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

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

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

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

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

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

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

Comment 3.8.6:

Contours of Conditional Exclusion

Incidental Associated Substances

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

[T]oday's conditional exclusion would apply to CO2 streams that are
otherwise RCRA hazardous wastes .... EPA intends ... that it is clear
that both RCRA hazardous CO2 streams (that are excluded when managed
pursuant to the terms of today' s proposed conditional exclusion) and
nonhazardous CO2 streams may be injected into a UIC Class VI well. [FN6:
Proposed rule, 76 Fed. Reg. 48073, at 48088].

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

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

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

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

A RCRA hazardous CO2 stream that does not meet the conditions of this
rule would need to be managed as a RCRA hazardous waste, and, if well
injection is selected as the means of disposal, injected into a UIC
Class I hazardous well. EPA acknowledges that there would be
implications to changing the regulatory status of a UIC Class VI well to
that of a UIC Class I hazardous well.  See Responses to Comments 3.8.7
and 3.21.3.

Comment 3.8.7:

Paperwork and other Minor Violations

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

Failure to meet the conditions [of the proposed rule] results in the
loss of the exclusion. As proposed, a violation of a condition at any
point in the management of a CO2 stream would result in that CO2 stream
being subject to all applicable subtitle C requirements, from the point
of generation. [FN7: Id. at 48087].

Among the conditions that must be maintained is a requirement that
"[i]njection of the carbon dioxide stream must be in compliance with the
applicable requirements for Class VI Underground Injection Control
wells, including the applicable requirements in 40 C.F.R. parts 144 and
146.” [FN8: Id. at 48093]. The requirements of these parts encompass
dozens of pages of regulatory text and hundreds of individual
requirements (many subject to interpretation of the EPA or the State,
whichever may be implementing the program), including recordkeeping and
reporting requirements, and others the violation of which may have no
consequence to safety.

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

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

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

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

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

Comment 3.8.8:

Overbroad Certification Requirement

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

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

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

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

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

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

Comment 3.8.9:

Potential Applicability of CERCLA

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

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

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

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

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

Comment 3.8.10:

Conclusion

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

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

State of Utah

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

Comment 3.9.1:

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

Response: EPA acknowledges the comment.

Comment 3.9.2:

The Department of Environmental Quality, Division of Water Quality is
supportive of the rule change and offers one singular comment for your
consideration: The conditional exclusion should extend to Class V
Experimental Technology CO2 wells for DOE's Phase III pilot projects.
See foot note 54. Since EPA has made the following statement with regard
to Class VI wells, "EPA is taking this action because the Agency
believes that the management of these CO2 streams under the proposed
conditions does not present a substantial risk to human health or the
environment, and therefore additional regulation pursuant to RCRA's
hazardous waste regulations is unnecessary" (see Summary at the top of
the Federal Register Notice), the statement must surely apply to Class V
Experimental Technology CO2 wells.

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

Comment 3.9.3:

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

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

Response: EPA acknowledges the comment.

National Mining Association (NMA)

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

Comment 3.10.1:

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

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

Response: EPA acknowledges the comment.

Comment 3.10.2:

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

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

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

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

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

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

Comment 3.10.3:

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

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

Comment 3.10.4:

Assuming for purposes of argument that CO2 streams captured, transported
and injected for geologic sequestration are a “solid waste,” the
next step in the analysis is whether the CO2 streams are a “hazardous
waste.” [FN1: EPA acknowledges that “no hazardous waste listings
apply specifically to CO2 streams” and that “a CO2 stream could only
be defined as a hazardous waste if it exhibits a hazardous waste
characteristic as defined in 40 CFR part 261, subpart C.” 76 Fed. Reg.
at 48,078-79. EPA acknowledges that there are issues with testing CO2
streams to determine whether they exhibit the hazardous waste toxicity
characteristic. Id. at 48,078]. EPA acknowledges that it “has little
information to conclude that CO2 streams would qualify as RCRA hazardous
wastes.” 76 Fed. Reg. at 48,079. Despite this acknowledgment, EPA
proposes to move forward with this conditional exclusion in order to
“substantially reduce the uncertainty associated with defining and
managing these CO2 streams under RCRA subtitle C.” Id.

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

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

Comment 3.10.5:

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

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

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

Comment 3.10.6:

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

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

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

Comment 3.10.7:

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

Response: EPA acknowledges the comment.

Texas Pipeline Association (TPA)

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

Comment 3.11.1:

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

Response: EPA acknowledges the comment.

Comment 3.11.2:

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

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

Comment 3.11.3:

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

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

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

Accordingly, TPA suggests the following revisions to implement the
preceding comments: "Carbon dioxide stream means carbon dioxide that has
been captured from an emission source OR SOURCES (e.g., power plant),
plus <incidental> associated substances derived from the source
materials and the capture process, and any substances added to the
stream to enable or improve the injection process."

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

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

Comment 3.11.4:

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

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

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

Comment 3.11.5:

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

Response: EPA acknowledges the comment.

Western Business Roundtable

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

Comment 3.12.1:

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

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

ABOUT THE ROUNDTABLE

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

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

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

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

Response: EPA acknowledges the comment.

Comment 3.12.2:

IMPORTANCE OF CCS

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

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

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

* The effectiveness of sequestration and storage options;

* Hurdles to the efficient implementation of those options;

* CO2 transportation system challenges; and

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

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

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

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

Response: EPA acknowledges the commenter’s support for CCS.  The
commenter raises several points regarding the importance of CCS and
factors that can contribute to the successful development of CCS.  EPA
agrees with the overall conclusion that CCS is indeed an important tool
in reducing GHG emissions and mitigating climate change. While many of
the commenter’s specific points are beyond the scope of this instant
rulemaking, EPA agrees with the commenter that regulatory certainty is
important to facilitate future deployment of CCS.  EPA believes this
rule will substantially reduce the uncertainty associated with
identifying these CO2 streams under RCRA subtitle C, and will also
facilitate the deployment of GS by providing additional regulatory
certainty.

Comment 3.12.3:

We appreciate EPA’s statement that Agency “believes that the
management of these CO2 streams under the proposed conditions does not
present a substantial risk to human health or the environment, and
therefore additional regulation pursuant to RCRA's hazardous waste
regulations is unnecessary.”

EPA expects that this amendment will “substantially reduce the
uncertainty associated with identifying these CO2 streams under RCRA
subtitle C, and will also facilitate the deployment of GS by providing
additional regulatory certainty.” [FN2: Id.].

Response: EPA acknowledges the comment.

Comment 3.12.4:

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

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

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

Response: See comment 3.12.2.

Comment 3.12.5:

RECOMMENDATIONS

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

Exclude CO2 Streams From the Definition of “Solid Waste”

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

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

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

Comment 3.12.6:

Such an action is appropriate because:

* CO2 Provides Beneficial Uses

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

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

Response:  See response to comment 3.2.2.

Comment 3.12.7:

* RCRA is Poorly Suited to Regulate CCS CO2 Streams

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

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

Comment:

* CO2 Streams Are Not “Solid Wastes”

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

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

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

Comment 3.12.9:

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

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

Comment 3.12.10:

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

Response: See Responses to Comments 3.1.8, and 3.2.2.

Comment 3.12.11:

*CO2 Streams Are Not Hazardous

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

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

Comment 3.12.12:

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

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

Comment 3.12.13:

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

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

Comment 3.12.14:

Avoid Duplicative Recordkeeping Requirements

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

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

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

Comment 3.12.15:

CONCLUSION

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

Response: EPA acknowledges the comment.

Greater Houston Partnership (GHP)

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

Comment 3.13.1:

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

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

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

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

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

Comment 3.13.2:

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

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

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

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

 North American Carbon Capture & Storage Association (NACCSA)

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

Comment 3.14.1:

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

About NACCSA

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

Response: EPA acknowledges the comment.

Comment 3.14.2:

Executive Summary

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

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

Response: See response to comments 3.1.1 and 3.1.2.

Comment 3.14.3:

Specific Comments

EPA proposes to "conditionally" exclude “CO2 streams”, [FN3: EPA
explains that a "Carbon dioxide (CO2) stream" is “Carbon dioxide that
has been captured from an emission source (e.g., power plant), plus
incidental associated substances derived from the source materials and
the capture process, and any substances added to the stream to enable or
improve the injection process." 76 Fed.Reg. at 48075.] that "are
hazardous from the definition of hazardous waste, provided these
hazardous CO2 streams are captured from emission sources, are injected
into Class VI [UIC] wells for purposes of geologic sequestration ... and
meet certain other conditions." 76 Fed. Reg. at 48074. EPA explains that
it is taking this action because it "believes that the management of
these CO2 streams under the proposed conditions does not present a
substantial risk to human health or the environment, and therefore
additional regulation pursuant to RCRA's hazardous waste regulations is
unnecessary." Id. EPA notes that the conditional exclusion will provide
additional regulatory certainty.

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

Response: See response to comment 3.1.3.

Comment 3.14.4:

A. CO2 Streams Are Not "Wastes"

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

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

Response: See Responses to Comments 3.1.4 and 3.1.5.

Comment 3.14.5:

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

Response: See Responses to Comments 3.1.5 and 3.12.7.

Comment 3.14.6:

B. CO2 Streams Are Not "Solid Wastes"

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

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

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

Response: See Responses to Comments 3.1.6 and 3.1.7.

Comment 3.14.7:

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

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

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

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

Response: See response to comment 3.1.7.

Comment 3.14.8:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comment 3.14.9:

C. CO2 Streams Are Not "Hazardous Wastes"

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

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

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

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

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

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

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

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

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

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

Comment 3.14.10:

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

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

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

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

Response: See Response to 3.1.10.

Comment 3.14.11:

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

We do not understand why EPA proposes to make the conditional exclusion
subject to the additional requirement that no hazardous wastes may be
mixed with, or otherwise co-injected with, the CO2 stream, given that
those activities are already barred under the UIC Class VI rule.[FN46:
Id. at 48086.]

EPA states that the conditional exclusion may be lost at any time, a
situation which may serve to substantially weaken the exclusion's
salutary effects given that the Agency appears to be holding out the
potential for down-hole formation of carbonic acid at some future date
in a storage facility's lifetime [FN47: Id. at 48087.]:

“Failure to meet the conditions results in the loss of the exclusion.
As proposed, a violation of a condition at any point in the management
of a CO2 stream would result in the CO2 stream being subject to all
applicable subtitle C regulatory requirements, from the point of
generation.”

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

Response: EPA acknowledges the commenter’s agreement with EPA’s
finding that the UIC Class VI rule provides a comprehensive management
regime for CO2 streams, such that management of CO2 streams in
accordance with these requirements and other conditions, does not
present a substantial risk to human health and the environment,
therefore additional regulation under RCRA is unnecessary, and that CO2
streams subject to the conditional exclusion would not be subject to
RCRA's land disposal restrictions or separate provisions regarding
corrective action. See Responses to Comments 3.1.11 - 3.1.13.

Comment 3.14.12:

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

The conditional exclusion is premised on a linear model of CCS
operations under which a single source delivers CO2 to a single
transporter (expected to be a pipeline) who in turn delivers the CO2 to
a site owner/operator. While that scenario may apply in some
circumstances, it is equally likely that one or more sources may be
delivering CO2 into the same pipeline, which in turn will deliver the
CO2 to a storage site that receives and stores CO2 from multiple
sources. That storage site may also already hold, or accept for
delivery, volumes of natural CO2. [FN48: This situation further supports
our position that RCRA was never intended to apply to CCS.] Since CO2
streams will be commingled, and CO2 molecules are identical, this sets
up a “Superfund-esque" situation under which all parties, even the
innocent, have the potential of being held liable. And unlike Superfund,
where at least there is the hope of finding labels on drums to identify
sources and parties, no such hope exists for commingled CO2 molecules,
particularly after they have already been injected into the subsurface.
[FN49: EPA's approach also assumes a simplistic, unitary model of
pipeline operation and regulation that is unlikely to apply in initial
projects. Experts have identified three models of pipeline operation and
regulation - one premised exclusively on deep saline injections, another
premised exclusively on EOR, and a “hybrid" model that supports both
(and potentially other) uses. Commercial operations under each model are
expected to be unique, with deep saline pipelines having an “upstream"
focus and EOR pipelines having a “downstream" focus. Marston P., "From
EOR to CCS: The Evolving Legal and Regulatory Frame work for Carbon
Capture and Storage," 29 Energy Law J. 421,463-465 (2008). EPA's
proposal adds to this already confusing framework a new consideration -
is the material being transported and commingled with other CO2 a
“solid waste" or "hazardous waste"?]

Response: See response to comments 3.1.14, 3.2.3 and 3.2.4.

Comment 3.14.13:

EPA states that the conditional exclusion only applies to "CO2 streams"
that have been captured for purposes of “geologic
sequestration."[FN50: 76 Fed. Reg. at 48086.] EPA never explains how
that purpose is to be determined, an ambiguity that could negatively
impact concurrent EOR/storage. The Agency explains that [FN51: Id. at
48078 n. 16.]:

“The proposed rule is not intended to affect the status of CO2 that is
injected into wells other than UIC Class VI wells. For example, CO2 that
is used for enhanced oil or gas recovery (EOR/EGR) in other than UIC
Class VI wells, where some sequestration may occur in the process of
recovering gas or oil, is beyond the scope of this proposal.”

This limitation provides no regulatory clarity for UIC Class II
concurrent EOR/storage projects that qualify for the risk-based factor
test of 40 C.F.R. § 144.19 under the UIC Class VI rule which allows
sequestration to occur under Class II if there is no increased risk to
USDWs. [FN52: 75 Fed. Reg. at 77245.] It is imperative that EPA make
clear either that: (1) the conditional exclusion also applies to EOR
operators under 40 C.F.R. § 144.19, or (2) the RCRA status of EOR
operators under 40 CF.R. § 144.19 is identical to that of
business-as-usual EOR operators under Class II without claims of
sequestration. [FN53: “The agency has decided not to regulate oil and
gas industry exploration and production wastes and mineral extraction
and beneficiation and certain mineral processing under RCRA Subtitle C."
T. Garrett, ed., “The RCRA Practice Manual," at 3.]

Response: See Responses to Comments 3.1.1, 3.1.11, 3.1.15 and 3.6.7.

Comment 3.14.14:

EPA erroneously states that RCRA's § 7003 imminent hazard authorities
would continue to apply under the conditional exclusion.[FN54: 76 Fed.
Reg. at 48088.] For the reasons stated above, "CO2 streams" are neither
solid nor hazardous wastes, so § 7003 - which only applies to solid or
hazardous wastes -- does not apply to CO2 streams. For the same reason,
EPA should clarify that RCRA's citizen suit provision -- § 7002 - also
does not apply to CO2 streams.

Response: See response to comment 3.1.16.

Comment 3.14.15:

We encourage EPA to clarify that CO2 streams subject to the conditional
exclusion also are not subject to Superfund. [FN55: A CERCLA "hazardous
substance" is defined to include all RCRA hazardous wastes, and because
CO2 streams are not hazardous wastes, it is appropriate for EPA, in this
rulemaking, to provide critical regulatory clarity for CCS under the
Superfund statute, too.]

Response: See response to comment 3.1.17.

Comment 3.14.16:

Recommended Regulatory Changes

For the reasons stated above, if EPA elects to continue to pursue the
conditional exclusion route, we suggest that the proposed exclusion in
§ 261.4(h) be revised to read as follows [FN56: The full text of EPA's
proposed conditional exclusion is shown, with suggested additions
underlined and deletions struck.]:

(h) Carbon Dioxide Stream Injected for Geologic Sequestration. Carbon
dioxide streams that are captured and transported for purposes of
injection into an underground injection well subject to the requirements
for Class VI Underground Injection Control wells, including the
requirements of 40 CFR parts 144 and 146 of the Underground Injection
Control Program of the Safe Drinking Water Act, are not a hazardous
waste, provided the following conditions are met.

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

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

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

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

(iv) Any generator of a carbon dioxide stream, and any Class VI
Underground Injection Control well owner or operator, who claims that a
carbon dioxide stream is excluded under paragraph (h)(1) of this
section, must have an authorized representative (as defined in 40 CFR
260.10) sign a certification statement worded as follows:

I certify under penalty of law that the carbon dioxide stream that I am
claiming to be excluded under 40 CFR 261.4(h)(1) meets all of the
conditions set forth in that paragraph.

The signed certification statement must be kept on-site for no less than
three years. The signed certification statement must be made available
within 72 hours of a written request from the Regional Administrator (if
located in an authorized state), or their designee, and shall be renewed
every year by persons claiming the exclusion in 40 CFR 261.4(h). This
yearly renewable of a certification statement under this paragraph means
that an authorized representative must annually prepare and sign a new
copy of the certification statement.

Response: See response to comment 3.1.18.

Comment 3.14.17:

In lieu of addressing the status of CO2 streams under proposed exclusion
in § 261.4(h), even as modified above, which leaves "CO2 streams" as
solid wastes, we recommend instead that EPA make clear that "CO2
streams" are neither solid nor hazardous wastes. The Agency could do so
by promulgating a new § 261.4(a)(26) as follows [FN57: Suggested
additions are {capitalized}.]:

(a) Materials which are not solid wastes.

* * *

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

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

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

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

(IV) ANY GENERATOR OF A CARBON DIOXIDE STREAM, AND ANY CLASS VI
UNDERGROUND INJECTION CONTROL WELL OWNER OR OPERATOR, WHO CLAIMS THAT A
CARBON DIOXIDE STREAM IS EXCLUDED UNDER THIS PARAGRAPH, MUST HAVE AN
AUTHORIZED REPRESENTATIVE (AS DEFINED IN 40 CFR 260.10) SIGN A
CERTIFICATION STATEMENT WORDED AS FOLLOWS:

I CERTIFY UNDER PENALTY OF LAW THAT THE CARBON DIOXIDE STREAM THAT I AM
CLAIMING TO BE EXCLUDED UNDER 40 CFR 261.4(A)(26) MEETS ALL OF THE
CONDITIONS SET FORTH IN THAT PARAGRAPH.

THE SIGNED CERTIFICATION STATEMENT MUST BE KEPT ON-SITE FOR NO LESS THAN
THREE YEARS. THE SIGNED CERTIFICATION STATEMENT MUST BE MADE AVAILABLE
WITHIN 72 HOURS OF A WRITTEN REQUEST FROM THE REGIONAL ADMINISTRATOR (IF
LOCATED IN AN AUTHORIZED STATE), OR THEIR DESIGNEE, AND SHALL BE RENEWED
EVERY YEAR. THIS YEARLY RENEWABLE OF A CERTIFICATION STATEMENT UNDER
THIS PARAGRAPH MEANS THAT AN AUTHORIZED REPRESENTATIVE MUST ANNUALLY
PREPARE AND SIGN A NEW COPY OF THE CERTIFICATION STATEMENT.

Response: See response to comment 3.1.18.

Comment 3.14.18:

Conclusion

NACCSA appreciates the opportunity to submit these comments and welcomes
any requests by the Agency for additional information or comment.

Response: EPA acknowledges the comment.

Edison Electric Institute (EEI)

Document ID: EPA-HQ-RCRA-2010-0695-0080

Comment 3.15.1:

The Edison Electric Institute (EEl) submits the attached comments on
Hazardous Waste Management System: Identification and Listing of
Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic Sequestration
Activities, which was recently proposed by the Environmental Protection
Agency. See 76 Fed. Reg. 48074 (Aug. 8,2011). This proposal would revise
regulations for hazardous waste management under the Resource
Conservation and Recovery Act to conditionally exclude CO2 streams from
the definition of hazardous waste, provided that they are injected into
Class VI Underground Injection Control wells for the purpose of geologic
sequestration.

EEl is the association of shareholder-owned electric companies,
international affiliates and industry associates worldwide. Our U.S.
members serve 95 percent of the ultimate customers in the
shareholder-owned segment of the industry, and represent approximately
70 percent of the U.S. electric power industry. Many of our members have
been and are actively involved in the research, development,
demonstration and deployment of technologies to capture CO2 from
electricity production and inject it into geologic formations for
long-term storage, activities covered by the draft guidance documents.
Carbon capture and storage is a critical element in the full portfolio
of technologies and measures to reduce greenhouse gas emissions.

EEl appreciates the opportunity to provide comments. Questions may be
directed to (see docket for contact information).

Response: EPA acknowledges the comment.

Comment 3.15.2:

COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON THE ENVIRONMENTAL
PROTECTION AGENCY’S PROPOSED RULE ENTITLED HAZARDOUS WASTE MANAGEMENT
SYSTEM: IDENTIFICATION AND LISTING OF HAZARDOUS WASTE: CARBON DIOXIDE
(CO2) STREAMS IN GEOLOGIC SEQUESTRATION ACTIVITIES

The Edison Electric Institute (EEI) [FN1: EEI is the national
association of shareholder-owned electric utilities in the U.S. Our
members represent about 70 percent of the U.S. electric power industry
and serve 95 percent of the ultimate customers in the industry‘s
investor-owned segment.] submits these comments on the proposed
Environmental Protection Agency (EPA or Agency) rule entitled
“Hazardous Waste Management System: Identification and Listing of
Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic Sequestration
Activities.” 76 Fed. Reg. 48073 (Aug. 8, 2011). [FN2: A technical
correction was published on September 9, 2011. 75 Fed. Reg. 55846.]

This proposed rule complements EPA‘s final rule for the Federal
Requirements under the Underground Injection Control Program for Carbon
Dioxide Geologic Sequestration (GS) Wells (the so-called “UIC Class VI
rule”) and associated guidance issued (and still being issued)
thereunder. 75 Fed. Reg. 77230 (Dec. 10, 2010). EEI has actively
participated in EPA‘s development of the UIC Class VI program under
the Safe Drinking Water Act (SDWA). EEI recently submitted consolidated
comments on the following four March 2011 UIC Class VI draft guidance
documents: 1) Site Characterization (EPA 816-D-10-006), 2) Area of
Review (AOR) (EPA 816-D-10-007), 3) Well Construction (EPA 816-D-10-008)
and 4) Plan Development (EPA 816-D-10-012). On February 8, 2011, EEI
submitted comments on the draft guidance regarding financial
responsibility for Class VI wells. EEI submitted comments to the Agency
on October 15, 2009, on the Notice of Data Availability (NODA) and
Request for Comment related to the Agency‘s proposed regulations for
injection and GS of CO2 under the authority of the SDWA UIC program,
issued in July 2008 in Docket No. EPA-HQ-OW-2008-0290, 73 Fed. Reg.
43491 (July 25, 2008). EEI submitted pre-rulemaking comments to the
Agency on May 15, 2008; provided oral and written testimony at EPA‘s
September 30, 2008, public meeting on the proposed rules; and submitted
written comments on December 24, 2008. EEI also provided testimony at
the public hearing on the NODA on September 17, 2009, and participated
in the development of the proposed rule via webinars held in April and
May 2009. These comments and testimony are incorporated by reference
herein.

Response: EPA acknowledges the comment, but notes that EPA made clear in
the proposal that this final rule does not reopen the UIC Class VI rule,
and that EPA would not respond to comments related only to that rule.
Consistent with this, EPA will not provide additional responses to the
Edison Electric Institute’s comments on that rule, and that rule’s
associated guidance.

Comment 3.15.3:

I. Introduction

Carbon capture and storage (CCS) is a critical element in the full
portfolio of options needed not only to reduce CO2 emissions, but also
to ensure continued affordable and reliable electric service to
customers throughout the U.S. EEI thus supports the development of
clear, defensible and appropriately tailored regulatory regimes that
will facilitate development of and investment in CCS technology and
projects while protecting against potential environmental risks.
Clarifying the treatment of geologically injected and sequestered CO2
under the Resource Conversation and Recovery Act (RCRA), which the
Agency is addressing in the instant proposal, is a key element in the
development of this regulatory regime. EEI commends the Agency for
establishing a CCS permitting regime through issuance of the UIC Class
VI program, and appreciates the Agency‘s efforts to provide additional
critical regulatory clarity under RCRA.

II. Executive Summary

EEI supports the conditional exclusion of CO2 streams from RCRA‘s
hazardous waste regulations, but recommends that EPA‘s rule be recast
as an exclusion of CO2 streams from the definition of “solid waste”
because of CO2’s unique properties and uses, coupled with the fact
that CO2 streams are not “discarded.” A failure to clarify that
eligible CO2 streams are not “solid wastes” would leave CCS projects
with unnecessary regulatory uncertainty while doing little to advance
public health and environmental protection, given the rigorous
requirements of the UIC Class VI rule.

If EPA elects to retain the proposed approach of a conditional exclusion
for CO2 streams from RCRA’s hazardous waste regulations, the proposed
regulation should be clarified to remove as much regulatory ambiguity as
possible. In addition, EPA should explicitly address the applicability
of RCRA to concurrent enhanced oil recovery (EOR)/storage under the
provisions of the UIC Class VI rule.

Response: EPA thanks the commenter for its support of the conditional
exclusion.  Regarding the commenter’s suggestion that EPA promulgate a
conditional exclusion from the definition of solid waste (rather than
from the definition of hazardous waste), EPA disagrees and refers the
commenter to response to comments 3.1.1 and 3.1.2.  Regarding the
commenter’s request for clarification on “the applicability of RCRA
to concurrent enhanced oil recovery (EOR)/storage under the provisions
of the UIC Class VI rule” EPA notes that status of CO2 streams
injected into UIC Class II wells for purposes of EOR is discussed in
response to comment 3.1.1.  EPA also reiterates that today’s rule only
applies to CO2 injected into UIC Class VI wells, which would include any
well that has transitioned to a UIC Class VI well under the provisions
of the UIC Class VI rule; that is, nothing in the conditional exclusion
would prevent a Class VI well, that had previously transitioned from a
Class II well, from being eligible for the RCRA conditional exclusion.
EPA would encourage persons to consult with the appropriate regulatory
authority to address any fact-specific questions they may have regarding
the status of CO2 in situations that are beyond the scope of this final
rule.

Comment 3.15.4:

III. Specific Comments

EPA proposes to “conditionally” exclude “CO2 stream” [FN3: EPA
explains that a “carbon dioxide (CO2) stream” is “carbon dioxide
that has been captured from an emission source (e.g., power plant), plus
incidental associated substances derived from the source materials and
the capture process, and any substances added to the stream to enable or
improve the injection process” 76 Fed. Reg. at 48075.] that “are
hazardous from the definition of hazardous waste, provided these
hazardous CO2 streams are captured from emission sources, are injected
into Class VI Underground Injection Control [UIC] wells for purposes of
geologic sequestration … and meet certain other conditions” 76 Fed.
Reg. at 48074. EPA explains that it is taking this action because it
“believes that the management of these CO2 streams under the proposed
conditions does not present a substantial risk to human health or the
environment, and therefore additional regulation pursuant to RCRA‘s
hazardous waste regulations is unnecessary.” Id. EPA expects that the
conditional exclusion will provide additional regulatory certainty,
thereby facilitating CCS deployment. Id.

EEI supports the proposed “conditional exclusion” insofar as it
endeavors, albeit incompletely, to clarify the regulatory regime for CCS
while ensuring stringent protection of human health and the environment.
Nonetheless, the “conditional exclusion” falls short of what is
needed to provide adequate regulatory certainty for industry for the
following reasons.

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

Comment 3.15.5:

A. CO2 Streams Are Not "Wastes"

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

First, in enacting RCRA, Congress never envisioned regulation of a
molecule such as CO2. Compared to other substances or materials
regulated under RCRA, CO2 is unique. It performs a variety of beneficial
and ubiquitous roles in a variety of natural (e.g., uptake by plants)
and industrial (i.e., EOR) functions. Several states already have
declared CO2 to be a "commodity" for these reasons. [FN4: See, e.g.,
Oklahoma S.B. 1610 ("Carbon dioxide is a valuable commodity to the
citizens of the state.").]

Response: See response to comment 3.1.4.

Comment 3.15.6:

Second, and similarly, RCRA was never meant to apply to CCS, and thus
the statute provides a poor tool to regulate the activity. Nothing in
RCRA or its regulations purports to apply to CCS generally or geologic
sequestration specifically. The RCRA model is prospective
“cradle-to-grave” waste management and tracking. CCS, on the other
hand, currently involves the injection of CO2 for beneficial purposes.
Moreover, that activity is envisioned to involve mixed streams of CO2
from multiple sources, with injection of CO2 from multiple sources,
thereby defeating the goal of tracking wastes through manifests and the
like. There also is no standardized test method to evaluate
supercritical CO2. For these and other reasons set forth below, trying
to fit CCS under RCRA is inappropriate.

Response: See response to comments 3.1.5 and 3.12.7.

Comment 3.15.7:

B. CO2 Streams Are Not “Solid Wastes.”

The conditional exclusion is rooted on the unsupported premise that
captured anthropogenic CO2 is a “solid waste.” EPA asserts that a
“supercritical CO2 stream … is a RCRA solid waste, as it is a
‘discarded material’ within the plain meaning of the term in RCRA §
1004(27).” 76 Fed. Reg. at 48077-78. [FN5: Relevant provisions of RCRA
§ 1004(27) define “solid waste” as “other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from … industrial operations ….”] EPA does not offer a
detailed justification for its claim that CO2 streams are
“discarded.” An analysis of how RCRA and its regulations define that
term demonstrates that CO2 streams injected for storage are not
discarded with the meaning of RCRA.

Subtitle C of RCRA, which regulates hazardous wastes, applies only to
“solid waste” that is “hazardous.” [FN6: The RCRA Practice
Manual 2 (T. Garrett ed., ABA 2d ed. 2004).] To be regulated as a
“solid waste,” a material must satisfy three criteria, two of which
are relevant: 1) it must have the physical form of a solid waste, and 2)
it must be “discarded.” [FN7: Id. at 33.] Neither of these criteria
is met here.

Response: See response to comments 3.1.6, 3.1.7, and 3.1.8.

Comment 3.15.8:

1. CO2 streams do not have the physical form of a solid waste.

In relevant part, RCRA defines “solid waste” as “other discarded
material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural
operations ….” 42 U.S.C. § 6903(27) (emphasis added). Supercritical
states of material, such as is relevant for CO2, are not explicitly
listed. Before it is compressed, CO2 is a gas. By “contained gas” in
the definition above, EPA means:

“a gas that is contained in a cylinder or other non-flow-through
containment system. In contrast, an uncontained gas, such as gas flowing
through a pipe, column, or tank, is not a solid waste. Since uncontained
gases are not solid wastes and therefore cannot be hazardous wastes, as
a general matter, units that manage uncontained gases are not regulated
under RCRA. [FN8: Id. at 33-34 (emphasis added).]”

Applying this relatively narrow concept of “contained gas,” it is
clear that a CO2 stream– which at minimum spends part of its life
“flowing through a pipe”—is not a solid waste” because it does
not have the necessary form to be swept up under RCRA’s jurisdiction.
[FN9: The fact that a CO2 stream is not a “contained gas” should not
be interpreted to suggest that geologic storage is not an effective
means of long-term storage, because it is. “Contained gas” is a
regulatory concept only].

Response: See response to comment 3.1.7.

Comment 3.15.9:

2. CO2 streams are not discarded.

RCRA defines “solid waste” as “other discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations ….” 42
U.S.C. § 6903(27) (emphasis added). EPA‘s regulations explain that a
“solid waste” is any “discarded material” that is “not
excluded under § 261.4(a), [FN10: 40 C.F.R. § 261.4(a) excludes
through numerous specific listings “[m]aterials which are not solid
wastes.”] or that is not excluded by a variance granted under §§
260.30 [FN11: Id. at § 260.30 deals with non-waste determinations and
variances from classification as a solid waste.] and 260.31, [FN12: Id.
at § 260.31 sets forth standards and criteria for variances from
classification as a solid waste.] or that is not excluded by a non-waste
determination under §§ 260.30 [FN13: Id. at § 260.30.] and 260.34”
[FN14: Id. at § 260.34 sets forth standards and criteria for non-waste
determinations.], [FN15: Id. at § 261.2 (definition of “solid
waste”) (emphasis and internal footnote references added).] (emphasis
added). A “discarded material,” in turn, is “any material” that
is: 1) abandoned, 2) recycled or 3) considered inherently waste-like.
[FN16: Id. at. § 261.2(a)(2)(i).]

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

*Abandoned. Materials are “solid waste” if they are abandoned by
being: a) disposed of; b) burned or incinerated; or c) “[a]ccumulated,
stored or treated (but not recycled) before or in lieu of being
abandoned by being disposed of, burned, or incinerated.” [FN17: Id. at
§ 261.2(b).]

* Recycled. Materials separately are “solid waste” if they are
recycled–or accumulated, stored, or treated before recycling–if they
fall into one of the following four categories: a) used in a manner
constituting disposal, b) burned for energy recovery, c) reclaimed or d)
accumulated speculatively. [FN18: Id. at § 261.2(c).]

*Inherently waste-like. Specifically identified materials, not including
CO2, also are “solid waste” if they are recycled in any manner, and
thus deemed to be “inherently waste-like materials.” [FN19: Id. at
§ 261.2(d).]

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

Response: See response to comment 3.1.8.

Comment 3.15.10:

3. CO2 streams are not abandoned.

CO2 streams are not burned or incinerated, nor are they “disposed
of.” The “S” in CCS stands for either “storage” or
“sequestration,” neither of which contemplates “disposal.” The
Merriam-Webster Dictionary defines “sequester” as “to set apart,
segregate” or to “seclude, withdraw.” [FN20: See
http://www.merriamwebster.
com/dictionary/sequestered?show=0&t=1315859974.] Synonyms for
“sequestration” include “isolation” and “seclusion.” [FN21:
See http://www.merriam- webster.com/dictionary/sequestration.]
“Disposal,” on the other hand, is defined as the act of
“disposing,” which means “to get rid of.”[FN22: See
http://www.merriam-webster.com/dictionary/disposing.]

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

CO2 that is injected in saline reservoirs under Class VI also is not
“disposed of.” For example, it is conceivable that such CO2 may be
later withdrawn and put to a beneficial, but still
non-atmospheric-emitting, use. Such CO2 also may be used for reservoir
maintenance as part of concurrent long-term storage/desalination
operations, as explained By William Bourcier of Lawrence Livermore
National Laboratory at the August 18, 2010, meeting of the California
CCS Review Panel. [FN23: See
http://www.climatechange.ca.gov/carbon_capture_review_panel/meetings/201
0- 08-18/presentations/01_Bourcier_Cal_CCS-Panel.pdf.]

In addition, transactions of CCS-related offsets credits are made on
various carbon registries, such as the American Carbon Registry. This
activity is inconsistent with the notion of “disposal.”

Finally, it is worth noting that the terms “disposal” and
“dispose” do not appear in any relevant portion of the Class VI rule
or EPA’s preamble to the same.

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

4. CO2 streams are not recycled.

RCRA’s provisions regarding “recycle” are detailed, and none of
them applies to CO2 streams–nor has EPA claimed that this is the case.
[FN24: The fact that CO2 is recycled in EOR operations is not directly
relevant for the RCRA regulatory concept of “recycle.”] In order for
the recycle rules to apply, a material must first be deemed a secondary
material. Among other things, secondary materials do not include
“co-products.” Since in current commercial practice CO2 that is
geologically injected is transacted as a valuable commodity as
“co-products,” the recycle regulations do not apply. [FN25: Seen.6,
supra, at 36.]

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

Response: See response to comment 3.1.8.

Comment 3.15.11:

C. CO2 Streams Are Not “Hazardous Wastes.”

Assuming arguendo that CO2 streams are “solid wastes”–and they are