Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide (CO2, 48073-48093 [2011-19915]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 152 (Monday, August 8, 2011)]
[Proposed Rules]
[Pages 48073-48093]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19915]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-RCRA-2010-0695; FRL-9448-9]
RIN 2050-AG60


Hazardous Waste Management System: Identification and Listing of 
Hazardous Waste: Carbon Dioxide (CO2) Streams in Geologic Sequestration 
Activities

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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[[Page 48074]]

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing to revise the regulations for hazardous waste management 
under the Resource Conservation and Recovery Act (RCRA) to 
conditionally exclude carbon dioxide (CO2) streams that are 
hazardous from the definition of hazardous waste, provided these 
hazardous CO2 streams are captured from emission sources, 
are injected into Class VI Underground Injection Control (UIC) wells 
for purposes of geologic sequestration (GS), and meet certain other 
conditions. EPA is taking this action because the Agency believes that 
the management of these CO2 streams under the proposed 
conditions does not present a substantial risk to human health or the 
environment, and therefore additional regulation pursuant to RCRA's 
hazardous waste regulations is unnecessary. EPA expects that this 
amendment will substantially reduce the uncertainty associated with 
identifying these CO2 streams under RCRA subtitle C, and 
will also facilitate the deployment of GS by providing additional 
regulatory certainty.

DATES: Comments must be received on or before October 7, 2011. Under 
the Paperwork Reduction Act, comments on the information collection 
provisions must be received by the Office of Management and Budget 
(OMB) on or before September 7, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2010-0695, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: rcra-docket@epa.gov.
     Fax: 202-566-9744
     Mail: RCRA Docket, Environmental Protection Agency, 
Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies. In addition, please mail a copy 
of your comments on the information collection provisions to the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503.
     Hand Delivery: Deliver two copies of your comments to EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2010-0695. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
RCRA Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Ross Elliott, Office of Resource 
Conservation and Recovery (5304P), Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 
703-308-8748; fax number: 703-308-0514; e-mail address 
elliott.ross@epa.gov.

SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

    This is a proposed regulation. If finalized, this rule may apply to 
generators, transporters, and owners or operators of treatment, 
storage, and disposal facilities engaged in the management of carbon 
dioxide streams that would otherwise be regulated as hazardous wastes 
under the RCRA subtitle C hazardous waste regulations as part of 
geologic sequestration activities. This includes entities in the 
following industries: Operators of carbon dioxide injection wells used 
for geologic sequestration; and certain industries identified by their 
North American Industry Classification System (NAICS) code: oil and gas 
extraction facilities (NAICS 211111); utilities (NAICS 22); 
transportation (NAICS 48-49); and manufacturing (NAICS 31-33). More 
detailed information on the potentially affected entities is presented 
in Section VI of this preamble. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
https://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information on a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
the procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).

[[Page 48075]]

     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs. The Docket Center no longer has hard 
copies of original OSWER documents. The documents were converted to PDF 
format. Oversized documents were retained and may be copied. Patrons 
are allowed 93 free copied-pages. Thereafter, they are charged 15 cents 
per page. When necessary, an invoice stating how many copies were made, 
the cost of the order, and where to send a check will be issued to the 
patron. There is also an administrative fee of $14.00 added to the cost 
of the order.
    Documents also are available on microfilm. The EPA/DC staff can 
help patrons locate needed documents and operate the microfilm 
machines. There is no fee for printing documents from microfilm or 
microfiche.
    Patrons who are outside of the metropolitan Washington, DC, area 
can request documents by telephone, however, patrons are asked to 
submit requests by e-mail to ensure accuracy. The photocopying fee is 
the same as for walk-in patrons. There is no charge for converting 
microfilm/microfiche to PDF format and sending it to a customer. If an 
invoice is necessary, EPA/DC staff can mail one with the order.

Preamble Outline

I. Statutory Authority
II. Abbreviations, Acronyms, and Definitions
    A. Abbreviations and Acronyms
    B. Definitions Used in This Preamble
III. Background
    A. What is Geologic Sequestration?
    B. Why is Geologic Sequestration being considered as a climate 
change mitigation technology?
    C. What other recent EPA rulemakings are related to CCS?
    D. RCRA Applicability to GS Activities
    E. CO2 Stream Characterization
IV. Detailed Discussion of This Proposed Rule
    A. Authority for Conditional Exclusion From RCRA Subtitle C 
Requirements
    B. CO2 Streams Managed Prior to Underground Injection
    1. CO2 Streams Generated at Capture Sites
    2. Transportation of CO2 Streams to UIC Class VI 
Injection Well
    C. Underground Injection of CO2 Streams at UIC Class 
VI Wells
    1. Development of UIC Class VI Wells Under SDWA
    2. Key Elements of the UIC Class VI Well Requirements
    3. RCRA Land Disposal Restrictions
    4. Subtitle C Corrective Action
    5. Conclusion
    D. Prohibition on Introduction of Other RCRA Hazardous Wastes
    E. Loss of the Conditional Exclusion
    F. Adaptive Approach
    G. Definition of Carbon Dioxide Stream
V. State Authorization
    A. Applicability of the Rule in Authorized States
    B. Effect on State Authorization
VI. What are the costs and benefits of the proposed rule?
VII. Statutory and Executive Order (EO) Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Usage
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Statutory Authority

    These regulations are proposed under the authority of sections 
2002, 3001-3009 and 3013 of the Solid Waste Disposal Act (SWDA) of 
1970, as amended by the Resource Conservation and Recovery Act (RCRA) 
of 1976, and the Hazardous and Solid Waste Amendments of 1984 (HSWA), 
42 U.S.C. 6912, 6921-6929, 6934.

II. Abbreviations, Acronyms, and Definitions

A. Abbreviations and Acronyms

AoR Area of Review.
CAA Clean Air Act.
CCS Carbon Capture and Storage.
CERCLA Comprehensive Environmental Response, Compensation, and 
Liability Act.
CO2 Carbon Dioxide.
EOR Enhanced Oil and Natural Gas Recovery.
EPA Environmental Protection Agency.
GHG Greenhouse Gas.
GS Geologic Sequestration.
HSWA Hazardous and Solid Waste Amendments.
RCRA Resource Conservation and Recovery Act.
SDWA Safe Drinking Water Act.
TC Toxicity Characteristic.
TCLP Toxicity Characteristic Leaching Procedure.
UIC Underground Injection Control.
USDW Underground Source of Drinking Water.

B. Definitions Used in This Preamble

    Authorized representative: The person responsible for the overall 
operation of a facility or an operational unit (i.e., part of a 
facility), e.g., the plant manager, superintendent or person of 
equivalent responsibility.
    Carbon dioxide (CO2) stream: 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.
    Enhanced Oil or Gas Recovery (EOR/EGR): Typically, the process of 
injecting a fluid (e.g., water, brine, or CO2) into an oil 
or gas bearing formation to recover residual oil or natural gas. The 
injected fluid thins (decreases the viscosity) or displaces small 
amounts of extractable oil and gas, which is then available for 
recovery. This is also known as secondary or tertiary recovery.
    Supercritical CO2: Carbon dioxide that is above its critical 
temperature (31.1 [deg] C, or 88 [deg]F) and pressure (73.8 bar, or 
1070 psi). Supercritical substances have physical properties 
intermediate to those of gases and liquids.

III. Background

A. What is Geologic Sequestration?

    Geologic Sequestration (GS) is the process of injecting carbon 
dioxide (CO2) captured from an emission source (e.g., a 
power plant or industrial facility) into deep subsurface rock 
formations in order to isolate the CO2. GS is a key 
component of a set of climate change mitigation technologies referred 
to as ``carbon capture and storage'' or CCS. CCS can be described as a 
three-step process, 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

[[Page 48076]]

underground for purposes of sequestration.\1\
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    \1\ Report of the Interagency Task Force on Carbon Capture and 
Storage, August 2010, p. 8.
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    To transport the captured CO2 stream for GS, the 
CO2 stream will typically be compressed into a supercritical 
fluid.\2\ CO2 exists as a supercritical fluid at 
approximately 1,070 pounds per square inch (psi) and 88 [deg]Fahrenheit 
(F), and in this state it exhibits physical properties intermediate to 
those of a liquid and a gas. As mentioned, the majority of 
CO2 is expected to be delivered to the sequestration site by 
dedicated pipeline; \3\ however, transport by truck, rail, barge or 
supertanker may also occur, but these have been described as 
``logistically impractical'' for large-scale CCS operations.\4\ Whether 
by pipeline, or these other means, the transportation of supercritical 
CO2 is regulated by the U.S. Department of Transportation 
(DOT) under regulations found in 49 CFR parts 171-180 (governing the 
transportation by air, rail, highway, and water) and parts 190 and 195-
199 (governing the transportation of hazardous liquids and carbon 
dioxide by pipeline). The CO2 stream is then injected into 
deep subsurface rock formations via one or more wells, using 
technologies that have been developed and refined by the oil and gas 
and chemical manufacturing industries over the past several decades. To 
sequester the CO2 stream, EPA believes that many GS site 
owners or operators will inject the CO2 stream to depths of 
greater than 800 meters (or 2,625 feet), for the purpose of maximizing 
capacity and storage, and where ambient pressure and temperature are 
sufficient to maintain the CO2 stream in a supercritical 
state. December 10, 2010 (75 FR at 77233).
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    \2\ Carbon Dioxide Capture and Storage. Intergovernmental Panel 
on Climate Change (IPCC), 2005.
    \3\ Guidelines for Carbon Dioxide Capture, Transport, and 
Storage. World Resources Institute, 2008.
    \4\ CRS Report for Congress. Carbon Dioxide (CO2) 
Pipelines for Carbon Sequestration: Emerging Policy Issues. Paul W. 
Parfomak and Peter Folger. January 17, 2008.
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    When injected in an appropriate receiving formation, the 
CO2 stream is sequestered by a combination of trapping 
mechanisms, including physical and geochemical processes, as summarized 
below.
    [cir] Physical trapping occurs when the relatively buoyant 
CO2 rises in the formation until it reaches a stratigraphic 
zone with low fluid permeability (i.e., geologic confining system) that 
inhibits further upward migration. Physical trapping can also occur as 
residual CO2 is immobilized in formation pore spaces. A 
portion of the CO2 will dissolve into the groundwater and 
hydrocarbons present in the receiving formation, and CO2 
molecules can also attach onto the surfaces of coal and certain 
organic-rich shales (a process called preferential sorption), 
displacing other molecules, such as methane. The effectiveness of 
physical CO2 trapping is demonstrated by natural analogs 
worldwide in a range of geologic settings, where CO2 has 
remained trapped for millions of years. For example, CO2 has 
been trapped for more than 65 million years under the Pisgah Anticline, 
northeast of the Jackson Dome in Mississippi and Louisiana, with no 
evidence of leakage from the confining formation.\5\
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    \5\ Carbon Dioxide Capture and Storage. IPCC, 2005.
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    [cir] Geochemical trapping occurs when chemical reactions between 
the dissolved CO2 and minerals in the receiving formation 
result in the precipitation of solid carbonate minerals.\6\ The 
timeframe over which CO2 will be trapped by these mechanisms 
depends on the properties of the receiving formation and the injected 
CO2 stream. Research is currently ongoing to further 
understand these mechanisms and the time required to trap 
CO2 under various conditions.
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    \6\ Ibid.
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    Additional background information on the GS of CO2 
streams can also be found in the final rule and associated record for 
the final rule for UIC Class VI wells published on December 10, 2010 
(75 FR 77230).

B. Why is Geologic Sequestration being considered as a climate change 
mitigation technology?

    Climate change is happening now, and the effects can be seen on 
every continent and in every ocean. While certain effects of climate 
change can be beneficial, particularly in the short term, current and 
future effects of climate change pose considerable risks to human 
health and the environment.\7\ There is now clear evidence that the 
Earth's climate is warming: \8\
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    \7\ National Research Council (2011) Climate Stabilization 
Targets: Emissions, Concentrations, and Impacts over Decades to 
Millennia. Washington, DC: National Academies Press.
    \8\ Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global 
Climate Change Impacts in the United States. Cambridge University 
Press, Cambridge, United Kingdom.
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    [cir] Global surface temperatures have risen by 1.3 [deg]F when 
estimated by a linear trend from 1906 to 2005.\9\
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    \9\ Trenberth, K.E. et al. (2007) Observations: Surface and 
Atmospheric Climate Change. In: Climate Change 2007: The Physical 
Science Basis. Contribution of Working Group I to the Fourth 
Assessment Report of the Intergovernmental Panel on Climate Change 
[Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, 
M. Tignor and H.L. Miller (eds.)]. Cambridge University Press, 
Cambridge, United Kingdom and New York, NY, USA.
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    [cir] Worldwide, the last decade has been the warmest on 
record.\10\
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    \10\ National Oceanic and Atmospheric Administration (NOAA) 
(2009a) The Annual Global (land and ocean combined) Anomalies 
(degrees C).
     ftp://ftp.ncdc.noaa.gov/pub/data/anomalies/annual.land_ocean.90S.90N.df_1901-2000mean.dat. Accessed April 28, 2011.
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    [cir] Ocean temperatures and sea levels are rising and glaciers are 
retreating around the world.\11\
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    \11\ Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global 
Climate Change Impacts in the United States. Cambridge University 
Press, Cambridge, United Kingdom.

Most of this recent warming is very likely the result of human 
activities.\12\ Many human activities (such as the combustion of fossil 
fuels) release greenhouse gases (GHGs) into the atmosphere. The levels 
of several of these gases, including CO2, have reached 
concentrations not seen on Earth in hundreds of thousands of years.\13\
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    \12\ IPCC (2007b) Summary for Policymakers. In: Climate Change 
2007: Impacts, Adaptation and Vulnerability. Contribution of Working 
Group II to the Fourth Assessment Report of the Intergovernmental 
Panel on Climate Change [M.L. Parry, O.F. Canziani, J.P. Palutikof, 
P.J. van der Linden and C.E. Hanson (eds.)]. Cambridge University 
Press, Cambridge, United Kingdom and New York, NY, USA.
    \13\ Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) Global 
Climate Change Impacts in the United States. Cambridge University 
Press, Cambridge, United Kingdom.
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    In addition, fossil fuels are expected to remain the main source of 
energy production well into the 21st century, and increased 
concentrations of CO2 are expected unless energy producers 
reduce CO2 emissions to the atmosphere. For example, CCS 
could enable the continued use of coal in a manner that greatly reduces 
the associated CO2 emissions, while other alternative energy 
sources are developed in the coming decades. CCS has the potential to 
be key to achieving domestic GHG emissions reductions, and as already 
mentioned, GS is a key component of CCS.\14\
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    \14\ Report of the Interagency Task Force on Carbon Capture and 
Storage, August 2010, p. 14.
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    GS is therefore one of a portfolio of options that could be 
deployed to reduce CO2 emissions to the atmosphere and help 
to mitigate climate change. Other options include, but are not limited 
to, energy conservation, efficiency improvements, and the use of 
alternative fuels and renewable energy sources, including solar and 
wind power.

[[Page 48077]]

C. What other recent EPA rulemakings are related to CCS?

    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. Two important EPA rulemakings that directly address GS 
activities are requirements under the Greenhouse Gas (GHG) Reporting 
Program; and Federal Requirements under the Underground Injection 
Control (UIC) Program for Carbon Dioxide (CO2) Geologic 
Sequestration (GS) Wells. These are described in more detail below.
     EPA Greenhouse Gas (GHG) Reporting Program: The GHG 
Reporting Program was established under authority of the Clean Air Act 
(CAA) and requires reporting of GHG emissions and other relevant 
information from certain source categories in the United States. On 
October 30, 2009, EPA issued a final rule (74 FR 56260) that requires 
reporting by facilities with production process units that capture a 
CO2 stream under subpart PP of the program. These facilities 
are required to report the amount of CO2 in a stream 
captured, and provide information on the downstream CO2 end 
use (e.g., food and beverage, EOR, GS, etc.). On December 1, 2010, EPA 
issued a final rule (75 FR 75060) that requires reporting from 
facilities that inject CO2 underground for GS under subpart 
RR of the program. The rule requires facilities that inject 
CO2 underground for GS to report basic information on 
CO2 received for injection, develop and implement an EPA-
approved site-specific monitoring, reporting and verification plan, and 
report the amount of CO2 sequestered using a mass balance 
approach and annual monitoring activities.
     EPA Class VI Underground Injection Control (UIC) Rule: On 
July 25, 2008, EPA proposed to amend the UIC program (73 FR 43492) to 
establish a new class of injection well (Class VI) and to establish 
minimum Federal requirements under the Safe Drinking Water Act (SDWA) 
for the underground injection of CO2 for the purpose of GS. 
The proposed requirements would ensure that GS is conducted in a manner 
that protects Underground Sources of Drinking Water (USDWs) from 
endangerment, by tailoring existing components of the UIC program to 
address the unique nature of GS. On December 10, 2010, EPA finalized 
the new UIC Class VI injection well standards. These requirements are 
intended to provide certainty to industry and the public about the 
requirements that would apply to injection for purposes of GS, by 
providing consistency regarding the requirements across the U.S., and 
transparency about what requirements apply to permitted UIC Class VI 
facility owners or operators. For a more detailed discussion of these 
requirements, see the final rule in the December 10, 2010 Federal 
Register (75 FR 77230).

D. RCRA Applicability to GS Activities

    In response to the July 25, 2008 proposed rule for UIC Class VI 
wells, EPA received a number of comments regarding the potential 
applicability of RCRA subtitle C to CO2 streams being 
geologically sequestered. As a result of those comments, EPA decided to 
initiate work on today's proposal. EPA also considered those RCRA-
related comments in the development of today's proposed rule. EPA 
notes, however, that should persons wish to comment on the RCRA 
applicability issues raised by today's proposal, it is necessary to 
submit comments to the docket established for today's proposed rule as 
described above in the ADDRESSES section of this Federal Register 
notice. EPA will not provide further responses to comments submitted on 
the UIC rule as part of this rulemaking. In addition, today's proposal 
is not reopening the UIC Class VI final rule, nor will EPA respond to 
comments related only to that rule.
    At this time, EPA has little information to conclude that 
CO2 streams would qualify as RCRA hazardous wastes, which 
would make them subject to EPA's comprehensive RCRA hazardous waste 
management regulations. However, commenters have cited the potential 
for RCRA hazardous waste requirements to attach to some CO2 
streams (i.e., some CO2 streams might be classified as 
hazardous waste and therefore, would be subject to RCRA subtitle C), as 
a significant impediment to widespread deployment of CCS technologies. 
Today's proposal seeks to address this concern and provide regulatory 
clarity through a revised RCRA regulatory approach for CO2 
streams. Simultaneously, as discussed below, EPA expects that 
management in accordance with the conditions in today's proposal will 
provide no reduced protection to human health and the environment.
    After issuance of the proposed UIC Class VI rule, EPA received 
public comments that the proposed requirements were unclear as to 
whether the CO2 stream would be a RCRA hazardous waste, and 
expressed concern that this created uncertainty regarding the type of 
permit needed for GS. Many commenters stated that a CO2 
stream should not be treated as a RCRA hazardous waste on the grounds 
that it is neither a listed hazardous waste nor exhibits a hazardous 
characteristic, or is even a solid waste. Other commenters, however, 
asserted that CO2 in the presence of water could exhibit the 
RCRA corrosivity characteristic. Additionally, some commenters raised 
the issue of whether the analytic procedures used under RCRA (in 
particular, the toxicity characteristic leaching procedure, TCLP) \15\ 
can be applied to supercritical CO2 streams, and whether or 
not the UIC Class VI regulations would better ensure the proper 
management of CO2 streams, compared with the RCRA subtitle C 
hazardous waste requirements.
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    \15\ Toxicity Characteristic Leaching Procedure, or TCLP. See 40 
CFR 261.24. A solid waste is defined as hazardous when a 
representative sample of that waste leaches a particular chemical or 
compound--for example, arsenic--above a specified regulatory 
concentration, using the TCLP.
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    EPA believes that the RCRA hazardous waste regulations can apply to 
CO2 streams being geologically sequestered. Subtitle C of 
RCRA and its implementing regulations establish a ``cradle to grave'' 
regulatory scheme over certain ``solid wastes'' which are also 
``hazardous wastes.'' RCRA defines solid waste as ``any garbage, 
refuse, sludge from a waste treatment plant, water supply treatment 
plant, or air pollution control facility and other discarded material, 
including solid, liquid, semisolid, or contained gaseous material * * 
*.'' See RCRA 1004(27), 42 U.S.C. 6903(27). EPA has further defined the 
term ``solid waste'' for purposes of its RCRA hazardous waste 
regulations. 40 CFR 261.2. To be considered a hazardous waste, a 
material first must be classified as a solid waste. Under EPA's 
regulations, generators of solid waste are required to determine 
whether their wastes are hazardous wastes. 40 CFR 262.11. A solid waste 
is a hazardous waste if it exhibits any of four characteristics 
(ignitability, corrosivity, reactivity, or toxicity), 40 CFR 
261.20-.24, or is a listed waste, 40 CFR 261.30-.33 (these include 
wastes from non-specific sources, such as spent solvents; by-products 
from specific industries; and discarded, unused commercial chemical 
products).
    A supercritical CO2 stream injected into a permitted UIC 
Class VI well for

[[Page 48078]]

purposes of GS is a RCRA solid waste, as it is a ``discarded material'' 
within the plain meaning of the term in RCRA Sec.  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. An 
entity involved in the CCS process may generate CO2 that 
qualifies as a solid waste under the RCRA hazardous waste regulations 
by making the decision to discard the material through abandonment by 
disposing of the material (see 40 CFR 261.2(a)(2)(i) and (b)(1)). Once 
the 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. This decision may be made upstream of the 
injection well facility. As discussed above, EPA's regulations require 
that generators of a solid waste determine whether their wastes are 
hazardous wastes, and if so, manage them in accordance with EPA's RCRA 
hazardous waste regulations. 40 CFR 262.11.
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    \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.
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    One commenter to the UIC proposed rule suggested that the captured 
CO2 stream was exempt from the RCRA hazardous waste 
regulations under the exemption for ``fly ash waste, bottom ash waste, 
slag waste, and flue gas emission control waste, generated primarily 
from the combustion of coal or other fossil fuels,'' also referred to 
as the ``Bevill exemption.'' (See 40 CFR 261.4(b)(4).)
    EPA studied the fossil fuel combustion wastes as directed by 
Congress, and published two Reports to Congress,\17\ and issued two 
Regulatory Determinations on the management and use of coal and other 
fossil fuel combustion products, one on August 9, 1993 and a second one 
on May 22, 2000 (58 FR 42466 and 65 FR 32214, respectively). 
CO2 captured for purposes of GS was not included in either 
of these Regulatory Determinations, or in the underlying studies upon 
which these determinations were based. The Agency has consistently 
interpreted the Sec.  261.4(b)(4) exemption as only encompassing those 
wastes that were studied, and EPA did not study CO2 that has 
been captured for GS. Therefore, EPA believes that the CO2 
streams discussed in today's proposed rule are not included within the 
Bevill exemption under Sec.  261.4(b)(4).\18\
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    \17\ Report to Congress: Wastes from the Combustion of Coal by 
Electric Utility Power Plants, February 1988, EPA-530-SW-88-002; and 
Report to Congress: Wastes From the Combustion of Fossil Fuels, Vol. 
1 & 2, U.S. EPA, March 1999, EPA-530-S-99-010 and EPA-530-R-99-010.
    \18\ EPA notes that even if CO2 streams from the 
combustion of fossil fuels were exempt from regulation as hazardous 
waste under Sec.  261.4(b)(4)--which it does not believe to be the 
case--the Bevill exemption would only apply to CO2 
generated from the combustion of materials in boilers to generate 
steam for the purpose of generating energy, and not to other 
CO2 streams generated from other sources.
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    EPA notes that CO2 streams are not listed RCRA hazardous 
wastes (i.e., CO2 streams are not specifically identified as 
one of the hazardous wastes listed in 40 CFR part 261, subpart D). 
However, the CO2 stream would be a hazardous waste if it 
exhibits any of the hazardous characteristics in 40 CFR part 261, 
subpart C, or, is mixed with a listed hazardous waste. See Sec.  
261.3(a)(iv). Under the UIC Class VI final rule, injection site owners 
and operators must determine whether the CO2 stream is 
hazardous under the RCRA regulations, and if so, injection of the 
CO2 stream may only occur in a UIC Class I hazardous waste 
injection well.\19\ Conversely, UIC Class VI wells cannot be used for 
the injection of RCRA hazardous wastes. Today's proposal, if finalized, 
would allow CO2 streams that would otherwise qualify as RCRA 
hazardous wastes to be managed in a Class VI well, provided that they 
meet the conditions of this proposed rule.
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    \19\ As already mentioned, a hazardous waste determination must 
be made when a waste is first generated (Sec.  262.11); however, 
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 40 
CFR 261.3(b)(3) and 45 FR 33096 (May 19, 1980).
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    As already noted, commenters to the UIC Class VI proposed rule also 
raised questions about the appropriateness and feasibility of applying 
the RCRA hazardous waste characteristics to CO2 streams and, 
in particular, the Toxicity Characteristic (TC). See Sec.  261.24. Some 
commenters stated that the TCLP test method associated with the TC 
could not be used on materials other than solids or liquids, and that 
EPA would have to develop new testing regulations and guidelines 
specifically for evaluating supercritical CO2. Commenters 
also stated that the TC regulation was inappropriate for CO2 
streams because the TC was ``* * * designed to assess the threat waste 
would have in a municipal landfill disposal scenario, a scenario that * 
* * is inherently inapplicable to uncontained supercritical 
CO2.'' Many commenters also expressed concern over the 
uncertainty in determining how the RCRA hazardous waste regulations, 
including the hazardous waste identification issues described here, 
apply to CO2 streams being sequestered in UIC Class VI 
wells.
    In light of these comments, EPA reiterates that no hazardous waste 
listings apply specifically to CO2 streams; therefore, a 
CO2 stream could only be defined as a hazardous waste if it 
exhibits a hazardous waste characteristic as defined in 40 CFR part 
261, subpart C.\20\ Regarding the feasibility of testing CO2 
streams, EPA acknowledges the commenter's concern, but also notes that 
the hazardous waste regulations allow generators to apply their 
knowledge--in lieu of testing--of the hazard characteristic of a waste, 
in light of the materials or processes used, to determine whether that 
waste is a characteristic hazardous waste under RCRA.\21\ 40 CFR 
262.11(c)(2). EPA also notes that methods exist for sampling and 
analyzing gaseous emissions in order to identify and quantify hazardous 
constituents that may be present.\22\ Regarding whether a TCLP leach 
test can be applied to a supercritical CO2 stream, EPA notes 
that the TC regulation, and the TCLP test method, allow for measurement 
of total constituent concentrations in a waste, in lieu of running the 
leach test, and under certain circumstances even require it (such as 
where wastes are liquids that contain less than 0.5% solids).\23\ 
However, EPA acknowledges the commenters' underlying concerns related 
to RCRA characterization, and requests comment on this issue.
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    \20\ It is also possible that a CO2 stream could 
become a hazardous waste if it is mixed with a listed hazardous 
waste, or, mixed with a characteristic hazardous waste and the 
resultant mixture exhibits a characteristic of hazardous waste. This 
is commonly referred to as the ``mixture rule.'' See 40 CFR 261.3. 
We note that today's proposed exemption includes the condition that 
prohibits the mixing of CO2 streams with hazardous waste.
    \21\ Any persons claiming that a waste is non-hazardous, based 
on knowledge in lieu of testing, should be prepared to substantiate 
this claim.
    \22\ E.g., EPA notes that existing analytical test methods, such 
as SW-846 Methods 0060, 0010, and 0031, are available to quantify 
the levels of various hazardous constituents in gaseous streams, 
although sampling a supercritical CO2 stream may require 
particular sampling protocols.
    \23\ See SW-846, Method 1311, Section 2.1.
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E. CO2 Stream Characterization

    As noted above, EPA is proposing to conditionally exclude from the

[[Page 48079]]

definition of hazardous waste CO2 streams captured, 
transported (or otherwise delivered to) and injected into permitted UIC 
Class VI wells for purposes of GS. At this time, EPA has little 
information to conclude that CO2 streams would qualify as 
RCRA hazardous wastes, which would make them subject to EPA's 
comprehensive RCRA hazardous waste management regulations. Today's 
proposal is intended to provide clarity for deployment of CCS under 
conditions that EPA believes would not present a substantial risk to 
human health and the environment. However, EPA acknowledges that at 
this time, it does not have full knowledge of the range of possible 
CO2 stream compositions. Today's proposed conditional 
exclusion is based upon EPA's existing knowledge of the composition of 
CO2 streams, and its analysis that compliance with the 
existing standards and regulations designed to prevent any exposure of 
CO2 (and any associated impurities) would render additional 
regulation under RCRA subtitle C unnecessary.
    Nevertheless, EPA is proceeding with this proposal, and notes that 
the UIC Class VI regulations include requirements that the owner or 
operator of the injection well provide an analysis of the physical and 
chemical characteristics of the CO2 stream, both during 
permit application and periodically during operation (See 40 CFR 
146.82, 146.90 and 146.91). The permit-issuing authority is also 
authorized under EPA's UIC permit regulations to add any additional 
conditions to the permit, as necessary, to assure compliance with 
applicable SDWA requirements (40 CFR 146.52(b)). Under this authority, 
the UIC Program Director (EPA or a State permitting authority) may add 
specific testing or chemical/waste limitations to the permit to prevent 
endangerment of USDWs, or to assure that unauthorized wastes are not 
injected with the CO2 stream.
    EPA has reviewed estimates of CO2 stream composition 
that were calculated using information, such as the composition of flue 
gas from the burning of fossil fuels and other likely sources, existing 
flue gas emission control technologies (e.g., electrostatic 
precipitators and scrubbers), and data from applied capture 
technology.\24\ These estimates indicate that captured CO2 
could contain (based upon the information used in developing those 
estimates) low concentrations of hazardous constituents (e.g., 
estimated concentrations expressed in parts per million by volume, or 
ppmv, are: 0.0022-0.0097 arsenic, 0.0462-0.4623 barium, 0.0002-0.0085 
cadmium, 0.0016-0.0171 chromium, 0.0022-0.0028 mercury, 0.0011-0.0045 
lead, and 0.0074-0.0244 selenium). EPA notes that these contaminants 
derived from the combustion flue gas are relevant to the TC regulation 
in Sec.  261.24.\25\ These estimates also indicate that the types of 
impurities and their concentrations would likely vary by facility, coal 
composition, plant operating conditions, and pollutant removal and 
carbon capture technologies.
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    \24\ Apps, J.A., A Review of Hazardous Chemical Species 
Associate with CO2 Capture from Coal-Fired Power Plants 
and Their Potential Fate in CO2 Geologic Storage, 
Lawrence Berkeley National Laboratory, March 2006.
    \25\ Ibid, Table 13b. EPA notes that the presence of hazardous 
constituents or contaminants does not automatically mean that a 
CO2 stream is a hazardous waste.
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    EPA solicited comment in the July 25, 2008 proposed UIC Class VI 
rule on the presence of impurities in CO2 streams, but did 
not receive any analytical data on the composition of captured 
CO2 streams in response. As various CCS pilot projects \26\ 
move forward and continue to generate information, EPA expects the 
amount of available analytical data on captured CO2 to 
increase. In addition, EPA expects that data will become available 
under the recently promulgated UIC Class VI regulations. As discussed 
above, the final UIC Class VI regulations require that prior to 
issuance of a permit, the owner or operator of the well must submit to 
the Director \27\ proposed operating data for the proposed GS site, 
including an analysis of the chemical and physical properties of the 
CO2 stream (40 CFR 146.82(a)(7)(iv)). The UIC rule also 
requires that, throughout the operational life of the Class VI well, 
the injected CO2 stream be analyzed by owners or operators 
with sufficient frequency to yield data representative of its physical 
and chemical characteristics (40 CFR 146.90(a)). Owners or operators 
must also submit semi-annual reports that include any changes to the 
physical, chemical, and other relevant characteristics of the 
CO2 stream from the proposed operating data (40 CFR 
146.91(a)(1)). While guidance is still being developed regarding these 
requirements, at a minimum, the physical characteristics of the 
CO2 stream will include temperature and pressure, while the 
chemical characteristics will include pH, carbon dioxide purity (as a 
percent), as well as concentrations of non-CO2 constituents 
(either in ppmv or in percent). These non-CO2 constituents 
may include, but are not limited to, sulfur dioxide (SO2), 
hydrogen sulfide (H2S), nitrous oxides (NOX), 
carbon monoxide (CO), methane (CH4), other hydrocarbons, 
water vapor (H2O), as well as certain contaminants, that are 
also defined as hazardous contaminants in 40 CFR 261.24, such as 
arsenic, mercury, and selenium. EPA expects that these data will 
provide an indication of any impurities that may be present, their 
concentrations, and whether such impurities might alter the corrosivity 
or other properties of the CO2 stream after injection.
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    \26\ See Exhibits 1 and 2 in EPA's analysis of the potential 
costs and benefits associated with this action, entitled Assessment 
of the Potential Costs, Benefits, and Other Impacts of the 
Conditional Exclusion from the RCRA Definition of Hazardous Waste 
for CO2 Streams Managed in UIC Class VI Wells for the Purposes of 
Geologic Sequestration, as Proposed. A copy of this document is 
available in the docket established for this action.
    \27\ As used here in the context of the UIC program, `Director' 
means the person responsible for permitting, implementation, and 
compliance of the UIC program. For UIC programs administered by EPA, 
the Director is the EPA Regional Administrator or his/her authorized 
representative; for UIC programs in Primacy States, the Director is 
the person responsible for permitting, implementation, and 
compliance of the State, Territorial, or Tribal UIC program. 40 CFR 
144.3.
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    EPA today requests analytical data on the physical and chemical 
characteristics of captured CO2, including the 
concentrations of hazardous contaminants, CO2 content, 
information on the type of CO2 capture process used, and how 
the samples were collected and analyzed. This data will allow EPA to 
gain a better understanding of the nature and characteristics of 
captured CO2 streams.

IV. Detailed Discussion of This Proposed Rule

    EPA is proposing to revise the regulations for hazardous waste 
management under RCRA to exclude from the definition of hazardous waste 
CO2 streams that would otherwise be defined as hazardous, 
when these CO2 streams are managed under certain conditions. 
The Agency believes that this amendment to the RCRA hazardous waste 
rules, if finalized, will substantially reduce the uncertainty 
associated with defining and managing these CO2 streams 
under RCRA subtitle C. For the reasons discussed below, EPA believes 
that the management of these CO2 streams in accordance with 
the proposed conditions does not present a substantial risk to human 
health and the environment. These proposed conditions include, but are 
not limited to, compliance with the existing regulatory regimes 
governing the transportation of the CO2 stream, and its 
injection in a UIC Class VI permitted well.

[[Page 48080]]

A. Authority for Conditional Exclusion From RCRA Subtitle C 
Requirements

    EPA has previously interpreted RCRA section 3001(a) to authorize 
the issuance of ``conditional exemptions'' from the requirements of 
subtitle C, where it determines that ``a waste might pose a hazard only 
under limited management scenarios, and other regulatory programs 
already address such scenarios.'' 62 FR at 6636 (February 12, 1997); 66 
FR at 27222-27223 (May 16, 2001). Today's proposal takes a similar 
approach to those earlier rules.
    Section 3001(a) provides the Agency with flexibility to consider 
the need for regulation in deciding whether to list or identify a waste 
as hazardous. Specifically, RCRA section 3001(a) requires that EPA, in 
determining whether to list a waste as a hazardous waste, or to 
otherwise identify a waste as a hazardous waste, decide whether a waste 
``should be subject to'' the requirements of subtitle C. Hence, RCRA 
section 3001 authorizes EPA to determine when subtitle C regulation is 
appropriate. EPA has consistently interpreted section 3001 of RCRA to 
give it broad flexibility in fashioning criteria for hazardous wastes 
to enter or exit the subtitle C regulatory system. EPA's longstanding 
regulatory criteria for determining whether wastes pose hazards that 
require regulatory control incorporate the idea that a waste that is 
otherwise hazardous may not present a hazard if already subject to 
adequate regulation. (See, e.g., 40 CFR 261.11(a)(3)(x), which requires 
EPA to consider action taken by other governmental agencies or 
regulatory programs based on the health or environmental hazard posed 
by the waste.)
    EPA's interpretation is further supported by the text of RCRA 
sections 1004(5), and 3002-3004, and RCRA's legislative history. This 
interpretation has also been upheld upon judicial review. See, e.g., 
Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998) 
(upholding conditional exemption for storage of military munitions, 
based on EPA determination that such wastes are subject to binding 
standards that meet or exceed RCRA standards, in addition to an 
institutional oversight process).
    The statutory definition of hazardous waste, section 1004(5)(B), 
informs EPA's interpretation that EPA may consider good management 
practices in determining the need to regulate waste as hazardous. That 
section defines a `hazardous waste' as ``a solid waste, or combination 
of solid wastes, which because of its quantity, concentration, or 
physical, chemical or infectious characteristics may * * * (B) pose a 
substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported, or disposed 
of, or otherwise managed.'' (Emphasis added.) EPA has interpreted the 
statutory definition as incorporating the idea that a waste that is 
otherwise hazardous does not require regulation so long as it is 
properly managed. For example, EPA's standards for listing hazardous 
wastes require consideration of a waste's potential for mismanagement. 
See 40 CFR 261.11(a)(3)(vii) (incorporating the language of RCRA 
section 1004(5)(B) and requiring EPA to consider ``plausible types of 
improper management'').
    The statute also directs EPA to regulate hazardous waste generators 
(RCRA Sec.  3002(a)), transporters (RCRA Sec.  3003(a)) and treatment, 
storage and disposal facilities (RCRA Sec.  3004(a)) ``as may be 
necessary to protect human health and the environment.'' By extension, 
the decision of when a waste should be subject to the regulatory 
requirements of subtitle C is a question of whether such regulatory 
controls are necessary to protect human health and the environment.
    Thus, where a waste might pose a hazard only under limited 
management scenarios, and other regulatory programs already address 
such scenarios, EPA is not required to classify a waste as hazardous 
waste subject to regulation under subtitle C. At least three decisions 
by the U.S. Court of Appeals for the D.C. Circuit provide support for 
this approach to regulating wastes as hazardous waste only where 
necessary to protect human health and the environment. In Military 
Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), the court upheld 
a conditional exemption whereby the storage and transportation of 
certain military munitions are not considered hazardous waste subject 
to regulation under RCRA subtitle C, provided the munitions are stored 
and transported in compliance with regulations issued by the Department 
of Defense and the Department of Transportation, respectively. See 40 
CFR 266.203, 266.205. The court ruled that EPA's interpretation of RCRA 
as authorizing a conditional exemption is ``a permissible construction 
of the statute.'' 146 F.3d at 958. The court cited its own precedent as 
recognizing ```that Congress intended the agency to have substantial 
room to exercise its expertise in determining the appropriate grounds 
for listing,' '' id. (citing NRDC v. EPA, 25 F.3d 1063, 1070 (D.C. Cir. 
1994)), and concluded that, although the military munitions rule ``does 
not involve the listing regulations at issue in NRDC v. EPA, we think 
the principle at work there also supports the conditional exemption at 
issue here.'' Id.
    In NRDC v. EPA, the court held that EPA appropriately used its 
discretion in relying on several existing regulatory frameworks 
governing used oil in determining not to list certain used oils as a 
hazardous waste. NRDC, 25 F.3d at 1071. Similarly, in Edison Electric 
Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993), the court upheld a 
temporary exemption from subtitle C for petroleum-contaminated media 
based on the fact that the potential hazards of such materials are 
already controlled under the underground storage tank regulations under 
RCRA subtitle I. In reaching its decision, the court considered the 
fact that the subtitle I standards could prevent threats to human 
health and the environment to be an important factor supporting the 
exemption. Id. at 453.
    The legislative history of RCRA subtitle C also supports this 
interpretation, stating that ``the basic thrust of this hazardous waste 
title is to identify what wastes are hazardous in what quantities, 
qualities, and concentrations, and the methods of disposal which may 
make such wastes hazardous.'' H. Rep. No. 94-1491, 94th Cong., 2d Sess. 
6 (1976), reprinted in A Legislative History of the Solid Waste 
Disposal Act, as Amended, Congressional Research Service, Vol.1, 567 
(1991) (emphasis added). Finally, as discussed above, in proposing this 
conditional exemption from RCRA, EPA is in part relying on the 
regulatory controls for Class VI wells, under the UIC program of the 
SDWA, 42 U.S.C. 300f et seq. EPA notes that such reliance is also 
consistent with the direction provided in section 1006(b) of RCRA, 
which directs EPA to integrate the provisions of RCRA, for purposes of 
administration and enforcement and to avoid duplication, to the maximum 
extent practicable, with those of certain other statutes, including the 
SDWA, to the extent that it can be done in a manner that is consistent 
with the goals and policies of both RCRA and the other relevant 
statute(s).

B. CO2 Streams Managed Prior to Underground Injection

    Under the subtitle C hazardous waste program, the generator 
requirements (40 CFR part 262) contain provisions designed to ensure 
that hazardous wastes are properly managed by persons who generate the 
wastes. This is accomplished through certain requirements governing the 
temporary

[[Page 48081]]

storage (i.e., accumulation) of hazardous wastes, in units, such as 
tanks or containers, at the site of generation. These requirements 
include technical requirements for the tanks or containers, and time 
limits on hazardous waste storage, if the waste is to be sent off-site 
to a treatment, storage or disposal facility.\28\ These requirements 
also include recordkeeping and reporting, and certain pre-transport 
requirements, such as packaging, labeling, and preparing a hazardous 
waste manifest to accompany the waste. Generators must also notify EPA 
of their hazardous waste management activity, and obtain an EPA 
identification (ID) number. Likewise, hazardous waste transporters 
(e.g., persons transporting waste, including over the highway or by 
rail) have certain requirements in 40 CFR part 263, to ensure that the 
hazardous wastes are properly transported to a hazardous waste 
treatment, storage, or disposal facility. These transporter 
requirements include notifying EPA and obtaining an EPA ID number, 
recordkeeping, and compliance with the hazardous waste manifest. EPA 
notes that under the RCRA subtitle C regulations, a hazardous waste 
manifest is not required for hazardous wastes sent off-site via 
pipeline.\29\
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    \28\ The generator regulations in 40 CFR part 262 provide for 
limited, temporary on-site hazardous waste storage (accumulation) 
without a RCRA permit or being subject to the interim status 
standards, provided certain conditions are met (see Sec.  262.34). 
While generators are not required to send hazardous waste off-site 
for disposal, they often do so because they do not wish to engage in 
RCRA-permitted hazardous waste activity on-site.
    \29\ This is because use of the hazardous waste manifest is 
triggered by the transport of hazardous waste (see discussion in 
Section IV.B.2. in this preamble, including Footnote 41).
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    For CO2 streams that are captured, compressed, and 
transported to a UIC Class VI well, EPA believes that the full set of 
subtitle C generator and transporter requirements are not necessary, 
because they do not provide any additional protection over existing 
regulatory requirements. Regarding the generator requirements, EPA 
believes that the process of capturing and compressing CO2 
prior to delivery to a UIC Class VI facility via a pipeline, as the 
Agency understands it, will not involve storage at the generator 
facility (i.e., at the CO2 source), but rather will occur in 
a continuous fashion (capture process [rarr] compression/dehydration 
[rarr] pipeline insertion). Once in the pipeline, EPA believes the 
applicable DOT requirements (which apply to supercritical 
CO2 streams regardless of whether or not these materials 
meet the definition of hazardous waste) will ensure that CO2 
streams are managed in a manner that addresses the potential risks to 
human health and the environment that these materials may pose, prior 
to arrival at a Class VI injection well facility.
1. CO2 Streams Generated at Capture Sites
    While certain technologies for removing (capturing) CO2 
have been in use commercially for over 60 years (e.g., natural gas 
processing, production of food-grade CO2), research has been 
underway to develop more cost-effective technologies to capture 
CO2 for purposes of CCS. Regardless of the capture 
technology that is ultimately implemented, information currently 
available to EPA indicates that once the CO2 stream is 
captured at the source (e.g., coal-fired power plant), it will be 
dehydrated (to meet pipeline specifications preventing corrosion) and 
compressed (to match designated pipeline pressures) in preparation for 
transport, primarily via CO2 pipeline.30 31
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    \30\ DOE/NETL's Carbon Capture R&D Program for Existing Coal-
Fired Power Plants, DOE/NETL-2009-1356, February 2009.
    \31\ Figueroa, Jose D. et al., 2008. Advances in CO2 
capture technology--the U.S. Department of Energy's Carbon 
Sequestration Program, International Journal of Greenhouse Gas 
Control 2, 2008 (9-20).
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    However, evaluating in more detail how CO2 streams will 
be managed at the CO2 source prior to GS in a UIC Class VI 
facility, and what regulations or other standards might apply to these 
activities in lieu of the RCRA generator standards, has proven somewhat 
difficult based on a review of the literature. This is either because 
many of the newer capture technologies are still in the developmental 
stages, or because the more established capture technologies used in 
commercial CO2 capture have not yet been scaled up to large 
facilities, such as coal-fired power plants. Nonetheless, EPA attempted 
to assess how captured CO2 streams would be managed in the 
context of the RCRA generator requirements identified above (e.g., EPA 
notification, standards for tanks or containers, time limits for on-
site storage, recordkeeping and reporting, packaging, labeling, 
manifesting, etc.).
    First, it is unclear from existing information sources whether 
captured CO2 has been or will be stored at the generator 
site prior to insertion into a pipeline, so EPA examined the 
feasibility of storing captured CO2 streams at the source, 
since storage is a hazardous waste management activity of concern at 
RCRA generator sites generally.\32\ EPA looked at estimates of 
CO2 capture rates both in the CCS projects currently 
underway, as well as future scenarios where CO2 capture is 
deployed at full scale. A review of commercially-available 
CO2 capture facilities in 2009 identified 17 facilities, 
with CO2 capture rates ranging from 50,000 metric tons/year 
t