further development and deployment of this technology.

Response: EPA acknowledges the comment.

Comment 3.10.2:

NMA appreciates that the goal of EPA’s proposed rule is to address
stakeholder concerns over the uncertainty that RCRA hazardous waste
requirements would be applied to CO2 streams injected for geologic
sequestration, which in turn would significantly obstruct the deployment
of CCS technologies. See 76 Fed. Reg. at 48,077. NMA agrees with the
agency that the proposed rule will reduce regulatory uncertainty and
potentially help facilitate the deployment of CCS technologies. See id.
at 48,074 (“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 [geologic
sequestration] by providing additional regulatory certainty.”) Id. at
48,074. However, NMA is troubled by the agency’s characterization of
supercritical CO2 streams injected into permitted UIC Class VI wells for
geologic sequestration as being “clearly” within the plain meaning
of “discarded material” and thus a “solid waste” under RCRA. See
76 Fed. Reg. at 48,077-8. This characterization is unsupportable.

RCRA defines a “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 resulting from industrial,
commercial, mining, and agricultural operations . . .” 42 U.S.C. §
6903(27) (emphasis added). As a threshold matter, supercritical CO2
streams are not a “contained gaseous material” and thus are not
subject to RCRA jurisdiction. EPA recognizes that in a supercritical
state CO2 “exhibits physical properties intermediate to those of a
liquid and a gas.” 76 Fed. Reg. at 48,076. Yet, EPA fails to explain
how this unique characteristic of supercritical CO2 streams translates
into labeling the material as a form of “solid waste” as defined by
the statute. Supercritical CO2 streams are best described as an
“uncontained gas” and thus not subject to RCRA. 

refore EPA‟s regulatory authority) be limited to materials that are
“discarded” by virtue of being disposed of, abandoned, or thrown
away.” Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1051-52
(D.C. Cir. 2000) (quoting American Mining Congress v. EPA, 824 F.2d
1177, 1190 (D.C. Cir. 1987)).

Response: EPA agrees with the commenter that conditional exclusion will
reduce regulatory uncertainty for stakeholders and facilitate deployment
of CCS technologies. EPA disagrees that CO2 streams sent to UIC Class VI
wells for purposes of GS are not solid waste. Regarding the
commenter’s statements that supercritical CO2 streams are not a
‘contained gaseous material,’ as EPA noted in the proposed rule, the
CO2 streams are delivered by pipeline and injected into UIC Class VI
wells for GS in a supercritical state, which EPA stated at proposal was
“…rather unique in that it has properties intermediate between a
liquid and a gas.” 76 FR at 48078. The scientific term used to
describe or define this supercritical state (i.e., when a substance is
at or above its critical temperature and critical pressure) is as a
“supercritical fluid.” The RCRA statutory definition of solid waste
specifically refers to “other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from
community activities . . .” 

While EPA has indeed interpreted the meaning of specific terms listed,
including “contained gaseous material,” the RCRA definition of solid
waste encompasses “other discarded material” and does not speak to
materials such as supercritical fluids. Like the listed “solid,
liquid, semisolid, or contained gaseous material” specifically
referenced, CO2 streams sequestered for purposes of GS are “other
discarded material” from industrial and commercial operations and,
therefore, are of a similar kind to the other types of wastes
specifically referenced by the definition. They are, therefore, RCRA
statutory solid wastes.

Regarding the question of whether or not these materials have been
discarded, EPA disagrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are not solid waste.  As was stated in the preamble to
the proposed rule, GS is an option to reduce CO2 emissions to the
atmosphere by injecting the CO2 streams into deep subsurface geologic
formations, with the express purpose of isolating the CO2 so that it
does not return to the atmosphere.  August 8, 2011 (76 FR at 48075). 
Therefore, EPA views these CO2 streams as “discarded material”
within the plain meaning of the term in RCRA §1004(27).  The fact that
the sequestration of CO2 streams into deep geologic formations is at
times labeled as “long-term containment” or “long-term storage”
does not change this view.

Comment 3.10.3:

EPA, however, simply declares that “[a]n 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.” 76 Fed.
Reg. at 48,078. NMA believes it is premature and wrong to assume that
the volumes of CO2 streams that will be produced and captured for
injection under the new UIC Class VI regulations involves a final
disposal decision. EPA wrongly assumes that these CO2 streams will not
have commercial value and that their sequestration will automatically
mean they have been “discarded” and thus subject to RCRA. To the
contrary, CO2 is a valuable commodity used in enhanced oil or gas
recovery production processes and other manufacturing operations.
Additionally, CO2 injected in saline reservoirs under UIC Class VI
regulations may later be withdrawn at least partially and used for
reservoir maintenance as part of concurrent long-term
storage/desalination operations. In these cases, and likely others in
the future related to geologic sequestration, CO2 is used beneficially
and is not “discarded” and not a “solid waste.”

Response: EPA acknowledges that the underground injection of CO2 has
largely been (and continues to be) for the purpose of EOR, and does not
disagree that CO2 can and does have a variety of commercial and
manufacturing uses (e.g., urea yield boosting, enhanced oil recovery,
food processing and packaging, beverage carbonation, and wine making),
but this does not affect the regulatory status of CO2 streams when they
are to be injected into UIC Class VI wells for the purpose of GS, which
is the focus of this final rule. As EPA noted in the preamble to the
proposed rule, this conditional exclusion is not intended to affect the
regulatory status of CO2 streams that are injected into wells other than
UIC Class VI wells. Regarding the comment that CO2 streams injected into
UIC Class VI wells are not disposal, because they can later be
withdrawn, EPA disagrees and reiterates that CO2 streams injected into
UIC Class VI wells are solid wastes. As was stated in the preamble to
the proposed rule, GS is an option to reduce CO2 emissions to the
atmosphere by injecting the CO2 streams into deep subsurface geologic
formations, with the express purpose of isolating the CO2 so that it
does not return to the atmosphere (August 8, 2011; 76 FR at 48075).
Therefore, EPA views these CO2 streams as “discarded material”
within the plain meaning of the term in RCRA §1004(27). That is, a
supercritical CO2 stream is a solid waste when it is to be discarded
through abandonment by disposing of the material in a UIC Class VI well
(see 40 CFR 261.2(a)(2)(i) and (b)(1)). EPA adds that the RCRA
conditional exclusion does not preclude the removal of CO2 at a later
date.  How this activity is regulated would be a determination separate
from the terms of the conditional exclusion in this rule.

Comment 3.10.4:

Assuming for purposes of argument that CO2 streams captured, transported
and injected for geologic sequestration are a “solid waste,” the
next step in the analysis is whether the CO2 streams are a “hazardous
waste.” [FN1: EPA acknowledges that “no hazardous waste listings
apply specifically to CO2 streams” and that “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.” 76 Fed. Reg.
at 48,078-79. EPA acknowledges that there are issues with testing CO2
streams to determine whether they exhibit the hazardous waste toxicity
characteristic. Id. at 48,078]. EPA acknowledges that it “has little
information to conclude that CO2 streams would qualify as RCRA hazardous
wastes.” 76 Fed. Reg. at 48,079. Despite this acknowledgment, EPA
proposes to move forward with this conditional exclusion in order to
“substantially reduce the uncertainty associated with defining and
managing these CO2 streams under RCRA subtitle C.” Id.

Response: EPA did not set out in this rulemaking to conclude that those
supercritical CO2 streams that are solid wastes would, as a class,
exhibit a RCRA characteristic. Indeed, EPA indicated in the proposed
rule that it could not unequivocally conclude that supercritical CO2
streams will never exhibit any RCRA hazardous waste characteristic;
alternatively, EPA acknowledges that some RCRA hazardous characteristics
are unlikely to apply to a waste composed of >90% CO2, such as
ignitability (i.e., RCRA Waste Code D001). This was confirmed in the
public comment period, in which commenters did not provide EPA with
evidence that CO2 streams could never qualify as RCRA hazardous wastes.
Thus, in light of the early state of data development in this area, EPA
intends to bring additional clarity to the regulatory regime through
this rule, by establishing a conditional exclusion from the definition
of hazardous waste that would apply in the event a generator determines
that its CO2 streams exhibit a RCRA hazardous characteristic.

Regarding the commenter’s reference to testing CO2 streams, EPA notes
that analytical methods do exist to analyze supercritical CO2 streams,
and that generators may also use knowledge to determine whether a waste
exhibits a RCRA characteristic.  Should a generator determine that they
are not managing a hazardous waste, they are not obligated to make use
of this conditional exclusion and are not subject to the RCRA subtitle C
regulations. Moreover, because use of the conditional exclusion is
voluntary, even those generators who characterize their streams as RCRA
hazardous waste may continue to manage their streams as RCRA hazardous
wastes from the point of generation. The only effect is upon those
persons who choose to comply with the terms of the conditional
exclusion.

Comment 3.10.5:

As stated above, NMA supports EPA’s goal of the conditional exclusion.
NMA also believes that EPA has properly executed its authority to
conditionally exclude those CO2 streams injected for geologic
sequestration that may be deemed to be a “solid waste” and also
exhibit a hazardous waste characteristic. As EPA correctly demonstrated
in the proposed rule, “the existing UIC Class VI requirements
sufficiently address any potential risk to human health and the
environment, such that subtitle C regulation is unwarranted.” 76 Fed.
Reg. at 48,086. 

NMA, however, is concerned with two aspects of the conditional exclusion
as proposed. First, NMA is concerned that the conditional exclusion
could be lost and subtitle C requirements could apply at the point of
generation if a minor paperwork violation occurs. The DOT and UIC
regulations are complex and contain a number of administrative rather
than risk-based requirements. An owner or operator should not lose the
protections of the conditional exclusion simply because an
administrative mistake is made somewhere in the CCS process (i.e.,
capture, storage, transportation or injection). NMA urges EPA to clarify
in the final rule that only “material non- compliance” of the
regulations would result in the loss of the conditional exclusion, and
that “material non- compliance” does not include mistakes that are
administrative in nature.

Response: While EPA maintains that the rule conditions, taken together,
ensure that the excluded CO2 streams are being managed in a protective
manner such that subtitle C regulations are not necessary, EPA can
appreciate the commenter’s concern over the loss of the conditional
exclusion due to, for example, small administrative or clerical errors. 
EPA’s Office of Enforcement and Compliance Assurance (OECA) is unable
to provide definitive assurances outside the context of a formal
enforcement proceeding that the government will not proceed with an
enforcement response for a specific individual violation of an
environmental protection statute, regulation, or legal requirement. 
However, EPA can (and has previously done so for other RCRA rules)
exercise discretion to decide when and how to respond or not respond to
a given violation, based on the Agency’s normal priorities.  In RCRA
penalty actions, the factors that EPA considers in assessing the
gravity-based portion of the penalty are the potential for harm and the
extent of deviation from a statutory or regulatory requirement.  The
penalty can be adjusted for numerous factors, including good faith
efforts to comply, degree of willfulness and negligence, and history of
noncompliance.  Additional information can be found in the 2003 RCRA
Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf).  

Comment 3.10.6:

Second, NMA is concerned that the certification statement is overly
broad and unworkable. Specifically, a generator may not own or operate
the Class VI well at which the CO2 stream is injected and sequestered.
In this case, the certification provision would require an individual to
attest, under penalty of law, to facts which are not readily known to
him/her and/or not under his/her control. Class VI well owners and
operators also may not have access to certain information regarding any
potential non-compliance with DOT regulations that occur before they
take possession. To correct this problem, NMA urges EPA to amend the
certification statement to require parties to attest to compliance with
only those conditions for which they have responsibility under the
proposed exclusion. Furthermore, NMA does not believe there is value in
requiring transporters or pipeline owners or operators to sign a
certification statement.

Response: EPA agrees and has modified the certification requirement in
the final rule so that there are now two separate certification
statements worded slightly differently – one for generators and
another for UIC Class VI well owners or operators claiming this
conditional exclusion. EPA has made these revisions to better reflect
actions over which each party has control. Under the final rule, the
certification statement that the generator would sign is specific to the
activities within the generator’s control; likewise, the certification
statement that the UIC Class VI well owner or operator would sign is
specific to the activities within the owner or operator’s control. 

EPA also agrees that there is no need for transporters or pipeline
operators to be required to sign a certification statement as a
condition of the exclusion. See response to comment 3.2.39. Therefore,
EPA is not changing its proposed approach.

Comment 3.10.7:

NMA appreciates the opportunity to comment on this important proposed
rule. If you have any questions regarding NMA’s position, please
contact me at (see docket for contact information).

Response: EPA acknowledges the comment.

Texas Pipeline Association (TPA)

Document ID: EPA-HQ-RCRA-2010-0695-0068

Comment 3.11.1:

The Texas Pipeline Association (TPA) submits the following comments on
the proposed revision to the regulations for hazardous waste management
under the Resource Conservation and Recovery Act (RCRA) to exclude
carbon dioxide (CO2) streams from the definition of hazardous waste if
they are injected into Class VI Underground Injection Control (UIC)
wells for purposes of geologic sequestration and meet other specified
conditions. TPA is an organization representing over 30 members who
gather, process, treat, and transport natural gas and hazardous liquids
materials through intrastate pipelines in Texas.

Response: EPA acknowledges the comment.

Comment 3.11.2:

1. TPA supports the overall goal of this rulemaking. TPA generally
supports this proposal and commends EPA on its efforts to ensure that
geologic sequestration remains a viable option for the storage of
captured CO2 streams. Excluding CO2 streams from the definition of
hazardous waste for purposes of RCRA Subtitle C applicability is an
important step in the right direction. As EPA recognizes, the imposition
of Subtitle C requirements would be an undue burden on the
implementation and use of geologic sequestration technology, given the
protections that are already in place by virtue of the requirements
governing the construction and maintenance of UIC Class VI wells.

Response: EPA acknowledges the comment. EPA notes that it based its
conditional exclusion on its analysis demonstrating that management of
supercritical CO2 streams in accordance with the rule’s conditions
does not present a substantial risk to human health or the environment,
and therefore that additional regulation pursuant to RCRA's hazardous
waste regulations is unnecessary.

Comment 3.11.3:

2. The definition of "carbon dioxide stream" should be revised. EPA
proposes to define "carbon dioxide stream" to mean CO2 that has been
captured from "an emission source" plus "incidental associated
substances derived from the source materials and the capture process
.... " 76 Fed. Reg. 48092. TPA believes that this definition would
benefit from two revisions.

First, the term "an emission source" should be revised to make clear
that a "carbon dioxide stream" could be derived from multiple sources
and still qualify for the exemption provided by the rule. As currently
written, the definition could be interpreted as requiring the CO2 stream
to come from a single source to qualify for the exemption. CO2 streams
often come from a number of different "sources" and there is no reason
for the exemption to be withheld under such circumstances.

Second, the word "incidental" should be deleted. If a substance
qualifies as an "associated substance derived from the source materials
and the capture process," then it should be within the exemption
regardless of the quantity in which it exists in the stream. The word
"incidental" connotes a volume limitation, and its use in the definition
suggests that if such "associated substances" are present at sufficient
volume, then they will no longer qualify as being "incidental,"
resulting in elimination of the exemption. The possibility of such a
misinterpretation should be removed. 

Accordingly, TPA suggests the following revisions to implement the
preceding comments: "Carbon dioxide stream means carbon dioxide that has
been captured from an emission source OR SOURCES (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."

Response: Regarding the commenter’s request that EPA revise the term
“emission source” to make it plural (“sources”), EPA never
intended to limit the conditional exclusion to CO2 streams from a single
source, and confirms that the existing language also would include CO2
streams generated from two or more independently-produced CO2 streams,
and both would be excluded provided that the conditions of the exclusion
are met for all streams for which it is being claimed.  Thus, we are not
making this suggested change. 

Regarding the request that EPA delete the term “incidental” from the
proposed definition, EPA disagrees.  In order to provide the regulatory
clarity sought through this rule, it is critical that there be a
consistent definition of carbon dioxide stream in both today’s final
rule and the UIC Class VI final rule.  This consistent definition is
important because the applicability of the UIC Class VI requirements and
the applicability of the conditional exclusion are linked in instances
where the exclusion is being claimed.  EPA is concerned that employing
different definitions will result in confusion as to which streams are
subject to both rules.  In any event, EPA finds it unlikely that the
applicability of the conditional exclusion will turn on how
‘incidental’ is interpreted; that is, in any instance where it has
been determined that a “carbon dioxide stream” (as defined in either
rule) can be safely and legally injected into a UIC Class VI well, the
conditional exclusion is applicable, provided the other specified
conditions are met.

Comment 3.11.4:

3. Certification and monitoring requirements should not apply to persons
engaged in the movement of excluded CO2 streams. The rule being proposed
by EPA would require any generator of a CO2 stream, and any Class VI DIC
well owner or operator, to certify that the CO2 stream met all of the
conditions set forth in 40 CFR 260.10. At 76 Fed. Reg. 48087, however,
EPA raises the issue of whether certifications (and associated
monitoring, recordkeeping, or reporting requirements) should also be
required of persons engaged in the movement of conditionally excluded
CO2 streams, including transporters and pipeline owners or operators.
TPA believes that no such additional requirement should be imposed.
Under the rule as proposed, certifications as to content would already
be obtained from the generator and from the well owner - the parties who
should be expected to have the most knowledge of whether the CO2 stream
at issue qualifies for the proposed exemption. It should be unnecessary
to secure additional, duplicative certification from a pipeline owner or
other transporter, who may handle the stream for only a brief period and
whose knowledge of the details concerning the CO2 stream typically will
be far inferior to that of the parties from whom certifications are
already being obtained. TPA believes that requiring certifications as to
content and other facts, under penalty of perjury, would result in a
severely diminished willingness on the part of pipeline owners to
transport CO2 streams for geologic sequestration in UIC wells. This
would be contrary to the very point of the geologic sequestration
regulations, which is to ensure that this promising technology is
utilized to its fullest extent.

Response: EPA acknowledges the commenter’s comments regarding whether
additional monitoring, reporting and recordkeeping requirements should
be required, in this case with respect to transporters and pipeline
owners and operators, and we note that the final rule is unchanged from
the proposal with respect to requirements for transporters or pipeline
owners and operators in this regard.  See Responses to Comments 3.2.40
through3.2.43.

Regarding the commenter’s comments on requiring certification
statements be signed by transporters or pipeline owners and operators,
EPA agrees that a certification by the transporter is not necessary. 
First, if EPA were to require such a certification, under the approach
where EPA limits the scope of the certification to the conditions within
the control of pipeline owners and operators or other transporters (the
approach taken in the final rule for CO2 stream generators and UIC Class
VI well owners and operators), the certification would essentially
address 1) compliance with applicable DOT requirements, and 2) to not
mix hazardous waste into the CO2 streams.  Regarding compliance with DOT
requirements, EPA is persuaded by comments received on this issue that
if persons transporting supercritical CO2 must comply with the
applicable transportation requirements for all supercritical CO2 being
moved, it seems unnecessary to require that they certify compliance with
DOT requirements for a specific material (i.e., supercritical CO2
streams to be sequestered).  Regarding mixing with hazardous waste, EPA
does not have information, nor did commenters provide any new
information, indicating that CO2 pipeline owners and operators or other
transporters would mix hazardous waste into CO2 streams being delivered
to UIC Class VI facilities.  EPA expects that pipeline owners and
operators engaged in delivering supercritical CO2 have strong
disincentives to mix any hazardous waste into their pipeline system,
both in order to honor their contractual arrangement with customers, and
also to maintain their equipment.  Also, as EPA stated in the proposed
rule premable, PHMSA requires that pipeline owners and operators ensure
that supercritical CO2 streams be chemically compatible with the
pipeline and any commodities in the pipeline and will not corrode the
pipeline and pipeline system.  For these reasons, EPA does not see the
need for a transporter certification, and is not changing its proposed
approach and transporters and pipeline owners and operators will not be
required to sign a certification statement as a condition of the
exclusion.

Comment 3.11.5:

We appreciate the opportunity to submit these comments. Please let us
know if you have any questions.

Response: EPA acknowledges the comment.

Western Business Roundtable

Document ID: EPA-HQ-RCRA-2010-0695-0071

Comment 3.12.1:

I am writing, on behalf of the multi-sector membership of the Western
Business Roundtable (“Roundtable”), in response to the Environmental
Protection Agency’s (“EPA” or the “Agency”) proposed rule
entitled “Hazardous Waste Management System: Identification and
Listing of Hazardous Waste: Carbon Dioxide (“CO2”) Streams in
Geologic Sequestration (“GS”) Activities.” [FN1: 76 Fed. Reg.
48073 (August 8, 2011)]. 

In this action, EPA proposes to revise the regulations for hazardous
waste management under the Resource Conservation and Recovery Act
(”RCRA”) to “conditionally exclude” CO2 streams from the
definition of hazardous waste, provided such streams meet certain
capture and storage requirements.

ABOUT THE ROUNDTABLE

The Roundtable is a broad-based coalition of companies doing business in
the Western United States. Our membership is comprised of a coalition of
corporations and organizations representing a broad cross-section of
Western business including, among others: manufacturing; mining;
electric power generation/transmission/distribution; energy
infrastructure development; energy supply exploration/development and
transportation; energy services; and environmental engineering.

We work to defend the interests of the West and support policies that
encourage economic growth and opportunity, freedom of enterprise and a
sound approach to conservation and environmental stewardship.

Many of our members are centrally involved in the development,
transportation and processing of a wide variety of energy resources --
fossil, renewable and nuclear -- as well as the generation and
distribution of electricity across the West and technologies that
facilitate greater energy conservation and efficiency. Roundtable
members also are on the cutting edge of technology development related
to the management of CO2 emissions.

I hope you will find the broad perspective and expertise reflected in
these comments helpful as the Agency moves forward with its
deliberations on this important policy issue.

Response: EPA acknowledges the comment.

Comment 3.12.2:

IMPORTANCE OF CCS

The Roundtable strongly supports the aggressive research and development
efforts underway to facilitate commercial-scale CO2 capture and
sequestration (“CCS”) projects. We also believe that expansion of
enhanced oil recovery (“EOR”) present a meaningful opportunity to
utilize CO2 in a way that is beneficial to the global environment and
both our nation’s economy and its energy security.

Current research is moving America ever closer to technologies that can
tap our domestic fossil resources with less and less environmental
impact. The goal of near-zero or zero-emission technologies, capable of
capturing CO2, is now foreseeable. Key to these technologies is the
assumption that effective sequestration/storage options will be
available to dispose of the CO2 once captured.

The whole issue of CO2 management has tremendous macro-economic,
consumer pocketbook, environmental and national security implications.
Extensive Congressional and regulatory reviews are underway regarding
the efficacy of mandatory carbon regulations. A necessary predicate to
any such regime must be a clear understanding of:

* The effectiveness of sequestration and storage options;

* Hurdles to the efficient implementation of those options;

* CO2 transportation system challenges; and

* Liability issues associated with both transportation and storage of
CO2.

As policymakers and project developers work through the many nuances
involved with large-scale CCS, we believe that it is important to keep
focused on this central tenet: strong and early investment in CCS
technologies and infrastructure is a necessary foundation for any viable
climate change regulatory regime.

One of the biggest impediments to commercial-scale CCS projects today is
regulatory uncertainty. Meaningful investments will only occur in the
presence of clear, carefully tailored regulatory constructs that help
encourage early and robust development of projects and which aid in
eliminating regulatory risk for such early investments.

In that regard, we believe EPA’s actions in this proposed rule are
extremely important.

Response: EPA acknowledges the commenter’s support for CCS.  The
commenter raises several points regarding the importance of CCS and
factors that can contribute to the successful development of CCS.  EPA
agrees with the overall conclusion that CCS is indeed an important tool
in reducing GHG emissions and mitigating climate change. While many of
the commenter’s specific points are beyond the scope of this instant
rulemaking, EPA agrees with the commenter that regulatory certainty is
important to facilitate future deployment of CCS.  EPA believes this
rule 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.

Comment 3.12.3:

We appreciate EPA’s statement that 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.” [FN2: Id.].

Response: EPA acknowledges the comment. 

Comment 3.12.4:

The Roundtable has long been on record urging EPA to avoid utilizing
risk management approaches that discourage CCS deployment. Regulatory
certainty is absolutely crucial, if meaningful investment is going to
flow to CCS technologies and implementation.

Public acceptance is also a crucial linchpin to any meaningful CCS
program. This point was emphasized in a 2007 National Academy of
Sciences report, which noted that a large-scale CCS program cannot be
successful “if a significant fraction of the public views it as
dangerous or unacceptable.” [FN3: Prospective Evaluation of Applied
Energy Research and Development of DOE (Phase Two), National Research
Council (2007)].

Thus, we applaud the EPA for its clear sensitivity to the need for
certainty in this arena. The Agency’s approach here, and under the
Safe Drinking Water Act (SDWA), will set the general tone for how other
federal and state regulatory bodies, investors and the general the
public will treat CCS going forward.

Response: See comment 3.12.2.

Comment 3.12.5:

RECOMMENDATIONS

With the shared goal of regulatory certainty in mind, we would offer the
Agency the following thoughts on how the proposed regulations might be
clarified and strengthened:

Exclude CO2 Streams From the Definition of “Solid Waste”

As we have noted, we appreciate EPA’s recognition that CO2 streams
captured from emission sources and injected into Class VI (UIC) wells
for purposes of geologic sequestration “do not present a substantial
risk to human health and the environment, and therefore additional
regulation pursuant to RCRA’s hazardous waste regulations are
unnecessary.” [FN4: 76 Fed. Reg. at 48075]. 

The Roundtable supports what EPA is attempting to achieve with the
proposed “conditional exclusion.” We do fear, however, that this
approach does not fully meet the goals of regulatory clarity and
certainty. We believe the proposed rule would be strengthened if EPA
simply excluded CCS CO2 streams from the definition of “solid waste”
under RCRA.

Response: EPA disagrees that CO2 streams injected into UIC Class VI
wells for purposes of GS are not solid waste. As was stated in the
preamble to the proposed rule, GS is an option to reduce CO2 emissions
to the atmosphere by injecting the CO2 streams into deep subsurface
geologic formations, with the express purpose of isolating the CO2 so
that it does not return to the atmosphere (August 8, 2011; 76 FR at
48075). Therefore, EPA views these CO2 streams as “discarded
material” within the plain meaning of the term in RCRA §1004(27).
That is, a supercritical CO2 stream is a solid waste when it is to be
discarded through abandonment by disposing of the material in a UIC
Class VI well (see 40 CFR 261.2(a)(2)(i) and (b)(1)). 

Comment 3.12.6:

Such an action is appropriate because:

* CO2 Provides Beneficial Uses

CO2 does not fit into the purposes of RCRA as a hazardous waste
management regime.

It has all sorts of beneficial uses. Beyond its critical role in nature,
it is a commodity used for a variety of industrial purposes (EOR being
the most prevalent, but not the only, example).

Response:  See response to comment 3.2.2. 

Comment 3.12.7:

* RCRA is Poorly Suited to Regulate CCS CO2 Streams

RCRA’s structure is to provide “cradle-to-grave” tracking and
management of hazardous wastes. It is not clear to us how that can ever
be achieved for CO2 injected as part of CCS. In geologic sequestration,
various streams of CO2 would be injected and mixed. There is no
practical way to track one stream vs. another.

Response: It is not clear from the comment in what particular ways the
commenter views mixed CO2 streams as “poorly suited” for RCRA. In
any case, CO2 streams managed in accordance with the conditional
exclusion would not be subject to other RCRA hazardous waste
requirements, such as manifesting.  Moreover, EPA believes that the
applicable DOT requirements for pipelines and non-pipeline transport are
sufficient to ensure proper handling and transport of CO2 streams. The
UIC Class VI well requirements also provide sufficient protections where
they apply.  Regarding multiple sources of CO2 streams, shared
pipelines, and similar issues see Responses to Comments 3.2.3 and 3.2.4.

 

Comment:

* CO2 Streams Are Not “Solid Wastes”

The Roundtable shares the opinion of the North American Carbon Capture
and Storage Association that CCS CO2 streams do not meet RCRA’s
definition of solid waste. 

RCRA defines “solid waste” as including “discarded material,
including solid, liquid, semi-solid or contained gaseous material
resulting from industrial, commercial, mining and agricultural
operations…”[FN5: 42 USC Section 6903(27)]. CCS CO2 streams neither
have the physical form of a solid waste (as defined under the Act), nor
have they been “discarded.”

Response: See Responses to Comments 3.1.6 through 3.1.8. See also
Responses to Comments 3.14.6 through 3.14.8.

Comment 3.12.9:

While CCS CO2 streams are gases compressed to a supercritical state,
they are not “contained.” RCRA regulations differentiate between
those gases in non-flow-through containment systems (which are included
in RCRA’s definition of solid waste) with those that are simply
passing through infrastructure for a specific purpose. That latter
situation fits CCS CO2 streams, which are captured and then flow through
a pipeline to a storage location. Under RCRA, such gases are considered
“uncontained” and would be outside the definition of solid waste.

Response:  See response to comment 3.1.7.  Accordingly, the distinctions
the commenter seeks to make between gases managed in “non-flow-through
containment systems” and gases that are “passing through
infrastructure” are not germane in this context.  

Comment 3.12.10:

We also are unclear how CCS CO2 streams can be considered
“discarded” within the meaning defined in RCRA. They are not being
disposed of or abandoned. The fact that these streams are being stored
implies their availability for future use. The fact that there are
economic uses for CO2, and that CO2 is currently being utilized as a
commodity, refutes the suggestion that the materials are a waste without
future beneficial use.

Response: See Responses to Comments 3.1.8, and 3.2.2.

Comment 3.12.11:

*CO2 Streams Are Not Hazardous

EPA acknowledges in the proposed rule that it has little information
that would lead it to conclude that CO2 streams would qualify as RCRA
hazardous wastes. [FN6: 76 Fed. Reg. at 48078]. The gases that are
emitted in flue gas stream of coal-fired power plants would not
generally contain constituents in sufficient concentrations to warrant
concern. EPA appears to be asserting RCRA authority to provide
“belts-and-suspenders” regulatory coverage.

Response: EPA appreciates commenters’ concerns regarding the
application of the hazardous waste regulations to supercritical CO2
streams being sequestered.  EPA believes these concerns exist as a
result of the unique circumstances associated with addressing the
applicability of RCRA to CCS at such an early stage in the development
of CCS.  However, it is important to note that EPA did not set out in
this rulemaking to conclude that those supercritical CO2 streams that
are solid wastes would, as a class, exhibit a RCRA characteristic. 
Indeed, EPA indicated in the proposed rule that it could not
unequivocally conclude that supercritical CO2 streams will never exhibit
any RCRA hazardous waste characteristic and commenters provided no
information to the contrary. Alternatively, EPA acknowledges that some
RCRA hazardous characteristics are unlikely to apply to a waste composed
of >90% CO2, such as ignitability (i.e., RCRA Waste Code D001).  Thus,
in light of the early state of data development in this area, EPA
intends to bring additional clarity to the regulatory regime through
this rule, by establishing a conditional exclusion from the definition
of hazardous waste that would apply in the event a generator determines
that its CO2 streams exhibit a RCRA hazardous characteristic.

Comment 3.12.12:

While understanding EPA’s impulse to be cautious, we urge the Agency
to be extremely careful in its characterization of CO2. As has been
previously noted, a successful climate change control program will
necessarily be predicated on development of -- and public support for --
CCS. EPA could inadvertently, and inappropriately, stigmatize CCS, if it
veers into an unwarranted categorization of CO2 as a potential hazardous
waste. That would put advancement of CCS commercialization into a deep
freeze. Such an outcome would clearly be counter-productive.

Response: See response to comment 3.12.11. EPA believes a consistent
regulatory approach to GS will help facilitate development and
deployment of CCS technologies in the United States, rather than
discourage deployment.

Comment 3.12.13:

Captured CO2 streams are already covered under federal pipeline
transportation regulations and the Agency’s own recently finalized
SDWA Underground Injection Control Class VI Rule.

Response: EPA acknowledges the comment. See response to comment 3.12.11.
That management of CO2 streams is regulated by other federal programs
does not affect the question of whether a particular CO2 stream may
exhibit a RCRA hazardous waste characteristic.

Comment 3.12.14:

Avoid Duplicative Recordkeeping Requirements

In the proposed rule, EPA seeks comment on the need for additional
monitoring record-keeping and reporting requirements. We do not believe
additional requirements should be placed on the generators or the
operators of CO2 sequestration wells. EPA already has established
extensive requirements for monitoring and documentation under its UIC
Class VI well rulemaking.

This appears to us a perfect opportunity for EPA to demonstrate its
commitment to the goals set out in President Obama’s Executive 13563:
Improving Regulation and Regulatory Review.

Response: See Responses to Comments 3.2.40 and 3.2.43. It is not clear
to which goals in E.O. 13563 the comment refers.

Comment 3.12.15:

CONCLUSION

On behalf of the many member organizations of the Western Business
Roundtable, thank you for the opportunity to provide our input on this
crucially important public policy issue, the implications of which are
so pivotal to the continued vitality of the West.

Response: EPA acknowledges the comment.

Greater Houston Partnership (GHP)

Document ID: EPA-HQ-RCRA-2010-0695-0074

Comment 3.13.1:

The Greater Houston Partnership (GHP) appreciates the opportunity to
provide comments on the Environmental Protection Agency’s (EPA)
proposed rule entitled “Hazardous Waste Management System:
Identification and Listing of Hazardous Waste: Carbon Dioxide (CO2)
Streams in Geologic Sequestration Activities.” 

GHP represents the 10‐county Houston region’s business interests to
promote economic prosperity through the growth of high paying jobs,
international trade and capital investment. As the primary advocate of
Houston’s business community, GHP lobbies on behalf of its Members
regarding the development of environmental regulation for our
10‐county region. 

The proposed rule will have significant impact on the state of Texas.
Texas has advantageous geologic formations for the storage of
anthropogenic CO2. The state has one of the largest storage capacities
in the country. The U.S. Department of Energy’s National Energy
Technology Laboratory estimates Texas’ onshore storage capacity
between 661 million and 2.4 billion tons of CO2.

GHP concurs and supports the comments submitted by the American
Petroleum Institute (API) and the North American Carbon Capture &
Storage Association (NACCSA).

Response: EPA acknowledges the comment and refers to the Agency’s
Responses to Comments in Sections 3.1 (API) and 3.14 (NACCSA).

Comment 3.13.2:

GHP believes adequate enforcement mechanisms to protect human health and
the environment from CO2 streams currently exist under the Clean Air
Act’s reporting requirements and under the Underground Injection
Control (UIC) Class VI Rule under the Safe Drinking Water Act to protect
underground sources of drinking water. Additional regulation under the
Resource Conservation and Recovery Act (RCRA) is redundant and could
lead to unintended consequences that would undermine beneficial uses of
CO2 streams for carbon capture and sequestration and enhanced oil and
gas recovery. EPA should enact an exclusion of all carbon dioxide
streams, with a conditional exclusion for supercritical CO2 streams,
from the RCRA definition of solid waste at this time. 

If CO2 streams were deemed solid wastes, the potential regulatory
burdens associated with that designation will discourage companies from
handling CO2 streams to the detriment of EPA’s efforts to remove CO2
emissions from the atmosphere. 

Response: See Responses to Comments 3.1.1. and 3.1.2.  Regarding the
commenter’s statement that regulation under RCRA is not necessary
because of adequate regulation under other statutes, EPA in fact
considered the effect of other statutory requirements, and this
conditional exclusion is based upon EPA’s determination that the
management of these CO2 streams under other statutes provides protection
to human health and the environment; therefore, additional regulation
pursuant to RCRA hazardous waste regulations is unnecessary.  

 

Regarding the commenter’s references to “potential regulatory
burdens” associated with CO2 streams that are deemed solid wastes
(management of which may be outside the scope of this rule), and
“unintended consequences” of additional regulation under RCRA, the
commenter did not provide specific information or examples of these, and
therefore, while EPA acknowledges these comments it cannot provide more
specific responses. 

 North American Carbon Capture & Storage Association (NACCSA)

Document ID: EPA-HQ-RCRA-2010-0695-0078

Comment 3.14.1:

On behalf of the North American Carbon Capture and Storage Association
("NACCSA"), we are pleased to provide the Environmental Protection
Agency ("EPA" or the "Agency") with these comments on the proposed rule
entitled "Hazardous Waste Management System: Identification and Listing
of Hazardous Waste: Carbon Dioxide ("CO2") Streams in Geologic
Sequestration Activities." 76 Fed. Reg. 48073 (Aug. 8, 2011).[FN1: A
technical correction was published on September 9, 2011. 75 Fed. Reg.
55846.]

About NACCSA

NACCSA is a nonprofit organization of companies in North America that
support the development of a sustainable carbon dioxide capture and
storage ("CCS") industry in the United States and Canada. NACCSA members
[FN2: NACCSA members are American Electric Power; American Petroleum
Institute; Anadarko Petroleum Corporation; Arch Coal Inc.; Blue Source
LLC; Denbury Resources, Inc.; Halliburton; Kinder Morgan; Occidental
Petroleum Corporation; Peabody Energy; Sasol; Schlumberger Carbon
Services; Shell; and Tenaska.] include companies involved in developing
commercial processes to mitigate greenhouse gas emissions through CCS,
and specialists engaged in the technical, commercial, financial and
developmental aspects of CCS activities in both the U.S. and Canada.

Response: EPA acknowledges the comment.

Comment 3.14.2:

Executive Summary

NACCSA supports the conditional exclusion for CO2 streams from the
Resource Conservation & Recovery Act's ("RCRA") hazardous waste
regulations but recommends that it be recast as an exclusion from the
definition of "solid waste" because of CO2's unique properties and uses,
coupled with the fact that CO2 streams are not "discarded." Failure of
EPA to clarify that eligible CO2 streams are not "solid wastes" will
leave CCS projects with unnecessary regulatory uncertainty while doing
little to advance public health and environmental protection, given the
rigorous requirements of the recently finalized Underground Injection
Control ("UIC") Class VI rule.

If EPA elects to retain the proposed approach of a conditional exclusion
for CO2 streams from RCRA's hazardous waste regulations, we recommend
that the proposed regulation be clarified to remove as much regulatory
ambiguity as possible, as we set forth in detail below.

Response: See response to comments 3.1.1 and 3.1.2.

Comment 3.14.3:

Specific Comments

EPA proposes to "conditionally" exclude “CO2 streams”, [FN3: EPA
explains that a "Carbon dioxide (CO2) stream" is “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." 76 Fed.Reg. at 48075.] that "are
hazardous from the definition of hazardous waste, provided these
hazardous CO2 streams are captured from emission sources, are injected
into Class VI [UIC] wells for purposes of geologic sequestration ... and
meet certain other conditions." 76 Fed. Reg. at 48074. EPA explains that
it is taking this action because it "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." Id. EPA notes that the conditional exclusion will provide
additional regulatory certainty.

NACCSA supports the proposed "conditional exclusion" as far as it goes
because it endeavors, albeit incompletely, to clarify the regulatory
regime for CCS while ensuring stringent protection of human health and
the environment. We nonetheless believe that the "conditional exclusion"
falls short of what is needed to provide adequate regulatory certainty
for industry for the following reasons.

Response: See response to comment 3.1.3.

Comment 3.14.4:

A. CO2 Streams Are Not "Wastes"

EPA's proposal is premised on the notion that RCRA potentially applies
to "CO2 streams" in the first instance. This premise is false for two
reasons.

First, Congress, in enacting RCRA, never envisioned regulation of a
molecule such as CO2. In comparison to other materials regulated under
RCRA, CO2 is unique. It performs a variety of beneficial and ubiquitous
roles in a variety of natural (e.g., uptake by plants) and industrial
(i.e., enhanced oil recovery, or EOR) functions. Several states already
have declared CO2 to be a "commodity" for these reasons. [FN4: See,
e.g., Oklahoma SB 1610 ("Carbon dioxide is a valuable commodity to the
citizens of the state").] If CO2 is subject to RCRA, perhaps water
should be, too. A person can drown in water, but that doesn't mean that
H2O is hazardous within the meaning of RCRA. [FN5: We do not believe
that Massachusetts v. EPA, 549 U.S. 497 (2007), a Clean Air Act case,
bears on the status of CO2 for purposes of geologic sequestration.] 

Response: See Responses to Comments 3.1.4 and 3.1.5.

Comment 3.14.5:

Second, and similarly, RCRA was never meant to apply to CCS and thus the
statute provides a poor tool to regulate the activity. Nothing in RCRA
or its regulations purport to apply to CCS generally or geologic
sequestration specifically. The RCRA model is prospective
"cradle-to-grave" waste management and tracking. CCS, on the other hand,
currently involves the injection of CO2 for beneficial purposes. That
activity, moreover, is envisioned to involve mixed streams of CO2 from
multiple sources, thereby frustrating the notion of tracking wastes
through manifests and the like. There also is no standardized test
method to evaluate supercritical CO2. For these and other reasons,
trying to fit CCS under RCRA is the classic example of trying to wedge a
square peg into a round hole.

Response: See Responses to Comments 3.1.5 and 3.12.7.

Comment 3.14.6:

B. CO2 Streams Are Not "Solid Wastes"

The conditional exclusion is rooted on the unsupported premise that
captured anthropogenic CO2 is a "solid waste." EPA asserts that a
"supercritical CO2 stream ... is a RCRA solid waste, as it is a
'discarded material' within the plain meaning of the term in RCRA §
1004(27)." 76 Fed. Reg. at 48077-78. [FN6: Relevant provisions of RCRA
§ 1004(27) define "solid waste" as "other discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting from
... industrial operations .... "]

EPA does not offer a detailed justification for its claim that CO2
streams are "discarded," so we begin with an analysis of how RCRA and
its regulations define that term. 

Subtitle C of RCRA, which regulates hazardous wastes, applies only to a
"solid waste" that is "hazardous.” [FN7: T. Garrett, ed., "The RCRA
Practice Manual” at 2, 2nd ed. (ABA 2004).] To be regulated as a
"solid waste," a material must satisfy three criteria, two of which are
relevant: (1) it must have the physical form of a solid waste; and (2)
it must be "discarded.” [FN8: Id. at 33.] Neither of these criteria is
met here.

Response: See Responses to Comments 3.1.6 and 3.1.7. 

Comment 3.14.7:

CO2 Streams Do Not Have the Physical Form of a Solid Waste. In relevant
part, RCRA defines "solid waste" as "other discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations .... " 42
U.S.C. § 6903(27) (emphasis added). Supercritical states of material,
such as is relevant for CO2, are not listed in this definition.

Before it is compressed to a supercritical state, moreover, CO2 is a
gas. By "contained gas" in the definition above, EPA means [FN9: Id. at
33-34 (emphasis added).]:

“a gas that is contained in a cylinder or other non-flow-through
containment system. In contrast, an uncontained gas, such as gas flowing
through a pipe, column, or tank, is not a solid waste. Since uncontained
gases are not solid wastes and therefore cannot be hazardous wastes, as
a general matter, units that manage uncontained gases are not regulated
under RCRA.”

Applying this relatively narrow concept of "contained gas” it is clear
that a CO2 stream - - which at minimum spends part of its life "flowing
through a pipe” is not a solid waste because it does not have the
necessary form to be swept up under RCRA's jurisdiction. [FN10: The fact
that a CO2 stream is not a "contained gas" should not be interpreted to
suggest that geologic storage is not an effective means of long-term
storage, as it is. "Contained gas" is a regulatory concept only.]

Response: See response to comment 3.1.7.

Comment 3.14.8:

CO2 Streams Are Not Discarded. RCRA defines "solid waste" as "other
discarded material, including solid, liquid, semisolid, or contained
gaseous material resulting from industrial, commercial, mining, and
agricultural operations .... " 42 U.S.C. § 6903(27) (emphasis added).
EPA's regulations explain that a "solid waste" is any "discarded
material" that is "not excluded under § 261.4(a) [FN11: 40 C.F.R. §
261.4(a) excludes through numerous specific listings "[m]aterials which
are not solid wastes."] or that is not excluded by a variance granted
under §§ 260.30 [FN12: 40 C.F.R. § 260.30 deals with non-waste
determinations and variances from classification as a solid waste.] and
260.31[FN13: 40 C.F.R. § 260.31 sets forth standards and criteria for
variances from classification as a solid waste.] or that is not excluded
by a non-waste determination under §§ 260.30 [FN14: See note 12,
supra.] and 260.34 [FN15: 40 C.F.R. § 260.34 sets forth standards and
criteria for non-waste determinations.]." [FN16: 40 CF.R. § 261.2
(definition of "solid waste") (emphasis and internal footnote references
added).] A "discarded material," in turn, is "any material" that is: (1)
abandoned; (2) recycled; or (3) considered inherently waste-like. [FN17:
40 C.F.R. § 261.2(a)(2)(i).]

Although they do not define the term "material," EPA's regulations set
forth detailed criteria that must be met before a material is deemed to
be "discarded" via the "abandoned," "recycled," or "inherently
waste-like" regulatory paths: 

*Abandoned. Materials are "solid waste" if they are abandoned by being:
(a) disposed of; (b) burned or incinerated; or (c) “[a]ccumulated,
stored or treated (but not recycled) before or in lieu of being
abandoned by being disposed of, burned, or incinerated.” [FN18: 40
C.F.R. § 261.2(b).]

*Recycled. Materials separately are "solid waste" if they are recycled -
or accumulated, stored, or treated before recycling - if they fall into
one of the following four categories: (a) used in a manner constituting
disposal; (b) burned for energy recovery; (c) reclaimed; or (d)
accumulated speculatively. [FN19: 40 C.F.R. § 261.2(c).]

*Inherently waste-like. Specifically identified materials, not including
CO2, also are "solid waste" if they are recycled in any manner, and thus
deemed to be “inherently waste-like materials.” [FN20: 40 C.F.R. §
261.2(d).]

"CO2 streams" do not meet any of these three RCRA regulatory
requirements.

* CO2 streams are not abandoned. CO2 streams are not burned or
incinerated, nor are they "disposed of." The "S" is CCS stands for
either "storage" or "sequestration," neither of which contemplates
"disposal." The Merriam Webster Dictionary defines "sequester" as "to
set apart, segregate" or to "seclude, withdraw.” [FN21:
http://www.merriam-
webster.com/dictionary/seguestered?show=0&t=1315859974.] Synonyms for
"sequestration" include "isolation" and "seclusion." [FN22:
http://www.merriam-webster.com/dictionary/seguestration.] "Disposal," on
the other hand, is defined as the act of "disposing," which means “to
get rid of.” [FN23: http://www.merriam-
webster.com/dictionary/disposing.] "Abandonment" also suggests that the
material being abandoned is not thereafter managed; under the Class VI
rule, injected CO2 will be - and is required to be - carefully managed.
Based on a "plain meaning" analysis, CCS does not contemplate
"disposal."

The concept of "disposal" is also inconsistent with how the bulk of CO2
is currently being managed commercially today. With the exception of
demonstration and related projects, most if not all of the CO2 that is
geologically injected today is used for EOR. In that application, it is
purchased and transacted as a valuable commodity. As explained further
below, EPA's Class VI rule envisions that concurrent EOR/storage may be
conducted under Class II as long as certain conditions are met - a usage
that flatly contradicts EPA's assertion here that injection is a
“disposal activity."

CO2 that is injected in saline reservoirs under Class VI also is not
"disposed of." It is conceivable, for example, that such CO2 may be
later at least partially withdrawn and put to a beneficial, but still
non-atmospheric-emitting, use. Such CO2 may also be used for reservoir
maintenance as part of concurrent long-term storage/desalination
operations, as explained by William Bourcier of Lawrence Livermore
National Laboratory at the August 18, 2010 meeting of the California CCS
Review Panel. [FN24: http://www.climatechange.ca.gov/carbon capture
review panel/meetings/2010-08- 18/presentations/01 Bourcier Cal
CCS-Panel.pdf.]

CCS-related offset credits are also transacted on various carbon
registries, such as the American Carbon Registry. This activity is
inconsistent with the notion of "disposal."

It is also worth noting that the terms "disposal" and "dispose" do not
appear in any relevant portion of the Class VI rule or EPA's preamble to
the same.

Because geologic sequestration/storage does not contemplate "disposal,"
the regulatory "abandonment" provisions dealing with "[a]ccumulated,
stored or treated" also are inapplicable.

*CO2 streams are not recycled. RCRA's provisions regarding "recycle" are
detailed, and none of them apply to CO2 streams - nor has EPA claimed
the same.[FN25: The fact that CO2 is recycled in EOR operations is not
directly relevant for the RCRA regulatory concept of "recycle."] In
order for the recycle rules to apply, a material must first be deemed a
secondary material. Among other things, secondary materials do not
include "co-products." Since in current commercial practice CO2 that is
geologically injected is transacted as a valuable commodity as
"co-products," the recycle regulations do not apply. [FN26: T. Garrett,
ed., "The RCRA Practice Manual," at 36.]

*CO2 streams are not "inherently waste-like." RCRA' s provisions
regarding "inherently waste-like" materials also are detailed, and none
of them applies to CO2 streams- nor has EPA claimed the same.

Response: See response to comment 3.1.8. In regards to the comment that
careful management of the material would render material in a Class VI
well not a waste and that ‘abandonment’ is not occurring because it
is being managed, EPA disagrees. Whether the material is being managed,
carefully or not, does not bear on whether injection into a Class VI
well for purposes of GS is to discard a CO2 stream.  Injection of a CO2
stream into a Class VI well for purposes of GS is effectively “getting
rid of” the CO2 stream by keeping it underground indefinitely. Indeed,
RCRA hazardous wastes are subject to controls after disposal (e.g.,
post-closure care at a RCRA hazardous waste landfill). It is thus very
clear that CO2 streams managed in a Class VI well for purposes of GS are
solid waste.

Comment 3.14.9:

C. CO2 Streams Are Not "Hazardous Wastes"

Assuming for the moment that CO2 streams are "solid wastes" - and they
are not, as described above - they also are not "hazardous wastes."

EPA states that it has "little information to conclude that CO2 streams
would qualify as RCRA hazardous waste." 76 Fed. Reg. at 48077. The
Agency also acknowledges that "CO2 streams are not listed hazardous
wastes" under subpart D of part 261. Id.[FN27: Accord 76 Fed. Reg. at
48078 ("EPA reiterates that no hazardous waste listings apply
specifically to CO2 streams").] The Agency nonetheless believes that the
"RCRA hazardous waste regulations can apply to CO2 streams" based upon
two hypothetical scenarios: (1) a CO2 stream exhibits hazardous
characteristics [FN28: 40 C.F.R. § 261.20(a).]; or (2) a CO2 stream is
mixed with a listed hazardous waste, thus triggering application of the
so-called "mixture rule." Id.

Neither of these hypothetical scenarios is plausible. With respect to
whether a CO2 stream exhibits hazardous characteristics, EPA seems to
acknowledge that there is no available standardized analytical test
method for supercritical materials such as CO2 or a "CO2 stream.”
[FN29: 76 Fed. Reg. at 48078 n. 22 ("EPA notes that existing analytical
test methods ... are available to quantify the levels of various
hazardous constituents in gaseous streams, although sampling a
supercritical CO2 stream may require particular sampling protocols")
(emphasis added).] EPA may only define a characteristic of a hazardous
waste if the characteristic can be: (1) measured by an "available
standardized test method which is reasonably within the capability of
generators of solid waste or private sector laboratories that are
available to serve generators of solid waste," or (2) "reasonably
detected by generators of solid waste through their knowledge of their
waste.” [FN30: 40 C.F.R. § 261.10(a)(2).] This two-factor test simply
cannot currently be met for supercritical CO2 streams based on available
standards.

Even if a standardized analytical test method were available for
supercritical CO2, we are not aware of any information which would
suggest that supercritical CO2 meets any of EPA's hazard
characteristics. Supercritical CO2 is not: (1) ignitable under 40 C.F.R.
§ 261.21; (2) corrosive under 40 C.F.R. § 261.22 [FN31: 31
Supercritical CO2 is non-aqueous, so § 261.22(a)(1) does not apply, and
§ 261.22(a)(2) only applies if the material is "liquid and corrodes
steel." Supercritical CO2 is not a "liquid" and does not corrode the
steel pipelines through which it has been transported safely for several
decades. EPA hints that corrosivity could be an issue down hole through
interaction with in-situ reservoir fluids, but that scenario is not
contemplated by 40 C.F.R. § 261.22.]; (3) reactive under 40 C.F.R. §
261.23; or (4) toxic under 40 C.F.R. § 261.24. [FN32: Toxicity is
assessed under Test Method 1311, the so-called Toxicity Characteristic
Leaching Procedure ("TCLP"). 40 C.F.R. § 261.24(a). The TCLP is
inapplicable to supercritical CO2 and CO2 streams, as the TCLP was
"intended to reflect the potential for leaching to groundwater that
results from the codisposal of toxic wastes in an actively decomposing
municipal landfill generating an acidic leachate." T. Garrett, ed., "The
RCRA Practice Manual," at 52. With reference to a 2006 paper from
Lawrence Livermore National Laboratory, EPA suggests that certain
impurities are "relevant" for toxicity regulation under § 261.24(a).
However, all of the impurities referenced by EPA as potentially being
present in certain CO2 streams are at levels which are orders of
magnitude lower than the relevant regulatory levels set forth in the
regulations.] In the preamble to the final Class VI rule, EPA stated
that it had reviewed estimates of CO2 injectate quality, and based upon
that assessment, "captured CO2 could contain some impurities.”
[FN33:75 Fed. Reg. 77230, 77260 (Dec. 10, 2010).] The possible presence
of "impurities" - the term used by EPA -- does not trigger any of EPA's
hazard characteristic tests. [FN34: We believe that it would be helpful
to have regulatory clarity over sour gas injections related to
gasification facilities. It is conceivable that in a gasification
facility, for example, cost-effectiveness might dictate that a mixed
stream of gaseous CO2 and H2S not be separated. If that combined stream
were compressed to a supercritical state, and assuming that a
standardized analytical test method were available to assess it, the
combined stream could in theory trigger the toxicity threshold. Even
here, however, describing the H2S as an "impurity" would have no
regulatory significance.] The term "impurity" is irrelevant from a
regulatory standpoint under RCRCA.

In the absence of an available standardized analytical test method, the
Agency asserts that the RCRA 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.” [FN35: 76
Fed. Reg. 48078.] Section 262.11(c)(2) of the RCRA regulations provides
that, in lieu of the use of a standardized analytical test method, the
generator of a hazardous waste may determine whether a material is
hazardous by "[a]pplying knowledge of the hazardous characteristic of
the waste in light of the materials or processes used." Based upon
industry's knowledge of CCS-related materials and processes, coupled
with current uses of CO2, a generator is unlikely to have a reasonable
belief that its CO2 stream is hazardous.

EPA references the following March 2006 study by Lawrence Livermore
National laboratory to support an inference that certain "impurities"
could be present in CO2 streams from coal-based facilities: Apps, J.A.,
"A Review of Hazardous Chemical Species Associated with CO2 Capture from
Coal-Fired Power Plants and Their Potential Fate in Geologic Storage.”
[FN36: Id. at 48079 n. 24.] Contrary to EPA's suggestion that this study
supports the notion that regulators should be concerned about the
inadvertent constituents of CO2 streams, the study proves just the
opposite (id. at p. 44):

“The preceding evaluation shows quite clearly that the concentrations
of other chemical components accidentally incorporated in CO2, when
captured from conventional coal fired power plants, or from advanced
coal-fired IGCC plants, will be at most, relatively insignificant. For
minor volatile species of S, N, F. and CL, the concentration of CO2 from
conventional power plants is unlikely to exceed 5% of the base
concentration in the original coal feed, i.e., between 0 and 250 ppmv.
For potentially hazardous trace elements, such as As, B, Ba, Be, Cd, Co,
Cr, Cu, Ge, Hg, Mn, Mo, Ni, P, Pb, Sb, Sc, Sn, Sr, U, V, and Zn, with
the possible exception of Hg, the percentage concentrations are
currently predicted to be at least two orders of magnitude less in
concentration than was originally present in the coal. However, given
that the concentrations of most of these elements were only in the ppm
range in the original coal, accidentally incorporated concentrations are
unlikely to exceed the range from 0.01 to 10 ppmv.” (emphasis added).

Significantly, the paper ultimately concludes that "the concentrations
of inadvertent contaminants in the injected CO2 would probably be
comparable to the ambient concentrations in confining shales of the
injection zone." Id. at 1 (emphasis added). [FN37: The rest of the
Lawrence Livermore paper deals with the "mixture rule" scenario which,
as noted above, is not relevant as that activity is already prohibited
by the UIC Class VI rule.] In other words, according to this key
reference cited by EPA, CO2 streams have a comparable concentration of
naturally occurring materials in the subsurface environment.

With respect to the hypothetical scenario based on the mixture rule
route of regulation, EPA has advanced no record evidence to support this
case. Furthermore, the UIC Class VI rule itself prohibits the
co-injection of RCRA hazardous waste, so the mixture rule scenario is
inapplicable.[FN38: 75 Fed. Reg. at 77260 ("Class VI wells may not be
used for the co-injection of RCRA hazardous wastes").]

Response: See response to comment 3.1.9.  With respect to the
commenter’s request for clarity over the status of mixed CO2 and H2S
streams, see response to comments 3.6.4, 3.6.6, and 3.20.5 related to
Acid Gas Injection (AGI).

Comment 3.14.10:

D. NACCSA Otherwise Supports the Proposed Conditional Exclusion, But
Believes That EPA Could Provide Further Regulatory Clarity 

EPA's conditional exclusion is largely premised on the notion that CO2
streams already are subject to stringent regulation. We agree.

As to generators, in the vast majority of commercial scenarios, there
will be no on-site storage of CO2. Instead, as EPA states, captured CO2
will be immediately transported offsite via pipeline. [FN39: 76 Fed.
Reg. at 48081.] From a geologic sequestration point of view, the
industrial source's role is rather perfunctory, aside from complying
with the terms and conditions of the relevant CO2 offtake
contract.[FN40: A typical CO2 offtake contract obligates the source to
deliver specified volumes or quantities of CO2 under minimum pressure
and quality specifications at a nominated delivery point.] Subparts
UU/RR to the GHG reporting rule also provide EPA with relevant
information. [FN41: 76 Fed. Reg. at 48082.]

EPA also notes, and we agree, that the transportation of CO2 is also
stringently and effectively regulated by the U.S. Department of
Transportation ("DOT”). [FN42: We do not entirely agree with EPA's
characterization of DOT's regulation, however. Although the RCRA
proposal refers to "CO2 streams," EPA shifts gear here and refers only
to "CO2." Also, supercritical CO2 does not appear in DOT's hazmat table.
The hazmat table instead lists three forms of CO2: (1) gas (UN 1013);
(2) refrigerated liquid (UN 2187); and (3) solid or dry ice (UN 1845).
49 C.F.R. § 172.101. Finally, EPA should emphasize, as it already
suggests, that DOT does not regulate the pipeline transportation of CO2
under the status of a "hazardous liquid." 76 Fed. Reg. at 48082.] These
regulations apply to all modes of transport, including but not limited
to pipelines. DOT regulates the interstate pipeline of CO2 as a
non-hazardous liquid, and relevant States apply comparable standards for
intrastate pipelines. [FN43: Nordhaus, R., "Carbon Dioxide Pipeline
Regulation," 30 Energy Law J. 85 (2009).]

Response: See Response to 3.1.10.

Comment 3.14.11:

We agree with the Agency that the UIC Class VI rule provides a
comprehensive management regime for CO2 streams that renders duplicative
any potential additional regulation under RCRA. [FN44: 76 Fed. Reg.
48084-48085.] We also agree that CO2 streams subject to the conditional
exclusion would not be subject to RCRA's land disposal restrictions or
separate provisions regarding corrective action. [FN45: Id. at
48085-48086.]

We do not understand why EPA proposes to make the conditional exclusion
subject to the additional requirement that no hazardous wastes may be
mixed with, or otherwise co-injected with, the CO2 stream, given that
those activities are already barred under the UIC Class VI rule.[FN46:
Id. at 48086.]

EPA states that the conditional exclusion may be lost at any time, a
situation which may serve to substantially weaken the exclusion's
salutary effects given that the Agency appears to be holding out the
potential for down-hole formation of carbonic acid at some future date
in a storage facility's lifetime [FN47: Id. at 48087.]:

“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 the CO2 stream being subject to all
applicable subtitle C regulatory requirements, from the point of
generation.”

This suggests that all entities involved in CCS - generator,
transporter, and injector - could be held liable for RCRA violations if
at some future date conditions down-hole, due to no fault of any party,
could be deemed to have created or liberated a material that a future
regulator or claimant considers to be of concern. This situation will
increase, not decrease, regulatory certainty.

Response: EPA acknowledges the commenter’s agreement with EPA’s
finding that the UIC Class VI rule provides a comprehensive management
regime for CO2 streams, such that management of CO2 streams in
accordance with these requirements and other conditions, does not
present a substantial risk to human health and the environment,
therefore additional regulation under RCRA is unnecessary, and that CO2
streams subject to the conditional exclusion would not be subject to
RCRA's land disposal restrictions or separate provisions regarding
corrective action. See Responses to Comments 3.1.11 - 3.1.13.

Comment 3.14.12:

EPA emphasizes that the generator is responsible for the initial, and
perhaps sole, hazard determination, but this conflicts with the
definition of "CO2 stream" which suggests that the injector may add
materials to facilitate injection. What happens in the scenario where
the industrial source effectively delivers pharmaceutical grade CO2 to a
storage site via a pipeline transporter, and the site owner/operator
thereafter adds incidental materials to facilitate injection? It would
be punitive in that situation to hold the industrial source liable for
the site owner/operator's activities.

The conditional exclusion is premised on a linear model of CCS
operations under which a single source delivers CO2 to a single
transporter (expected to be a pipeline) who in turn delivers the CO2 to
a site owner/operator. While that scenario may apply in some
circumstances, it is equally likely that one or more sources may be
delivering CO2 into the same pipeline, which in turn will deliver the
CO2 to a storage site that receives and stores CO2 from multiple
sources. That storage site may also already hold, or accept for
delivery, volumes of natural CO2. [FN48: This situation further supports
our position that RCRA was never intended to apply to CCS.] Since CO2
streams will be commingled, and CO2 molecules are identical, this sets
up a “Superfund-esque" situation under which all parties, even the
innocent, have the potential of being held liable. And unlike Superfund,
where at least there is the hope of finding labels on drums to identify
sources and parties, no such hope exists for commingled CO2 molecules,
particularly after they have already been injected into the subsurface.
[FN49: EPA's approach also assumes a simplistic, unitary model of
pipeline operation and regulation that is unlikely to apply in initial
projects. Experts have identified three models of pipeline operation and
regulation - one premised exclusively on deep saline injections, another
premised exclusively on EOR, and a “hybrid" model that supports both
(and potentially other) uses. Commercial operations under each model are
expected to be unique, with deep saline pipelines having an “upstream"
focus and EOR pipelines having a “downstream" focus. Marston P., "From
EOR to CCS: The Evolving Legal and Regulatory Frame work for Carbon
Capture and Storage," 29 Energy Law J. 421,463-465 (2008). EPA's
proposal adds to this already confusing framework a new consideration -
is the material being transported and commingled with other CO2 a
“solid waste" or "hazardous waste"?]

Response: See response to comments 3.1.14, 3.2.3 and 3.2.4.

Comment 3.14.13:

EPA states that the conditional exclusion only applies to "CO2 streams"
that have been captured for purposes of “geologic
sequestration."[FN50: 76 Fed. Reg. at 48086.] EPA never explains how
that purpose is to be determined, an ambiguity that could negatively
impact concurrent EOR/storage. The Agency explains that [FN51: Id. at
48078 n. 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.”

This limitation provides no regulatory clarity for UIC Class II
concurrent EOR/storage projects that qualify for the risk-based factor
test of 40 C.F.R. § 144.19 under the UIC Class VI rule which allows
sequestration to occur under Class II if there is no increased risk to
USDWs. [FN52: 75 Fed. Reg. at 77245.] It is imperative that EPA make
clear either that: (1) the conditional exclusion also applies to EOR
operators under 40 C.F.R. § 144.19, or (2) the RCRA status of EOR
operators under 40 CF.R. § 144.19 is identical to that of
business-as-usual EOR operators under Class II without claims of
sequestration. [FN53: “The agency has decided not to regulate oil and
gas industry exploration and production wastes and mineral extraction
and beneficiation and certain mineral processing under RCRA Subtitle C."
T. Garrett, ed., “The RCRA Practice Manual," at 3.]

Response: See Responses to Comments 3.1.1, 3.1.11, 3.1.15 and 3.6.7.

Comment 3.14.14:

EPA erroneously states that RCRA's § 7003 imminent hazard authorities
would continue to apply under the conditional exclusion.[FN54: 76 Fed.
Reg. at 48088.] For the reasons stated above, "CO2 streams" are neither
solid nor hazardous wastes, so § 7003 - which only applies to solid or
hazardous wastes -- does not apply to CO2 streams. For the same reason,
EPA should clarify that RCRA's citizen suit provision -- § 7002 - also
does not apply to CO2 streams.

Response: See response to comment 3.1.16.

Comment 3.14.15:

We encourage EPA to clarify that CO2 streams subject to the conditional
exclusion also are not subject to Superfund. [FN55: A CERCLA "hazardous
substance" is defined to include all RCRA hazardous wastes, and because
CO2 streams are not hazardous wastes, it is appropriate for EPA, in this
rulemaking, to provide critical regulatory clarity for CCS under the
Superfund statute, too.]

Response: See response to comment 3.1.17.

Comment 3.14.16:

Recommended Regulatory Changes

For the reasons stated above, if EPA elects to continue to pursue the
conditional exclusion route, we suggest that the proposed exclusion in
§ 261.4(h) be revised to read as follows [FN56: The full text of EPA's
proposed conditional exclusion is shown, with suggested additions
underlined and deletions struck.]:

(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 of 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 (OR ANALOGOUS STATE)
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
(INCLUDING § 144.19) and 146;

(iii) No <other> hazardous waste may be mixed with, or otherwise
co-injected with, the carbon dioxide stream AT THE GENERATOR'S FACILITY
OR SITE; 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:

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. 

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 (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). This
yearly renewable of a certification statement under this paragraph means
that an authorized representative must annually prepare and sign a new
copy of the certification statement.

Response: See response to comment 3.1.18.

Comment 3.14.17:

In lieu of addressing the status of CO2 streams under proposed exclusion
in § 261.4(h), even as modified above, which leaves "CO2 streams" as
solid wastes, we recommend instead that EPA make clear that "CO2
streams" are neither solid nor hazardous wastes. The Agency could do so
by promulgating a new § 261.4(a)(26) as follows [FN57: Suggested
additions are {capitalized}.]:

(a) Materials which are not solid wastes.

* * *

(26) CARBON DIOXIDE (CO2) STREAMS. 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 OF 40 CFR PARTS 144
(INCLUDING § 144.19) AND 146 OF THE UNDERGROUND INJECTION CONTROL
PROGRAM OF THE SAFE DRINKING WATER ACT, ARE NOT A SOLID WASTE PROVIDED
THAT THE GENERATOR ALSO COMPLIES WITH THE FOLLOWING REQUIREMENTS:

(I) TRANSPORTATION OF THE CARBON DIOXIDE STREAM MUST BE IN COMPLIANCE
WITH APPLICABLE DEPARTMENT OF TRANSPORTATION (OR ANALOGOUS STATE)
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
(INCLUDING § 144.19) AND 146;

(III) NO HAZARDOUS WASTE MAY BE MIXED WITH, OR OTHERWISE CO-INJECTED
WITH, THE CARBON DIOXIDE STREAM AT THE GENERATOR'S FACILITY OR SITE; 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 THIS PARAGRAPH, MUST HAVE AN
AUTHORIZED REPRESENTATIVE (AS DEFINED IN 40 CFR 260.10) SIGN A
CERTIFICATION STATEMENT WORDED 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(A)(26) MEETS ALL 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 (IF
LOCATED IN AN AUTHORIZED STATE), OR THEIR DESIGNEE, AND SHALL BE RENEWED
EVERY YEAR. THIS YEARLY RENEWABLE OF A CERTIFICATION STATEMENT UNDER
THIS PARAGRAPH MEANS THAT AN AUTHORIZED REPRESENTATIVE MUST ANNUALLY
PREPARE AND SIGN A NEW COPY OF THE CERTIFICATION STATEMENT.

Response: See response to comment 3.1.18.

Comment 3.14.18:

Conclusion

NACCSA appreciates the opportunity to submit these comments and welcomes
any requests by the Agency for additional information or comment.

Response: EPA acknowledges the comment.

Edison Electric Institute (EEI)

Document ID: EPA-HQ-RCRA-2010-0695-0080

Comment 3.15.1:

The Edison Electric Institute (EEl) submits the attached comments on
Hazardous Waste Management System: Identification and Listing of
Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic Sequestration
Activities, which was recently proposed by the Environmental Protection
Agency. See 76 Fed. Reg. 48074 (Aug. 8,2011). This proposal would revise
regulations for hazardous waste management under the Resource
Conservation and Recovery Act to conditionally exclude CO2 streams from
the definition of hazardous waste, provided that they are injected into
Class VI Underground Injection Control wells for the purpose of geologic
sequestration. 

EEl is the association of shareholder-owned electric companies,
international affiliates and industry associates worldwide. Our U.S.
members serve 95 percent of the ultimate customers in the
shareholder-owned segment of the industry, and represent approximately
70 percent of the U.S. electric power industry. Many of our members have
been and are actively involved in the research, development,
demonstration and deployment of technologies to capture CO2 from
electricity production and inject it into geologic formations for
long-term storage, activities covered by the draft guidance documents.
Carbon capture and storage is a critical element in the full portfolio
of technologies and measures to reduce greenhouse gas emissions.

EEl appreciates the opportunity to provide comments. Questions may be
directed to (see docket for contact information).

Response: EPA acknowledges the comment. 

Comment 3.15.2:

COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON THE ENVIRONMENTAL
PROTECTION AGENCY’S PROPOSED RULE ENTITLED HAZARDOUS WASTE MANAGEMENT
SYSTEM: IDENTIFICATION AND LISTING OF HAZARDOUS WASTE: CARBON DIOXIDE
(CO2) STREAMS IN GEOLOGIC SEQUESTRATION ACTIVITIES 

The Edison Electric Institute (EEI) [FN1: EEI is the national
association of shareholder-owned electric utilities in the U.S. Our
members represent about 70 percent of the U.S. electric power industry
and serve 95 percent of the ultimate customers in the industry‘s
investor-owned segment.] submits these comments on the proposed
Environmental Protection Agency (EPA or Agency) rule entitled
“Hazardous Waste Management System: Identification and Listing of
Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic Sequestration
Activities.” 76 Fed. Reg. 48073 (Aug. 8, 2011). [FN2: A technical
correction was published on September 9, 2011. 75 Fed. Reg. 55846.]

This proposed rule complements EPA‘s final rule for the Federal
Requirements under the Underground Injection Control Program for Carbon
Dioxide Geologic Sequestration (GS) Wells (the so-called “UIC Class VI
rule”) and associated guidance issued (and still being issued)
thereunder. 75 Fed. Reg. 77230 (Dec. 10, 2010). EEI has actively
participated in EPA‘s development of the UIC Class VI program under
the Safe Drinking Water Act (SDWA). EEI recently submitted consolidated
comments on the following four March 2011 UIC Class VI draft guidance
documents: 1) Site Characterization (EPA 816-D-10-006), 2) Area of
Review (AOR) (EPA 816-D-10-007), 3) Well Construction (EPA 816-D-10-008)
and 4) Plan Development (EPA 816-D-10-012). On February 8, 2011, EEI
submitted comments on the draft guidance regarding financial
responsibility for Class VI wells. EEI submitted comments to the Agency
on October 15, 2009, on the Notice of Data Availability (NODA) and
Request for Comment related to the Agency‘s proposed regulations for
injection and GS of CO2 under the authority of the SDWA UIC program,
issued in July 2008 in Docket No. EPA-HQ-OW-2008-0290, 73 Fed. Reg.
43491 (July 25, 2008). EEI submitted pre-rulemaking comments to the
Agency on May 15, 2008; provided oral and written testimony at EPA‘s
September 30, 2008, public meeting on the proposed rules; and submitted
written comments on December 24, 2008. EEI also provided testimony at
the public hearing on the NODA on September 17, 2009, and participated
in the development of the proposed rule via webinars held in April and
May 2009. These comments and testimony are incorporated by reference
herein.

Response: EPA acknowledges the comment, but notes that EPA made clear in
the proposal that this final rule does not reopen the UIC Class VI rule,
and that EPA would not respond to comments related only to that rule. 
Consistent with this, EPA will not provide additional responses to the
Edison Electric Institute’s comments on that rule, and that rule’s
associated guidance.  

Comment 3.15.3:

I. Introduction

Carbon capture and storage (CCS) is a critical element in the full
portfolio of options needed not only to reduce CO2 emissions, but also
to ensure continued affordable and reliable electric service to
customers throughout the U.S. EEI thus supports the development of
clear, defensible and appropriately tailored regulatory regimes that
will facilitate development of and investment in CCS technology and
projects while protecting against potential environmental risks.
Clarifying the treatment of geologically injected and sequestered CO2
under the Resource Conversation and Recovery Act (RCRA), which the
Agency is addressing in the instant proposal, is a key element in the
development of this regulatory regime. EEI commends the Agency for
establishing a CCS permitting regime through issuance of the UIC Class
VI program, and appreciates the Agency‘s efforts to provide additional
critical regulatory clarity under RCRA.

II. Executive Summary

EEI supports the conditional exclusion of CO2 streams from RCRA‘s
hazardous waste regulations, but recommends that EPA‘s rule be recast
as an exclusion of CO2 streams from the definition of “solid waste”
because of CO2’s unique properties and uses, coupled with the fact
that CO2 streams are not “discarded.” A failure to clarify that
eligible CO2 streams are not “solid wastes” would leave CCS projects
with unnecessary regulatory uncertainty while doing little to advance
public health and environmental protection, given the rigorous
requirements of the UIC Class VI rule.

If EPA elects to retain the proposed approach of a conditional exclusion
for CO2 streams from RCRA’s hazardous waste regulations, the proposed
regulation should be clarified to remove as much regulatory ambiguity as
possible. In addition, EPA should explicitly address the applicability
of RCRA to concurrent enhanced oil recovery (EOR)/storage under the
provisions of the UIC Class VI rule.

Response: EPA thanks the commenter for its support of the conditional
exclusion.  Regarding the commenter’s suggestion that EPA promulgate a
conditional exclusion from the definition of solid waste (rather than
from the definition of hazardous waste), EPA disagrees and refers the
commenter to response to comments 3.1.1 and 3.1.2.  Regarding the
commenter’s request for clarification on “the applicability of RCRA
to concurrent enhanced oil recovery (EOR)/storage under the provisions
of the UIC Class VI rule” EPA notes that status of CO2 streams
injected into UIC Class II wells for purposes of EOR is discussed in
response to comment 3.1.1.  EPA also reiterates that today’s rule only
applies to CO2 injected into UIC Class VI wells, which would include any
well that has transitioned to a UIC Class VI well under the provisions
of the UIC Class VI rule; that is, nothing in the conditional exclusion
would prevent a Class VI well, that had previously transitioned from a
Class II well, from being eligible for the RCRA conditional exclusion. 
EPA would encourage persons to consult with the appropriate regulatory
authority to address any fact-specific questions they may have regarding
the status of CO2 in situations that are beyond the scope of this final
rule.

Comment 3.15.4:

III. Specific Comments

EPA proposes to “conditionally” exclude “CO2 stream” [FN3: EPA
explains that a “carbon dioxide (CO2) stream” is “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” 76 Fed. Reg. at 48075.] 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 … and meet certain other conditions” 76 Fed.
Reg. at 48074. EPA explains that it is taking this action because it
“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.” Id. EPA expects that the
conditional exclusion will provide additional regulatory certainty,
thereby facilitating CCS deployment. Id.

EEI supports the proposed “conditional exclusion” insofar as it
endeavors, albeit incompletely, to clarify the regulatory regime for CCS
while ensuring stringent protection of human health and the environment.
Nonetheless, the “conditional exclusion” falls short of what is
needed to provide adequate regulatory certainty for industry for the
following reasons.

Response: EPA thanks the commenter for its support of the conditional
exclusion, and addresses any specific comments on how the rule ‘falls
short’ of what is needed below in EPA’s responses below.

Comment 3.15.5:

A. CO2 Streams Are Not "Wastes"

EPA's proposal is premised on the notion that RCRA potentially applies
to "CO2 streams" in the first instance. This premise is false for two
reasons.

First, in enacting RCRA, Congress never envisioned regulation of a
molecule such as CO2. Compared to other substances or materials
regulated under RCRA, CO2 is unique. It performs a variety of beneficial
and ubiquitous roles in a variety of natural (e.g., uptake by plants)
and industrial (i.e., EOR) functions. Several states already have
declared CO2 to be a "commodity" for these reasons. [FN4: See, e.g.,
Oklahoma S.B. 1610 ("Carbon dioxide is a valuable commodity to the
citizens of the state.").] 

Response: See response to comment 3.1.4.

Comment 3.15.6:

Second, and similarly, RCRA was never meant to apply to CCS, and thus
the statute provides a poor tool to regulate the activity. Nothing in
RCRA or its regulations purports to apply to CCS generally or geologic
sequestration specifically. The RCRA model is prospective
“cradle-to-grave” waste management and tracking. CCS, on the other
hand, currently involves the injection of CO2 for beneficial purposes.
Moreover, that activity is envisioned to involve mixed streams of CO2
from multiple sources, with injection of CO2 from multiple sources,
thereby defeating the goal of tracking wastes through manifests and the
like. There also is no standardized test method to evaluate
supercritical CO2. For these and other reasons set forth below, trying
to fit CCS under RCRA is inappropriate.

Response: See response to comments 3.1.5 and 3.12.7.

Comment 3.15.7:

B. CO2 Streams Are Not “Solid Wastes.”

The conditional exclusion is rooted on the unsupported premise that
captured anthropogenic CO2 is a “solid waste.” EPA asserts that a
“supercritical CO2 stream … is a RCRA solid waste, as it is a
‘discarded material’ within the plain meaning of the term in RCRA §
1004(27).” 76 Fed. Reg. at 48077-78. [FN5: Relevant provisions of RCRA
§ 1004(27) define “solid waste” as “other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from … industrial operations ….”] EPA does not offer a
detailed justification for its claim that CO2 streams are
“discarded.” An analysis of how RCRA and its regulations define that
term demonstrates that CO2 streams injected for storage are not
discarded with the meaning of RCRA.

Subtitle C of RCRA, which regulates hazardous wastes, applies only to
“solid waste” that is “hazardous.” [FN6: The RCRA Practice
Manual 2 (T. Garrett ed., ABA 2d ed. 2004).] To be regulated as a
“solid waste,” a material must satisfy three criteria, two of which
are relevant: 1) it must have the physical form of a solid waste, and 2)
it must be “discarded.” [FN7: Id. at 33.] Neither of these criteria
is met here.

Response: See response to comments 3.1.6, 3.1.7, and 3.1.8.

Comment 3.15.8:

1. CO2 streams do not have the physical form of a solid waste.

In relevant part, RCRA defines “solid waste” as “other discarded
material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural
operations ….” 42 U.S.C. § 6903(27) (emphasis added). Supercritical
states of material, such as is relevant for CO2, are not explicitly
listed. Before it is compressed, CO2 is a gas. By “contained gas” in
the definition above, EPA means: 

“a gas that is contained in a cylinder or other non-flow-through
containment system. In contrast, an uncontained gas, such as gas flowing
through a pipe, column, or tank, is not a solid waste. Since uncontained
gases are not solid wastes and therefore cannot be hazardous wastes, as
a general matter, units that manage uncontained gases are not regulated
under RCRA. [FN8: Id. at 33-34 (emphasis added).]”

Applying this relatively narrow concept of “contained gas,” it is
clear that a CO2 stream– which at minimum spends part of its life
“flowing through a pipe”—is not a solid waste” because it does
not have the necessary form to be swept up under RCRA’s jurisdiction.
[FN9: The fact that a CO2 stream is not a “contained gas” should not
be interpreted to suggest that geologic storage is not an effective
means of long-term storage, because it is. “Contained gas” is a
regulatory concept only].

Response: See response to comment 3.1.7.

Comment 3.15.9:

2. CO2 streams are not discarded.

RCRA defines “solid waste” as “other discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations ….” 42
U.S.C. § 6903(27) (emphasis added). EPA‘s regulations explain that a
“solid waste” is any “discarded material” that is “not
excluded under § 261.4(a), [FN10: 40 C.F.R. § 261.4(a) excludes
through numerous specific listings “[m]aterials which are not solid
wastes.”] or that is not excluded by a variance granted under §§
260.30 [FN11: Id. at § 260.30 deals with non-waste determinations and
variances from classification as a solid waste.] and 260.31, [FN12: Id.
at § 260.31 sets forth standards and criteria for variances from
classification as a solid waste.] or that is not excluded by a non-waste
determination under §§ 260.30 [FN13: Id. at § 260.30.] and 260.34”
[FN14: Id. at § 260.34 sets forth standards and criteria for non-waste
determinations.], [FN15: Id. at § 261.2 (definition of “solid
waste”) (emphasis and internal footnote references added).] (emphasis
added). A “discarded material,” in turn, is “any material” that
is: 1) abandoned, 2) recycled or 3) considered inherently waste-like.
[FN16: Id. at. § 261.2(a)(2)(i).] 

Although they do not define the term “material,” EPA’s regulations
set forth detailed criteria that must be met before a material is deemed
to be “discarded” via the “abandoned,” “recycled” or
“inherently waste-like” regulatory paths:

 

*Abandoned. Materials are “solid waste” if they are abandoned by
being: a) disposed of; b) burned or incinerated; or c) “[a]ccumulated,
stored or treated (but not recycled) before or in lieu of being
abandoned by being disposed of, burned, or incinerated.” [FN17: Id. at
§ 261.2(b).]

* Recycled. Materials separately are “solid waste” if they are
recycled–or accumulated, stored, or treated before recycling–if they
fall into one of the following four categories: a) used in a manner
constituting disposal, b) burned for energy recovery, c) reclaimed or d)
accumulated speculatively. [FN18: Id. at § 261.2(c).]

*Inherently waste-like. Specifically identified materials, not including
CO2, also are “solid waste” if they are recycled in any manner, and
thus deemed to be “inherently waste-like materials.” [FN19: Id. at
§ 261.2(d).]

“CO2 streams” do not meet any of these three RCRA regulatory
requirements.

Response: See response to comment 3.1.8.

Comment 3.15.10:

3. CO2 streams are not abandoned.

CO2 streams are not burned or incinerated, nor are they “disposed
of.” The “S” in CCS stands for either “storage” or
“sequestration,” neither of which contemplates “disposal.” The
Merriam-Webster Dictionary defines “sequester” as “to set apart,
segregate” or to “seclude, withdraw.” [FN20: See
http://www.merriamwebster.
com/dictionary/sequestered?show=0&t=1315859974.] Synonyms for
“sequestration” include “isolation” and “seclusion.” [FN21:
See http://www.merriam- webster.com/dictionary/sequestration.]
“Disposal,” on the other hand, is defined as the act of
“disposing,” which means “to get rid of.”[FN22: See
http://www.merriam-webster.com/dictionary/disposing.]

The concept of “disposal” is inconsistent with how the bulk of CO2
is currently being managed commercially today. With the exception of
demonstration and related projects, most if not all of the CO2 that is
geologically injected today is used for EOR. In that application, it is
purchased and transacted as a valuable commodity. As explained further
below, EPA‘s Class VI rule envisions that concurrent EOR/storage may
be conducted under Class II as long as certain conditions are met–a
usage that flatly contradicts EPA‘s assertion here that injection is a
“disposal activity.”

CO2 that is injected in saline reservoirs under Class VI also is not
“disposed of.” For example, it is conceivable that such CO2 may be
later withdrawn and put to a beneficial, but still
non-atmospheric-emitting, use. Such CO2 also may be used for reservoir
maintenance as part of concurrent long-term storage/desalination
operations, as explained By William Bourcier of Lawrence Livermore
National Laboratory at the August 18, 2010, meeting of the California
CCS Review Panel. [FN23: See
http://www.climatechange.ca.gov/carbon_capture_review_panel/meetings/201
0- 08-18/presentations/01_Bourcier_Cal_CCS-Panel.pdf.] 

In addition, transactions of CCS-related offsets credits are made on
various carbon registries, such as the American Carbon Registry. This
activity is inconsistent with the notion of “disposal.”

Finally, it is worth noting that the terms “disposal” and
“dispose” do not appear in any relevant portion of the Class VI rule
or EPA’s preamble to the same.

Because geologic sequestration/storage does not contemplate
“disposal,” the regulatory “abandonment” provisions dealing with
“[a]ccumulated, stored or treated” also are inapplicable.

4. CO2 streams are not recycled.

RCRA’s provisions regarding “recycle” are detailed, and none of
them applies to CO2 streams–nor has EPA claimed that this is the case.
[FN24: The fact that CO2 is recycled in EOR operations is not directly
relevant for the RCRA regulatory concept of “recycle.”] In order for
the recycle rules to apply, a material must first be deemed a secondary
material. Among other things, secondary materials do not include
“co-products.” Since in current commercial practice CO2 that is
geologically injected is transacted as a valuable commodity as
“co-products,” the recycle regulations do not apply. [FN25: Seen.6,
supra, at 36.] 

CO2 streams are not “inherently waste-like.” RCRA’s provisions
regarding “inherently waste-like” materials also are detailed, and
none of them apply to CO2 streams – nor has EPA claimed the same.

Response: See response to comment 3.1.8.

Comment 3.15.11:

C. CO2 Streams Are Not “Hazardous Wastes.”

Assuming arguendo that CO2 streams are “solid wastes”–and they are
not, as described above–they are not “hazardous wastes.” 

EPA states that it has “little information to conclude that CO2
streams would qualify as RCRA hazardous waste.” 76 Fed. Reg. at 48077.
The Agency also acknowledges that “CO2 streams are not listed
hazardous wastes” under subpart D of part 261. Id. [FN26: Accord, 76
Fed. Reg. at 48078 (“EPA reiterates that no hazardous waste listings
apply specifically to CO2 streams.”).] The Agency nonetheless believes
that the “RCRA hazardous waste regulations can apply to CO2 streams”
based upon two hypothetical scenarios: 1) a CO2 stream exhibits
hazardous characteristics; [FN27: 40 C.F.R. § 261.20(a).] or 2) a CO2
stream is mixed with a listed hazardous waste, thus triggering
application of the so-called “mixture rule.” Id.

Neither of these hypothetical scenarios is plausible. With respect to
whether a CO2 stream exhibits hazardous characteristics, EPA seems to
acknowledge that there is no available standardized analytical test
method for supercritical materials such as CO2 or a “CO2 stream.”
[FN28: 76 Fed. Reg. at 48078 n.22 (“EPA notes that existing analytical
test methods … are available to quantify the levels of various
hazardous constituents in gaseous streams, although sampling a
supercritical CO2 stream may require particular sampling protocols.”)
(emphasis added).] EPA may only define a characteristic of a hazardous
waste if the characteristic can be: 1) measured by an “available
standardized test method which is reasonably within the capability of
generators or solid waste or private sector laboratories that are
available to serve generators of solid waste,” or 2) “reasonably
detected by generators of solid waste through their knowledge of their
waste.” [FN29: 40 C.F.R. § 261.10(a)(2).] This two-factor test cannot
currently be met for supercritical CO2 streams based on available
standards.

Even if a standardized analytical test method were available for
supercritical CO2, we are not aware of any information which would
suggest that supercritical CO2 meets any of EPA‘s hazard
characteristics. Supercritical CO2 is not: 1) ignitable under 40 C.F.R.
§ 261.21, 2) corrosive under 40 C.F.R. § 261.22, [FN30: Supercritical
CO2 is non-aqueous, so section 261.22(a)(1) does not apply, and section
261.22(a)(2) only applies if the material is “liquid and corrodes
steel.” Supercritical CO2 is not a “liquid” and does not corrode
the steel pipelines through which it has been transported safely for
several decades. EPA hints that corrosivity could be an issue “down
hole” through interaction with in-situ reservoir fluids, but that
scenario is not contemplated by 40 C.F.R. § 261.22.] 3) reactive under
40 C.F.R. § 261.23 or 4) toxic under 40 C.F.R. § 261.24. [FN31:
Toxicity is assessed under Test Method 1311, the so-called Toxicity
Characteristic Leaching Procedure (TCLP). 40 C.F.R. § 261.24(a). The
TCLP is inapplicable to supercritical CO2 and CO2 streams, as the TCLP
was “intended to reflect the potential for leaching to groundwater
that results from the codisposal of toxic wastes in an actively
decomposing municipal landfill generating an acidic leachate.” See
n.6, supra, at 52. Referring to a 2006 paper from Lawrence Livermore
National Laboratory, EPA suggests that certain impurities are
“relevant” for toxicity regulation under § 261.24(a). However, all
of the impurities referred to by EPA as potentially being present in
certain CO2 streams are at levels that are several orders of magnitude
lower than the relevant regulatory levels set forth in the regulations.]
In the preamble to the final Class VI rule, EPA stated that it had
reviewed estimates of CO2 injectate quality, and based upon that
assessment, “captured CO2 could contain some impurities.”[FN32: 75
Fed. Reg. 77230, 77260 (2010).] The possible presence of
“impurities” does not trigger any of EPA’s hazard characteristic
tests.

In the absence of an available, standardized analytical test method, the
Agency asserts that the RCRA 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.”[FN33: 76 Fed. Reg. 48078.] Section 262.11(c)(2) of the RCRA
regulations provides that in lieu of the use of a standardized
analytical test method, the generator of a hazardous waste may determine
whether a material is hazardous by “[a]pplying knowledge of the
hazardous characteristic of the waste in light of the materials or
processes used.” Based upon industry‘s knowledge of CCS-related
materials and processes, coupled with current uses of CO2, a generator
is unlikely to have a reasonable belief that its CO2 stream is
hazardous.

EPA refer[s] to the following March 2006 study by Lawrence Livermore
National Laboratory to support an inference that certain
“impurities” could be present in CO2 streams from coal-based
facilities: J.A. Apps, A Review of Hazardous Chemical Species Associated
with CO2 Capture from Coal-Fired Power Plants and Their Potential Fate
in Geologic Storage. [FN34: 76 Fed. Reg. at 48079 n.24.] Contrary to
EPA‘s suggestion that the study supports the notion that regulators
should be concerned about the inadvertent constituents of CO2 streams,
the study proves just the opposite:

“The preceding evaluation shows quite clearly that the concentrations
of other chemical components accidentally incorporated in CO2, when
captured from conventional coal fired power plants, or from advanced
coal-fired IGCC plants, will be at most, relatively insignificant. For
minor volatile species of S, N, F. and CL, the concentration of CO2 from
conventional power plants is unlikely to exceed 5% of the base
concentration in the original coal feed, i.e., between 0 and 250 ppmv.
For potentially hazardous trace elements, such as As, B, Ba, Be, Cd, Co,
Cr, Cu, Ge, Hg, Mn, Mo, Ni, P, Pb, Sb, Sc, Sn, Sr, U, V, and Zn, with
the possible exception of Hg, the percentage concentrations are
currently predicted to be at least two orders of magnitude less in
concentration than was originally present in the coal. However, given
that the concentrations of most of these elements were only in the ppm
range in the original coal, accidentally incorporated concentrations are
unlikely to exceed the range from 0.01 to 10 ppmv.”  Id. at 44
(emphasis added). 

Significantly, the paper ultimately concludes that “the concentrations
of inadvertent contaminants in the injected CO2 would probably be
comparable to the ambient concentrations in confining shales of the
injection zone.” Id. at 1. [FN35: The rest of the Lawrence Livermore
paper deals with the mixture-rule scenario which, as noted below, is not
relevant as that activity is already prohibited by the UIC Class VI
rule.] In other words, CO2 streams have a comparable concentration of
impurities already found in the natural subsurface environment.

With respect to the hypothetical scenario based on the mixture-rule
route of regulation, EPA has advanced no evidence to support this case.
Furthermore, the UIC Class VI rule itself prohibits the co-injection of
RCRA hazardous waste, so the mixture-rule scenario is already
prohibited. [FN36: 75 Fed. Reg. at 77260 (“Class VI wells may not be
used for the co-injection of RCRA hazardous wastes.”).]

Response: See response to comment 3.1.9.

Comment 3.15.15:

D. EEI Otherwise Supports the Proposed Conditional Exclusion, But EPA
Could Provide Further Regulatory Clarity. 

EPA‘s conditional exclusion is largely premised on the notion that CO2
streams already are subject to stringent regulation. We agree.

As to generators, in the vast majority of commercial scenarios, there
will be no on-site storage of CO2. Instead, as EPA states, captured CO2
will be immediately transported offsite via pipeline. [FN37: 76 Fed.
Reg. at 48081.] From a geologic sequestration point of view, the
industrial source’s role is perfunctory, aside from complying with the
terms and conditions of the relevant CO2 off-take contract. [FN38: A
typical CO2 off-take contract obligates the source to deliver specified
volumes or quantities of CO2 under minimum pressure and quality
specifications at a designated delivery point.] EPA‘s Mandatory
Reporting Rule of Greenhouse Gases: Injection and Geologic Sequestration
of Carbon Dioxide rule also provides EPA with relevant information.
[FN39: 76 Fed. Reg. at 48082.]

EPA notes, and we agree, that the transportation of CO2 also is
stringently and effectively regulated by the Department of
Transportation (DOT). [FN40: EPA’s characterization of DOT’s
regulation is incorrect. Supercritical CO2 does not appear in DOT’s
hazmat table. The hazmat table instead lists three forms of CO2: 1) gas
(UN 1013), 2) refrigerated liquid (UN 2187) and 3) solid or dry ice (UN
1845). 49 C.F.R. § 172.101. Finally, in the final rule EPA should
emphasize, as the Agency already suggests in the proposed rule, that
while DOT regulations impose “hazardous liquid” standards on CO2
pipelines, the CO2 transported in these pipelines itself has not been
deemed hazardous by DOT. 76 Fed. Reg. at 48082; see also 49 C.F.R. §
195.0 (“[t]his part prescribes safety standards and reporting
requirements for pipeline facilities used in the transportation of
hazardous liquids or carbon dioxide.”) (emphasis added).] These
regulations apply to all modes of transport, including pipelines. DOT
regulates the transportation of CO2 in interstate pipelines as a non-
hazardous liquid, and states apply comparable standards for intrastate
pipelines. [FN41: Robert Nordhaus, “Carbon Dioxide Pipeline
Regulation,” 30 Energy L.J. 85 (2009).]

Response: See Response to 3.1.10.

Comment 3.15.16:

We agree with the Agency that the UIC Class VI provides a comprehensive
management regime for CO2 streams that renders duplicative any potential
additional regulation under RCRA. [FN42: 42 76 Fed. Reg. 48084-85.] We
also agree that CO2 streams subject to the conditional exclusion would
not be subject to RCRA’s land disposal restrictions or separate
provisions regarding corrective action. [FN43: Id. at 48085-86.]

EPA proposes to make the conditional exclusion subject to the additional
requirement that no hazardous wastes may be mixed with, or otherwise
co-injected with, the CO2 stream. This is unnecessary, given that those
activities are already barred under the UIC Class VI rule. [FN44: Id. at
48086.]

Response: See response to comment 3.14.11.

Comment 3.15.17:

EPA asserts that the conditional exclusion may be lost at any time, a
situation that arguably would weaken the exclusion’s salutary effects
since the Agency appears to be holding out the potential for down-hole
formation of carbonic acid at some future date in a storage facility’s
lifetime.

However, we submit that the loss of the exclusion in this instance would
impose greater regulatory burdens without any increase in environmental
protection. As EPA notes, the UIC Class VI rule’s standards ensure
environmental and health protections are in place in the event carbonic
acid is formed after injection into the storage formation. “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 contaminants in present in the stream.” 76 Fed. Reg. at 48084.
This same logic holds true, even if carbonic acid is formed when the CO2
stream mixes with water in the storage formation. First, the UIC Class
VI rules require that storage be sited to avoid any endangerment of
underground sources of drinking water (USDW). Second, any endangerment
to USDW would be addressed by the UIC Class VI rule, which holds storage
operators liable for environmental remediation, if necessary. Imposing
cradle-to-grave handling requirements under RCRA would not stop carbon
acid from being formed or ensure any greater protection for USDW.

More generally, EPA‘s approach to the exclusion suggests that all
entities involved in CCS–generator, transporter, and injector–could
be held liable for RCRA violations if at some future date conditions
down hole, due to the fault of no party, could be deemed to have created
or liberated a material that a future regulator or claimant considers to
be of concern. This situation would increase, not decrease, regulatory
certainty.

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 the CO2 stream being subject to all
applicable subtitle C regulatory requirements, from the point of
generation. [FN45: Id. at 48087.]

As a general matter, EPA should state that minimal violations of the UIC
Class VI rule, such as record-keeping errors, do not result in the loss
of the exemption. Only substantive violations of the UIC Class VI rules
should result in a loss of the RCRA exemption.

Response:  See Responses to Comments 3.1.9, 3.1.13 and 3.10.5

Comment 3.15.18:

EPA emphasizes that the generator is responsible for the initial, and
perhaps sole, hazard determination, but this conflicts with the
definition of “CO2 stream,” which suggests that the injector may add
materials to facilitate injection. It is unclear what liability the
generator would incur if it delivered food-grade CO2 to a storage site
via a pipeline transporter and the site owner/operator thereafter adds
incidental materials to facilitate injection that may change initial
characterization of the CO2 stream. It would be punitive in that
situation to hold the source liable for the site owner/operator’s
activities.

The conditional exclusion is premised on a linear model of CCS
operations under which a single source delivers CO2 to a single
transporter who in turn delivers the CO2 to a site owner/operator. While
that scenario may apply in some circumstances, it is equally likely that
one or more sources may be delivering CO2 into the same pipeline, which
in turn will deliver the CO2 to a storage site that receives and stores
CO2 from multiple sources. That storage site may also already hold, or
accept for delivery, volumes of natural CO2. [FN46: This situation
further supports the proposition that RCRA was never intended to apply
to CCS.] Since CO2 streams will be intermingled, and CO2 molecules are
identical, under EPA’s construct this would set up a
“Superfund-esque” situation under which all parties, even the
innocent, have the potential of being held liable. And unlike the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), where at least there is the hope of finding labels on drums to
identify sources and parties, no such hope exists for intermingled CO2
molecules, particularly after they have already been injected into the
subsurface.

Response: See response to comment 3.1.14.

Comment 3.15.19:

EPA states that the conditional exclusion only applies to “CO2
streams” that have been captured for purposes of “geologic
sequestration.”[FN47: 76 Fed. Reg. at 48086.] EPA never explains how
that purpose is to be determined, an ambiguity that could negatively
impact concurrent EOR/storage. The Agency explains that:

“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.” [FN48:
Id. at 48078 n.16.]

This limitation provides no regulatory clarity for Class II concurrent
EOR/storage projects that qualify for the risk-based factor test of 40
C.F.R. § 144.19 under the Class VI rule, which allows sequestration to
occur under Class II if there is no increased risk to USDW. [FN49: Id.
at 77245.] It is imperative that EPA clarify that either 1) the
conditional exclusion also applies to EOR operators under 40 C.F.R. §
144.19, or 2) the RCRA status of EOR operators under 40 C.F.R. § 144.19
is identical to that of business-as-usual EOR operators under Class II
without claims of sequestration. [FN50: “The agency has decided not to
regulate oil and gas industry exploration and production wastes and
mineral extraction and beneficiation and certain mineral processing
under RCRA Subtitle C.” See n.6, supra, at 3.]

Response: See response to comment 3.1.15.  Regarding the use of UIC
Class II wells for EOR, see response to comment 3.1.1.  Regarding
concurrent EOR/storage and wells that transition to UIC Class VI wells,
see response to comment 3.15.3.

Comment 3.15.20:

EPA erroneously states that RCRA’s section 7003 imminent hazard
authorities would continue to apply under the conditional exclusion.
[FN51: 76 Fed. Reg. at 48088.] For the reasons stated above, “CO2
streams” are neither solid nor hazardous wastes, so section
7003–which only applies to solid or hazardous wastes–does not apply
to CO2 streams. For the same reason, EPA should clarify that RCRA’s
citizen suit provision, section 7002, also does not apply to CO2
streams.

Response: See response to comment 3.1.16.

Comment 3.15.21:

EPA should clarify that CO2 streams subject to the conditional exclusion
also are not subject to Superfund. A CERCLA “hazardous substance” is
defined to include all RCRA hazardous wastes, and because CO2 streams
are not hazardous wastes, it is appropriate in this rulemaking for EPA
to provide critical regulatory clarity for CCS under the Superfund
statute, too.

Response: See response to comment 3.1.17.

Comment 3.15.22:

For the reasons stated above, if EPA elects to continue to pursue the
conditional exclusion route, the proposed exclusion in section 261.4(h)
should be revised to read as follows:[FN 52: The full text of EPA’s
proposed conditional exclusion is shown, with suggested additions
underlined. No textual deletions are proposed.] 

(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 of 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 (or analogous state)
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
(including § 144.19) and 146; 

(iii) No other hazardous waste may be mixed with, or otherwise
co-injected with, the carbon dioxide stream at the generator’s
facility or site; 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:

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.

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 (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). This
yearly renewable of a certification statement under this paragraph means
that an authorized representative must annually prepare and sign a new
copy of the certification statement.

Response: See Response to 3.1.18.

Comment 3.15.23:

In lieu of addressing the status of CO2 streams under proposed exclusion
in section 261.4(h) (even as modified above), which leaves “CO2
streams” as solid wastes, we recommend instead that EPA clarify that
“CO2 streams” are neither solid nor hazardous wastes. The Agency
could do so by promulgating a new section 261.4(a)(26) as follows [FN53:
Suggested additions are {capitalized}.]: 

(a) Materials which are not solid wastes.

* * *

(26) Carbon dioxide (CO2) streams. 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 of 40 CFR parts 144
(including § 144.19) and 146 of the Underground Injection Control
program of the Safe Drinking Water Act, are not a solid waste provided
that the generator also complies with the following requirements:

(i) Transportation of the carbon dioxide stream must be in compliance
with applicable Department of Transportation (or analogous state)
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
(including § 144.19) and 146;

(iii) No other hazardous waste may be mixed with, or otherwise
co-injected with, the carbon dioxide stream at the generator’s
facility or site; 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 this paragraph must have an
authorized representative (as defined in 40 CFR 260.10) sign a
certification statement worded 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(a)(26) meets all 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 (if
located in an authorized state), or his designee, and shall be renewed
every year. This yearly renewable of a certification statement under
this paragraph means that an authorized representative must annually
prepare and sign a new copy of the certification statement.

Response: See Response to Comment 3.1.18.

Texas Carbon Capture & Storage Association (TxCCSA)

Document ID: EPA-HQ-RCRA-2010-0695-0085

Comment 3.16.1:

The Texas Carbon Capture & Storage Association (TxCCSA) is committed to
promoting energy security and reducing greenhouse gas emissions through
the advancement of carbon capture use and storage (CCUS) in Texas. The
association provides education and outreach on behalf of industrial
plants, utilities, the oil and gas industry and their service providers
to promote the acceptance of CCS and advance market-based policies that
encourage the development of a commercial CCUS industry in Texas.

TxCCSA recognizes the EPA’s effort to facilitate CCUS through this
proposal. While TxCCSA supports the conditional exclusion for CO2
streams from the Resource Conservation & Recovery Act’s (“RCRA”)
hazardous waste regulations we recommend that it be recast as an
exclusion from the definition of “solid waste” because of CO2’s
unique properties and uses, coupled with the fact that CO2 streams are
not “discarded”, and as explained in more detail below.

We have reviewed and support the comments submitted by the North
American Carbon Capture & Storage Association and those comments are
provided as Attachment I. We also comment on a potential regulatory
“gap” created by the exemption’s reliance on securing a Class VI
permit which could leave federal offshore CCUS activity without access
to the conditional exemption. These comments are discussed in Attachment
II.

Response: Regarding this commenter’s support of comments submitted by
the North American Carbon Capture & Storage Association (Attachment I),
EPA refers the commenter to EPA’s responses in Section 3.14 of this
document.  These responses also address TxCCSA’s comment that EPA’s
conditional hazardous waste exclusion should be ‘recast’ as an
exclusion from the definition of solid waste.

Comment 3.16.2:

[Attachment II]

On August 8, 2011, EPA published a proposed rule in the Federal Register
revising “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.”[FN1: 76 Fed. Reg. at 48079]. These proposed
conditions include compliance with existing regulatory regimes governing
the transportation of the CO2 stream and its injection in a UIC Class VI
permitted well [FN2: Id]. 

As currently proposed, it is unclear whether the RCRA conditional
exemption will apply to CO2 storage in sub- seabed geological structures
(CS-SSGS) on the Federal Outer Continental Shelf. As discussed above,
the conditional exemption as currently proposed is largely based on
compliance with SDWA UIC Class VI requirements. However, UIC Class VI
permits are neither applicable nor required for geological storage under
Federal offshore lands [FN3: 40 C.F.R. § 144.1(g)(2)(i)]. 

Application of the SDWA UIC Program is limited to lands located within
the states’ territory, including state territorial waters, and
including Federally-owned land [FN4: As codified at 42 U.S.C. 300h
(b)(1)(D)(ii), a state’s UIC program under that section cannot be
approved by EPA unless it applies inter alia to underground injections
“by any other person whether or not occurring on property owned or
leased by the United States.” Where the state does not exercise
primacy under the UIC program, the EPA administers the program directly]
and Tribal lands, [FN5: See, e.g. Phillips Petroleum Company v. EPA, 803
F.2d 545 (10th Cir. 1986) (holding that SDWA applied to Tribal lands
even before it was amended in 1986 to explicitly address Tribal lands)]
but not to Federally-owned lands on the Outer Continental Shelf. 

The RCRA CCS exemption as proposed, however, presumes injection in a UIC
Class VI well. To clarify coverage, the EPA must make clear its intent
to expand the predicates for the conditional exemption to include
additional Federal regulatory programs. We understand that currently,
EPA and DOI are discussing applicable requirements for geological
storage on Federal property including offshore waters. These discussions
should result in regulations that complement the UIC Class VI
requirements. The resulting regulations should therefore fall within the
intent of the proposed RCRA exemption, providing a basis for coverage of
Federal offshore CO2 storage under the RCRA conditional exemption.

Response: The issue of the scope of the UIC Class VI rules’
applicability identified by the commenter is outside the scope of this
rulemaking.  Today’s rule was not proposed or finalized under the
SDWA, nor does it change how the UIC Class VI regulations apply.
Likewise, EPA has made clear that the scope of this rule is expressly
limited to CO2 streams sent to a permitted UIC Class VI well for
purposes of GS, so this request is outside the scope of the rulemaking
and EPA thus declines the commenter’s request to include additional
federal programs.   However, EPA has indicated that in the future, it
would review any new information and consider whether changes should be
made to the conditional exclusion. 

Comment 3.16.3:

For the reasons stated above, if EPA elects to pursue the conditional
exclusion as proposed, in addition to the revisions suggested by NACCSA,
we suggest that the proposed exclusion in § 261.4(h) be revised to read
as follows: 

(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 AUTHORIZED UNDER FEDERAL
REQUIREMENTS, INCLUDING <subject to the> requirements for Class VI
Underground Injection Control wells, SPECIFIED <including the
requirements> in 40 CFR parts 144 and 146 of the Underground Injection
Control Program of the Safe Drinking Water Act OR REQUIREMENTS UNDER AN
APPLICABLE FEDERAL INJECTION WELL PROGRAM, are not a hazardous waste,
provided the following conditions are met. 

(2) Carbon dioxide streams that meet all of the following conditions are
excluded from the definition of hazardous waste: 

(v) Transportation of the carbon dioxide stream must be in compliance
with applicable Department of Transportation requirements; 

(vi) Injection of the carbon dioxide stream must be in compliance with:
A the applicable requirements for Class VI Underground Injection Control
wells, including the applicable requirements in 40 CFR parts 144 and
146; OR 

B. REQUIREMENTS UNDER AN APPLICABLE FEDERAL INJECTION WELL PROGRAM; 

(vii) No hazardous waste may be mixed with, or otherwise coinjected
with, the carbon dioxide stream; and 

(viii) 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: 

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. 

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 (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). This
yearly renewable of a certification statement under this paragraph means
that an authorized representative must annually prepare and sign a new
copy of the certification statement.

Response: See Response to Comment 3.16.2.   

Tri-State Generation & Transmission Association, Inc. (Tri-State)

Document ID: EPA-HQ-RCRA-2010-0695-0055

Comment 3.17.1:

Tri-State Generation & Transmission Association, Inc. (Tri-State) is a
not-for-profit, wholesale electric power supply cooperative providing
electric power to 44 member distribution systems that serve customers in
a 250,000 square-mile territory including New Mexico, Colorado,
Nebraska, and Wyoming. The mission of Tri-State is to provide our
member-systems with a reliable, cost-based supply of electricity while
maintaining high environmental standards. Tri-State provides electricity
to members based on a diverse mix of generation sources including coal,
natural gas, hydroelectric, wind, and solar power.

Tri-State owns and/or operates coal fired electric generation in four
states, and is collaborating with Sunflower Electric who has been issued
a permit to build a new coal fired unit at a facility in Holcomb,
Kansas. Our facilities are heavily regulated by state and federal
agencies which include: Colorado Department of Public Health and
Environment, Arizona Department of Environmental Quality, New Mexico
Environment Department, Wyoming Department of Environmental Quality,
Kansas Department of Health and Environment, U.S. Environmental
Protection Agency (EPA), Army Corps of Engineers, and Office of State
Engineers. Tri-State is routinely inspected for environmental
requirements and has consistently been determined to be in compliance
with the broad array of rules and regulations that are already placed on
coal fired electric generating units.

Response: EPA acknowledges the comment. EPA does not take a position
here on Tri-State’s compliance status.

Comment 3.17.2:

In its proposed rule, EPA intends to conditionally exclude carbon
dioxide (CO2) streams that meet the classification requirements of a
hazardous waste from being defined as a hazardous waste, provided the
CO2 waste streams are captured from the emission source and injected
into a Class VI Underground Injection Control (UIC) Program well for the
purposes of geologic sequestration. Tri-State appreciates EPAs
recognition that there are several programs that will effectively manage
carbon dioxide once it is captured from an emission source, and that it
does not need to be further regulated under the Resource Conservation
and Recovery Act as a hazardous waste if it is appropriately complying
with other applicable regulatory programs implemented by the federal
government.

Tri-State agrees with EPAs assertion that it is unlikely that most CO2
streams would meet the classification requirements to be identified as a
hazardous waste. The gases that are emitted in the flue gas stream at a
coal fired power plant would not generally contain constituents in
sufficient concentrations that would exceed these requirements. However,
the proposed exclusion will give CO2 stream generators a level of
certainty in this area that they did not previously have. Tri-State
agrees with and supports the EPA proposal to provide for the conditional
exclusion of CO2 streams from the classification as a hazardous waste

Response: EPA thanks the commenter for its support of the conditional
exclusion, and agrees with the commenter that management of CO2 streams
under the terms of the conditional exclusion (including compliance with
other regulatory programs) does not present a substantial risk to human
health and the environment, and that therefore additional regulation
pursuant to RCRA’s hazardous waste regulations is unnecessary.  EPA
also agrees that this conditional exclusion offers an option that
provides a level of certainty regarding the potential applicability of
RCRA subtitle C to CO2 streams being captured for injection into UIC
Class VI wells for purposes of geologic sequestration.

Comment 3.17.3:

In the proposed rule, EPA suggests that generators seeking to sequester
CO2 streams in the geologic subsurface would need to do so to a depth of
at least 2600 feet below the surface in order for the CO2 to be
maintained in a supercritical state. Tri-State believes that EPA is
correct in its belief that geologic sequestration sites and site owners
will generally look to inject CO2 streams at depths greater than 2600
feet below the surface, and that pressures and temperatures at this
depth will maintain the injected CO2 in a supercritical state, however,
Tri-State believes that injection at shallower depths would still
maintain the CO2 stream in the supercritical state. It should only take
pressures achieved at about 850 feet below the surface with a
temperature greater than 88° Fahrenheit to achieve a supercritical
state for the CO2 stream. Tri-State believes that EPA should simply
state the requirement to ensure that the CO2 is maintained in the
subsurface in a supercritical state for it to meet the conditions of the
exclusion from the definition of being a hazardous waste.

Response: The information presented on injection depth was provided in
the preamble to the proposed rule as background for the reader on
geologic sequestration of CO2 streams generally.  The final conditional
exclusion does not include a minimum injection depth requirement, nor
did EPA propose to include such a requirement in the proposed rule. The
terms of the conditional exclusion require that injection of the CO2
stream that is claimed to be excluded be in compliance with the
applicable requirements for UIC Class VI wells. 40 CFR 261.4(h)(2). EPA
developed the conditional exclusion based on its analysis of the
protectiveness of the UIC Class VI program, among other requirements. 
This analysis did not rely on a specific injection depth, which EPA
expects will be determined on a case-by-case basis in the UIC Class VI
permitting process. This process is separate from today’s RCRA
conditional exclusion rule.   

Comment 3.17.4:

Tri-State believes that if it were to engage in the practice of carbon
capture and sequestration, it would likely transport the captured CO2 to
an underground injection well via a pipeline. Tri-State is currently
involved with an interested group of organizations on a Department of
Energy project to drill a geologic characterization well near Craig,
Colorado. Tri-State believes that if the geologic structure and
lithologic characteristics are determined to be suitable for commercial
sequestration, Tri-State would likely use this well for injection of CO2
waste streams, if carbon capture and sequestration were adopted as a
requirement to reduce emissions of carbon dioxide.

Tri-State believes that commercial scale geologic sequestration would
likely need to be accomplished through offsite transport via a pipeline,
given the volume of material in question. Tri-State supports the EPA
proposal to not require the development of a hazardous waste manifest
for the off-site shipment of CO2 streams when the CO2 is transported
offsite via a pipeline.

Tri-State also believes that EPA should not require the use of a
manifest for those very limited occurrences where CO2 may be transported
offsite via a tanker truck or other than pipeline means of conveyance.

Response: EPA had requested comment on the extent to which non-pipeline
transportation will be used to transport CO2 streams; several commenters
responded (including this commenter) and all agreed that pipelines would
be the most likely way to move CO2 streams.  Regarding the commenter’s
support of EPA’s proposal to not require a hazardous waste manifest,
EPA had discussed in the proposed rule its rationale for why a manifest
was not needed for non-pipeline transportation (see 76 FR at 48083), and
requested comment on whether the certification statement together with
the DOT hazmat requirements are effective substitutes for RCRA subtitle
C requirements (which would include, in this context, the hazardous
waste manifest).  EPA did not receive any comments on this issue that
caused it to alter its analysis, and the final rule will not require a
manifest for conditionally-excluded CO2 streams transported via truck or
other than pipeline, for the reasons set out in the proposed rule.

Comment 3.17.5:

Tri-State does not object to the proposed requirement that a
certification statement by an authorized official attesting to the fact
that the CO2 stream was injected into a Class VI UIC program well be
completed by an authorized representative of the generator, and retained
on site for a period of no less than three years.

Response: In the final rule, in light of comments received from other
commenters that the proposed certification would require signatories to
attest to activities outside of their control, EPA has revised the
certification statement so that there are now two separate certification
statements – one for CO2 stream generators and another for UIC Class
VI well owners or operators.  EPA made these revisions to better reflect
actions over which each party has control.  Under the final rule, the
certification statement that the generator would sign is specific to the
activities within the generator’s control; likewise, the certification
statement that the UIC Class VI well owner or operator would sign is
specific to the activities within the owner or operator’s control. 
The certification statement EPA is finalizing for generators includes
the prohibition on hazardous waste mixing, and transportation (or
arranging for transport) of the CO2 stream in accordance with DOT (or
certified state) for injection into a UIC Class VI facility, which EPA
finds would be in the generator’s control.  EPA acknowledges the
commenter’s support of the three-year retention time for the
certification statements; EPA agrees, and believes that the 3-year
recordkeeping requirement is sufficient. See 3.6.9.

Comment 3.17.6:

Tri-State does not believe that transporters of CO2 streams should need
to complete such a certification. This certification statement should
only be required from the generator.

Response: EPA agrees that a certification by the transporter is not
necessary.  See Response to Comment 3.2.39.  However, EPA also notes
that where the exclusion is being applied, a certification statement is
also required for the UIC Class VI owner/operator, in response to
commenters who expressed concern with the proposed certification
language that would have persons certifying to activities beyond their
control (see Response to Comment 3.2.36).  

Comment 3.17.7:

In the proposed rule, EPA seeks comment on the option that additional
testing could be required to ensure that generators are not mixing other
hazardous waste into the CO2 waste stream. Tri-State believes that
testing of the CO2 waste streams can be done at any given time if there
is a doubt or fear that the source is inappropriately mixing in other
hazardous wastes. As the geologic sequestration program begins, it would
be helpful to generators if there would be fewer requirements and if,
over time, there were program abuse then EPA could move to add this type
of requirement. If EPA believes this type of requirement is necessary,
Tri-State believes that it should be implemented through the UIC program
and not the RCRA hazardous waste program. Keeping the regulatory
requirements in one place will be useful to future users of carbon
capture and sequestration.

Response: EPA is not finalizing any new monitoring, recordkeeping, or
reporting requirements related to the condition that no hazardous waste
be mixed with excluded CO2 streams.  See Responses to Comments 3.2.40
through 3.2.43.

Comment 3.17.8:

Tri-State supports the EPA proposed definition of CO2 stream to allow
for the inclusion of incidental associated substances that result from
the source materials, and from the inclusion of substances that will
enable or improve the injection process. Tri -State believes that if EPA
were to not allow the inclusion of these incidental substances it would
negate the effect of the proposed rule, and make the effort of providing
the exclusion meaningless. Tri-State believes that it will be
technically impossible to obtain a pure CO2 stream from the combustion
of coal or other fossil fuel, especially at the inception of this very
important program.

Response: Based on the information EPA presented in the proposed rule,
EPA agrees that sources would be unlikely to obtain a pure CO2 stream
from the combustion of coal or other fossil fuel.  Regarding the
commenter’s support of EPA’s definition of CO2 stream to allow for
the inclusion of incidental associated substances that result from the
source materials, and from the inclusion of substances that will enable
or improve the injection process, see Responses to Comments 3.7.11 and
3.8.6.

Comment 3.17.9:

In the proposed rule, EPA intends to restrict the operation of Enhanced
Oil Recovery (EOR) from using the proposed exclusion. Tri-State believes
that EPA should reconsider the application of this exclusion for EOR. As
EPA aptly notes in the preamble to the rule, there are very few CO2
streams that would be considered a hazardous waste pursuant to the
requirements for classification anyway. Most CO2 injected into geologic
formations today is for the purposes of EOR. Tri-State believes that the
application of the exclusion of CO2 streams from the definition of
hazardous waste would facilitate the injection of greater volumes of CO2
into geologic formations from actual emitting facilities. Also, many of
the EOR operations in effect today would meet many of the requirements
set forth in the proposed rule. This would facilitate a greater amount
of CO2 sequestered into subsurface geologic formations and help grow the
technology for sequestration.

Response:  EPA is not addressing the status of all CO2 streams in this
rulemaking; the scope of this rule is limited to CO2 streams injected
into a permitted UIC Class VI well for purposes of GS. However, in the
interest of public transparency and in light of the several public
comments on this issue, EPA does note that (based on the limited
information provided in the public comments), should CO2 be used for its
intended purpose as it is injected into UIC Class II wells for the
purpose of EOR/EGR, it is EPA’s expectation that such an injection
process would not generally be a waste management activity.  EPA would
encourage persons to consult with the appropriate regulatory authority
to address any fact-specific questions they may have regarding the
status of CO2 in situations that are beyond the scope of this final
rule.

Comment 3.17.10:

In the proposed rule, EPA seeks comment of the need for additional
monitoring record keeping and reporting requirements. Tri-State does not
believe that additional monitoring, recordkeeping, or reporting
requirements should be placed on the generator or the operator of the
CO2 sequestration well, in addition to the requirements that are set
forth under the UIC program for Class VI wells, especially given EPA’s
adaptive approach that it is taking with the implementation of the UIC
Class VI well rulemaking. EPA will be able to re-evaluate the
requirements in six years and should proceed in a step wise fashion with
these requirements.

Response: See Responses to Comments 3.2.40 through 3.2.43.

Comment 3.17.11:

Tri-State supports EPAs inclusion in the final rule of a provision to
allow generators of CO2 streams to submit those streams for hazardous
waste testing and, if it is not determined to be a hazardous waste,
waive any required compliance with the proposed rule. Some sources would
find value in knowing that the CO2 stream being injected into the
geologic formation is not a hazardous waste, and may desire to establish
a non-hazardous waste classification for their CO2 stream prior to
injection into a subsurface geologic formation. This approach would
preserve any future liability exposure that may present itself were the
CO2 stream determined to be a hazardous waste. EPA should focus greater
discussion of this provision in the final rule.

Response: EPA’s proposal did not include any new provisions for making
hazardous waste determinations beyond what the existing regulations
specify.  Under EPA’s existing hazardous waste regulations, all
generators bear the obligation of determining whether or not their waste
is hazardous, and for captured CO2 streams destined for injection into
UIC Class VI wells, this would be no different.  However, EPA
appreciates the commenter’s concerns regarding the application of the
hazardous waste regulations to supercritical CO2 streams being
sequestered, and EPA believes these concerns exist as a result of the
unique circumstances associated with addressing the applicability of
RCRA to CCS at such an early stage in the development of CCS.  In the
meantime, a generator may choose to comply with the conditional
exclusion as a precautionary matter, if they are unsure of the hazardous
waste status of their CO2 stream. It is not clear what it means to
“preserve future liability exposure that may present itself were the
CO2 stream determined to be a hazardous waste” as the commenter
states. EPA does note that issues of potential CERCLA liability for GS
are outside the scope of this rule, if that is to what the commenter is
referring.

Comment 3.17.12:

Tri-State appreciates the opportunity to provide comment on this
regulatory proposal from the EPA. Should you have any questions about
these comments, or need additional information, please contact (see
docket for contact information).

Response: EPA acknowledges the comment.

Southern Company

Document ID: EPA-HQ-RCRA-2010-0695-0061

Comment 3.18.1:

Southern Company (“Southern” or “The Company”) appreciates the
opportunity to provide comments on the U.S. Environmental Protection
Agency’s (“EPA”) proposed rule to conditionally exclude
geologically sequestered carbon dioxide (“CO2”) from regulation
under the Resource Conservation and Recovery Act’s (“RCRA”)
hazardous waste program.

As one of the largest generators of electricity in the nation, Southern
serves both regulated and competitive markets across the southeastern
U.S. Southern participates in all phases of the electric utility
business with more than 42,000 megawatts of electric generating capacity
and more than 27,000 miles of transmission lines. The Company provides
electric service to over 4.4 million retail customers through its
subsidiaries Alabama Power, Georgia Power, Gulf Power, and Mississippi
Power. In addition, Southern Power, Southern's competitive wholesale
generation business, is among the largest wholesale energy providers in
the Southeast, meeting the electricity needs of municipalities, electric
cooperatives, and investor-owned utilities.

Carbon capture and storage (“CCS”) is critical to the mitigation of
greenhouse gases and Southern is working to help bring this important
technology towards commercial viability. Southern manages the Department
of Energy’s (DOE) National Carbon Capture Center in Alabama, testing
the next generation of technologies to capture carbon dioxide emissions.
Also, Mississippi Power’s Plant Daniel was the host site for a DOE
carbon sequestration demonstration project where 3,000 tons of CO2 were
injected and are being monitored. Beginning this year, Alabama Power's
Plant Barry will capture up to 150,000 tons of CO2 per year for
underground storage, and Southern Company is constructing a
commercial-scale 582 MW integrated gasification combined cycle plant in
Kemper County, Mississippi, with 65 percent CCS.

Response: EPA acknowledges the comment.

Comment 3.18.2:

Southern herby endorses and incorporates by reference the comments
submitted to this docket on this proposed rule by the Utility Solid
Waste Activities Group, the Edison Electric Institute, the Carbon
Sequestration Council, and the CCS Alliance. 

Response: See Responses to Comments in Sections 3.7, 3.15, 3.2, and 3.8
of this document, respectively. 

Comment 3.18.3:

In sum: 1. While the conditional exclusion from hazardous waste
regulation is helpful, EPA has not yet met the burden of explaining why
a CO2 stream should be considered a solid waste. EPA has not explained
how geologically sequestered CO2 qualifies as a discarded material that
would result in it being considered a waste, nor has it explained why
geologically sequestered CO2 should be considered a contained gas under
RCRA's definition of solid waste.

Response:  See Responses to Comments 3.1.1 through 3.1.8, and 3.2.1 and
3.2.2.

Comment 3.18.4:

2. Assuming geologically sequestered CO2 is a solid waste, the
conditional exclusion should clarify that the exclusion will not be lost
for minor administrative-type violations that do not bear on the safety
of the sequestration facility. 

Response: See Response to Comment 3.7.13.

Comment 3.18.5:

3. The certification statement required under the exclusion should be
limited to matters properly within the control and knowledge of the
party making the statement. Generators are not in a position to certify
the behavior of the facility operator or other generators that send CO2
to the facility.

Response: See Response to Comment 3.2.54 and 3.8.8.

Comment 3.18.6:

Southern supports a single regulatory structure for geologic
sequestration of CO2 as opposed to a structure composed of multiple
regulatory laws with overlapping enforcement regimes and penalty
provisions. The Company believes that the current RCRA proposal to
conditionally exclude CO2 streams captured and injected for geologic
storage from RCRA’s stringent hazardous waste controls is an important
step in shaping practicable and effective CCS regulations. However,
there are several issues that need to be addressed, and Southern Company
requests that EPA take the recommendations summarized above, which are
discussed in more detail in the groups’ comments listed above.

Response: EPA agrees that the final conditional exclusion is an
important step in “shaping practicable and effective CCS
regulations” which EPA believes includes addressing uncertainty with
regard to RCRA subtitle C and CCS regulation.  Regarding this
commenter’s reference to other comments, see Responses to Comments in
Sections 3.7, 3.15, 3.2, and 3.8 of this document.

Xcel Energy, Inc.

Document ID: EPA-HQ-RCRA-2010-0695-0072

Comment 3.19.1:

Xcel Energy, Inc. (Xcel Energy) appreciates the opportunity to submit
comments regarding the U.S. Environmental Protection Agency's (EPA)
proposed Hazardous Waste Management System: Identification and Listing
of Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities, which were published at 76 Fed. Reg. 48073
(Monday August 8, 2011) [FN1: Technical corrections published September
9, 2011, 75 Fed. Reg. 55846] hereafter referred to as the proposed rule.


Xcel Energy owns and operates four electric and gas utilities: Northern
States Power Company Minnesota, Northern States Power Company Wisconsin,
Public Service Company of Colorado, and Southwestern Public Service.
Xcel Energy serves 3.4 million electric customers and 1.9 million
natural gas customers in our service territories. Xcel Energy has over
16,000 megawatts of generation capacity including hydroelectric, natural
gas, coal and nuclear facilities.

EPA's proposed rule provides a conditional exclusion of CO2 Streams
Injected for Geologic Sequestration (GS) from the Resource Conservation
Recovery Act's (RCRA) definition of hazardous waste, provided the CO2
Streams meet certain conditions. Xcel Energy supports EPA's proposal for
conditional exclusion of CO2 Streams from RCRA.

However, Xcel Energy believes that the Underground Injection Control
(UIC) regulations for Class VI wells and Department of Transportation
(DOT) regulations (including DOT Pipeline Hazardous materials Safety
Administration (PHMSA) regulations) are more appropriate than RCRA for
regulating for CO2 Streams Injected for Geologic Sequestration and are
protective of human health and the environment. Inclusion of CO2 Streams
Injected for Geologic Sequestration in RCRA does not provide any
additional protection to human health or the environment, but may result
in additional administrative burden by generators, transporters, UIC
Class VI well owners or operators, and the EPA as well as potential
duplicative enforcement actions.

Response: EPA thanks the commenter for their comment and agrees that
finalization of the conditional exclusion is appropriate. EPA believes
that management of CO2 streams under the terms of the conditional
exclusion does not present a substantial risk to human health and the
environment and that, therefore, under these conditions, additional
regulation pursuant to RCRA’s hazardous waste regulations is
unnecessary.

Comment 3.19.2:

In addition, Xcel Energy is in general agreement with comments on the
proposed rule provided to the EPA by The Edison Electric Institute (EE1)
dated October 7, 2011 and the Utility Solid Waste Activities Group
(USWAG) dated October 7, 2011. 

Xcel Energy appreciates the opportunity to submit these comments.

Response: See EPA’s responses to the Edison Electric Institute in
Section 3.15 and to the Utility Solid Waste Activities Group in Section
3.7 of this document.

Basin Electric Power Cooperative (Basin Electric)

Document ID: EPA-HQ-RCRA-2010-0695-0076

Comment 3.20.1:

Basin Electric Power Cooperative (Basin Electric) appreciates this
opportunity to submit comments to the Environmental Protection Agency
(EPA) in regard to the proposed rule for Hazardous Waste Management
System: Identification and Listing of Hazardous Waste: Carbon Dioxide
(CO2) Streams in Geological Sequestration Activities.

I. Importance of CCS to Basin Electric and its Members:

Executive Summary

Basin Electric agrees that CO2 should be considered non-hazardous for
the purpose of storage in geological formations. Basin Electric also
believes that coal needs to remain viable as a fuel source for
electrical generation in the future. As EPA stated in the rule, carbon
capture and storage (CCS) could enable the continual use of coal, and
geological storage is a key component of CCS. The proposed rule will
lessen the burden and provide more certainty for geological storage
while still protecting human health and the environment.

Response: EPA thanks the commenter for its support of the proposed rule.
EPA agrees with the commenter that the conditional exclusion for CO2
streams sent to a Class VI well for purposes of GS will reduce
regulatory uncertainty for stakeholders with no reduced protection to
human health and the environment.  

Comment 3.20.2:

Basin Electric understands that regulations need to be in place to
safely handle CO2 sequestration in geological formations. However, the
requirements for obtaining a Class VI well authorization for injection
of CO2 in geological formations are unnecessarily onerous. For
meaningful development of geological sequestration of CO2 to occur, a
clear and consistent national regulatory structure must be developed.
This regulatory structure must also allow for geologic-specific and
site-specific differences to be considered. Basin Electric would urge
that the States be given primacy for the Class VI portion of the
Underground Injection Control (UIC) program as provided in EPA's UIC
final rule, especially for those areas where geologic-specific and
site-specific factors are to be weighed and considered.

Response: As a general matter, EPA agrees that a clear regulatory
framework is important to facilitate development of GS, and to do so in
a manner protective of human health and the environment. With respect to
the commenter’s comments regarding the UIC Class VI regulations, as
EPA stated in the proposed rule (76 FR 48077), the RCRA conditional
exclusion rulemaking did not reopen the UIC Class VI rule, nor will EPA
respond to comments related only to the UIC Class VI rulemaking, which
are beyond the scope of this RCRA rulemaking.

Comment 3.20.3:

Basin Electric Power Cooperative

Basin Electric is a regional, consumer-owned, generation and
transmission cooperative formed in 1961 to supply supplemental power to
a consortium of rural electric distribution cooperatives. Basin
Electric's core business is generating and delivering electricity to
wholesale customers, primarily our member systems. Basin Electric owns
3.437 megawatts (MW) and operates 4.424 MW of electric generating
capacity. Basin Electric supplies 135 rural electric member cooperative
systems with wholesale electric power who in turn serve approximately
2.8 million consumers in a nine-state area.

Basin Electric has extensive institutional knowledge of coal
gasification, carbon capture and CO2 sequestration through its
subsidiary, the Dakota Gasification Company (DGC). DGC owns and operates
the Great Plains Synfuels Plant (Synfuels Plant), the only
commercial-scale coal gasification plant in the United States that
manufactures synthetic natural gas.

The $2.1 billion Synfuels Plant began operating in 1984. The Synfuels
Plant uses the Lurgi gasification process to gasify lignite coal to
produce valuable gases and liquids. The average daily production is 160
million standard cubic feet of synthetic natural gas (SNG), the majority
of which is piped to Ventura, Iowa, for distribution in the eastern
United States. Many co-products are produced and marketed in the United
States and Canada.

DGC captures CO2 from the gasification process and provides all the CO2
sequestered in the largest anthropogenic CO2 sequestration project in
the world. Through 2010, DGC had successfully captured and marketed over
20 million tons of CO2 to two Canadian customers. The current total CO2
demand is 152.7 million standard cubic feet per day (MMscfd), which is
approximately 8,800 tons per day or 3 million tons per year. The CO2 is
being used for enhanced oil recovery (EOR) in oil fields near Weyburn,
Saskatchewan. The CO2 is expected to be permanently sequestered in the
oil reservoir and is being monitored by the International Energy Agency
(lEA) Weybum CO2 Monitoring and Storage Project. The 2000-2004 IEA GHG
Weyburn CO2 Monitoring & Storage Project Summary Report states in the
conclusion that "modeling predicts that there is a 95% probability that
98.7% to 99.5% of the initial CO2-in-place will remain in the geosphere
for 5000 years."

Basin Electric also conducted a front-end engineering and design (FEED)
study for a post-combustion CO2 capture demonstration project. The
proposed project was to capture 90 percent of the CO2 from a 120 MW
slipstream of flue gas at Basin Electric's Antelope Valley Station
(AVS). AVS is a 900 MW pulverized coal power plant located adjacent to
the Synfuels Plant near Beulah, North Dakota. After carefully analyzing
the FEED study results, Basin Electric's Board of Directors put the
project on hold. The reason was that a viable business plan could not be
put in place to shield Basin Electric's members from undue financial
burden. The FEED study was valuable. With the information from the FEED
study in hand, Basin Electric knows what the impacts of the costs and
the operational challenges a project like this will have on the
consumers. Additionally, Basin Electric is better equipped to understand
how all levels of the organization would be affected if a full-scale
implementation of this capture technology were to be employed.

Response: EPA thanks the commenter for the information. EPA notes that
uses of CO2 for purposes other than injection into a UIC Class VI well
for GS are beyond the scope of this rulemaking.

Comment 3.20.4:

II. Importance of Developing Reasonable CO2 Storage Regulations

The energy needs of the United States are dependent upon carbon based
fuels. The development of reasonable regulations, including reasonable
regulations for CCS, is crucial for CCS to fulfill its potential as one
of the important ways to mitigate greenhouse gas impacts. "While other
climate mitigation options exist-such as energy efficiency improvements,
a switch to less carbon-intensive fuels, nuclear power, and renewable
energy sources-CCS is considered by many to be a crucial component of
any U.S. approach or strategy for addressing the climate change issue,
particularly given the United States' current reliance on coal for
almost half of its electricity production." [FN1: GAO, Federal Actions
Will Greatly Affect the Viability of Carbon Capture and Storage As a Key
Mitigation Option, GAO-08-1080 at 1 (Washington, D.C. September 30,
2008)]. The use of CO2 for EOR is also generally recognized as important
in developing geological storage data. The injection of CO2 in deep
geological formations involves many of the same technologies that have
been developed in the oil and gas exploration and production industry.
Well-drilling technology, injection technology, computer simulation of
storage reservoir dynamics and monitoring methods from existing
applications are being developed further for design and operation of
geological storage.

Response: EPA agrees with the commenter that CCS has the potential to be
key to achieving

domestic greenhouse gas emissions reductions and that providing a
consistent regulatory approach and regulatory certainty are important to
facilitate future deployment of CCS. With respect to the commenter’s
comments regarding the use of CO2 for EOR, EPA agrees that data from
such operations can inform GS injection activities in Class VI wells. As
part of the adaptive approach on CCS generally, the Agency will continue
to identify and address additional information and respond, including
via rulemaking, should that be necessary. EPA emphasizes that where
additional information may increase protectiveness, streamline
implementation, or otherwise inform the requirements for GS injection of
CO2, EPA may need to evaluate whether changes are necessary.  Thus, the
Agency commits to reviewing, in a manner similar to the adaptive
approach planned for the UIC Class VI rule, new research, data, and
information related to today’s conditional exclusion.

Comment 3.20.5:

III. Comments on Identified Issues

The following comments are directed to the specific questions and
comments that were raised in the proposed rule. Federal Register Vol.
76, No. 152/Monday, August 8, 2011/Proposed Rules

1. Page 48079 – “However, EPA acknowledges that at this time, it
does not have knowledge of the range of possible CO2 stream
compositions. 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 not limited to,
sulfur dioxide (SO2), hydrogen sulfide (H2S), nitrous oxides (NOx),
carbon monoxide (CO), methane (CH4), other hydrocarbons, water vapor
(H20), as well as certain contaminants, that are also defined as
hazardous contaminants in 40 CFR 261.24, such as arsenic, mercury and
selenium.”

Comment:

Basin Electric supports EPA's proposal to conditionally exclude from the
definition of hazardous waste CO2 streams captured, transported, and
injected into permitted underground injection control (UIC) Class VI
wells. 

The 40 CFR part 146 regulations have adequate protection for drinking
water aquifers and address corrective action, financial assurance
requirements, and long-term monitoring after closure. These requirements
negate the need for any RCRA regulation.

Impurities, such as H2S or mercaptans, should not trigger a
classification under RCRA. The success of existing acid gas injection
operations into depleted oil and gas reservoirs conducted under the
existing protective UIC regulations is further justification to exclude
RCRA regulation. With the existing framework of RCRA, H2S is not part of
the toxic list for toxicity characteristic leaching procedure (TCLP)
testing, and U-listed wastes are only applicable to the listed chemical
product in an essentially pure form. Also, historically, RCRA has been
limited to containerized or condensed gases by the statute. Thus, the
proposed exclusion of RCRA for injected CO2 streams including streams
that have impurities such as H2S is warranted and makes sense.

As for corrosion concerns, the Synfuels Plant experience illustrates
that corrosion has not been a problem when the captured and transported
CO2 is maintained as dry. The Synfuels Plant has been successful in
maintaining a dry CO2 gas (<10 ppm H20) and controlling a zero oxygen
presence that is checked with lab results. 

DGC uses in line inspection tools capable of withstanding supercritical
CO2 at 2700 psig. The tools travel down the inside of the pipeline while
it is in operation to allow for assessment of the pipeline condition. It
is one of the most important diagnostic tools available to maintain
compliance with the integrity management portion of the hazardous liquid
pipeline regulations. The Synfuels Plant experience with CO2 pipeline
transportation has indicated little corrosion concern with in line
inspections verifying pipeline mechanical integrity.

Also, injected CO2 should be considered a product and not a solid waste,
as stored CO2 in geologic storage could be retrieved in the future for
industrial use. Any potential RCRA liability will be a deterrent to CO2
storage projects. Class VI CO2 injection operations should not be
considered waste management activities.

Response: EPA thanks the commenter for their comment and for the
information provided. EPA agrees that finalization of the conditional
exclusion is appropriate. EPA believes that management of CO2 streams
under the terms of the conditional exclusion do not present a
substantial risk to human health and the environment, and that
therefore, under these conditions, additional regulation pursuant to
RCRA’s hazardous waste regulations is unnecessary.

Regarding the comment that injected CO2 “should be considered a
product and not a solid waste,” EPA disagrees that CO2 streams sent to
UIC Class VI wells for purposes of GS are not solid waste. See Response
to Comment 3.1.1 through 3.1.8, and 3.2.1 and 3.2.2.  Regarding the
comment stating that “historically, RCRA has been limited to
containerized or condensed gases by the statute” please see EPA
Response to Comment 3.1.7. 

Regarding comment that UIC Class VI injection operations should not be
considered waste management, because of the potential for retrieval of
CO2 later, EPA disagrees that these operations do not involve solid
waste (as described above) but adds that the RCRA conditional exclusion
does not preclude the removal of CO2 at a later date.  How this activity
is regulated would be a determination separate from the terms of the
conditional exclusion in this rule.  

Regarding the comment referencing Acid Gas Injection, EPA did not
consider the co-injection of H2S streams in developing the proposed
hazardous waste exclusion.  While the Agency acknowledges that Acid Gas
Injection takes place in the energy industry, it takes place using UIC
Class II wells, not UIC Class VI wells, which were the focus of EPA’s
analysis in support of the conditional exclusion. Because Acid Gas
Injection wells occur under well classes other than UIC Class VI wells,
the protectiveness of those operations as noted by the commenter are
beyond the scope of this rule.  EPA has indicated it may revisit the
rule as part of the adaptive process, and any new information regarding,
for example, the content of CO2 streams or co-injection of H2S could be
part of that review.  

Also, EPA agrees that H2S would not cause a waste to be hazardous under
the Toxicity Characteristic as H2S is not a TC contaminant; and EPA also
agrees that as a waste generated from an industrial process, H2S would
not be classified as a U-listed [commercial chemical product] waste. 
However, EPA notes that under the RCRA regulations, sulfide-bearing
wastes that can produce “toxic gases, vapors or fumes in a quantity
sufficient to present a danger to human health or the environment” are
hazardous waste under the reactivity characteristic (40 CFR
261.23(a)(5)).  EPA emphasizes that it is not making any finding on the
hazardous waste status of captured supercritical CO2 streams as a class;
these determinations are waste specific.

 

Comment 3.20.6:

2. Page 48081 – “For CO2 streams that are captured, compressed, and
transported to a UIC Class VI well, EPA believes that the full set of
subtitle generator and transporter retirements are not necessary,
because they do not provide any additional protection over existing
regulatory requirements.”

Comment:

Basin Electric agrees 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. The
applicable Department of Transportation (DOT) requirements and 49 CFR
part 195 regulations will ensure that CO2 streams are managed in a safe
and environmentally protective state.

Based on the Synfuels Plant's EOR experience, no on-site storage is
necessary. The capture/compression/pipeline process occurs on a
continuous basis. Basin Electric would not contemplate storage necessary
for sequestration activities.

Response: EPA agrees with the commenter that additional requirements are
not necessary when CO2 streams are managed in accordance with the terms
of the conditional exclusion. EPA thanks the commenter for the
information relating to its experience and plans regarding on-site
storage of CO2.

Comment 3.20.7:

3. Page 48082 – “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.”

Comment:

Basin Electric does not believe that CO2 that is captured could be
stored on-site. For example, at the Synfuels Plant, approximately 153
million standard feet per day of CO2 is captured and sent through a
pipeline for EOR. This is approximately equal to the amount of CO2 that
would be captured from a 400 MW power plant if fully controlled with a
carbon capture system. Storing even one week's worth of CO2 would
require over 1,000 million standard cubic feet of capacity. Even after
compressing to supercritical conditions, millions of cubic feet capacity
would be required. Design for large quantities of pressurized CO2 is
unprecedented. If such storage tanks could be designed and constructed
to hold that pressure, the size and number of the tanks would be
impractical to store on site.

Response: EPA thanks the commenter for the information provided
regarding on-site storage of CO2.  See Response to Comment 3.2.25.

Comment 3.20.8:

4. Page 48082 – “EPA also requests information on the units and
process involved after the CO2 is captured, and before it is either
injected on-site, or sent off-site.”

Comment:

The Synfuels Plant's EOR experience provides CO2 capture with a Rectisol
cold methanol wash process. The compression process has three 20,000 HP
compressors to provide supercritical CO2 suitable for transport by
pipeline. The CO2 is compressed to an average of 2650 psi prior to
metering to the CO2 pipeline.

Response: EPA thanks the commenter for the information.

Comment 3.20.9:

5. Page 48082 – “Finally, EPA requests comments and information on
the procedures that have been or are expected to be used during
maintenance and upset circumstances of the carbon capture system.”

Comment:

Appropriate seals are used in the compression process to avoid fugitive
emissions and odors. Also, during plant upsets, CO2 may need to be
flared for short periods due to H2S present in the product. Pipeline CO2
depressuring to the flare is much less frequent and flows are managed to
avoid negative impacts and to allow proper operation of the flare.

The Synfuels Plant has numerous procedures for managing activities for
operation and maintenance including purging the lines and mechanical
integrity testing. Separate procedures also cover accident
investigations, pipeline safety related conditions, abnormal operating
conditions, and suspected pipeline leak detection. The pipeline is
operated with on-line instrumentation and monitored with a leak
detection system.

Supercritical CO2 pipelines are considered hazardous liquid pipelines,
which are regulated by 49 CFR Part 195 in the United States and the
Canadian Standard Association Z662 in Canada. As a result, DGC must
follow all of the same regulations as a pipeline operator transporting
petroleum products. One of the requirements for operating a hazardous
liquid pipeline on either side of the border is to have a dependable
form of on-line leak detection. In addition, the Canadian National
Energy Board specifically requires a computational leak detection system
(LOS). The LOS in operation at the Synfuels Plant to monitor the CO2
pipeline is a sophisticated computer model that continuously queries
pipeline operating data to identify potential leaks in the piping
system. Pressure and temperature readings are taken at both ends of the
pipeline and at each of the 12 mainline valve stations. There is also a
highly accurate mass flowmeter at each end of the pipeline to aid in the
volume balance calculations of the LOS. The data is transmitted via
microwave, hard wire, or radio communication to the control room at the
Synfuels Plant, where it is automatically forwarded to the LOS computer.
The software uses this information to identify a potential leak and
generate an audible and visual alarm on the pipeline control room
screens. It can identify a potential leak location to within two miles,
estimate the leak rate and report the total volume lost. A great deal of
development work has gone into this system, by both the software vendor
and OGC personnel because it is the first of its kind on a supercritical
CO2 pipeline.

There is also a reverse 911 system at the Synfuels Plant. If a leak is
suspected due to a leak detection system alarm or any other means, plant
supervision will trigger the reverse 911 procedure. A computer at the
Synfuels Plant is preprogrammed to call specific groups of residents and
businesses that are determined by the supervisor to be in the vicinity
of the potential leak. The recording gives them general instructions on
the nature of the potential emergency and advises them of the
appropriate response.

Response: EPA thanks the commenter for the information.  The
commenter’s description of the flaring during plant upsets at the
Synfuels plant does not change EPA’s overall conclusion in the final
conditional exclusion regarding the protectiveness of existing
regulatory requirements.  It is assumed that the flaring would be
performed in compliance with applicable air pollution control
reiquirements.

Comment 3.20.10:

6. Page 48083 – “EPA believes that these requirements, which focus
on preventing release that might affect human populations and
ecologically-sensitive areas, further support of the conclusion of
today's proposal that additional regulations of pipeline transportation
under RCRA subtitle C is not necessary in order to protect human health
and the environment.”

Comment:

Basin Electric agrees with the analysis. Pipeline transportation of CO2
is subject to the 49 CFR Part 195 Transportation of Liquids by Pipeline
requirements. The requirements govern pipeline design, construction,
operation and maintenance, and emergency response planning. The
regulations also require pipeline integrity management systems to be in
place including corrosion monitoring. These protective and detailed
regulations and standards negate the need for further RCRA subtitle C
regulation.

Response: EPA agrees that DOT’s PHMSA requirements in 49 CFR part 195
sufficiently protect human health and the environment.  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. 

Comment 3.20.11:

7. Page 48083 – “Finally, EPA notes 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 pipelines are currently regulated, including any
design and operating standards that apply to such pipelines. EPA still
requests comment on the appropriateness of applying the RCRA subtitle C
standards to these non-DO T pipelines.”

Comment:

Basin Electric agrees with the EPA analysis in not proposing to apply
RCRA subtitle C requirements to these on-site pipelines. At the Synfuels
Plant, non-DOT regulated CO2 pipelines on-site are designed, constructed
and maintained in accordance with the American Society of Mechanical
Engineers Pipeline Transportation Systems for Liquid Hydrocarbons and
Other Liquids (B31.4) engineering standards, good engineering practice,
and vendor mechanical and control requirements. The Synfuels Plant's CO2
is transferred on a continuous basis to a pipeline system to an EOR well
injection site. The CO2 is not stored on-site. If there was any scenario
of large storage on-site, the OSHA Process Safety Program regulation
would apply at the Synfuels Plant due to H2S thresholds. The Process
Safety Management (PSM) regulation comprises 14 program elements
including mechanical integrity, emergency response, and Process Hazard
Analysis (PHA).

Response:  See Response to Comment 3.2.30.  EPA did not evaluate the
OSHA PSM regulation as part of the conditional exclusion, but thanks the
commenter for providing this information.

Comment 3.20.12:

8. Page 48083 – “Therefore, EPA requests comment on the extent to
which non-pipeline transportation will be used specifically for
transporting CO2 stream 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.”

Comment:

Basin Electric would not anticipate using non-pipeline transportation in
operations. It is Basin Electric's understanding that the Plains CO2
Reduction (PCOR) Partnership did use CO2 transportation by truck for a
research project to demonstrate CO2 storage in an un-minable coal vein
in North Dakota. It would be Basin Electric's belief that this "proof of
concept" could be the type of projects where non-pipeline transportation
could be utilized. Further in Basin Electric's estimation, the extent of
using non-pipeline transportation would be very limited.

Response: EPA thanks the commenter for the information.

Comment 3.20.13:

9. Pages 48084-48085 – “Key Elements for the Class VI Well
Requirements. Class VI provisions require that owners and 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.”

Comment:

There are essentially four stages to a CCS project:

*Siting and permitting;

*Construction and operation (including monitoring);

*Closure and Post-closure activities (including monitoring);

*Long-term responsibilities after the injected plume stabilizes.

The most important step is selection of a suitable geologic formation
for long-term storage. That first step minimizes risks and potential
liabilities for all subsequent stages, including long-term
responsibilities after post-closure activities cease. Once a suitable
geologic site has been identified, financial responsibility instruments
should be affordable, because the high-risk projects will be eliminated
during the permitting stage. Basin Electric supports consistent national
regulations for financial responsibility requirements. But those
regulations must consider site-specific conditions, including the key
consideration of the suitability of the proposed geological formation,
so that affordable financial responsibility instruments are available
for low-risk projects built and operated according to the permit
conditions. A critical aspect of the regulations should be to tie the
cost of the financial responsibility instruments to the overall
suitability and safety of the site. 

The division between federal and state authority should be divided along
these lines:

Consistent national regulations and oversight to eliminate higher-risk
sites, and to minimize financial responsibility obligations on low-risk
sites;

Primacy to the states for permitting and making site-specific,
case-by-case determinations based on rules that distinguish between
high-risk and low-risk sites.

Basin Electric supports the state rights of primacy for the Class VI
portion of the UIC program for making these site-specific
determinations. The State of North Dakota has established rules for
geological storage and is working to make them compatible with EPA's UIC
program. But the States, in Basin Electric's opinion, are the regulatory
bodies that should develop and administer the rules for permitting Class
VI wells.

Basin Electric has many concerns relating to the requirements of
permitting a Class VI well. One of Basin Electric's main concerns about
obtaining a Class VI permit is the financial responsibility obligations.
For the long-term responsibilities after post-closure activities are
completed, the responsibility would be perpetual and would cause the
geological sequestration costs to increase significantly. Basin Electric
thinks the State of North Dakota has the right approach in addressing
liability. A certificate of completion can be issued 10 years after the
last injection of CO2 if the reservoir is determined to be stable as
defined by the State of North Dakota. The State of North Dakota would
then take ownership of the CO2 and assume all rights, responsibilities
and interests in the CO2. The company injecting the CO2 in the
geological formation would be released from all regulatory requirements.
See N.D.C.C. § 38-22-17.

Basin Electric believes that the federal government should assume the
liability of the CO2 in a similar fashion. Until the long-term
responsibility issues after post-closure are addressed, it is unlikely
that any company will consider CCS. It is critical that the rules be
written so that high- risk and low-risk sites can be distinguished. This
will allow affordable financial assurance instruments to be available
for low-risk sites. This will also allow for some kind of affordable
pool of financial responsibility monies to be accumulated through an
appropriate fee structure or other legal mechanism so that after
low-risk projects have gone through appropriate, rigorous post-closure
certification, long-term responsibility may be transferred to the pool
for those low-risk projects that qualify. Another option would be for
the federal government to assume this responsibility after appropriate
post-closure certifications are issued.

Response: The above comments relate to the UIC Class VI final
regulation, and are beyond the scope of this rule. See response to
comment 3.20.2. 

Comment 3.20.14:

10. Page 48087 – “Finally, EPA requests comment on whether
transporters, as well as pipeline owners and operators, should also sign
such a certification statement.”

Page 48087 – “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.”

Comment:

Basin Electric believes it is unnecessary and unwise to require
transporters, pipeline owners and operators to certify that they meet
the conditions of the proposed exclusion (FR 76 48087). Rather, Basin
Electric supports each entity being responsible for the portions of the
process that they have intimate knowledge of and that they control.
Transportation through pipelines or by other means, must meet applicable
transport requirements for all materials moved, and certification that
they meet these requirements only for a specific material (i.e., CO2 to
be sequestered) provides no additional protection and is unnecessary. In
addition, in a manner similar to other existing rules associated with
hazardous waste (40 CFR § 262.11 and §263) the generator is
responsible for waste determination and characterization, not the
transporter. The transporter must depend on the statements and
characterizations made by the generator regarding the material being
transported. In the proposed rule Basin Electric recommends the same
approach be taken. If the transportation mechanism is a common carrier
pipeline, the pipeline owner/operator much certify that the combination
of CO2 streams from various sources in the pipeline meet the
specifications to maintain the safe transport of CO2. The operator of
the Class VI well should be responsible for certifying the
characteristics of the CO2 that is actually being injected.

Response: EPA agrees that a certification by the transporter is not
necessary, and the final rule does not include a transporter/pipeline
owner or operator certification. First, if EPA were to require such a
certification, under the approach where EPA limits the scope of the
certification to the conditions within the control of pipeline owners
and operators or other transporters (the approach taken in the final
rule for CO2 stream generators and UIC Class VI well owners and
operators), the certification would essentially address: 1) compliance
with applicable DOT requirements, and 2) to not mix hazardous waste into
the CO2 streams. Regarding compliance with DOT requirements, EPA is
persuaded by comments received on this issue that if persons
transporting supercritical CO2 must comply with the applicable
transportation requirements for all supercritical CO2 being moved, it
seems unnecessary to require that they certify compliance with DOT
requirements for a specific material (i.e., supercritical CO2 streams to
be sequestered). Regarding mixing with hazardous waste, EPA does not
have information, nor did commenters provide any new information,
indicating that CO2 pipeline owners and operators or other transporters
would mix hazardous waste into CO2 streams being delivered to UIC Class
VI facilities. EPA expects that pipeline owners and operators engaged in
delivering supercritical CO2 have strong disincentives to mix any
hazardous waste into their pipeline system, both in order to honor their
contractual arrangement with customers, and also to maintain their
equipment.  Also, as EPA stated in the proposed rule premable, PHMSA
requires that pipeline owners and operators ensure that supercritical
CO2 streams be chemically compatible with the pipeline and any
commodities in the pipeline and will not corrode the pipeline and
pipeline system.  For these reasons, EPA does not see the need for a
transporter certification, and is not changing its proposed approach and
transporters and pipeline owners and operators will not be required to
sign a certification statement as a condition of the exclusion.

EPA also agrees that the UIC Class VI well owners or operators should be
responsible for a certification statement as suggested by the commenter.
EPA has modified the certification requirement in the final rule so that
there are now two separate certification statements worded slightly
differently – one for generators and another for UIC Class VI
owner/operators claiming this conditional exclusion. EPA has made these
revisions to better reflect actions over which each party has control. 

Comment 3.20.15:

11. Page 48087 – “EPA is also requesting comment on whether any new
monitoring, recordkeeping, or reporting requirements are necessary
(including as those that might apply to pipeline owners and operators)
to ensure that the conditions of the proposed exclusion are met.”

Comment:

The regulations for Class VI wells as well as the DOT regulations under
49 CFR 195 provide extensive requirements for monitoring, recordkeeping,
and reporting. Basin Electric believes no new requirements are necessary
other than the exclusion certification and compliance with the
conditions set forth.

Response: See Responses to Comments 3.2.40 through 3.2.43.

Comment 3.20.16:

12. Page 48088 – “EPA requests comment on the types and
characteristics of substances that are added to CO2 streams to enable or
improve the injection process.”

Comment:

With the Synfuels Plant's EOR experience, no substances are added to the
CO2 stream either at the Rectisol facility or the pipeline transport
facility to improve the injection process.

Response: EPA thanks the commenter for the information.

Comment 3.20.17:

13. Page 48089 – “This sequestration may be conducted either with or
without concurrent EOR. However, EOR itself is outside the scope of this
rule, as proposed.”

Comment:

Basin Electric agrees that EOR is outside the scope of this rule. Basin
Electric also believes that EOR will be the stepping stone for expanding
more carbon dioxide capture in the United States. However, once EOR is
completed, these formations could and should be used to store more CO2
if the need arises. EPA should give the States the primacy to determine
how these EOR reservoirs could be recognized for acceptance of
additional CO2 for geological sequestration in the future. Thank you
again for giving us the opportunity to file these comments.

Response: As the commenter notes, issues surrounding EOR itself are
outside the scope of this rulemaking.  With respect to the comments on
UIC primacy, see Response to Comment 3.20.2.  

Spectra Energy (Spectra)

Document ID: EPA-HQ-RCRA-2010-0695-0088

	

Comment 3.21.1:

Spectra Energy (“Spectra”) submits the following comments in the
above-referenced docket, relating to the U.S. Environmental Protection
Agency’s (“EPA” or “the Agency”) proposed rule published at 76
Fed. Reg. 48073 (August 8, 2011) to conditionally exclude geologically
sequestered CO2 from regulation as a hazardous waste under the Resource
Conservation and Recovery Act (“RCRA”). We appreciate the Agency’s
recognition that if RCRA’s applicability to geologic sequestration
were left unclear, it could discourage deployment of geologic
sequestration in the U.S. While we have a number of issues on which we
request the Agency’s clarification, the proposed rule appears to be a
reasonable and favorable means of addressing this issue. 

About Spectra Energy 

Headquartered in Houston, Texas, Spectra has one of the largest natural
gas transportation systems in North America, encompassing more than
19,100 miles of transmission pipelines and 305 billion cubic feet (Bcf)
of storage capacity. Our U.S. operations include: 

*Texas Eastern Transmission which transports up to 6.7 Bcf per day from
producing fields in the Gulf Coast region of Texas and Louisiana to
high-demand markets primarily in the Northeastern U.S. The pipeline
comprises 9,200 miles of onshore and offshore pipe into the Gulf of
Mexico. 

*East Tennessee Natural Gas which transports up to 1.5 Bcf per day
mainly through Tennessee and Virginia across 1,510 miles of pipeline. 

*Maritimes & Northeast which transports natural gas across the
northeastern U.S. and Atlantic Canada. The U.S. portion, comprised of
343 miles of pipeline, currently transports up to 800 Mcf per day. 

*Algonquin Gas Transmission which plays a key role in servicing the New
England region. Its 1,120 miles of pipeline transport up to 2.4 Bcf per
day of natural gas. 

*Gulfstream Natural Gas in which Spectra has a 50% interest. Its 745
miles of pipeline transport 1.3 Bcf per day of natural gas from the
Mississippi and Alabama coast to Florida. 

*Southeast Supply Header in which Spectra has a 50% interest. Its 274
miles of pipeline transport 1 Bcf per day of natural gas from northeast
Louisiana to southwest Alabama. 

*Ozark Gas Transmission which transports up to 500 MMcf per day of
natural gas from southeastern Oklahoma to southeastern Missouri. It is
comprised of 565 miles of pipeline transport and 365 miles of a gas
gathering system which accesses Fayetteville Shale and Arkoma
production. 

*Market Hub Partners, Bobcat Gas Storage, Saltville Gas Storage and
Steckman Ridge through which Spectra Energy has significant gas
reservoir and salt cavern natural gas storage capabilities. Our storage
assets are strategically located in both supply and market areas,
including Texas, Louisiana, Virginia, and Pennsylvania. 

*DCP Midstream is one of the nation’s largest natural gas gatherers
and processors, the largest NGL producer and one of the largest NGL
marketers in the U.S. DCP Midstream is a 50-50 joint venture between
Spectra Energy and ConocoPhillips. DCP operates processing plants, gas
gathering systems, and other assets. 

Since the mid 1990s, Spectra Energy’s Western Canadian business unit
(SET West) has incorporated carbon capture and sequestration (CCS) and
acid gas re-injection (AGR) into our natural gas processing facilities
in British Columbia and Alberta. Seven CCS facilities are in operation
today at SET West. For example, our Kwoen facility is Spectra’s
largest CCS/AGR operation in Canada, re-injecting approximately 100 Kt
per year. Kwoen and SET West have been recognized by the
Intergovernmental Panel on Climate Change (IPCC) as a leader in CCS.
Further, a project at Spectra Energy’s Fort Nelson Gas Processing
Plant, also in British Columbia, could result in the sequestration of up
to 2.2 Mt CO2/year, once fully operational. The Fort Nelson CCS project
is a multi-lateral partnership between Spectra Energy, the Province of
British Columbia, Government of Canada (Natural Resources Canada), US
Department of Energy/National Energy Technology Laboratory (Plains CO2
Reduction Partnership). Today, Spectra Energy’s CCS/AGR projects
safely capture and store approximately 150 Kt CO2 per year. 

Imposition of excessive or unreasonable requirements could have negative
implications for geologic sequestration activities in other
jurisdictions such as Canada.

Response: EPA acknowledges the comment. EPA believes a consistent
regulatory approach to GS will help facilitate development and
deployment of CCS technologies in the United States, rather than
discourage deployment. The comment does not elaborate on what
“negative implications for geologic sequestration activities in other
jurisdictions such as Canada” the commenter has in mind. In any event,
EPA believes that, for the reasons explained in the preambles and
elsewhere, that the requirements in the conditional exclusion are
appropriate, and not excessive or unreasonable.

Comment 3.21.2:

General Commentary 

Subject to clarification of several issues discussed below, Spectra
supports the proposed rule. As we stated in our comments to the proposed
rule for UIC Class VI wells, RCRA’s hazardous waste regulatory regime
is unnecessary and inappropriate for geologic sequestration of CO2. A
CO2 waste stream is not a hazardous waste, as will be discussed further
below. RCRA hazardous waste regulation is burdensome, and a Class VI
geologic sequestration well cannot be converted into a Class I Hazardous
well. 

Furthermore, as EPA amply describes in the proposed rule, hazardous
waste regulation is unnecessary for CO2 streams being sequestered at
Class VI wells, not only because CO2 streams do not meet the criteria to
be deemed hazardous, but because a comprehensive and adequate
multi-faceted regulatory system already applies and serves the purposes
for which hazardous waste regulation would be applied. 

A conditional exclusion is an appropriate mechanism to remove
geologically sequestered CO2 streams from hazardous waste regulation.
EPA has long interpreted Section 3001(a) of RCRA, which directs the
Agency to develop criteria for identifying characteristics of hazardous
wastes “which should be subject to the provisions of” the hazardous
waste management requirements of RCRA Subtitle C, to authorize it to
conditionally exclude from such regulation wastes for which those
requirements are not justified. A conditional exclusion offers the
opportunity to make clear the circumstances when hazardous regulation
will or will not apply.

Response: EPA does agree that management of CO2 in accordance with the
terms of the final conditional exclusion (which include management in
accordance with existing regulations such as the UIC requirements for
UIC Class VI wells as well as DOT requirements) protects human health
and the environment. Therefore, EPA finds it is appropriate and
justified to establish a conditional exclusion for hazardous CO2 streams
injected for geologic sequestration.  EPA agrees with the commenter that
under its interpretation of RCRA (including RCRA section 3001(a)) it has
the authority to issue conditional exclusions from the hazardous waste
regulations. EPA’s authority to issue the rule is described in section
II.B. of the final rule preamble. EPA responds to the commenter’s
comments about the hazardous waste status of CO2 streams in Response to
Comment 3.2.19.

Comment 3.21.3:

Specific Issues 

A. Minor Violations That Do Not Compromise Safety 

EPA should clarify that it does not intend that minor violations will
void the exclusion, thereby triggering regulation of a facility as a
hazardous waste facility. 

The exclusion for geologically sequestered CO2 requires, among other
conditions, that: 

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. 

The exclusion also is conditioned upon the transportation of the CO2
stream being in compliance with applicable Department of Transportation
requirements. Furthermore, the exclusion does not apply unless an
authorized representative of the geologic sequestration facility owner
or operator certifies under penalty of law that the injection of the
carbon dioxide stream meets these and the other conditions set forth. 

EPA has a strong interest in promoting compliance discipline and not
condoning noncompliant management. Industry shares this interest:
violations at one facility could damage public perception of the safety
of geologic sequestration. Nevertheless, the conditional exclusion
should provide for flexibility in enforcement so that “paper”
violations or non-compliance that has not compromised the ability of the
geologic sequestration facility to meet the environmental, health, or
safety protection objectives of the applicable statutes does not result
in closure of the facility. At a minimum EPA should commit to
implementation that will take into account the consequences of closing a
sequestration facility. Considerable impacts could occur upstream of a
geologic sequestration facility should the facility be closed. 

While there are not today federal standards that necessitate that
natural gas processors capture and sequester the CO2 that is naturally
commingled with raw natural gas streams in many natural gas fields, such
requirements could be imposed in the future. Furthermore, some State
greenhouse gas emissions limitations are stringent enough today that
natural gas-fired electric generating facilities may be required to
capture and sequester CO2. The availability of a suitable sequestration
site within the vicinity of a gas processing facility, power plant, or
other industrial operation may be indispensable to that industrial
facility being able to continue to operate without violating greenhouse
gas emission restrictions. The Agency must bear in mind that for a
period of some years, there likely will be only a limited number of
geologic sequestration facilities in operation. Even if another
sequestration site is in the vicinity, it is unlikely to be a simple
matter for a generator to switch CO2 deliveries to another facility.
Bulk transportation of CO2 is likely to occur via pipeline, and a
pipeline must be constructed and have available capacity in order for a
generator to change delivery points.

It likely would be impossible or at least extremely difficult to
reclassify a Class VI well as a Class I Hazardous well. Two differences
in Class I Hazardous and Class VI regulations illustrate this. First,
corrective action concerning a Class I Hazardous well effectively must
be conducted up front. Regulations require that “No owner or operator
of a new Class I hazardous waste injection well may begin injection
until all corrective actions required under this section have been
taken.” [40 CFR 146.64(d)(2)]. This would include corrective action
throughout all of the Area of Review, which could be very extensive in
the case of a Class VI geologic sequestration well. Because the volumes
for geologic sequestration are anticipated to be orders of magnitude
larger than for other well classes, the plumes and Areas of Review also
are expected to be much larger. This is why the Agency provided for
phased corrective action for Class VI wells. [See 40 CFR 146.84(b)(iv)].
It may be impractical and prohibitively expensive to conduct corrective
action all at once for a Class VI well, as EPA’s regulation has
recognized. 

Second, Class I Hazardous wells are subject to the requirement of 40 CFR
148.20, subparagraph (a)(1) of which requires that “reliable
predictions can be made that . . . [f]luid movement conditions are such
that the injected fluids will not migrate within 10,000 years.”
Supercritical CO2 injected for geologic sequestration is a mobile,
buoyant injectate that is expected to migrate. EPA’s Class VI rule
expressly stated that the Agency “determined that tailored
requirements, modeled on the existing UIC framework, are necessary to
manage the unique nature of CO2 injection for [geologic
sequestration],” with those unique features including “the large
volumes anticipated at geologic sequestration projects, the relative
buoyancy of CO2, [and] its mobility within subsurface geologic
formations. . . .”[FN1: “Federal Requirements Under the Underground
Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic
Sequestration (GS) Wells: Final Rule,” 75 Fed. Reg. 77230 at 77233,
Vol. 75, No. 237, December 10, 2010].

EPA’s conditional exclusion must be implemented broadly enough that
minor violations that do not compromise the safe functioning of the
geologic sequestration facility will not result in its being closed,
thereby disrupting “upstream” activities.

Response:  The commenter makes the point that minor violations (such as
paperwork violations) should not void the conditional exclusion, which
the commenter notes would require a “reclassification” of a UIC
Class VI well to a UIC Class I hazardous well, and which the commenter
states would be difficult or impossible.  The commenter also states that
the conditional exclusion should be implemented such that these minor
violations do not result in the closing of that sequestration facility.

Regarding the comment that minor violations should not void the
exclusion, it is EPA’s view that the rule conditions, taken together,
ensure that the excluded CO2 streams are being managed in a protective
manner such that subtitle C regulations are not necessary.  Therefore,
it follows that any management not in accordance with those conditions
does not qualify for the exclusion.  EPA nevertheless appreciates the
commenter’s concern over the loss of the conditional exclusion due to,
for example, small administrative or clerical errors.  EPA’s Office of
Enforcement and Compliance Assurance (OECA) is unable to provide
definitive assurances outside the context of a formal enforcement
proceeding that the government will not proceed with an enforcement
response for a specific individual violation of an environmental
protection statute, regulation, or legal requirement.  However, EPA can
(and has previously done so for other RCRA rules) exercise discretion to
decide when and how to respond or not respond to a given violation,
based on the Agency’s normal priorities.  In RCRA penalty actions, the
factors that EPA considers in assessing the gravity-based portion of the
penalty are the potential for harm and the extent of deviation from a
statutory or regulatory requirement.  The penalty can be adjusted for
numerous factors, including good faith efforts to comply, degree of
willfulness and negligence, and history of noncompliance.  Additional
information can be found in the 2003 RCRA Civil Penalty Policy
(http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003-fn
l.pdf).

EPA agrees that there would very likely be significant logistical,
regulatory and policy implications to changing the regulatory status of
a UIC Class VI well to that of a UIC Class I hazardous well.  EPA also
notes that comments on existing UIC regulations are outside the scope of
this rulemaking.  

Comment 3.21.4:

B. Substances Derived from the Capture Process 

The proposed rule excludes a “carbon dioxide stream” from regulation
as a hazardous waste, subject to the proposed rule’s conditions. A
carbon dioxide stream is defined as: 

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. 

This definition is identical to the definition of “carbon dioxide
stream” in the Underground Injection Control program regulations for
Class VI wells, with the exception that it does not exclude “any
carbon dioxide stream that meets the definition of a hazardous waste
under 40 CFR part 261.” [FN2: 40 CFR 146.81(d)].

EPA has not defined what constitutes an “incidental associated
substance[] derived from the source materials and the capture
process.” However, the proposed rule makes clear that such a material
may be one the presence of which would make the CO2 stream a hazardous
waste. EPA explains: 

Because today’s conditional exclusion would apply to CO2 streams that
are otherwise RCRA hazardous wastes, EPA did not include [the language
from the Class VI UIC rule excluding hazardous wastes] 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. [FN3: Proposed
rule, 76 Fed. Reg. 48073, at 48088].

The composition of the CO2 stream that results from the industrial
process that produces it will be determined largely by chance of nature,
because of the source material involved (natural gas, coal, oil, or
other). Raw natural gas often contains a variety of contaminants,
including (in addition to CO2) acid gases like hydrogen sulfide and
mercaptans, and sometimes trace metals such as mercury in elemental or
other forms. The percentage of CO2 and acid gases in raw natural gas
vary. The methods of processing and capturing the CO2 stream may have
some effect on the constituencies as well. 

We appreciate the clarity with which EPA is attempting to define the
issue. If there is room for interpretive confusion in the definition, we
recommend that EPA take steps to clarify it, as the scope of the CO2
streams covered is the essential feature of the conditional exclusion.
We believe it is appropriate, given the Agency’s policy to pursue
reductions in greenhouse gas emissions, for the Agency to interpret this
term in a manner that encourages the capture and injection of CO2
streams. CO2 mixtures from natural gas operations have been safely
injected for nearly two decades and represent a significant opportunity
for further reductions in atmospheric CO2 emission through long-term
geologic sequestration. 

As a final comment on this topic, we note that the proposed exclusion is
consistent with other current regulation, as re-injection of carbon
dioxide from gas processing is currently exempt from Subtitle C
requirements of RCRA.

Response: While EPA acknowledges the commenter’s recommendation that
EPA clarify the definition of Carbon Dioxide Stream (CO2 Stream) “if
there is room for interpretive confusion” or otherwise in a manner
“that encourages the capture and injection of CO2 streams,” the
commenter did not provide specific guidance on how EPA should revise the
definition to provide this clarity.  The proposed definition of CO2
Stream is being finalized as proposed, for the reasons EPA discusses in
Section V.F. in the preamble to the final rule.  EPA notes that the
adaptive approach being taken in the final rule (see response to comment
3.2.3) may provide future opportunity for clarifying the definition if
necessary.

Regarding the comment on re-injection of CO2 from gas processing, EPA
notes that that issue is beyond the scope of this rulemaking.

Comment 3.21.5:

C. Certification Is Based on Information Beyond Parties’ Control 

Proposed provision 40 CFR 261.4(h)(1)(iv) requires “[a]ny 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 [from hazardous waste regulation]” must sign a certification
that states: 

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. 

This certification requires that generators of CO2 streams attest to
information that is beyond their control and not reasonably possible for
them to obtain. 

First, it requires that generators certify that the geologic
sequestration facility, which is not under their control, meet all of
the requirements of 40 CFR parts 144 and 146. Many geologic
sequestration facilities are likely to be “merchant” facilities not
under the control of the generator. Even where the generator insists
upon one of its employees personally participating in an audit of the
facility, which would be expensive, impractical, and have little
benefit, generators who send materials to a merchant sequestration site
cannot attest to ongoing compliance with these requirements. For
example, information about plume movement, pressure calculations, and
other operational, testing, and monitoring data are not under a
generator’s control. 

Likewise, as drafted, the certification statement requires each
generator to attest that the materials being injected by other
generators are qualified as a carbon dioxide stream and do not void the
hazardous waste exclusion.

Spectra does not believe it was the Agency’s intention to require
parties to make a certification to facts pertaining to matters beyond
their control. We recommend revising the certification requirement for
generators to read as follows: 

I certify under penalty of law that the material being delivered is
qualified as a carbon dioxide stream under 40 CFR 146(d).

Response: EPA agrees that the certification statement should better
reflect the activities within the signatory’s control.  EPA has
revised the certification statement in the final rule so that there are
now two separate certification statements – one for CO2 stream
generators and another for UIC Class VI well owners or operators.  Under
the final rule, the certification statement that the generator would
sign is specific to the activities within the generator’s control;
likewise, the certification statement that the UIC Class VI well owner
or operator would sign is specific to the activities within the owner or
operator’s control.  EPA did not use the language suggested by the
commenter for generators, however, but instead developed language that
includes the prohibition on hazardous waste mixing, and delivery (or
arranging for delivery) of the CO2 stream to a UIC Class VI facility,
which EPA finds would be in the generator’s control. See response to
comment 3.8.8.

Comment 3.21.6:

D. EPA Has Not Sufficiently Clarified that CO2 for Geologic
Sequestration is a Solid Waste In its comments to the proposed
Underground Injection Control program rule for geologic sequestration
wells, Spectra argued that there is a legitimate question whether CO2 is
a solid waste based on the statutory definition of “solid waste”
expressly including “contained gaseous material.” 42 U.S.C. §
1004(27). EPA did not address this comment in the final rule, and it
deserves clarification. If CO2 in the context of geologic sequestration
is not a solid waste, RCRA does not apply and there is no reason for a
conditional exclusion. 

 

For a waste to be a hazardous waste, it must first be a solid waste.
Specifically, the term includes discarded material, including solid,
liquid, semisolid, or contained gaseous material. . . .” 42 U.S.C.
6903(27) [Emphasis added]. EPA has consistently interpreted this term as
excluding uncontained gases from the definition of solid waste. [FN4:
See, e.g., 47 Fed. Reg. 27530 (June 24, 1982) (gases from fume
incinerators not subject to RCRA, because fumes are not a solid waste);
54 Fed. Reg. 50973 (Dec. 11, 1989) (uncontainerized gases are excluded
from RCRA)]. In In re BP Chemicals America, Inc., [FN5: RCRA Appeal No.
89-4, 1991 WL 208971, at *2 (Admin., Aug. 20, 1991) ] the Administrator
rejected the argument that otherwise uncontained gas passing through
piping or the facility made it “contained” and subject to RCRA.
Specifically, the Agency determined: 

[T]he Agency views gaseous material to be “solid waste” only when it
is containerized. Region V argues that BP’s HCN vapor is
“contained” by the various process units through which it passes, by
associated piping, and by the plant as a whole. The Region’s reading
of the term “contained,” however, cannot be reconciled with the
Agency’s treatment of fume incinerators. Such incinerators are used to
treat vapors that are “contained” in the broad sense of being bound
or controlled and not being emitted to the atmosphere, but the Agency
considers such vapors to be outside the scope of the “solid waste”
definition because they are not containerized in the narrower sense of
being in an individual container such that the gas is amenable to
shipment. [FN6: In re BP Chemicals America, Inc., RCRA Appeal No. 89-4,
1991 WL 208971 (Admin., Aug. 20, 1991), p. 2-3].

Just within the past several months the Agency had occasion to address
the uncontained gas issue when guidance related to reinterpretation of
the definition of “solid waste” created confusion about whether the
meaning of “contained gaseous material” was being altered. EPA
clarified that it was not. [FN7: See Letter from Suzanne Rudzinski,
Director, Office of Resource Conservation and Recovery, to Tim Hunt,
American Forest and Paper Association, May 13, 2011: “We clarify here
that the Agency’s previous statements and interpretations remain
effective.”]

Given this precedent and its very recent affirmation, CO2 streams
captured from industrial processes and transported by pipeline are
“uncontained” gases. That classification also should extend to CO2
that leaves the pipeline for injection into an underground formation. At
no time is the gas “containerized in the narrower sense of being in an
individual container such that the gas is amenable to shipment.” We
believed in 2008 and believe now that CO2 streams should be exempted
from RCRA on this basis and that this issue should be addressed by the
Agency.

Response: EPA disagrees that CO2 streams sent to UIC Class VI wells for
purposes of GS are not solid waste.  As EPA noted in the proposed rule,
the CO2 streams are delivered by pipeline and injected into UIC Class VI
wells for GS in a supercritical state, which EPA stated at proposal was
“…rather unique in that it has properties intermediate between a
liquid and a gas.” 76 FR at 48078. The scientific term used to
describe or define this supercritical state (i.e., when a substance is
at or above its critical temperature and critical pressure) is as a
“supercritical fluid.” The RCRA statutory definition of solid waste
specifically refers to “other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from
community activities . . .” While EPA has indeed interpreted the
meaning of specific terms listed, including “contained gaseous
material,” the RCRA definition of solid waste encompasses “other
discarded material” and does not speak to materials such as
supercritical fluids. Like the listed “solid, liquid, semisolid, or
contained gaseous material” specifically referenced, CO2 streams
sequestered for purposes of GS are “other discarded material” from
industrial and commercial operations and, therefore, are of a similar
kind to the other types of wastes specifically referenced by the
definition. They are, therefore, RCRA statutory solid wastes.

Comment 3.21.7:

E. Potential Applicability of Superfund 

Another benefit of the proposed rule is that it lessens the likelihood
that the federal Superfund cleanup program will apply. The definition of
“hazardous substance” includes RCRA hazardous wastes. [FN8: 42
U.S.C. 9601(14)]. The Superfund program, common parlance for the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), is characterized by slow, overly expensive responses to
releases and threatened releases of hazardous substances. Superfund
still may apply if the definition of “hazardous substance” is
otherwise triggered. 

As we submitted in our comments to the proposed Class VI UIC rule in
2008, the threat of CERCLA litigation and the potential liability to a
site owner or operator is significant and could discourage the
deployment of geologic sequestration. The statute’s application is
unnecessary, given the applicability of cleanup obligations and
liability through other law.

Response: EPA thanks the commenter but notes that CERCLA and its related
provisions are beyond the scope of this rulemaking.

Comment 3.21.8:

Conclusion 

In conclusion, we applaud EPA for its effort to clarify the
applicability of RCRA’s hazardous waste requirements to geologic
sequestration and believe that the commentary above will help make the
clarification more useful. We believe that removing uncertainty about
the applicability of RCRA’s hazardous waste requirements will
encourage deployment of geologic sequestration.

Response: EPA agrees with the commenter that the conditional exclusion
will reduce regulatory uncertainty for stakeholders, and facilitate
deployment of CCS technologies.

Western Environmental Trade Association (WETA)

Document ID: EPA-HQ-RCRA-2010-0695-0060

Comment 3.22.1:

The Western Environmental Trade Association (WETA) and the Montana
Petroleum Association (MPA) appreciate this opportunity to submit
comments to the Environmental Protection Agency (EPA) in regard to the
proposed rule for Hazardous Waste Management System: Identification and
Listing of Hazardous Waste: Carbon Dioxide (CO2) Streams in Geological
Sequestration Activities.

WETA, organized in 1976, is a coalition of representatives of
agriculture, labor, business, commercial industry, the scientific
community, recreation, transportation and twenty-one other trade
associations, with an interest in promoting the economic well being of
the people of Montana while protecting the state’s environment. These
member associations, companies and other organizations collectively
employ or represent thousands of Montanans.

 

MPA is a voluntary, nonprofit trade association whose 169 members
include oil and natural gas producers, gathering and pipeline companies,
petroleum refineries, service providers and consultants. A majority of
the oil and gas produced in Montana is produced by MPA members. Our
mission is to MPA’s strives to maintain a positive business climate
for the petroleum industry in Montana, and its education program fosters
public awareness of the industry’s contributions to the state and
nation.

We support EPA’s proposal to conditionally exclude from the definition
of hazardous waste CO2 streams captured, transported, and injected into
permitted Class VI wells.

Response: EPA thanks the commenter for its support of the proposed rule.

Comment 3.22.2:

The 40 CFR part 146 regulations has adequate protection for drinking
water aquifers and addresses corrective action, financial assurance
requirements, and long term monitoring after closure. These requirements
negate the need for any RCRA regulation.

Response: EPA agrees that the management of these CO2 streams, when
meeting certain 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.  

Comment 3.22.3:

RCRA was never meant to apply to CCS and thus the statute provides a
poor tool to regulate the activity. Nothing in RCRA or its regulations
purports to apply to CCS generally or geologic sequestration
specifically. The RCRA model is prospective “cradle-to-grave” waste
management and tracking. CCS, on the other hand, currently involves the
injection of CO2 for beneficial purposes. That activity, moreover, is
envisioned to involve mixed streams of CO2 from multiple sources, with
injection of CO2 from multiple sources, thereby defeating the notion of
tracking wastes through manifests and the like.

Response:  See Responses to Comments 3.1.5 and 3.12.7.

Comment 3.22.4:

Impurities, such as H2S or mercaptans, should not trigger a
classification under RCRA. The success of existing acid gas injection
operations into depleted oil and gas reservoirs conducted under the
existing protective underground injection control (UIC) regulations is
further justification to exclude RCRA regulation.

Response:  See Response to Comment 3.20.5.

Comment 3.22.5:

Corrosion has not been a problem when the captured and transported CO2
is maintained as dry.

Response: It is unclear to EPA how the comment is intended to relate to
the proposed rule. To the extent the comment is referring to the RCRA
hazardous characterization regulations, EPA discusses issues related to
that topic in section V. B. of the final rule preamble.

Comment 3.22.6:

Also, injected CO2 should be considered a product and not a solid waste,
as stored CO2 in geologic storage could be retrieved in the future for
industrial use. Class VI CO2 injection operations should not be
considered waste management activities.

The concept of “disposal” is also inconsistent with how the bulk of
CO2 is currently being managed commercially today. With the exception of
demonstration and related projects, most if not all of the CO2 that is
geologically injected today is used for EOR. In that application, it is
purchased and transacted as a valuable commodity.

Response: Regarding the subsequent retrieval of CO2 from UIC Class VI
injection operations, see Response to Comment 3.20.5.

Regarding the comment that injected CO2 “should be considered a
product and not a solid waste,” and the use of CO2 for EOR, see
Responses to Comments 3.1.8, 3.2.1, and 3.2.2.

Comment 3.22.7:

We agree 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. The
applicable Department of Transportation (DOT) requirements and 49 CFR
part 195 regulations will ensure that CO2 streams are managed in a safe
and environmentally protective state.

Response: EPA acknowledges the comment. See responses to 3.22.9 and
3.22.10.

Comment 3.22.8:

We do not believe that CO2 that is captured could be stored on-site.
Design for large quantities of pressurized CO2 is unprecedented. If such
storage tanks could be designed and constructed to hold that pressure,
the size and number of the tanks would be impractical to store on site.

Response: See response to 3.2.25.

Comment 3.22.9:

WETA and MPA agrees that additional regulations of pipeline
transportation under RCRA subtitle C is not necessary in order to
protect human health and the environment. Pipeline transportation of CO2
is subject to the 49 CFR Part 195 Transportation of Liquids by Pipeline
requirements. The requirements govern pipeline design, construction,
operation and maintenance, and emergency response planning. The
regulations also require pipeline integrity management systems to be in
place including corrosion monitoring. These protective and detailed
regulations/standards negate the need for further RCRA subtitle C
regulation.

Response: EPA thanks the commenter and notes that EPA does agree that
management of CO2 in accordance with the terms of the final conditional
exclusion (which include management in accordance with existing
regulations such as the UIC requirements for UIC Class VI wells as well
as DOT requirements) protect human health and the environment.
Therefore, EPA finds it is appropriate and justified to establish a
conditional exclusion for hazardous CO2 streams injected for geologic
sequestration.  

Comment 3.22.10:

We agree with the EPA analysis in not proposing to apply RCRA subtitle C
requirements to these on-site pipelines. Non-DOT regulated CO2 pipelines
on-site are designed, constructed and maintained in accordance with
ASME.

Response:  See Response to Comment 3.2.30.

Comment 3.22.11:

WETA and MPA support the state rights of primacy for the Class VI
portion of the UIC program.

Response: Comments on existing UIC regulations, such as the Class VI
requirements, are outside the scope of this rulemaking. 

Comment 3.22.12:

We believe it is unnecessary to require transporters, pipeline owners
and operators to certify that they meet the conditions of the proposed
exclusion (FR 76 48087). Transport through pipelines or by other means,
must meet applicable transport requirements for all materials moved, and
certification that they meet these requirements only for a specific
material (i.e., CO2 to be sequestered) provides no additional protection
and is unnecessary.

We do not believe it is necessary to have transporters or pipeline
operators certify that they meet the conditions of the proposed
exclusion for CO2. Only the operator for the Class VI well should have
to certify the conditions of the proposed conditional exclusion for CO2.

The regulations for Class VI wells as well as the DOT regulations under
49 CFR 195 provide extensive requirements for monitoring, recordkeeping,
and reporting. We believe no new requirements are necessary other than
the exclusion certification and compliance with the conditions set
forth.

Response: Regarding the comment that a certification is not necessary
for transporters or pipeline owners, see Response to Comment 3.2.39.

EPA acknowledges the comment that additional monitoring, recordkeeping,
and reporting requirements are not necessary under the final conditional
exclusion because “regulations for Class VI wells as well as the DOT
regulations…provide extensive requirements for monitoring,
recordkeeping and reporting.” 

EPA disagrees with the commenter, however, that only the UIC Class VI
well operator need sign a certification under the conditional exclusion,
and EPA is retaining in the final rule that a certification from the CO2
generator be signed (where they choose to use the conditional
exclusion).  This is because the generator plays a key role in the
transaction of sending the CO2 stream to the off-site UIC Class VI well
(assuming the injection is not on-site).  They are most knowledgeable
about the characteristics of their CO2 stream, they are in the position
to arrange for delivery of the CO2 stream to a UIC Class VI well, and
are also in the position to know whether any hazardous waste has been
mixed with the CO2 stream while at their facility.  These are conditions
of the exclusion that the generator would be able to confirm have been
met, and therefore the certification is appropriate.

Comment 3.22.13:

We agree that EOR is outside the scope of this rule.  Thanks again for
the opportunity to forward these comments.

Response:  As the commenter notes, issues surrounding EOR itself are
outside the scope of this rulemaking.  

Chevron

Document ID: EPA-HQ-RCRA-2010-0695-0064

Comment 3.23.1:

Chevron has been in operation for more than 130 years. We are vertically
integrated with operations that range from oil and gas production to
power generation to refining and marketing of transportation fuels. We
believe that all feasible energy alternatives will be needed for the US
economy to grow and prosper. As reduction of greenhouse gas emissions
becomes a governmental priority, carbon capture and sequestration (CCS)
is one part of a portfolio of emerging energy technologies that may help
manage carbon in the future. Chevron supports continuing research and
development of CCS and is participating in many joint
industry-government partnerships aimed at reducing the cost of carbon
dioxide (CO2) capture and doing so in a manner that is protective of
human health and the environment. 

While we appreciate EPA’s efforts to provide regulatory clarity to the
status of CCS under the Resource Conservation and Recovery Act (RCRA) by
proposing to conditionally exclude CO2 streams destined for geologic
sequestration from regulation as a “hazardous waste,” we believe
that the proposal does not go far enough to reduce regulatory
uncertainty. The proposed exclusion is predicated on a conclusion -
which we believe to be inaccurate - that supercritical CO2 being
sequestered in geologic formations is a “solid waste” because it is
being “discarded,” as those terms are defined and interpreted under
RCRA. We believe this conclusion deviates fundamentally from years of
RCRA precedent and is at odds with Congressional intent underlying
enactment of the law.

Response: With respect to the comment, “the proposal does not go far
enough to reduce regulatory uncertainty” see Response to Comment
3.2.3. 

Regarding the comments that CO2 is not a solid waste, not discarded, and
that this conclusion deviates from RCRA precedent and Congressional
intent, see Responses to Comments 3.2.1, 3.2.2, and 3.1.1 through 3.1.8.

Comment 3.23.2:

RCRA was never intended to address continuously emitted gaseous streams
such as CO2 even if they are captured, condensed and temporarily
“contained” in pipelines or other transport mechanisms as part of a
strategy to prevent their release to the atmosphere. The regulations
that were developed under RCRA are alien to this technology, and we
believe EPA’s attempt to “fit” CCS into that existing regulatory
paradigm is tantamount to trying to fit a square peg into a round hole.
For example, the analytical methods that were developed to identify
characteristic hazardous wastes are not suitable for analysis of gaseous
materials, including gases that exist for some transient period of time
in a supercritical state. Similarly, the RCRA management requirements
contemplate tangible wastes that can be physically picked up, moved
around, placed on the ground, treated in treatment systems, or disposed
of in landfills. None of these attributes is directly applicable to the
processing and injection of bulk CO2 streams.

Response: EPA disagrees with the comment; RCRA expressly applies to
“solid wastes,” which EPA has explained elsewhere includes CO2
streams sent to a UIC Class VI well for purposes of GS.  

EPA also disagrees that the “attributes” of the RCRA regulations
cited by the commenter necessarily lead to the conclusion that
supercritical CO2 cannot be defined as a RCRA statutory solid waste or
that it cannot be defined as a RCRA hazardous waste. The RCRA
regulations apply by their terms.  As already discussed elsewhere in
this comment response document and in the final rule preamble, EPA finds
that supercritical CO2 streams, when sent to UIC Class VI wells for
purposes of GS, are not only RCRA “solid wastes,” but also may be
RCRA hazardous wastes.

See also Responses to Comments in Section 3.1 of this document.

Comment 3.23.3:

In addition, the general custody concepts underlying RCRA are ill-suited
to supercritical CO2 transport by pipeline. In this regard, we note that
the proposed exclusion would apply at the point where a decision is made
to send the CO2 to a UIC Class VI well.” [FN1: 76 Fed. Reg. at 48086.]
However, CO2 streams have multiple purposes including, most notably, use
as an enhanced recovery fluid in oil and gas operations. Thus, streams
from multiple sources, with different intended end uses, can be and
often are co-managed in a single pipeline system. These gases from
different sources and with different end uses are miscible, resulting in
a regulatory morass if any component of the combined stream is viewed as
a “solid waste” simply because it is destined for geologic
sequestration as opposed to enhanced recovery or some other use as a
product. EPA’s own preamble is replete with examples of the types of
problems and uncertainties that will inevitably arise.

Response:  See responses to comments 3.2.3, 3.2.4., and 3.2.6. 

Comment 3.23.4:

We do not believe that EPA’s offhand comment in Footnote 16 that
“the proposed rule is not intended to affect the status of CO2 that is
injected into wells other than UIC Class VI wells . . . [such as] CO2
that is used for enhanced oil or gas recovery,”[FN2: 76 Fed. Reg. at
48078 n. 16.] provides the necessary level of assurance to enhanced
recovery (ER) [FN3: Enhanced recovery means enhanced recovery of
hydrocarbons such as oil or natural gas.] operators or other segments of
the business community that may be using CO2 streams for industrial
purposes. In short, Footnote 16 begs the question as to the regulatory
status of CO2 used for purposes other than geologic sequestration.
Today, ER operators using Class II wells are the largest immediate
customers of CO2 capturers and they currently handle CO2 as a valuable
product. If CO2 streams are generically classified as “solid
wastes,”CO2 destined for ER operations would need to be evaluated to
determine whether it exhibits a characteristic of hazardous waste before
it could be shipped to ER customers. Conversely, these same capturers
would have no such obligation if their CO2 streams were destined for
Class VI injection well customers. This disparity will surely create
regulatory confusion and administrative nightmares. And, as the
regulatory burdens would be greater for ER customers, the result may be
that capturers would be unwilling to sell to ER customers, adversely
impacting CO2 supplies to ER customers and thereby undermining both ER
and CCS operations.

Response: EPA does not, through this RCRA rulemaking, generically
classify as solid wastes CO2 streams destined for EOR/EGR operations.
See response to comment 3.2.4.

Comment 3.23.5:

There is a much more straightforward solution to this problem. In our
view, EPA should exercise its statutory authority to exclude all CO2
streams from classification as a “solid waste” under RCRA. Over the
years, EPA has adopted many conditional exclusions from the definition
of “solid waste” where such exclusions make good policy sense and
can be implemented without significant risk to human health or the
environment. This is exactly such a case. Each of EPA’s stated reasons
for proposing to exclude CO2 streams destined for geological
sequestration from regulation as a “hazardous waste” is equally
applicable to an exclusion from regulation as a “solid waste.” And,
the same conditions that EPA proposes to attach to the hazardous waste
exclusion can be attached to the solid waste exclusion and will
adequately protect human health and the environment. We believe this
alternative approach is warranted for the following reasons:

*Regulation of CO2 streams, whether in an ambient gaseous or
supercritical state, was never intended to fall under RCRA and the
regulatory framework applicable to management of hazardous wastes is not
germane to these types of materials.

* Excluding CO2 streams from regulation as a “solid waste” under
RCRA will eliminate all uncertainty about the potential applicability of
RCRA to CCS activities or other uses of CO2 (for example, as an enhanced
recovery fluid in oil and gas operations), without sacrificing any
protection of human health and the environment

*For the reasons stated above, we believe that EPA should exclude all
CO2 streams as solid waste, by enacting the following section as a new
§ 261.4(a)(26): [FN4: Suggested additions are {capitalized}.]

(a) Materials which are not solid wastes.

* * *

(26) CARBON DIOXIDE STREAMS INJECTED FOR ENHANCED RECOVERY OR GEOLOGIC
SEQUESTRATION. CARBON DIOXIDE STREAMS AS DEFINED IN 40 CFR § 146.81(D)
ARE NOT SOLID WASTE WHEN CAPTURED AND TRANSPORTED FOR PURPOSES OF
INJECTION INTO AN UNDERGROUND INJECTION WELL SUBJECT TO THE REQUIREMENTS
FOR CLASS II OR 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, PROVIDED THAT
THE CO2 STREAM HAS NOT BEEN INTENTIONALLY MIXED WITH HAZARDOUS WASTE
REGULATED UNDER THIS PART OR OTHERWISE COINJECTED WITH HAZARDOUS WASTE
UNLESS SPECIFICALLY AUTHORIZED UNDER THE UIC PROGRAM.

We wish to point out that we have purposefully limited the scope of our
proposed solid waste exclusion to CO2 streams that are used for ER or
geologic sequestration, both of which involve underground injection. We
have limited the exclusion in this manner because we believe CO2 streams
that are manufactured and used as products in a myriad of industrial or
commercial applications cannot be viewed as “solid waste” under any
reasonable interpretation of the law. Accordingly, we do not believe it
is necessary to establish an all-encompassing, generic exclusion for CO2
streams, and are focusing on those that are destined for underground
injection. 

Thank you for this opportunity to provide comments, if you have any
questions regarding our comments please contact us.

Response:  Please see Response to Comment 3.1.1, 3.1.5, 3.1.18 and
3.2.2.

Texas Oil and Gas Association (TxOGA)

Document ID: EPA-HQ-RCRA-2010-0695-0067

Comment 3.24.1:

Texas Oil and Gas Association (TxOGA) is the largest and oldest
petroleum organization in Texas, representing over 4,500 members. The
membership of TxOGA produces in excess of 90 percent of Texas' crude oil
and natural gas, operates nearly 100 percent of the state's refining
capacity, and is responsible for the vast majority of the state's
pipelines. According to the most recent data, the oil and gas industry
employs 315,000 Texans, providing payroll and benefits of over $30
billion in Texas alone. In addition, large associated capital
investments by the oil and gas industry generates significant secondary
economic benefits for Texas. TxOGA member companies produce a quarter of
the nation's oil, a third of its natural gas and account for one-fourth
of the U.S. refining capacity.

We support the comments and recommendations submitted by the American
Petroleum Institute (API) relating to the Proposed Rule on Hazardous
Waste Management System: Identification and Listing of Hazardous Waste:
Carbon Dioxide Streams in Geologic Sequestration Activities.

Response: EPA acknowledges the comment; please refer to EPA’s
responses to API’s comments in Section 3.1 of this document.

Comment 3.24.2:

The Clean Air Act provides mechanisms to protect human health and the
environment from carbon dioxide (CO2) streams and the Class VI
Underground Injection Control (UIC) rules protect underground sources of
drinking water from CO2 streams.

As detailed in the API comments, additional Resource Conservation and
Recovery Act (RCRA) regulation is redundant and we believe it will
undermine beneficial uses of CO2 streams for carbon capture and
sequestration and enhanced recovery. Therefore, we join API in
recommending that EPA enact an exclusion of all CO2 streams from the
RCRA definition of solid waste. Should you have any questions concerning
these comments please contact me at (see docket for contact
information).

Response: Please see Responses to Comments 3.1.1 through 3.1.18.

Florida Department of Environmental Protection (DEP)

Document ID: EPA-HQ-RCRA-2010-0695-0059

Comment 3.25.1:

There are numerous wells permitted for carbon sequestration that are not
going to be Class VI wells but will initiate or continue carbon
sequestration under Class I, II, or V (experimental) status. The only
part of this proposed rule that addresses carbon sequestration through
wells other than Class VI status is a footnote at the bottom of the
middle column on p. 48089 of the notice. That footnote only states that
wells permitted as Class II and Class V experimental can transition to
Class VI wells. It is appropriate to include any class of well being
used for carbon sequestration in this proposed rule and not limit it to
only Class VI wells. Use of classes other than Class VI will achieve the
same goal as Class VI wells, namely to remove carbon from potential air
pollutants and instead sequester it underground. Failure to include
other classes of wells leaves the well owner and the permitting
authority open to legal challenges as to a hazardous waste determination
of the carbon dioxide.

Response: See response to comment 3.1.11. As the commenter has correctly
noted, this conditional exclusion only applies to carbon dioxide streams
injected into Class VI wells for purposes of GS, and only when the
conditions of 40 CFR 261.4(h)(1) through (4) are met. While the
requirements for each UIC injection well class address the specific
practices and unique risks to USDWs posed by a specific well class, the
Class VI requirements are tailored to the unique aspects of carbon
dioxide injection for GS (e.g., large CO2 injection volumes, the buoyant
and mobile nature of the Injectate, etc.) and EPA developed its RCRA
conditional exclusion based upon injection in a UIC Class VI well.  EPA
does note that nothing in the conditional exclusion would prevent a
Class VI well, that had previously transitioned from a Class II well,
from being eligible for the RCRA conditional exclusion.

Joyce Dillard

Document ID: EPA-HQ-RCRA-2010-0695-0081

Comment 3.26.1:

What are the criteria for Injection wells and related pipelines for
solid waste carbon sequestration injection such as we have in the City
of Los Angeles Terminal Island Renewable Energy Project-Class V
Experimental?

Methane is a concern, if we are correct. You would want a manifest
regarding its transportation movement, in case of an explosion.

How are this gas and its related dangerous gases considered without
being defined as hazardous and appear to be exempt from regulations
around the term “hazardous.” 

There is a potential market for the gas created via delivery through a
pipeline to a neighboring refinery, as energy.

Dewatering may be a problem and how will that be addressed, if
applicable.

Being sequestered in or around faults, what is the effect of an
earthquake or natural disaster?

What consideration is being made for heavily populated areas?

As a citizen viewing this, we want that oversight to include our Public
Health and Safety concerns.

Response:  This commenter has identified the City of Los Angeles
Terminal Island Class V Experimental Well, and all of their comments
appear to be associated with this particular facility, which is a
biosolids injection well.  EPA notes that this well is a Class V
Experimental well, and it is therefore outside the scope of this
rulemaking.  EPA further clarifies that while carbon (in situ)
sequestration is identified in the Class V permit for this facility as
an aspect that could be quantified, other in situ, quantifiable
attributes specific to the permit are identified (e.g., slurry
placement, biodegradation rates, carbon dioxide and methane separation,
carbon sequestration and saturation in formation brine, free gas
migration, commercial methane production potential and timeframes).  EPA
refers this commenter to the appropriate website for regarding this
facility, including a copy of the permit, related public comments and
EPA’s responses, and additional information on this facility:

http://www.epa.gov/region9/water/groundwater/uic-permits.html#la.  

Finally, EPA notes that the requisite Class V injection well
requirements can be found at 40 CFR 144 through 146.  However, because
of the unique experimental aspects of this permit, requirements specific
to this permit also include requirements and standards found in Class I
(non-hazardous) portions of these regulations.

Anonymous 1

Document ID: EPA-HQ-RCRA-2010-0695-0058

Comment 3.27.1:

This proposal generally appears to further the goals of the EPA and
promote efficiency within the Agency. The implementation of this rule
would promote the ability of the EPA to promote human health and
environmental cleanliness, while simultaneously ensuring that the EPA
does not overstep its bounds by regulating and monitoring sources of CO2
that do not pose such risks. It thus seems beneficial for the EPA to
adopt this rule.

Response: EPA acknowledges the comment and is finalizing the rule.

Anonymous 2

Document ID: EPA-HQ-RCRA-2010-0695-0069

Comment 3.28.1:

Regarding the statements on p 48078 (2nd column) that: (1) “CO2
streams are not listed RCRA hazardous wastes” but that such streams
would be so listed if “mixed with a listed hazardous waste” via
261.3(a)[2](iv), and (2) the CO2 streams addressed in this proposal
“are not included within the Bevill exemption under 261.4(b)(4)”: My
understanding of the 261.4(b)(4) “fly ash” exclusion is that it is
permissible for fuel consisting of up to 50% listed hazardous waste to
be burned in a qualifying boiler [as per 266.112(a)(1)]. It is also our
understanding that, under EPA’s 261.3(c)(2)(i) “derived-from”
rule, any non-Bevill-exempt residuals derived from such burning must
take on the same listed waste codes as that of the hazardous waste fuel.
As a consequence, it would appear that condensed CO2 obtained from the
burning of the listed hazardous waste fuel would be required, under
these two EPA provisions, to take on the same listed waste codes as the
hazardous waste fuel (unless the proposed exclusion were to apply). Am I
correct in my analysis that, under EPA’s regulations, the condensed
CO2 is in fact a “residual” for purposes of EPA’s 261.3(c)(2)(i)
“derived-from” rule? [FN1: Or potentially EPA does not consider the
condensed CO2 to be a residual subject to the derived-from rule because
it was briefly an uncontained and uncontainerized gas and therefore
perhaps not a solid waste as defined in RCRA’s 1004-27 (p 48077, 3rd
col of the proposal). Or potentially EPA does not consider the hazardous
waste fuel components to have partitioned to residuals, analogous to its
position for products produced by industrial furnaces. (Aug 17, 1988, p
31127)]. 

Response: The most common CCS scenario contemplated as EPA developed the
proposed rule was coal-fired power plants (e.g., “While CCS can be
applied to a variety of stationary sources of CO2, its application to
coal-fired power plant emissions offers the greatest potential for GHG
reductions.”  Executive Summary: Report of the Interagency Task Force
on Carbon Capture and Storage, August 2010, p.1).  The commenter is
requesting that EPA confirm whether any of several interpretations
(offered by the commenter) of the RCRA hazardous waste regulations
correctly apply to a hypothetical scenario.  While EPA notes generally
that it has authority under RCRA subtitle C (e.g., RCRA 3004(n)) to
regulate air emissions from the combustion of hazardous waste, EPA lacks
sufficient information to conclude whether and if so at what point the
captured CO2 may or may not be designated a listed hazardous waste when
listed hazardous waste is part of the boiler fuel.  The Agency
emphasizes that it is not aware of any coal-fired power plants that burn
listed hazardous waste, and such facilities would be required to have a
RCRA hazardous waste boiler permit.

Anonymous 3

Document ID: EPA-HQ-RCRA-2010-0695-0070

Comment 3.29.1:

Additional Comment on 8/8/2011 proposed Hazardous Waste Exclusion for
sequestered carbon dioxide Regarding the statement on p 48078 (3rd col)
that the TCLP test method requires the measurement of total constituents
concentrations (as opposed to measurement of the extract) in situations
“where wastes are liquids that contain less than 0.5% solids”: It is
my understanding that such a “totals” analysis would require an
analysis of the entire sample including the solids, whereas a TCLP
analysis would require that the sample first be filtered -- with the
filter residue discarded and not analyzed -- since the filtered waste
“is defined as the TCLP extract.” (Method 1311 at 2.1 and 7.2.5)
This could lead to significantly different analytical results. For
example, a sample consisting of water and 4999 mg/L silver metal flake
would show a “totals” silver concentration of 4999 ppm, but a TCLP
concentration of near zero (depending on the solubility of silver metal
in water). As a result, I would like to respectfully suggest that the
above preamble statement be amended to state that a measurement of total
constituent concentrations in a waste is required by the TCLP test
method “WHERE WASTE ARE ENTIRELY LIQUIDS.” Without this amendment,
generators and regulators could incorrectly classify wastes with less
than 0.5% solids (but more than 0%) as hazardous waste when in fact they
may not be.

Response: EPA clarifies that its description at 76 FR at 48078, cited by
the commenter, could have been clearer (i.e., EPA should have more
clearly indicated that where liquid samples contain less than 0.5%
solids, the totals analysis is performed on the filtrate, not the
unfiltered waste).  However, EPA notes that this same preamble text
contained a footnote to the correct analytical method (Part 2.1 of
Method 1311), which clearly describes the procedure to which EPA was
referring.   EPA thus clarifies that the totals analysis referred to in
the preamble is as described in Part 2.1 of the protocol, which calls
for totals testing of the filtrate of wastes containing less than 0.5%
solids, and in these instances, the solids are not tested.



Appendix A: Substantive Data Received from Commenters

Below are tables from Comment Letter EPA-HQ-RCRA-2010-0695-0063 from
American Electric Power. AEP was the only commenter to provide CO2
stream data with its comment. 



 See Executive Summary, Report of the Interagency Task Force on Carbon
Capture and Storage, August 2010.

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#elines. ASME publishes its standards, accredits users of standards to
ensure that they are capable of manufacturing products that meet those
standards, and provides stamps that accredited manufacturers place on
their products, indicating that a product was manufactured according to
a standard.

 Cass R. Sunstein, Informational Regulation and Informational Standing:
Akins and Beyond, 147 U. Pa. L. Rev. 613, 613 (1999).

 Memorandum for the Heads of Executive Departments and Agencies –
Disclosure and Simplification as Regulatory Tools (Cass R. Sunstein,
OMB; June 18, 2010).
http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclos
ure_principles.pdf

 Identical to Docket ID EPA-HQ-RCRA-2010-0695-0056.

	i		

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