Response to Comments Document

Hazardous Waste Management System:

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

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

November 2013

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

This page is intentionally left blank.Table of Contents

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

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

1.2	Comment Analysis Procedures	  PAGEREF _Toc361156427 \h  1

2.0	List of Comments Submitted	  PAGEREF _Toc361156428 \h  3

3.0	Individual Comments and Agency Response	  PAGEREF _Toc361156429 \h
4

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

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

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

3.4	C12 Energy	  PAGEREF _Toc361156438 \h  7 4

3.5	Natural Resources Defense Council (NRDC)	81

3.6	Clean Air Task Force	  PAGEREF _Toc361156440 \h  8 8

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

3.8	CCS Alliance	  PAGEREF _Toc361156442 \h  10 8

3.9	State of Utah	  PAGEREF _Toc361156443 \h  11 5

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

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

3.12	Western Business Roundtable	  PAGEREF _Toc361156446 \h  12 4

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

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

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

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

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

3.18	Southern Company	  PAGEREF _Toc361156454 \h  1 63

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

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

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

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

3.23	Chevron	188

3.24	Texas Oil and Gas Association (TxOGA)	191

3.25	Florida Department of Environmental Protection (DEP)	192

3.26	Joyce Dillard	193

3.27	Anonymous 1	194

3.28	Anonymous 2	194

3.29	Anonymous 3	195

Appendix A: Substantive Data Received from Commenters	196

 Introduction

Purpose & Organization of this Document

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

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

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

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

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

Comment Analysis Procedures

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

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

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

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

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

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

Bullets: Asterisks (*) replace bullets.

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

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

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

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

Table 1

List of Commenters

EPA Document ID	Organization Name	Section Number

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

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

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

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

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

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

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

-0083	  HYPERLINK  \l "CCS"  CCS Alliance 	3.8

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

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

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

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

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

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

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

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

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

-0061	  HYPERLINK  \l "Southern"  Southern Company 	3.18

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

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

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

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

-0064	  HYPERLINK  \l "_Chevron_1"  Chevron 	3.23

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

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

-0081	  HYPERLINK  \l "Dillard"  Joyce Dillard  	3.26

-0058	  HYPERLINK  \l "Anon1"  Anonymous 1 	3.27

-0069	  HYPERLINK  \l "Anon2"  Anonymous 2 	3.28

-0070	  HYPERLINK  \l "Anon3"  Anonymous 3 	3.29

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

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

Individual Comments and Agency Response

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

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

American Petroleum Institute (API)

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

Comment 3.1.1:

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

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

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

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

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

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

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

Comment 3.1.2:

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

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

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

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

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

Comment 3.1.3:

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

EPA proposes to “conditionally” exclude “CO2 streams” [FN2: A
“Carbon dioxide (CO2) stream” is defined at 40 CFR 146.81(d) as
“Carbon dioxide that has been captured from an emission source (e.g.,
power plant), plus incidental associated substances derived from the
source materials and the capture process, and any substances added to
the stream to enable or improve the injection process.” 76 Fed. Reg.
at 48075.] that “are hazardous from the definition of hazardous waste,
provided these hazardous CO2 streams are captured from air emission
sources, are injected into Class VI *UIC+ wells for purposes of geologic
sequestration … and meet certain other conditions.” 76 Fed. Reg. at
48074. EPA explains that it is taking this action because it “believes
that the management of these CO2 streams under the proposed conditions
does not present a substantial risk to human health or the environment,
and therefore additional regulation pursuant to RCRA’s hazardous waste
regulations is unnecessary.” Id. EPA notes that the conditional
exclusion will provide additional regulatory certainty.

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

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

Comment 3.1.4:

A. CO2 Streams Are Appropriately Addressed under other Laws

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

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

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

Comment 3.1.5:

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

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

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

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

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

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

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

Comment 3.1.6:

B. CO2 Streams Are Not “Solid Wastes”

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

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

Comment 3.1.7:

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

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

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

Comment 3.1.8:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comment 3.1.9:

C. CO2 Streams Are Not “Hazardous”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comment 3.1.10:

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

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

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

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

Response: EPA thanks the commenter for its support for the conditional
exclusion, and the information provided.  EPA notes that pipeline
transportation of CO2 is subject to the DOT’s Pipeline Hazardous
Materials Safety Administration (PHMSA) requirements in 49 CFR part 195,
which apply to pipeline facilities used in the transportation of
hazardous liquids or supercritical CO2.  As defined in 49 CFR 195.2,
carbon dioxide is ‘‘a fluid consisting of more than 90 percent
carbon dioxide molecules compressed to a supercritical state,’’
which would include supercritical CO2 streams transported for purposes
of CCS.  This final rule does not change the status under DOT of
supercritical CO2, nor does it change the manner in which supercritical
CO2 is regulated under DOT.  The points made by the commenter do not
affect EPA’s assessment of applicable DOT regulations (as confirmed
through discussions with DOT staff) for both pipelines and non-pipeline
transportation for CO2 streams. Finally, EPA has noted in the final rule
preamble (and by amending the relevant regulatory text in the final
rule) the applicability of relevant state standards for intrastate
pipelines.

Comment 3.1.11:

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

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

Comment 3.1.12:

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

Response: EPA acknowledges the comment.

Comment 3.1.13:

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

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

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

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

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

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

Comment 3.1.14:

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

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

Response: Regarding the comment that the generator is responsible for
the initial and “perhaps sole” determination of whether any waste is
a hazardous waste, as EPA noted in the proposed rule, while a hazardous
waste determination must be made when a waste is first generated,
knowing whether a solid waste is a hazardous waste is necessary at any
point during the management of that waste, in order for persons to
ensure that they are in compliance with the hazardous waste requirements
if and when they are managing hazardous waste. See 76 FR at 48078,
Footnote 19.

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

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

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

Comment 3.1.15:

EPA states that the conditional exclusion only applies to “CO2
streams” that have been captured for purposes of “geologic
sequestration.” [FN44: 76 Fed. Reg. at 48086.] There may be several
destinations for the captured CO2, each with a different purpose. If
there are different regulatory requirements for each purpose, there
could be major complications for the shipper of the common stream.
Again, this argues for a uniform, blanket exclusion of all CO2 streams
from the solid waste definition. The Agency explains that [FN45: 76 Fed.
Reg. at 48078 n. 16.]:

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

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

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

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

Comment 3.1.16:

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

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

Comment 3.1.17:

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

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

Comment 3.1.18:

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

(a) Materials which are not solid wastes.

* * *

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

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

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

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

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

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

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

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

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

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

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

(h) Carbon Dioxide Stream Injected for Geologic Sequestration. Carbon
dioxide streams that are captured and transported for purposes of
GEOLOGIC SEQUESTRATION injection into an underground injection well
subject to the requirements for Class II and Class V (as applicable) and
Class VI Underground Injection Control wells, including the requirements
of 40 CFR parts 144 and 146 (AND § 144.19 FOR APPLICABLE CLASS II
WELLS) of the Underground Injection Control Program of the Safe Drinking
Water Act, are not a hazardous waste, provided the following conditions
are met.

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

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

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

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

(iv) Any generator of a carbon dioxide stream, and any Class II, Class
V, or Class VI Underground Injection Control well owner or operator for
geologic sequestration purposes, who claims that a carbon dioxide stream
is excluded under paragraph (h)(1) of this section, must have an
authorized representative (as defined in 40 CFR 260.10) sign a
certification statement worded as follows: I certify under penalty of
law that the carbon dioxide stream that I am claiming to be excluded
under 40 CFR 261.4(h)(1) meets all of the conditions set forth in that
paragraph.

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

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

(b) Materials which are not solid wastes.

* * *

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

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

Comment 3.1.19:

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

Response: EPA acknowledges the comment.

Carbon Sequestration Council (CSC)

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

Comment 3.2.1:

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

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

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

The carbon capture devices currently available and under development
operate in a similar manner to capture a gaseous emission stream as air
pollution control equipment. Accordingly, captured carbon dioxide
streams could not be considered “discarded material”. The status of
captured carbon dioxide streams was verified in the preamble to EPA’s
final GS UIC rule, where EPA explained: “carbon dioxide is first
captured from fossil-fueled power plants or other emission sources.”
75 Fed. Reg. 77230, 77233 (December 10, 2010) (emphasis added). As
captured air emissions [FN2: See 76 Fed. Reg. at 48082: “While it is
not clear what would be the procedure during maintenance or upset
circumstances (such as if the capture process could not function), EPA
assumes that the source emissions would be diverted for release under
the facility’s Clean Air Act permit”], these carbon dioxide streams
are uncontained gases and were statutorily excluded from RCRA by
Congress.

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

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

Comment 3.2.2:

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

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

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

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

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

Comment 3.2.3:

Moreover, any exclusion that EPA fashions needs to address carbon
dioxide streams for the full range of scenarios under which the uses of
captured anthropogenic carbon dioxide streams are likely to occur. In
the proposal, EPA presumes a scenario where, “beginning with the
capture and compression of the CO2 stream from fossil-fuel power plants
or other industrial sources, after which the CO2 stream is transported
(usually in pipelines) to an on-site or off- site location, where it is
then injected underground for purposes of sequestration”. 76 Fed. Reg.
at 48076. But it is not appropriate to presume such a limited single
source to single injector scenario. Because geologic sequestration
without EOR is still very much in the experimental stage, it is not
useful to simply consider current demonstration project scenarios.
Instead, it is likely that each of the following scenarios would occur
once the technology is implemented on more than an experimental
developmental scale:

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

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

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

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

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

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

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

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

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

Comment 3.2.4:

Having declared that captured carbon dioxide emission streams are solid
waste “when discarded”, EPA should not simply dismiss the potential
use of such streams by UIC Class II enhanced production well operators
[FN5: 76 Fed. Reg. at 48078, n. 16: “The proposed rule is not intended
to affect the status of CO2 that is injected into wells other than UIC
Class VI wells. For example, CO2 that is used for enhanced oil or gas
recovery (EOR/EGR) in other than UIC Class VI wells, where some
sequestration may occur in the process of recovering gas or oil, is
beyond the scope of this proposal.”] We know that the use of captured
carbon dioxide emission streams as process inputs for enhanced recovery
will not be subject to the RCRA solid waste provisions because those
materials are not being discarded, but we think EPA will not provide the
intended “needed certainty” unless EPA states that the use of carbon
dioxide streams for enhanced recovery does not subject those streams to
RCRA now or in the future.

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

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

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

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

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

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

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

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

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

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

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

Comment 3.2.5:

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

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

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

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

Comment 3.2.6:

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

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

Comment 3.2.7:

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

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

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

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

Comment 3.2.8:

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

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

Comment 3.2.9:

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

In an effort to establish a regulatory framework that supports the
future development and deployment of CCS technologies, EPA has set out a
goal to provide the regulatory certainty needed to foster industry
adoption of CCS. As mentioned above, EPA believes that GS is a key
climate change mitigation technology. Therefore, providing a consistent
regulatory approach to GS will promote its future use in the United
States. 76 Fed. Reg. at 48077.

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

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

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

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

Comment 3.2.10:

EPA NPRM Statements pg 48077

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

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

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

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

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

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

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

Comment 3.2.11:

EPA NPRM Statements pg 48077-78

A supercritical CO2 stream injected into a permitted UIC Class VI well
for purposes of GS is a RCRA solid waste, as it is a ‘‘discarded
material’’ within the plain meaning of the term in RCRA § 1004(27).
Courts have stated that the plain meaning of ‘‘discarded
material’’ refers to materials that have been disposed of, abandoned
or thrown away.16 This clearly applies to supercritical CO2 stream
(which, as already stated, is rather unique in that it has properties
intermediate between a liquid and a gas) injected into UIC Class VI
wells, regardless of whether the material is a hazardous waste or not.

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

“CO2 use and reuse efforts focus on pathways and novel approaches for
reducing CO2 emissions by developing beneficial uses for the CO2, such