On August 8, 2011, U.S. EPA proposed a conditional exclusion from the Resource Conservation and Recovery Act (RCRA) for captured carbon dioxide (CO2) streams destined for geologic sequestration. 76 Fed. Reg. 48,073 (August 8, 2011). Providing certain conditions are met, those CO2 streams would be excluded from the definition of hazardous waste. The proposed rule would likely impact energy-related sources such as power plants and natural gas processing facilities, large industrial facilities such as steel and cement production, manufacturing and chemical plants, transporters of captured CO2 streams destined for geologic sequestration, and operators of CO2 injections wells used for geologic sequestration. While states are not required to adopt the conditional exclusion, if finalized, because it is less stringent than the Federal hazardous waste management program, West Virginia can reasonably be expected to adopt the provision if it is finalized. Currently, U.S. EPA is projecting that the final rule will be published in February 2013. See U.S. EPA’s RegDaRRT (Regulatory Development and Retrospective Review Tracker) website at https://yosemite.epa.gov/opei/RuleGate.nsf/.
The major conditions of the proposed exclusion are:
- Transportation of the compressed CO2 stream would need to be in compliance with applicable Department of Transportation requirements;
- Injection of the CO2 stream would need to be in compliance with the applicable requirements for Class VI Underground Injection Control (UIC) wells, including the applicable requirements in 40 CFR Parts 144 and 146;
- No hazardous wastes could be mixed with, or otherwise co-injected with, the CO2 stream; and
- Any CO2 stream generator and any UIC Class VI well owner/operator who claims the exclusion would need to have an authorized representative annually certify that the CO2 stream meets all the conditions of the exclusion. The certification statements would need to be kept onsite for no less than three years.
76 Fed. Reg. 48,073, 48,093.
The purpose of the exclusion from hazardous waste regulation for CO2 streams is, in U.S. EPA’s words, “to advance the use of carbon capture and sequestration (CCS)”. U.S. EPA states its proposal provides “regulatory certainty” and “encourages the deployment of CCS technologies in a safe and environmentally protective manner.” According to U.S. EPA, the proposed rule is consistent with recommendations made by President Obama’s interagency task force on CCS in August 2010. For the interagency task force report on CCS, see https://www.epa.gov/climatechange/policy/ccs_task_force.html. In its press release announcing the proposed RCRA exclusion, U.S. EPA further states that the proposal “helps create a consistent national framework to ensure the safe and effective deployment of technologies that will help position the United States as a leader in the global clean energy race.”
The proposed rule grows out of two recent rulemakings to regulate geologic sequestration and U.S. EPA’s evaluation of technologies aimed at capturing CO2 before release into the atmosphere. Carbon capture and storage (CCS) is one such technology and involves collecting CO2 emissions and storing them in an environmentally protective manner. Basically, CCS is a three-step process: (1) capture, dehydrate, and compress the CO2 stream from fossil-fuel power plants or other industrial sources; (2) transport the CO2 stream (usually in pipelines) to an on- or off-site location; and (3) inject the CO2 stream underground into deep subsurface rock formations for sequestration.
In December 2010, U.S. EPA finalized two rules to regulate geologic sequestration. First, on December 1, 2010, U.S. EPA expanded its Greenhouse Gas Reporting Program to reporting by facilities that inject CO2 streams underground under Subpart RR. 75 Fed. Reg. 75,060. U.S. EPA previously issued a final rule that requires reporting by sources that capture CO2 streams under Subpart PP. 74 Fed. Reg. 56,260 (Oct. 30, 2009). Second, on December 10, 2010, U.S. EPA broadened the underground injection control (UIC) program under the Safe Drinking Water Act by establishing a new class of injection well called Class VI and set minimum requirements for injection of CO2 for purposes of geologic sequestration. 75 Fed. Reg. 77,230. The UIC Class VI injection well standards were developed to protect underground sources of drinking water during geologic sequestration of CO2. The final rule sets standards for Class VI well permitting, geologic site characterization, area of review delineation, corrective action activities, well construction and operation, mechanical integrity testing, monitoring, post-injection site care, financial responsibility, and closure. See 76 Fed. Reg. 48,073, 48084/2-3. The UIC regulations specifically preclude CO2 streams that are defined as hazardous waste from being injected into Class VI wells. See id. at 48,088/2.
During the rulemaking proceedings for the UIC Class VI wells, comments submitted to U.S. EPA raised questions concerning the applicability of RCRA to CO2 streams being geologically sequestered. Could the compressed CO2 be considered a solid waste? And if so, could the CO2 be considered a hazardous waste? If CO2 streams in geologic sequestration activities were classified as hazardous waste subject to RCRA Subtitle C, this would significantly deter use of CCS technology.
Generally, commenters opposed treating a CO2 stream as a RCRA hazardous waste asserting that it neither is a listed hazardous waste nor exhibits a hazardous characteristic. Some commenters asserted that a CO2 stream was not even a solid waste. Other commenters asserted that the CO2 in the presence of water could exhibit the RCRA corrosivity characteristic. Some commenters noted the potential for some CO2 streams to meet the definition of hazardous waste due to low concentrations of contaminants or additives introduced during the CCS process. In addition, some commenters questioned the appropriateness and feasibility of applying the toxicity characteristic leaching procedure (TCLP) used under RCRA to supercritical CO2 streams. Finally, some commenters asked whether the CO2 streams could be better managed under the UIC Class VI regulations than the RCRA hazardous waste regulations.
U.S. EPA disagreed with those commenters who asserted that a CO2 stream was not even a solid waste, stating unequivocally that a “CO2 stream injected into a Class VI well for purposes of geologic sequestration is a RCRA solid waste.” 76 Fed. Reg. 48,073, 48,077-78. U.S. EPA also explains that CO2 streams are not included under the Bevill exemption at 40 CFR § 261.4(b)(4) because only wastes included in the regulatory determinations based upon the statutorily mandated study and reports to Congress are covered by the Bevill exemption and CO2 was not included. Id. at 48,078/1-2. Coal combustion residuals are an example of wastes covered by the Bevill exemption and therefore not subject to hazardous waste regulation under RCRA Subtitle C. U.S. EPA also states that no hazardous waste listings apply to captured CO2 streams and that therefore a captured CO2 stream can only be defined as hazardous waste if it exhibits a hazardous waste characteristic. Id. at 48,078/3.
U.S. EPA states it “has little information to conclude that CO2 streams would qualify as RCRA hazardous wastes.” Id. at 48,079/1. To gain a better understanding of the nature and characteristics of CO2 streams captured from emission sources, U.S. EPA requested “analytical data on the physical and chemical characteristics of captured CO2, including the concentrations of hazardous contaminants, CO2 content, information on the type of CO2 capture process used, and how the samples were collected and analyzed.” Id. at 48,079/3. Assuming the proposal is finalized, U.S. EPA also commits to reviewing new research, data, and information related to the conditional exclusion with respect to the nature and composition of the CO2 stream as well as compliance with the conditions of the exclusion. The reviews would occur every six years and be coordinated with the six-year review of the UIC Class VI final rule. Id. at 48,088/1-2.
As U.S. EPA notes, the UIC Class VI regulations require the owner or operator of an injection well to provide an analysis of the physical and chemical characteristics of the CO2 stream. The analysis is to be provided at the time of the permit application and periodically during operation. The UIC Class VI regulations also authorize U.S. EPA or the permitting authority to add specific testing or chemical/waste limitations to the permit to prevent endangerment of underground sources of drinking water or to assure that the unauthorized wastes are not injected with the CO2 stream.
If finalized, a CO2 stream that is conditionally excluded from the definition of hazardous waste would not be subject to the RCRA land disposal restriction (LDR) requirements. Owners and operators of UIC Class VI wells are required to demonstrate at the time of the permit application and periodically during operation of the well that there is no endangerment of underground sources of drinking water, and U.S. EPA interprets these UIC Class VI isolation requirements as meeting the objectives of the RCRA LDR requirements. Id. at 48,085-86.
Conditionally excluded CO2 streams would also not be subject to RCRA corrective action. Again, U.S. EPA concludes that enforceable requirements in the UIC Class VI final rule to develop, maintain, and update an emergency and remedial response plan and to undertake emergency or remedial response action for any unauthorized releases from the well or injection are sufficient to correct permit violations and other situations that may pose a risk to underground sources of drinking water. Id. at 48,086.
U.S. EPA concludes that the current regulatory structure for geologic sequestration of CO2, including the proposed conditions, if finalized, to be sufficiently protective of human health and the environment. Id. at 48,086/2. To avoid duplicative and unnecessary regulation, U.S. EPA is proposing a conditional exclusion from the definition of hazardous waste for CO2 managed for geologic sequestration.
Failure to meet the conditions results in the loss of the exclusion. Under the proposal, a violation of a condition at any point in the management of a CO2 stream would result in that CO2 stream being subject to all applicable Subtitle C regulatory requirements, from the point of generation. To illustrate, U.S. EPA explains that: “a violation of a condition at a UIC Class VI facility…would mean that in addition to the UIC Class VI facility, the generator and transporter would also be considered to be managing (or to have managed) a hazardous waste.” Id. at 48,087-88. U.S. EPA also notes that RCRA imminent and substantial endangerment provisions would continue to apply to conditionally excluded CO2 streams “even if the CO2 stream does not otherwise meet the regulatory definition of hazardous waste.” Id. at 48.088.
Because the proposed rule would eliminate the hazardous waste requirements for those CO2 streams that would otherwise meet the definition of hazardous waste, when those streams are managed in accordance with certain conditions, the proposed exclusion is less stringent than the Federal program. Therefore, states like West Virginia which have authorization to administer their own hazardous waste program in lieu of the Federal program are not required to adopt the conditional exclusion if finalized. Further, in the case of captured CO2 streams transported across state lines for injection in a Class VI well located in another state, for the conditionally excluded waste to be managed as excluded from Subtitle C from point of generation to injection in a UIC Class VI well, the state where the waste is generated, the states through which the waste passes, and the state where the UIC Class VI well is located must all adopt the exclusion.
On September 9, 2011, U.S. EPA published a technical correction to the proposed rule. 76 Fed. Reg. 55,846 (Sept. 9, 2011). The correction pertains to the paperwork burden estimates for those facilities that would be taking advantage of the conditional exclusion. The estimates actually identified in Section VII.B of the preamble to the proposed rule were incorrect, but the burden estimates referenced in the separate Information Collection Request document that is in the docket for the proposed rule are correct.
Comments on the proposed rule were due October 7, 2011, and can be found at https://www.regulations.gov under the docket identification number for the proposed rule, EPA-HQ-RCRA-2010-0695. Comments on the technical correction notice and/or supporting Information Collection Request can also be found in the docket for the proposed rule.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.