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