as the conversion of CO2 to useable products and fuels, and other
breakthrough concepts that will mitigate CO2 emissions in areas where
geologic storage may not be an optimal solution. Applicable approaches
include:

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

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

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

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

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

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

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

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

Comment 3.2.12:

EPA NPRM Statements pg 48078

[fn 16 The proposed rule is not intended to affect the status of CO2
that is injected into wells other than UIC Class VI wells. For example,
CO2 that is used for enhanced oil or gas recovery (EOR/EGR) in other
than UIC Class VI wells, where some sequestration may occur in the
process of recovering gas or oil, is beyond the scope of this proposal.]

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

Response:  See responses to Comments 3.2.3 and 3.2.4.

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

Comment 3.2.13:

EPA NPRM Statements pg 48078

[fn 16 The proposed rule is not intended to affect the status of CO2
that is injected into wells other than UIC Class VI wells. For example,
CO2 that is used for enhanced oil or gas recovery (EOR/EGR) in other
than UIC Class VI wells, where some sequestration may occur in the
process of recovering gas or oil, is beyond the scope of this proposal.]

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

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

Comment 3.2.14:

EPA NPRM Statements pg 48078

[fn 16 The proposed rule is not intended to affect the status of CO2
that is injected into wells other than UIC Class VI wells. For example,
CO2 that is used for enhanced oil or gas recovery (EOR/EGR) in other
than UIC Class VI wells, where some sequestration may occur in the
process of recovering gas or oil, is beyond the scope of this proposal.]

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

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

Comment 3.2.15:

EPA NPRM Statements pg 48078

EPA’s regulations require that generators of a solid waste determine
whether their wastes are hazardous wastes, and if so, manage them in
accordance with EPA’s RCRA hazardous waste regulations. 40 CFR 262.11.

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

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

Comment 3.2.16:

EPA NPRM Statements pg 48078

EPA studied the fossil fuel combustion wastes as directed by Congress,
and published two Reports to Congress, [17] and issued two Regulatory
Determinations on the management and use of coal and other fossil fuel
combustion products, one on August 9, 1993 and a second one on May 22,
2000 (58 FR 42466 and 65 FR 32214, respectively). CO2 captured for
purposes of GS was not included in either of these Regulatory
Determinations, or in the underlying studies upon which these
determinations were based.

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

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

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

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

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

Comment 3.2.17:

EPA NPRM Statements pg 48078

[fn 18] EPA notes that even if CO2 streams from the combustion of fossil
fuels were exempt from regulation as hazardous waste under §
261.4(b)(4)—which it does not believe to be the case—the Bevill
exemption would only apply to CO2 generated from the combustion of
materials in boilers to generate steam for the purpose of generating
energy, and not to other CO2 streams generated from other sources.

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

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

Response: See response to comment 3.2.16.

Comment 3.2.18:

EPA NPRM Statements pg 48078

An entity involved in the CCS process may generate CO2 that qualifies as
a solid waste under the RCRA hazardous waste regulations by making the
decision to discard the material through abandonment by disposing of the
material (see 40 CFR 261.2(a)(2)(i) and (b)(1)).

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

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

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

Comment 3.2.19:

EPA NPRM Statements pg 48078

Regarding the feasibility of testing CO2 streams, EPA acknowledges the
commenter’s concern, but also notes that the hazardous waste
regulations allow generators to apply their knowledge—in lieu of
testing—of the hazard characteristic of a waste, in light of the
materials or processes used, to determine whether that waste is a
characteristic hazardous waste under RCRA. 40 CFR 262.11(c)(2). [fn 21
Any persons claiming that a waste is nonhazardous, based on knowledge in
lieu of testing, should be prepared to substantiate this claim.] . . .
EPA acknowledges the commenters’ underlying concerns related to RCRA
characterization, and requests comment on this issue.

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

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

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

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

Comment 3.2.20:

EPA NPRM Statements pg 48079

Today’s proposed conditional exclusion is based upon EPA’s existing
knowledge of the composition of CO2 streams, and its analysis that
compliance with the existing standards and regulations designed to
prevent any exposure of CO2 (and any associated impurities) would render
additional regulation under RCRA subtitle C unnecessary. The
permit-issuing authority is also authorized under EPA’s UIC permit
regulations to add any additional conditions to the permit, as
necessary, to assure compliance with applicable SDWA requirements (40
CFR 146.52(b)). Under this authority, the UIC Program Director (EPA or a
State permitting authority) may add specific testing or chemical/waste
limitations to the permit to prevent endangerment of USDWs, or to assure
that unauthorized wastes are not injected with the CO2 stream.

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

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

Comment 3.2.21:

EPA NPRM Statements pg 48079

These non- CO2 constituents may include, but are not limited to, sulfur
dioxide (SO2), hydrogen sulfide (H2S), nitrous oxides (NOX), carbon
monoxide (CO), methane (CH4), other hydrocarbons, water vapor (H2O), as
well as certain contaminants, that are also defined as hazardous
contaminants in 40 CFR 261.24, such as arsenic, mercury, and selenium.

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

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

Comment 3.2.22:

EPA NPRM Statements pg 48079

EPA today requests analytical data on the physical and chemical
characteristics of captured CO2, including the concentrations of
hazardous contaminants, CO2 content, information on the type of CO2
capture process used, and how the samples were collected and analyzed.

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

Response: EPA thanks the commenter for its response.

Comment 3.2.23:

EPA NPRM Statements pg 48079

The Agency believes that this amendment to the RCRA hazardous waste
rules, if finalized, will substantially reduce the uncertainty
associated with defining and managing these CO2 streams under RCRA
subtitle C.

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

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

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

Comment 3.2.24:

EPA NPRM Statements pg 48079

EPA believes that the management of these CO2 streams in accordance with
the proposed conditions does not present a substantial risk to human
health and the environment.

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

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

Comment 3.2.25:

EPA NPRM Statements pg 48082

EPA requests information on whether EPA’s estimates for captured CO2
volumes are accurate and reasonable, and whether the CO2 that is
captured could be stored on-site prior to being sent elsewhere for GS or
any other purpose; if so, EPA requests detailed information on the
duration and method of storage, and what existing regulatory or
voluntary controls and standards apply to such storage.

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

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

Comment 3.2.26:

EPA NPRM Statements pg 48082

Pipeline transportation of CO2 is subject to the PHMSA requirements in
49 CFR part 195, which apply to pipeline facilities used in the
transportation of hazardous liquids or supercritical CO2.

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

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

Comment 3.2.27:

EPA NPRM Statements pg 48082

Pipeline transportation of CO2 is subject to the PHMSA requirements in
49 CFR part 195, which apply to pipeline facilities used in the
transportation of hazardous liquids or supercritical CO2.

This statement also makes an important distinction that should be
emphasized. Supercritical carbon dioxide is not considered or regulated
as a hazardous liquid under the PHMSA regulations. That distinction is
further emphasized in footnote 39: “The pipeline transportation of
carbon dioxide and hazardous liquids are both regulated under the same
regulatory framework. ‘‘Hazardous liquids,’’ for purposes of 49
CFR part 195, are defined by DOT as petroleum, petroleum products, and
anhydrous ammonia, and are not the subject of this proposed rule. 49 CFR
195.2.” 76 Fed. Reg. at 48082, n. 39.

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

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

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

Comment 3.2.28:

EPA NPRM Statements pg 48082

Finally, EPA requests comment and information on the procedures that
have been or are expected to be used during maintenance and upset
circumstances of the carbon capture system.

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

Response: EPA thanks the commenter for the information..

Comment 3.2.29:

EPA NPRM Statements pg 48083

EPA notes that it may be the case that some pipelines used to transport
CO2 are not subject to the DOT requirements, because they are located
onsite at the generator facility or at the UIC Class VI facility. See,
e.g., 49 CFR 195.1(b)(8). EPA requests information on how these
pipelines are currently regulated, including any design and operating
standards that apply to such pipelines.

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

Response: EPA thanks the commenter for the information.

Comment 3.2.30:

EPA NPRM Statements pg 48083

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

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

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

Comment 3.2.31:

EEPA NPRM Statements pg 48083

EPA requests comment on the extent to which non pipeline transportation
will be used specifically for transporting CO2 streams to UIC Class VI
facilities, and whether the use of the certification statement, together
with compliance with applicable DOT hazardous material transportation
requirements, are effective substitutes for the RCRA hazardous waste
regulations that would apply to these specific circumstances.

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

Response: EPA thanks the commenter for the information.

Comment 3.2.32:

EPA NPRM Statements pg 48084

Pursuant to § 1421(d)(2), the UIC program requirements for all well
classes, promulgated under the authority of the SDWA, are designed to
comprehensively ensure that an injection well is appropriately sited,
operated, tested, monitored, and closed in a manner that ensures USDW
protection and does not otherwise adversely affect the health of
persons.

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

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

Comment 3.2.33:

EPA NPRM Statements pg 48084

In developing standards for CO2 injection for GS, the Agency evaluated
the applicability of the existing UIC program requirements for Class I
wells (hazardous and non-hazardous) through Class V wells, and
determined that new, tailored regulations to address the injection of
supercritical CO2 streams for GS, including any associated constituents
that may be present in the CO2 streams, were warranted in order to
protect USDWs from endangerment.

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

Response: See response to comment 3.2.7.

Comment 3.2.34:

EPA NPRM Statements pg 48084

[T]he Agency recognized that these established programmatic requirements
required certain modifications and enhancements with respect to CO2
injection for GS in order to ensure USDW protection.

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

Response: See response to comment 3.2.7.

Comment 3.2.35:

EPA NPRM Statements pg 48085

EPA is proposing to limit the scope of this exclusion by including a
condition that no other hazardous waste can be mixed with, or otherwise
co-injected with, the CO2 streams as defined in today’s proposed rule.

This is a perfectly acceptable and completely justifiable requirement,
but one that is already achieved by the Class VI UIC requirements. 40
CFR 146.81(d) (emphasis added): “Carbon dioxide stream means carbon
dioxide that has been captured from an emission source (e.g., a power
plant), plus incidental associated substances derived from the source
materials and the capture process, and any substances added to the
stream to enable or improve the injection process. This subpart does not
apply to any carbon dioxide stream that meets the definition of a
hazardous waste under 40 CFR part 261.” This definition effectively
precludes the addition of a hazardous waste stream to a CO2 stream for
injection into a Class VI well.

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

Response:

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

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

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

Comment 3.2.36:

EPA NPRM Statements pg 48086

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

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

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

Comment 3.2.37:

EPA NPRM Statements pg 48087

EPA requests comment on the certification statement, and particularly
seeks comment on whether this measure will appropriately ensure
compliance with the conditional exclusion, including the mixing
prohibition.

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

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

Comment 3.2.38:

EPA NPRM Statements pg 48087

EPA also requests comment on how CO2 sources, who add excluded CO2
streams into an existing (or future) CO2 pipeline network, can ensure
that the CO2 reaches a UIC Class VI facility.

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

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

Comment 3.2.39:

EPA NPRM Statements pg 48087

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

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

Response:

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

Comment 3.2.40:

EPA NPRM Statements pg 48087

EPA requests comment, including supporting information, on whether (and
if so, what type of) additional monitoring, recordkeeping, and reporting
of the CO2 composition by generators and transporters (including
pipeline operators), might aid EPA and the states in their ability to
detect improper mixing of hazardous waste with CO2 streams.

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

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

Comment 3.2.41:

EPA NPRM Statements pg 48087

EPA also requests comment on whether there are other conditions, such as
a minimum CO2 content, that could enhance compliance with the proposed
‘‘no mixture’’ condition. For example, EPA is aware that under
the PHMSA requirements for the pipeline transportation of supercritical
carbon dioxide, the definition of carbon dioxide specifies a CO2 content
of greater than ninety percent. 49 CFR 195.2.

EPA should not use this means to impose any content restrictions.

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

Comment 3.2.42:

EPA NPRM Statements pg 48087

EPA notes that it is requesting comment on whether persons engaged in
the movement of conditionally excluded CO2 streams, including
transporters, as well as pipeline owners or operators, should certify
that they meet the conditions of today’s proposed conditional
exclusion.

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

Response:

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

Comment 3.2.43:

EPA NPRM Statements pg 48087

EPA is also requesting comment on whether any new monitoring,
recordkeeping or reporting requirements are necessary (including as
those might apply to pipeline owners or operators) to ensure that the
conditions of the proposed exclusion are met. EPA emphasizes that aside
from seeking comment in these two areas, EPA is not proposing any new
requirements applicable to pipelines or pipeline owner/operators.

Such additional requirements are not necessary.

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

Comment 3.2.44:

EPA NPRM Statements pg 48087-88

Failure to meet the conditions results in the loss of the exclusion. As
proposed, a violation of a condition at any point in the management of a
CO2 stream (would result in that CO2 stream being subject to all
applicable subtitle C regulatory requirements, from the point of
generation. Thus, a violation of a condition at a UIC Class VI facility,
for example, would mean that in addition to the UIC Class VI facility,
the generator and transporter would also be considered to be managing
(or to have managed) a hazardous waste. Moreover, imminent and
substantial endangerment provisions under § 7003 of RCRA will continue
to apply to conditionally-excluded CO2 streams as a safeguard in the
unlikely event of a release which could pose a health or environmental
threat. This is true even if the CO2 stream does not otherwise meet the
regulatory definition of hazardous waste. 49 [fn 49 EPA also notes that
existing obligations to address corrective action at RCRA treatment,
storage, and disposal facilities would not be affected by this proposed
rule. In addition, today’s proposed conditional exemption would not
preclude RCRA corrective action requirements from applying to a Class VI
UIC facility if the facility were to engage in the management of
hazardous waste that would require a RCRA permit (e.g., if the
conditions of today’s proposed exemption were not met and the
previously exempt CO2 streams were no longer exempt; or, if other
hazardous wastes were treated, stored, or disposed of at the facility).

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

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

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

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

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

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

Comment 3.2.45:

EPA NPRM Statements pg 48088

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

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

Response: EPA acknowledges the comment.

Comment: 3.2.46

EPA NPRM Statements pg 48090

Our analysis also assumes all affected states will adopt the conditional
exclusion and all generators that capture CO2 will claim the proposed
conditional exclusion and send their CO2 streams to Class VI wells.
These facilities would avoid the costs of determining whether their CO2
stream is RCRA hazardous or non-hazardous, and would also avoid possible
RCRA permitting costs and generator requirements.

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

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

Comment 3.2.47:

pg 48092

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

Response: See EPA response to comments 3.2.1 and 3.2.2.

Comment 3.2.48:

EPA NPRM Statements pg 48092

§ 261.4 Exclusions.

* * * * *

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

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

§ 261.4 Exclusions.

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

* * * * *

(26) Carbon Dioxide Stream Injected for Geologic Sequestration.

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

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

Comment 3.2.49:

pg 48093

Consistent with our comments, we recommend the following rewording:

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

Response: See response to comment 3.2.48.

Comment 3.2.50:

EPA NPRM Statements pg 48093

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

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

Consistent with our comments, we recommend the following revision:

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

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

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

Comment 3.2.51:

EPA NPRM Statements pg 48093

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

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

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

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

Response:

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

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

Comment 3.2.52:

EPA NPRM Statements pg 48093

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

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

Response:

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

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

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

Comment 3.2.53:

EPA NPRM Statements pg 48093

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

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

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

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

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

Comment 3.2.54:

EPA NPRM Statements pg 48093

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

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

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

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

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

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

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

Comment 3.2.55:

EPA NPRM Statements pg 48093

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

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

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

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

American Electric Power (AEP)

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

Comment 3.3.1:

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

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

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

Response: EPA acknowledges the comment.

Comment 3.3.2:

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

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

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

Comment 3.3.3:

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

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

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

Comment 3.3.4:

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

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

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

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

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

Comment 3.3.5:

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

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

Response:

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

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

Comment 3.3.6:

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

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

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

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

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

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

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

Comment 3.3.7:

3. Status of AEP Mountaineer CCS Project

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

Physical and Chemical Characteristics of Captured CO2

EPA is requesting analytical data on the physical and chemical
characteristics of captured CO2, including the concentrations of
hazardous contaminants, CO2 content, information on the type of CO2
capture process used, and how the samples were collected and analyzed.
These data will allow EPA to gain a better understanding of the nature
and characteristics of captured CO2 streams and support a determination
by EPA that RCRA is inapplicable to these CO2 streams.

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

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

Comment 3.3.8:

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

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

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

Response: EPA acknowledges the comment.

Comment 3.3.9:

Sampling After CO2 Injection Began

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

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

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

Response: EPA acknowledges the comment.

Comment 3.3.10:

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

EPA is requesting information on whether the agency’s estimates for
captured CO2 volumes are accurate and reasonable, and whether the CO2
that is captured could be stored on-site prior to being sent elsewhere
for GS or any other purpose; if so, EPA is requesting detailed
information on the duration and method of storage, and what existing
regulatory or voluntary controls and standards apply to such storage.
EPA is also requesting information on the units and processes involved
after the CO2 is captured, and before it is either injected on-site, or
sent off- site. Finally, EPA is requesting comment and information on
the procedures that have been or are expected to be used during
maintenance and upset circumstances of a carbon capture system (76 Fed.
Reg. 48082).

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

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

Comment 3.3.11:

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

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

Response: EPA thanks the commenter for the information.

Comment 3.3.12:

6. Non-pipeline Transportation and Certification

EPA is requesting comment on the extent to which non-pipeline
transportation will be used specifically for transporting CO2 streams to
UIC Class VI facilities, and whether the use of a certification
statement, together with compliance with applicable DOT hazardous
material transportation requirements, are effective substitutes for the
RCRA hazardous waste regulations that would apply to these specific
circumstances (76 Fed. Reg. 48083). EPA should determine the likelihood
that supercritical CO2 will be a hazardous waste. AEP appreciates
EPA’s recognition of other regulatory programs that govern CO2
activities and its efforts to avoid duplication, but requiring a
certification amounts to a duplication of effort for the
generator/operator. See AEP’s monitoring comments below.

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

Response: EPA thanks the commenter for the information.

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

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

See also responses to comments 3.3.3 and 3.3.13.

Comment 3.3.13:

7. Signature Requirements for Certification Statements

Use of a certification statement is to ensure compliance with the
conditions of the proposed conditional exclusion, EPA is requesting
comment on whether it should limit the categories of employees who would
be required to sign this certification statement, to senior employees in
the same manner as that which is required for RCRA permit applications
under 40 CFR 270.11(a). Under this alternative approach, certification
statements (for corporations) would need to be signed by a
‘‘responsible corporate officer’’ as defined in § 270.11
(a)(1)(i), or, plant managers for facilities over a certain size as
defined in § 270.11 (a)(1 )(ii); by a general partner or proprietor
(for general partnerships or sole proprietorships, respectively) as
specified in § 270.11 (a)(2); or, for public agencies, the chief
executive officer, or certain other senior officers of that agency, as
defined in § 270.1 1(a)(3). Accountability and enforceability may be
improved when signatories to these types of certifications are at the
highest levels of an organization.

While EPA is not currently aware of specific examples where hazardous
wastes are being mixed into or with CO2 streams, particularly at this
early stage of CCS deployment, well-designed rules are essential to the
success of future enforcement efforts. EPA is, therefore, requesting
comment on the certification statement, and particularly seeks comment
on whether this measure will appropriately ensure compliance with the
conditional exclusion, including the mixing prohibition (76 Fed. Reg.
48087).  Injected CO2 is not hazardous; therefore, a certification
statement is not necessary. Current signatory requirements are
sufficient. If CO2 were mixed with hazardous waste prior to injection,
AEP would agree that RCRA requirements may be applicable, but EPA should
evaluate the likelihood of this scenario occurring and whether existing
regulations already apply to and discourage this practice.

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

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

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

Comment 3.3.14:

8. Monitoring of CO2 Composition

EPA is requesting comment, including supporting information, on whether
(and if so, what type of) additional monitoring, recordkeeping, and
reporting of the CO2 composition by generators and transporters
(including pipeline operators), might aid EPA and the states in their
ability to detect improper mixing of hazardous waste with CO2 streams.
EPA also requests comment on whether there are other conditions, such as
a minimum CO2 content, that could enhance compliance with the proposed
‘‘no mixture” condition. For example, EPA is aware that under the
PHMSA requirements for the pipeline transportation of supercritical
carbon dioxide, the definition of carbon dioxide specifies a CO2 content
of greater than ninety percent. 49 CFR 195.2. EPA also requests comment
on what commercial, operational, or regulatory requirements or
specifications already exist regarding CO2 content in the management of
supercritical CO2 (76 Fed. Reg. 48087).

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

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

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

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

Comment 3.3.15:

9. Types and Characteristics of Substances Added to CO2 Streams

EPA has requested comments on the types and characteristics of
substances that are added to CO2 streams to enable or improve the