# Response to Comments Document

**Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO**  **2** 

# ) Streams in

**Geologic Sequestration Activities Docket ID: EPA** 
**- HQ** **- RCRA** **- 2010** **- 0695** 

**November 201**  **3**

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**.**i 

## Table of Contents
**1.0 Introduction** 

**________________________________ ____________________________**  **1 1.1**  **P urpose & Organization of this Document** 

**________________________________ ________**  **1 1.2**  **Comment Analysis Procedures**

**________________________________ _________________**  **1** 

### 2.0 **List of Comments Submitted** 

**________________________________ _______________**  **3 3.0**  **Individual Comments and Agency Response**

**________________________________ __**  **4 3.1**  **American Petroleum Institute (API)**

**________________________________ _____________**  **4 3.2**  **Carbon Sequestration Council (CSC)**

**________________________________ ___________**  **25 5**  **3.3 American Electric Power (AEP)** 

**________________________________ _______________**  **63 3**  **3.4 C12 Energy** 

**________________________________ _________**  Error! Bookmark not defined. **4 3.5**  **Natural Resources Defense Council (NRDC)**

**________________________________ ______**  **81 3.6**  **Clean Air Task Force**

**________________________________ __**  Error! Bookmark not defined. **8 3.7**  **Utility Solid Waste Activities Group (USWAG)**

**_____________** Error! Bookmark not defined. **7 3.8**  **CCS Alliance**

**________________________________ ________**  Error! Bookmark not defined. **8 3.9**  **State of Utah**

**________________________________ _____________________________**  **115 5**  **3.10 National Mining Association (NMA)** 

**________________________________ __________**  **116 6**  **3.11 Texas Pipeline Association (TPA)** 

**________________________________ ____________**  **121 21**  **3.12 Western Business Roundtable** 

**________________________________ _______________**  **124 4**  **3.13 Greater Houston Partnership (GHP)** 

**________________________________ __________**  **129 9**  **3.14 North American Carbon Capture & Storage Association (NACCSA)** 

**_________________ 130**  **30 3.15**  **Edison Electric Institute (EEI)**

**________________________________ ________________**  **142 2**  **3 .16**  **Texas Carbon Capture & Storage Association (TxCCSA)**

**__________________________ 155**  **55 3.17**  **Tri -** **State Generation & Transmission Association, Inc. (Tri**
**- State)** 

**__________________ 158**  **58 3.18**  **Southern Company**

**________________________________ _______________________**  **163 63**  **3.19 Xcel Energy, Inc.** 

**________________________________ _________________________**  **164 64**  **3.20 Basin Electric Power Cooperative (Basin Electric)** 

**_______________________________ 165**  **65 3.21**  **Spectra Energy (Spectra)**

**________________________________ __________________**  **176 76**  **3.22 Western Environmental Trade Association (WETA)** 

**_____________________________ 185**  **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** 1



## 1.0 **I ntroduction** 

**1.1 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: 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** (th is section) , briefly describes the organization of this document and explains the procedures used to analyze and categorize the comme nts.

 **Section 2.0, List**  **of Comments Submitted** , identifies the commenters

.

 **Section 3.0, Individual Comments and Agency Responses** , includes the verbatim public comments, some of whi ch 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.

 **Appendix A** contains substantive data submitted by o ne commenter. 

### 1.2 **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 a n **EPA Document I D**  that co rresponds to the last four digits of the docket number of the original comment (as posted on 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 i ssues.

 As necessary, s pecial formatt ing was converted to plain text. Examples of these conversions include the following:

 Footnotes: Square parentheses were used to i dentify 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: Deleti ons are marked with “<” and “>” on either side of the deletion. Additions: Some commenters recommended changes to the proposed regulatory text. Proposed addition s are presented either as originally submitted (underlined) or in ALL CAPITAL LETTERS

.

 The con tent of longer comment s was divided into topic areas.3



## 2.0 **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 co mment, a nd 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 American Petroleum Institute (API) 3.1

- 0084 Carbon Sequestration Council (CSC) 3.2

- 0063 ** American Electric Power (AEP) 3.3

- 0073 * C12 Energy 3.4

- 0082 Natural Resources Defense Council (NRDC) 3.5

- 0089 * Clean Air Task Force 3.6

- 0066 Utility Solid Waste Activities Group (USWAG) 3.7

- 0083 CCS Alliance 3.8

- 0086 State of Utah 3.9

- 0065 National Mining Association (NMA) 3.10

- 0068 Texas Pipeline Association (TPA) 3.11

- 0071 Western Business Roundtable 3.12

- 0074 Greater Houston Partnership (GHP) 3.13

- 0078 North American Carbon Capture & Storage Assoc. (NACCSA) 3.14

- 0080 Edison Electric Institute (EEI) 3.15

- 0085 Texas Carbon Capture & Storage Association (TxCCSA) 3.16

- 0055 Tri

- State Generation &Transmission Association, Inc. (Tri

- State) 3.17

- 0061 Southern Company 3.18

- 0072 Xcel Energy, Inc. 3.19

- 0076 Ba sin Electric Power Cooperative (Basin Electric) 3.20

- 0088 * Spectra Energy (Spectra) 3.21

- 0060 Western Environmental Trade Association (WETA) 3.22

- 0064 Chevron 3.2 3

- 0067 Texas Oil and Gas Association (TxOGA) 3.24

- 0059 Florida Department of Environmental Protection 3.25

- 0081 Joyce Dillard 3.26

- 0058 Anonymous 1 3.27

- 0069 Anonymous 2 3.28

- 0070 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 resp ond. 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

- 0063.4



## 3.0 **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, t here is a great deal of issue repetition.



### 3.1 **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 (“CO 2”) Streams in Geologic Sequestration Activities.” 76 Fed. Reg. 48073 (Aug. 8, 2011). [FN1: A techni cal 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 Unde rground Injection Control (UIC) program for Geologic Sequestration wells. Adequate enforcement mechanisms currently exist to protect human health and the environment from CO 2 streams under the Clean Air Act’s reporting requirements and to protect undergro und sources of drinking water, the primary route for any threats to human health and the environment from CO 2 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 CO 2 streams for carbon capture and sequestration (“CCS”) and enhanced recovery (“ER”) of oil and gas. Therefore, EPA should enact a blanket exclusion of all CO 2 streams from the Resource Conservation & Recovery Act’s (“R CRA”) definition of solid waste at this time. Under EPA’s “adaptive approach,” if evidence arises in the future that shows CO 2 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 U IC 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 propo sed conditional exclusion, EPA evaluated these existing regulatory requirements, along with others (e.g., Department of Transportation, or DOT requirements ) and concluded that management of CO 2 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 ru le, 76 FR at 48080

-87.5

However, EPA is not addressing the status of ‘all CO 2 streams’ in this rulemaking; the scope of this rule is expressly limited to CO 2 stream s sent to a permitted UIC C lass VI well for purposes of GS. EPA has also explained i n its proposed and final rule preamble s its view that a supercritical CO 2 stream injected into a permitted UIC C lass 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 CO 2 stream is a solid waste when it is to be discarded through abandonment by disposing of the ma terial in a UIC Class VI well. However, in the interest of public transparency and in light of the several public comments on this is sue, EPA does note that (based on the limited information provided in the public comments) , should CO 2 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 pro cess 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 CO 2 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 co mments it cannot provide more specific responses.
**Comment 3.1.2**  **:** Alternatively, API supports a conditional exclusion of CO 2 streams from the RCRA hazardous waste regulations definition of “solid waste” because of CO 2’s unique properties and uses, coupled with the fact that these CO 2 streams are not “discarded.” Failure of EPA to clarify that CO 2 streams are not “solid wastes” will leave enhanced oil and gas recovery (“ER”) and carbon capture and sequestration (“CCS”) projects with unnecessary regulatory u ncertainty 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 CO 2 streams could be deemed solid wastes, with the enormous potential regulatory burdens associated with that designation, will discourage companies from handling CO 2 streams, to the detriment of EPA’s efforts to remove CO 2 emissions from the atmosphere. This discouragement is manifesting itself a lready in the dearth of states seeking Class VI primacy and industries attempting CO 2 capture. If EPA elects to retain the proposed approach of a conditional exclusion for CO 2 streams from RCRA’s hazardous waste regulations, we recommend that the propose d regulation be clarified to remove as much regulatory ambiguity as possible, including application of the conditional exclusion t o concurrent ER/storage under the transition provisions of the Class VI Rule and declaration that CO 2 streams used for non

-geo logic sequestration purposes are not solid wastes, as we set forth in detail below. **Response:** See R esponse to C omment s 3.1.1 , 3.1.7, 3.1.8

. EPA disagrees with the commenter that supercritical CO 2 streams injected into Class VI wells for purposes of GS a re 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 CO 2 streams in accordance with the rule’s conditions do es not present a su bstantial risk to human health or the environment. With respect to injection in other than UIC Class VI wells, a s EPA noted6

in the response to comment 3.1.1. , this conditional exclusion is not intended to affect the regulatory status of CO 2 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 CO 2 injected into UIC Class VI wells, which would include any well that has transitioned to a UIC Class VI well u nder 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 CO 2 in situations that are beyond the scope of this final rule. The co mmenter did not provide any specific information to support its assertions regarding

“ enormous potential regulatory burdens” and negative impacts on industries attempting CO 2 capture and states seeking UIC Class VI primacy

. **Comment 3.1.3**  **:** Specific Comme nts 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 “CO 2 streams” [FN2 : A “Carbon dioxide (CO 2 ) 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 t o 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 CO 2 streams are captured from air emission sources, are injected into Class VI *UIC+ well s 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 CO 2 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 “co nditional 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 , a nd 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. CO 2 Streams Are Appropriately Addressed under other Laws EPA’s proposal is premised on the notion that RCRA potentially applies to “CO 2 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 CO 2 . In comparison to other materials regulated under RCRA, CO 2 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.,7

ER) functions. Several states already have declared CO 2 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. CO 2 from natural sources and nat ural gas processing plants is widely used as a valuable product to enhance oil and gas production; captured CO 2 has this same potential use and EPA’s evidence shows that it is substantially similar to existing streams of CO 2 . This rule has the potential to make beneficial products derived from captured CO 2 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, CO 2 m ay 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 CO 2 being injected into UIC Class VI wells for purposes of GS is discarded and a solid waste, therefore RCRA does apply. That CO 2 may be useful (or a “commodity”) in other contexts has no bearing on the RCRA regulatory status of CO 2 sent for GS in a Class VI well. Regarding the applicability of other statutory provisions to CO 2, EPA did consider the effect of other statutory requirements
– indeed, this conditional exclusion is based upon EPA’s determination that the management of hazardous CO 2 streams under other requirements (e.g., the UIC Class VI rule ) provides protection to h uman 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 material s 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 app ropriate 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 t o human health and the environment. CO 2 is a common constituent of air, with no inherent hazard besides its ability to displace oxygen. The chief concern with CO 2 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 CO 2 in both operational and sequestration settings. CCS is regulated under the Safe Drinking Water Act with strict technical standards for the injection of CO 2 for purposes of sequestration to ensuring environmental protection. That activity, moreover, is envisioned to involve mixed streams of CO 2 from multiple sources, with injection of CO 2 into multiple formations, especially saline or oil and gas, thereby defeating the notion of tracking wastes through manifests and the like. Trying to treat CO 2 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 th at will not fit well into the RCRA framework. CO 2 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 CO 2 . For these and other rea sons, trying to specially treat CO 2 streams and fit CCS under RCRA is unnecessary and a poor regulatory fit. **Response:** EPA disagrees with t he commenter’s broad statement that “ RCRA was never meant to8

apply to air emissions or productive materials with ben eficial 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 treat ment, 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 supercrit ical CO 2 streams being injected into Class VI wells for purposes of GS are solid wastes under RCRA

. See Response to C omment s 3.1.1 , 3.1.7, 3.1.8

. R egard ing the comment that CO 2 is “... a gas with no toxic or hazardous impacts

... ” EPA notes that the condition al exclusion applies to CO 2 streams, which are not necessarily pure CO 2 – in fact, “ CO 2 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 t he 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 CO 2 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 situation s 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 CO 2 streams qualify as RCRA hazardous wastes. Regarding the po ssibility of CO 2 from multiple sources being injected in to different well classes or different formations, see Responses to Comments 3.2.3 and 3.2.4.
H ow the CO 2 streams are described in the subsurface is not relevant to the conditional exclusion rulema king (i.e., CO 2 streams that have been injected into the subsurface via a UIC Class VI well have already been disposed) . EPA need not decide whether CO 2 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 CO 2 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 CO 2 streams will never exhibit any RCRA hazardous waste characteristic.
**Comment 3.1.6**  **:** B. CO 2 Streams Are Not “Solid Wastes” The conditional exclusion is rooted on the unsupport ed premise that captured anthropogenic CO 2 is a “solid waste.” EPA attempts to limit the scope of its erroneous premise by asserting that a “supercritical CO 2 stream injected into a permitted UIC Class VI well for purposes of GS is a RCRA solid waste, as i t 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, this9

preamble language (including footnotes 16 and 54), and the proposed rule itself, leaves an inference that other CO 2 streams are solid wastes. EPA states that “once a decision is made that the supercritical CO 2 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 “supe rcritical CO 2 stream that is not injected into a Class VI well” or “a decision is made that the supercritical CO 2 stream will be sent” elsewhere. EPA should flatly declare that no CO 2 streams are solid wastes and avoid these ambiguities, as these streams a re adequately addressed by existing law. If EPA refuses to make this flat declaration, it should at least clarify in its final rule that CO 2 streams are not solid wastes when they are injected into Class II wells in connection with ER operations or used fo r 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 determ ined that a supercritical CO 2 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 CO 2 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 t he status of CO 2 streams injected into UIC Class II wells for purposes of EOR, see Response to Comment 3.1.1. Today’s rule only applies to CO 2 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 CO 2 in situations that are beyond the scope of this fin al 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 M anual,” at 33]. Neither of these criteria is met here.
CO 2 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 CO 2, are not explicitly listed. Before it is compressed, at standard pressure an d temperature, CO 2 is a gas. **Response:** As EPA noted in the proposed rule, the CO 2 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 prope rties 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, min ing, 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 superc ritical fluids. Like the listed “solid, liquid, semisolid, or10

contained gaseous material” specifically referenced, CO 2 streams sequestered for purposes of GS are “other discarded material” from industrial and c ommercial 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 CO 2 Streams Are Not Discarded. EPA does not offer a d etailed justification for its claim that CO 2 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 g aseous 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 classifi cation 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 [F N10: 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

– i f 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 CO 2, 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)].

“ CO 2 streams” do not meet any of these three RCRA regulatory requirements.

* CO 2 streams are not abandoned. CO 2 streams are not burned or incinerated, nor are they “disposed of.” “CCS” means “Carbon” is “Captured” from air emissions, transported in CO 2 product pipelines, then “Stored” or “Sequestered” in secure geologic formatio ns. “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.”[FN 16: http://www.merriam

webster.com/dictionary/sequestered?show=0&t=1315859974]. Synonyms for “sequestration”11

include “isolation” and “seclusion.”[FN17: http://www.merriam

webster.com/dictionary/sequestration]. “Disposal,” on the other hand, is defined as t he 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 abandone d or disposed into the environment.

* CO 2 streams are not recycled. RCRA’s provisions regarding “recycle” are detailed, and none of them apply to CO 2 streams
– nor has EPA claimed they do. [FN19: The fact that CO 2 is recycled in EOR operations is not dire ctly 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 CO 2 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].

* CO 2 streams are not “inherently waste

- like.” RCRA’s provi sions regarding “inherently waste

- like” materials also are detailed, and none of them applies to CO 2 streams
– nor has EPA claimed they do. The concept of “disposal” is also inconsistent with the ways that most CO 2 is currently being managed commercially . With the exception of demonstration and related projects, most if not all CO 2 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 CO 2 comes to the surface as well, where the ER operator captures it again and returns it to the formation mixed with newly

- purchased CO 2 . Some of this newly purchased CO 2 comes from natural gas processing facilities that remove and capture CO 2 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 CO 2 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 CO 2 streams from the solid waste definition. As explained further below, EPA’s Class VI rule envisions that concurrent ER/storage m ay 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.”
CO 2 that is injected in saline reservoirs under Class VI also is not “disposed of.” It is conceivable, for example, that such CO 2 may be later withdrawn and put to a beneficial, but still non

- atmospheric

emitting, use. Such CO 2 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/meetings/2010

-08

- 18/presentations/01_Bourcier_Cal_CCS

- Panel.pdf].
CCS

- related offset credits are also transacted on various carbon registries, such as the American Carbon Registry. This activity is inconsistent with the notio n 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 or12

treated” also are inapplicable. In the alternative

- and despite the arguments above

- if EPA concludes that a CO 2 stream injected into a Class VI well for GS purposes is a solid waste, EPA should clarify in express language that CO 2 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 CO 2 streams are sol id 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 CO 2 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 CO 2 streams sent to UIC Class VI w ells for purposes of GS are not solid waste. As was stated in the preamble to the proposed rule, GS is an option to reduce CO 2 emissions to the atmosphere by injecting the CO 2 streams into deep subsurface geologic formations, with the express purpose of is olating the CO 2 so that it does not return to the atmosphere (August 8, 2011; 76 FR at 48075). Therefore, EPA views these CO 2 streams as “discarded material” within the plain meaning of the term in RCRA §1004(27). That is, a supercritical CO 2 stream is a s olid 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 CO 2 stream into a Class VI well for purposes of GS is effe ctively “getting rid of” the CO 2 stream by keeping it underground indefinitely. The fact that the sequestration of CO 2 streams into deep geologic formations is at times labeled as “long

-term containment” or “long

-term storage , ” or that offset credits may b e transacted, does not change this view. Regarding the comment that CO 2 streams injected into saline formations under UIC Class VI wells are not disposal, because the y can later be withdrawn, EPA disagrees and reiterates that CO 2 streams injected into U IC Class VI wells are solid wastes . EPA adds that t he RCRA conditional exclusion does not preclude the removal of CO 2 at a later date

. How this activity is regulated would be a determination separate from the terms of the conditional exclusion in this rul e. 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 determa tions for CO 2 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 CO 2 streams at the time of the UIC Class VI rule making

. Rather, EPA has discus sed questions of whether CO 2 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 CO 2 has la rgely been (and continues to be) for the purpose of EOR, and does not disagree that CO 2 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 CO 2 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 CO 2 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

-13

specific questions they may have regarding the status of CO 2 in situations that are beyond the scope of this final rule. Regarding the comment that the CO 2 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 pollu tion control devices). Finally, the comment appears to raise questions relating to when a CO 2 stream must be evaluated to determine whether a CO 2 stream exhibits a RCRA hazardous waste characteristic. These issues are discussed in response to comment 3.1. 9, below.
**Comment 3.1.9**  **:** C. CO 2 Streams Are Not “Hazardous” Assuming arguendo that CO 2 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 CO 2 streams would qua lify as RCRA hazardous waste.” 76 Fed. Reg. at 48077. The Agency also acknowledges that “CO 2 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 app ly specifically to CO 2 streams”)]. The Agency nonetheless believes that the “RCRA hazardous waste regulations can apply to CO 2 streams” based upon two hypothetical scenarios: (1) a CO 2 stream exhibits hazardous characteristics [FN24: 40 C.F.R. § 261.20(a)] ; or (2) a CO 2 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 regulat ory action. However it is important to note that neither scenario is particularly plausible. With respect to whether a CO 2 stream exhibits hazardous characteristics, EPA seems to grudgingly acknowledge that there is no available standardized analytical test method for supercritical materials such as CO 2 or a “CO 2 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 reason ably 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 CO 2 streams based on available standards. Even if a standardized analytical test method were available for supercritical CO 2, API is not aware of any information whic h would suggest that supercritical CO 2 meets any of EPA’s hazard characteristics. Supercritical CO 2 is not: (1) ignitable under 40 C.F.R. § 261.21; (2) corrosive under 40 C.F.R. § 261.22 [FN27: Supercritical CO 2 is non

- aqueous, so § 261.22(a)(1) does not a pply, and §14

261.22(a)(2) only applies if the material is “liquid and corrodes steel.” Supercritical CO 2 is not a “liquid” and does not corrode steel pipelines, through which it has been transported safely for several decades. EPA hints that corrosivity cou ld 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 CO 2 stream to hazardous waste should be withdrawn, as it creates an enormous expansion of RCRA liability and could chill CCS activ ity.]; (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 sup ercritical CO 2 and CO 2 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 a s potentially being present in certain CO 2 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 CO 2 injectate quality, and based upon that assessment, “captured CO 2 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 use d, 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 haza rdous 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 ind ustry’s knowledge of CCS

- related materials and processes, coupled wi th current uses of CO 2, a capturing generator is unlikely to have a reasonable belief that its CO 2 stream is hazardous. EPA references the following March 2006 study by Lawrence Livermore National Laboratory to support an inference that certain “impuritie s” could be present in CO 2 streams from coal

- based facilities: Apps, J.A., “A Review of Hazardous Chemical Species Associated with CO 2 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 CO 2 streams, the study proves just the opposite (id. at p. 44):

“The preceding evaluation shows quite clearly that th e concentrations of other chemical components accidentally incorporated in CO 2, 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 CO 2 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,15

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 ultima tely 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. a t 1 (emphasis added). [FN32 : The rest of the Lawrence Liver more 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 advance d 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 CO 2 stream s are hazardous waste, EPA emphasizes that it is not required to affirmatively demonstrate, as part of this rulemak ing, that a particular CO 2 stream, or a portion of all CO 2 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 th e environment. As explained in the preamble to the final rule, after consideration of public comment, EPA has reached the conclusion that management of CO 2 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 CO 2 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 CO 2 stream s to either exhibit a RCRA characteristic, or become mi xed with listed hazardous waste, that CO 2 stream s are not (or cannot be) hazardous waste. EPA disagrees with t his 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, t he 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 CO 2 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 characteristics16

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 CO 2 streams determined to be solid wastes under RCRA and not excluded from RCRA regulation are subject to a haza rdous 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 CO 2 streams are not characteristic hazardous waste. Specifically, they state that “based upon ind ustry’s knowledge of CCS

- related materials and processes, coupled with current uses of CO 2, a capturing generator is unlikely to have a reasonable belief that its CO 2 stream is hazardous. ” The commenter also cites the March 2006 study by Lawrence Livermore National Laboratory as evidence that CO 2 streams are not hazardous waste because of the relatively low predicted concentrations of contaminants. First, the Lawrence Livermore study was c ited by EPA to illustrate that, at a minimum, CO 2 streams could contain TC contaminants and therefore EPA cannot unequivocally conclude that supercritical CO 2 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 CO 2 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 cond itional exclusion from the definition of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic. Regarding the commenter’s statement that “ EPA’s remark at 76 Fed. Reg. 48087 that a ll actors in the product chain could be implicated if down

- hole interactions convert a non

- hazardous CO 2 stream to hazardous waste should be withdrawn, as it creates an enormous expansion of RCRA liability and could chill CCS activity” the commenter is inc orrectly interpreting EPA’s discussion in the cited preamble. EPA believes that t he scenario described by the commenter regarding the potential behavior of CO 2 streams after inj ection into a UIC Class VI well would not affect the availability of the condi tional exclusion , because the exclusion requires injection into a UIC Class VI well ( in compliance with all of t he conditions) , and a ny potential issues with the corrosiveness of the CO 2 stream post
- injection would be addressed as part of the si te
- 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 CO 2 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 CO 2 streams will never exhibit any RCRA hazardous waste characteristic. Generators of non

- hazardous waste CO 2 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 choo se to do so in situations where, for example, the generator may be uncertain regarding the hazardous waste status of the CO 2 stream). Moreover, because use of the conditional exclusion is voluntary, even those generators who characterize their streams as R CRA 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 the17

conditional exclusion. Regarding the applicability of the RCRA listings, t he commenter stated that EPA has provided no evidence that CO 2 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 CO 2 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 occ urring.
**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 CO 2 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 CO 2 . Instead, as EPA states, captured CO 2 will be immediately transported offsite via pipeline. [FN34: 34 76 Fed. Reg. a t 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 CO 2 offtake contract. [FN35: A typical CO 2 offtake contract obligates the source to deliver specified volumes or quantities of CO 2 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 als o notes, and API agrees, the transportation of CO 2 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 p roposal refers to “CO 2 streams,” EPA shifts gear here and refers only to “CO 2 .” Also, supercritical CO 2 does not appear in DOT’s hazmat table. The hazmat table instead lists three forms of CO 2 : (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 CO 2 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 CO 2 as a non - hazardous liquid, and relevant States apply comparable standards for intrastate pipelines. [FN38: Nordhaus, R., “Carbon Dioxide Pipelin e 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 CO 2 is subject to the DOT’s Pipeline Hazardou s Materials Safety Administration (PHMSA) requirements in 49 CFR part 195, which apply to pipeline facilities used in the transportation of hazardous liquids or supercritical CO 2 . 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 CO 2 streams transported for purposes of CCS. This final rule does not change the status under DOT of supercritical CO 2, nor does it change th e manner in which supercritical CO 2 is regulated un der 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

- pipeline18

transportation for CO 2 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 CO 2 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 CO 2 streams in this rulemaking; the scope of this rule is limited to CO 2 stream s injected into a permitted UIC C lass 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 whe n the conditions of 40 CFR 261.4(h)(1) through (4) are met. While t he 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 uni que aspects of carbon dioxide injection for GS (e.g., l arge CO 2 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 supportin g 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 Clas s VI well , that had previously transitioned from a Class II well , from be ing eligible for the RCRA conditional exclusion

. **Comment 3.1.12**  **:** API also agrees that CO 2 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 CO 2 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 lifeti me [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 CO 2 stream would result in the CO 2 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,19

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 ha zardous waste is a condition of the exclusion ( and not a n 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 CO 2 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 cle ar on what is the commenter’s concern when they state the Agency is “holding out the potential for down

- hole formation of carbo nic acid at some future date...” As stated in response to comment number 3.1.9 , EPA believes that the potential behavior of CO 2 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 “ CO 2 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 CO 2 to a storage site vi a 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 agre ement to the contrary. The conditional exclusion is premised on a linear model of CCS operations under which a single source delivers CO 2 to a single transporter who in turn delivers the CO 2 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 CO 2 into the same pipeline, which in turn will deliver the CO 2 to a storage site that receives and stores CO 2 from multiple sources. That storage site may also already hold, or accept for delivery, volumes of natural CO 2 . [FN43: This situation further supports our position that RCRA was never intended to apply to CCS.] Since CO 2 streams will be intermingled, and CO 2 molecules are identical, this sets up a “Superfund

- esque” situat ion 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 CO 2 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 Superfu nd liability if transmissions of CO 2 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 not ed 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 of20

that waste, in order for persons to ensure th at 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 CO 2 stream to a UIC Clas s VI owner or operator, who in turn adds “ incidental materials to facilitate injection ” to the CO 2 stream . In this situation, the commenter suggests that the generator is “liabl e” for the well owner/operator actions. While EPA is at present unaware of actual examples of where substances are added to facilitate supercritical CO 2 injection, because the definition of “ CO 2 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 CO 2 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 CO 2 stream w ith 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 hand lers of the CO 2 stream (in this instance, mixing of hazardous waste into the CO 2 stream downstream of the “...previous producer or manager of the CO 2 stream .”). However, EPA maintains that the rule conditions, taken together, ensure that the excluded CO 2 st reams are being managed in a protective manner such that subtitle C regulations are not necessary. EPA’s Office of Enforcement a nd 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 dis cretion 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 ca n be found in the 2003 RCRA Civil Penalty Policy ( http://www.epa.gov/compliance/resources/policies/civil/rcra/rcpp2003

-fnl.pdf). Regarding the comment which raises concerns about liability in a hypothetical situation where multiple sources of CO 2 streams are delivered in a shared pipeline being injected into a single facili ty, this example illustrate s 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 rulem aking, 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

- exclu ded CO 2 streams and other non hazardous CO 2 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 “ CO 2 streams” that have been captured for purposes of “geologic sequestration.” [FN44: 76 Fed. Reg. at 48086.] There may be several21

destinations for the captured CO 2, 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 CO 2 streams from the solid waste definition. The Agency explains that [FN45: 76 Fed. Reg. a t 48 078 n. 16. ]:

“The proposed rule is not intended to affect the status of CO 2 that is injected into wells other than UIC Class VI wells. For example, CO 2 that is used for enhanced oil or gas recovery (EOR/EGR) in other than UIC Class VI wells, where so me 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 CO 2 streams used for ER are not solid wastes. [FN48: Likewise, EPA needs to make clear that CO 2 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 opera tors using Class II wells may be the largest immediate customers of CO 2 capturers and they currently handle their CO 2 as a valuable product. If handled as a solid waste, CO 2 injected into Class II wells would not receive the benefit of the conditional excl usion 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 CO 2 streams are hazardous for Class VI well operator customers. This disparity wil l likely create regulatory confusion and administrative nightmares in dealing with two different customers for the same CO 2 stream. As the regulatory burdens would be greater for ER customers, capturers may not deal with ER customers, who may not receive s ufficient supplies, thereby undermining both ER and CCS operations. The best solution is to declare that all CO 2 streams are not solid waste. **Response:** EPA does note that (based on the limited information provided in the public comments), should CO 2 be u sed 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 a ppropriate regulatory authority to address any fact

- specific questions they may have regarding the status of CO 2 in situations that are beyond the scope of this final rule. EPA also note s that nothing in the conditional exclusion would prevent a Class VI w ell, that had previously tra nsitioned from a Class II well from being eligible for the RCRA conditional exclusion. See also response s 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, “CO 2 streams”22

are neither solid nor hazardous wastes, so § 7003

– which only applies to solid or hazardous wastes

-- should not apply to CO 2 streams with t he recommended changes. For the same reason, EPA should clarify that RCRA’s citizen suit provision

-- § 7002

– also does not apply to CO 2 streams. **Response:** EPA disagrees with the commenter. For purposes of RCRA 700 2 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 CO 2 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 th e 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 CO 2 streams in this rulemaking; the scope of this rule is limited to CO 2 stream s injected into a permitted UIC C lass VI well for purposes of GS.
**Comment 3.1.17**  **:** API encourages EPA to clarify that CO 2 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 CO 2 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 r ule 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 CO 2 streams as solid wast e, 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 ( CO 2 ) 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 “ CO 2 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 ( CO 2 ) STREAMS. CARBON DIOXIDE STREAMS AS DEFINED IN 40 CFR 146.81(D) THAT ARE CAPTURED AND TRANSPORTED FOR PURPOSES OF INJE CTION 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 PR OGRAM 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 COMPLIANCE23 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 L ESS 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 RENEWAB LE 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;24 (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 Cl ass 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 GENERATO R’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 u nder 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 me ans th at 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 CO 2 streams that are used for non

-geologic sequestration pu rposes, 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 (CO 2 ) 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 includ e reference to ‘analogous state’ transportation requirements, EPA has addressed this in the regulatory text of the final rule, see R esponse 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**  **:**25

API appreciates the opportunity to submit comments. A ny further requests by the Agency for additional information or comment should be directed to (see docket for contact information). **Response:** EPA acknowledges the comment.



### 3.2 **Carbon Sequestration Council (CSC)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0084 Comm**  **ent 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 ( CO 2 ) 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, B P 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 com munication 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 framewor ks that foster the use of anthropogenic CO 2 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 proposa l, 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 t he 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 w ill 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 emission s 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 ga seous 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(2 7) 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).26

The carbon capture devices currently available and under development operate in a simi lar 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 per mit”], 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 CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste s, and therefore, disagrees that that is a basis to provide regulatory clarity

. A s upercritical CO 2 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 CO 2 stream is a solid waste when it is to be discarded through abandonment by disposing of the material in a UIC Class VI well (se e 40 CFR 261.2(a)(2)(i) and (b)(1)).
As EPA noted in the proposed rule, the CO 2 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 prope rties 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.” T he 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 a ctivities . . .” 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, CO 2 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 CO 2 capture devices are similar to air pollution control equipment, as a basis for concluding that captured CO 2 emissions should be defined as uncontained gases (and therefore not solid waste), EPA’s finding (as described above) is with respect to CO 2 as a supercritical fluid, and does not view the comment as rel evant to that determination. Final ly, with regard to the commenter’s citation from the UIC Class VI final rule, that rulemaking did not make any RCRA applicability determinations for CO 2 streams intended for Class VI GS, consistent with the fact that that rule was issued solely under the S DWA. **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 di oxide stored underground would be available for use27

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 grad e 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 CO 2 can and does have a variety of commercial and manufacturing uses . That CO 2 may be useful (or even a “commodity”) in other contexts has no bearing on the RCRA regulatory status of CO 2 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 CO 2 emissions to the atmosphere by injecting the CO 2 streams into deep s ubsurface geologic formations, with the express purpose of isolating the CO 2 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; t herefore, EPA views these CO 2 streams as “dis carded material” within the plain meaning of the term in RCRA §1004(27). The fact that the sequestration of CO 2 streams into deep geologic formations is at times labeled as “long

-term containment” or “long

term storage” does not change this view. In addit ion, t he RCRA conditional exclusion does not preclude the removal of CO 2 from underground at a later time

– how this activity is regulated , would be a determination separate from the terms of the conditional exc l usion , and is thus outside the scope of this rulemaking. As already stated , EPA is not addressing the status of all CO 2 streams in this rulemaking, as the scope of this rule is expressly limited to CO 2 stream s injected in a permitted UIC C lass VI well for purposes of GS. Regarding the comment t hat 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 o f the conditional exclusion, EPA evaluated other applicable requirements, and reached the conclusion that additional regulation under RCRA subtitle C was not warranted for CO 2 streams (that would otherwise be defined as hazardous waste) that are injected i n 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 exclusi on 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 CO 2 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.28

**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 CO 2 stream from fossil

-fuel power plants or other ind ustrial sources, after which the CO 2 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 o r offsite through a dedicated pipeline [FN3: 76 Fed. Reg. at 48076 (“[T]he majority of CO 2 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 CO 2 implied by a widespread implementation of CCS technologies would likely require a dedicated interstate pipeline network”.), citing CRS Report for Congress. Carbon Dioxide (CO 2 ) 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 enhan ced 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 recove ry 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 p roduction 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 o f 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” presente d 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 conditional29

hazardous waste exclusion that could be used, where neces sary, to provid e 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 C CS projects. 1 These examples illustrate why EPA is committed to an adaptive approach on CCS generally, so that the Agency may ide ntify 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 CO 2, 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 conditi onal 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 CO 2 strea ms generated from two or more independently

produced CO 2 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 t hat 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 conditio nal exclusion is not intended to affect the regulatory status of CO 2 streams that are injected into well s 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.
Fin ally, 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 CO 2 streams are not subject to the RCRA subtitle C regulations, a nd 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 CO 2 stream). E ven those generators wh o characterize their streams as RCRA hazardous waste may manage their streams as RCRA hazardous wastes from the point of generation. Finally, as noted in R esponse to C omment 3.2.2, EPA acknowledge s that CO 2 can and does have a variety of commercial and m anufacturing uses . H owever, this does not affect the regulatory status of CO 2 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 wast e “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 CO 2 that is injected into wells other than UIC Class VI wells. For example, CO 2 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

1 See Executive Summary, Report of the Interagency Task Force on Carbon Capture and Storage, August 2010.30

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 inten ded “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 t he 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 stre ams 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 seq uestered 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 fro m 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 verifica tion 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 t o 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 in formation regarding the operation of extensive, shared CO 2 pipeline networks, in terms of how CO 2 streams might be distributed among different end users, or how separate CO 2 streams might be accounted for, etc. EPA did not, therefore, attempt to address a ll scenarios, and31

EPA is committed to using an adaptive approach regarding CCS going forward. As discussed, EPA did not develop information for inclusion in the proposal o f 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 CO 2 be used for its intended purpose as it is injected into UIC Class II wells for the purpo se 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 CO 2 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 permissibl e 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 d escribed 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 di oxide streams are managed and injected for GS. **Response:** EPA disagrees with the commenter’s suggestion that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste , for reasons already explained in response to c omments 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 CO 2 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 descri be 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 be ing 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 CO 2 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 ligh t of the several public comments on this issue, EPA does note that (based on the limited information provided in the public comments) , should CO 2 be used for its intended purpose as it is injected into UIC Class II wells for the purpose of EOR/EGR, it is E PA’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 CO 2 in situations that are beyond the scope of this final rule. Again, as EPA has responded elsewhere to this commenter, t hese examples illustrate why EPA committed to an adaptive approach, so that the Agency may identify and address new information an d respond, including via rulemaking should that be necessary.
**Comment 3.2.6**  **:**32

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 dioxid e 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 CO 2 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 CO 2 streams for which the conditional exclusion is being claimed are put into a CO 2 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 co nditional exclusion might not be able to confirm with certainty that their CO 2 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, a s EPA has responded elsewhere to this commenter, t hese 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 a ssurances 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 compariso n 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 CO 2 to protect USDWs from endangerment a s this key climate mitigation technology is developed and deployed. It clarifies requirements that apply to CO 2 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 inje ction 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 al l 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 CO 2 streams which . . . a re 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 techn ologies is clouded by uncertainties

— including primarily the lack of economic drivers. Nevertheless, progress33

can be made by completing the ongoing experiments involving GS in saline reservoirs as well as GS in combination with EOR. In addition, further dev elopment 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 CO 2 streams to be injected into Class I, Class II, Class V a nd 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 specif

ic 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 CO 2 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 CO 2 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 Cla ss V well transitions to a Class VI well pursuant to the requirements at 40 CFR 144.19, CO 2 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 F ederal 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 add ress some of those uncertainties, specifically the uncertainty associated with managing these CO 2 streams under RCRA subtitle C, for CO 2 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 i n 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 deve lopment 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 th is RCRA conditional exclusion, EPA acknowledges the commenter’s support for CCS.34

**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 e stablish 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 recommendation s 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”

— n amely 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 a t (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 numbe**  **r citation from the Federal Regis** **ter 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 purp oses 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 ( CO 2 ) streams are solid waste is not supportable because captured CO 2 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). The35

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, “CO 2 is first captured fro m 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 vario us 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 identifia ble 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 “list ing 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 inclu ded 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 ha ve 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 1 004(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 g aseous state but c ondensable 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 CO 2 streams are not in liquid form. “EPA . . . deci ded not to regulate these uncondensed light ends.” 54 Fed. Reg. at 50973. **Response:** EPA disagrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste. As EPA noted in the proposed rule, the CO 2 streams are delivered by pipel ine 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 th is 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, liq uid, 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 gaseo us material,” the RCRA definition of36

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, CO 2 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 s olid 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 CO 2 gaseous emission streams to be discarded when sent fo r either geologic sequestration (GS) or for use in enhanced oil recovery (EOR) of hydrocarbons. CO 2 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, CO 2 that is injected for long

-term storage in saline reservoirs is also susceptible to future production. Moreover, CO 2 storage in underground reservoirs is done with a definitive and beneficial purpose: to keep it from increasing atmospheric concentrations of CO 2, incurring very high costs in the process

– with commensurate benefits in mind. This is contrary to the plain meaning of the phrase discarded material. C O 2 that is used for EOR and CO 2 used for other industrial uses (such as freezing food/ carbonating beverages) and CO 2 sequestered underground are indistinguishable from a producer’s standpoint. Therefore all CO 2 should be treated the same . That is, CO 2 is not “solid waste” and also not “hazardous” exhibiting none of the toxicity characteristics. Other uses of CO 2 will also emerge from the numerous development efforts currently underway. Some of these efforts are detailed by the Department of Energy (DOE) wi th respect to its CO 2 Use and Reuse research and development program:

“ CO 2 use and reuse efforts focus on pathways and novel approaches for reducing CO 2 emissions by developing beneficial uses for the CO 2, such as the conversion of CO 2 to useable products and fuels, and other breakthrough concepts that will mitigate CO 2 emissions in areas where geologic storage may not be an optimal solution. Applicable approaches include: *“Use CO 2 as one of the feedstocks to produce chemicals (including fuels and polyme rs) and find applications for the end products. *“Non

- Geologic Storage of CO 2 – Use CO 2 from an effluent stream to immobilize the CO 2 permanently by producing stable solid material that are either useful products with economic value or a low cost produce d material. This approach could be viewed as an effective carbon storage method. *“Indirect Storage

– Promote indirect carbon storage by removing CO 2 in the air (such as enhanced37

photosynthesis) or by enhancing carbon intakes in terrestrial vegetations a nd soils. *“Beneficial Use of Produced Water

– for produced water from CO 2 storage in saline formations, develop novel methods to use CO 2 to react with metallic ions to form less soluble carbonates that can be removed

– and then find useful applications for the desalinated water. *“Breakthrough Concepts

– Develop novel applications of CO 2 that would limit its emissions into the air and novel approaches using microbes that consume CO 2 and other materials to produce useful products or fuels. “Processes or concepts that undertake this CO 2 reduction must take into account the life cycle of the processes to ensure that additional CO 2 is not produced beyond what is already being removed from or going into the atmosphere. Several other challenges exist in usi ng/reusing CO 2 . One involves determining how best to tap energy sources, since turning CO 2 into fuels and chemicals would require energy input. In photosynthesis, solar energy is the obvious energy source. However, for solar applications as well as other a pproaches such as chemical processes or the use of microbes, consideration has to be given as to how best to tap solar or other energy sources. Another challenge is to find new reaction paths, including new catalysts and enzymes. This is important for many approaches in using CO 2 to make new products, such as polymers. For some of these reactions, especially those involved in biological systems, the rate of reactions need to be improved.”[FN1: http://www.fossil.energy.gov/programs/sequestration/CO 2_Use_and_ Reuse.html (accessed on October 7, 2011)]. **Response:** See responses to Comments 3.2.2, 3.2.3 and 3.2.4. EPA is not addressing the status of all CO 2 streams in this rulemaking. As stated above, EPA acknowledges that CO 2 is used for EOR and does not disagre e that CO 2 can and does have a variety of commercial and manufacturing uses (e.g., urea yield boosting, enhanced oil recovery, food processing and packaging, beverage carbonation, and wine making). However, t hese activities are beyond the scope of this fin al rule and do not affect the regulatory status of CO 2 streams when they are to be injected into UIC Class VI wells for the purpose of GS. The commenter is incorrect that the meaning of “discarded material” is contrary to the fact that there are benefits and costs to discarding material, including the sequestration of CO 2 streams underground. That there may be benefits and costs does not change the fact that fundamentally, a decision to discard is being made when a CO 2 stream is sent to a UIC Class VI well for geologic sequestration purposes, with the express purpose of isolating the CO 2 so that it does not return to the atmosphere. That d ecision to discard brings the CO 2 stream within the RCRA definition of solid waste. EPA acknowledges the commenter’s refe rences to various DOE research projects related to reuse of CO 2 . **Comment 3.2.12**  **:** EPA NPRM Statements pg 48078 [fn 16 The proposed rule is not intended to affect the status of CO2 that is injected into wells other than UIC Class VI wells. For example, CO2 that is used for enhanced oil or gas recovery (EOR/EGR) in other than UIC Class VI wells, where some sequestration may occur in the process of recovering gas or oil, is beyond the scope of this proposal.] EPA should not simply dismiss the use of CO 2 for EOR/EGR with a footnote. It is important for EPA38

to clarify the status of captured CO 2 emission streams in every context in which such streams might be used because the same streams may be used for multiple purposes and sent to diverse operations. Although it is probably not possible at this point to indicate exactly how all of the potential carbon capture, utilization and storage processes will ultimately evolve and work together, there are anticipated scenarios that would create complications for the prop osed RCRA exclusion. It cannot be presumed that a single CO 2 emission source will capture its CO 2 stream and send it through a dedicated pipeline to a single injection well operator with a Class VI permitted GS project. It is anticipated that some operators of facilities that capture CO 2 emission streams will send those streams to multiple operations, some of which may be GS operations while others will be using the CO 2 stream for ER and still other recipients may be using the CO 2 to produce various product s. It is also anticipated that some producers of CO 2 streams will be connecting into a common carrier CO 2 pipeline where the streams will become commingled with other CO 2 streams from various producers. In the near term, most of the recipients of the CO 2 w ill likely either be EOR operations or GS operations, but eventually other uses of CO 2 may emerge. **Response:** See responses to Comments 3.2.3 and 3.2.4. EPA agrees that it is not possible at this point to know how all of the potential carbon capture, ut ilization , and storage processes will ultimately evolve and work together

. EPA is committed to an adaptive approach on CCS generally, so that the Agency may identify and address additional information and respond, including via rulemaking, should that be necessary. EPA emphasizes that where additional information may increase protectiveness, streamline implementation, or otherwise inform the requirements for GS injection of CO 2, EPA may need to evaluate whether changes are necessary.

**Comment 3.2.13**  **:** EPA NPRM Statements pg 48078 [fn 16 The proposed rule is not intended to affect the status of CO2 that is injected into wells other than UIC Class VI wells. For example, CO2 that is used for enhanced oil or gas recovery (EOR/EGR) in other than UIC Class VI wells, where some sequestration may occur in the process of recovering gas or oil, is beyond the scope of this proposal.] It is also expected that some CO 2 recipient projects will have both EOR Class II injection wells completed in oil and gas reservoirs i nto which CO 2 is injected for EOR and Class VI GS wells completed in saline reservoirs that will be used for storage. In that case, the supplier of the CO 2 is not likely to have much control over whether any particular CO 2 stream or portion thereof is dire cted to Class II wells or Class VI wells or divided between them. **Response:** See responses to Comments 3.2.3 and 3.2.4. Under the conditions in this final rulemaking, if a generator decides to make use of the conditional exclusion, the excluded CO 2 strea m must be injected into a UIC Class VI well, which is the only class of UIC well EPA considered in its proposed conditional exclusion. EPA acknowledges that under the commenter’s hypothetical scenarios, in particular where CO 2 streams for which the condit ional exclusion is being claimed are put into a CO 2 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 CO 2 stream was injected into a UIC Class VI39

well. However, this should not prevent EPA from proceeding with this final conditional exclusion rule, which provides the option of a conditional exclusion specific to U IC Class VI well injection, and as EPA has responded elsewhere to this commenter, t hese 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, inclu ding 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 CO 2, EPA may need to evaluate whether changes are necessary. **Comment 3.2.14**  **:** EPA NPRM Statements pg 48078 [fn 16 The proposed rule is not intended to affect the status of CO2 that is injected into wells other than UIC Class VI wells. For example, CO2 that is used for enhanced oil or gas recovery (EOR /EGR) in other than UIC Class VI wells, where some sequestration may occur in the process of recovering gas or oil, is beyond the scope of this proposal.] To address the full range of utilization for captured CO 2 emission streams, EPA should discuss the status of all CO 2 streams to clarify whether those CO 2 streams sent to EOR are subject to RCRA. These CO 2 streams should not be subject to RCRA for the same reason that the streams are captured gaseous emissions and therefore cannot be solid waste. In addi tion, the CO 2 used for enhanced recovery of any kind (ER) is a process input. The CO 2 is used both to reduce the miscibility of the targeted hydrocarbons and to pressure up the reservoir. Furthermore, CO 2 streams used for ER are not discarded, and this is certainly true for as long as the production field is in operation. (Captured CO 2 streams used for food grade beverage carbonation and other purposes is also not discarded.) **Response:** See responses to Comments 3.2.1, 3.2.3 and 3.2.4. .
**Comment 3.2.15**  **:** EPA NPRM Statements pg 48078 EPA’s regulations require that generators of a solid waste determine whether their wastes are hazardous wastes, and if so, manage them in accordance with EPA’s RCRA hazardous waste regulations. 40 CFR 262.11. It will not be feasible for this determination to be made if a producer of a CO 2 stream cannot apply any of the established tests or criteria for making the determination. For example, existing toxicity criteria are not directly applicable to concentrations that would b e present in gaseous emissions. If EPA expects to require producers to make assessments and determinations of toxicity for gaseous emission streams of CO 2, the Agency will need to develop an entire set of toxicity criteria at least for all of the constitue nts that might be present in CO 2 streams. That might conceivably be done by reassessing each current toxicity criterion for each such constituent, but it would not be appropriate to simply presume that toxicity criteria based on ground water releases from landfills would also be applicable to gaseous emissions. **Response:** The Agency recognizes that there are potential questions associated with applying the RCRA definition of hazardous waste to sequestered CO 2 streams. EPA does not apply any significant tech nical limitations on sampling and analyzing a CO 2 stream, even if it has been compressed to40

supercritical sta ge. Generators can conduct analyses to characterize the physical and chemical properties of their CO 2 streams, e.g., whether the CO 2 contains certa in impurities, what the concentrations of the impuri ti es are, and whether the CO 2 stream may be corrosive, or apply their knowledge of the hazard characteristic of a waste, in light of the materials or processes used in order to determine whether a waste exhibits a RCRA characteristic.
**Comment 3.2.16**  **:** EPA NPRM Statements pg 48078 EPA studied the fossil fuel combustion wastes as directed by Congress, and published two Reports to Congress, [17] and issued two Regulatory Determinations on the management and use of coal and other fossil fuel combustion products, one on August 9, 1993 and a second one on May 22, 2000 (58 FR 42466 and 65 FR 32214, respectively). CO2 captured for purposes of GS was not included in either of these Regulatory Determinations, or in the underlying studies upon which these determinations were based. It is not a mystery as to why CO 2 was not considered by these studies. CO 2 was not even a regulated air pollutant at the time of these studies. See EPA’s endangerment decision: “Under t he Clean Air Act EPA is responsible for addressing air pollutants from motor vehicles. On April 2, 2007, the U.S. Supreme Court issued its opinion in Massachusetts v. EPA,12 a case involving a 2003 order of the Environmental Protection Agency (EPA) denying a petition for rulemaking to regulate greenhouse gas emissions from motor vehicles under section 202(a) of the Clean Air Act (CAA).13 The Court held that greenhouse gases were air pollutants for purposes of the Clean Air Act and further held that the Admi nistrator must determine whether or not emissions from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision. Th e Court further ruled that, in making these decisions, the EPA Administrator is required to follow the language of section 202(a) of the CAA. The Court rejected the argument that EPA cannot regulate CO 2 from motor vehicles because to do so would de facto t ighten fuel economy standards, authority over which has been assigned by Congress to DOT. The Court stated that ‘‘[b]ut that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public‘s ‘health’ and ‘welfare’, a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency.’’ The Court concluded that ‘‘[t]he two obligations may overlap, but there is no reason to think the two agencies cannot both admi nister their obligations and yet avoid inconsistency.’’ The Court remanded the case back to the Agency for reconsideration in light of its findings.”[FN2: Proposed Rulemaking To Establish Light

- Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Proposed Rule, 74 Fed. Reg. 49454, 49459 (September 28, 2009).] In response to this decision, EPA has stated that “the Administrator exercised her judgement, based on an exhaustive review and analysis of the science, to con clude that ‘‘six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations.’’ 74 FR 66496. The Administrator also found ‘‘that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a).’’ Id.[FN3: ‘‘Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a ) of the Clean Air Act.’’ 74 FR 66496 (December 15, 2009)]41

Prior to these developments, there would have been no reason for EPA to include CO 2 captured for purposes of GS in either of its Regulatory Determinations on the management and use of coal and ot her fossil fuel combustion products, or in the underlying studies upon which those determinations were based. **Response:** The exemption at 40 CFR 261.4(b)(4) does not apply to CO 2 streams captured for purposes of GS, for the reasons given in the proposed ru le preamble (76 FR at 48078), irrespective of why CO 2 streams were not included in either of Regulatory Determinations related to wastes from the combustion of coal and fossil fuel.
**Comment 3.2.17**  **:** EPA NPRM Statements pg 48078 [fn 18] EPA notes that even if CO2 streams from the combustion of fossil fuels were exempt from regulation as hazardous waste under § 261.4(b)(4)

— which it does not believe to be the case

— the Bevill exemption would only apply to CO2 generated from the combustion of materials in boiler s to generate steam for the purpose of generating energy, and not to other CO2 streams generated from other sources. Notwithstanding the notation in footnote 18, it remains true that the Bevill exemption does apply to CO 2 generated from the combustion of materials in boilers to generate steam for the purpose of generating energy. The assertion that some other CO 2 streams might not be subject to the same exemption does not deprive the Bevill exemption of its validity as to those CO 2 streams that clearly co me within the ambit of that exemption. This provides yet another justification for excluding all captured gaseous emission streams of CO 2 . Given that some of these streams will be exempt anyway, it makes good sense to exclude all of the streams ab initio a s not constituting solid wastes. EPA must at least recognize and reaffirm that CO 2 streams from the combustion of fossil fuels are exempt from regulation as hazardous waste under § 261.4(b)(4). **Response:** See response to c omment 3.2.16. **Comment 3.2.18:** EPA NPRM Statements pg 48078 An entity involved in the CCS process may generate CO2 that qualifies as a solid waste under the RCRA hazardous waste regulations by making the decision to discard the material through abandonment by disposing of the material ( see 40 CFR 261.2(a)(2)(i) and (b)(1)). This statement might conceivably raise potentially serious implications about CO 2 streams used for EOR because CO 2 will remain in the previously producing oil and gas formations when production is completed and the filed operator plugs and abandons all of the production and injection wells. Because the CO 2 streams used as process input for EOR operations are not discarded and not solid waste, there should never be any question about the status of CO 2 that remains con tained in an oil and gas reservoir following plugging and abandonment of the production and injection wells for those operations. But EPA has not addressed the status of CO 2 used for EOR. EPA should clarify that these streams would not ever be considered s olid and hazardous waste either during EOR operations or after the close of those production operations. It is important for the producers of CO 2 streams used for EOR to know that those streams will not be subjected to RCRA requirements42

at any time, includ ing after EOR operations are completed. If CO 2 streams sent to Class VI wells are excluded as proposed, these streams used for EOR and remaining contained in oil and gas reservoirs should also be addressed in EPA’s final action. Again, we urge EPA to concl ude that none of these captured gaseous emission streams constitute solid waste. Placing this issue in another context, it is quite possible that an EOR operator will receive captured gaseous emission CO 2 streams to use for EOR for a period of time, afte r which the operator will decide to convert that project from being primarily an EOR operation to become primarily a GS operation, transitioning the injection wells from Class II to Class VI and then continue to operate for many years as a GS operation. At the close of that operation, there should not be any question as to whether the CO 2 streams used for EOR prior to conversion should be viewed any differently from the CO 2 streams injected through many of the same wells following their conversion to Class VI. Uncertainties about how CO 2 streams used for EOR will be treated under RCRA will have a chilling effect on the willingness of both CO 2 producers and EOR operators to use captured gaseous emission streams for EOR. Instead, the overall program for the re gulation of carbon capture, utilization and storage of CO 2 emission streams should be encouraging and fostering the use and sequestration of those streams. **Response:** As EPA noted in the preamble to the proposed rule, this conditional exclusion is not inte nded to affect the regulatory status of CO 2 streams that are injected into wells other than UIC Class VI wells. EPA reiterates that these issues are beyond the scope of this final rule, and EPA did not develop information for inclusion in the proposal on well classes other than UIC Class VI wells. However, in the interest of public transparency and in light of the several public comments on this issue, EPA does note that (based on the limited information provided in the public comments) should CO 2 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 CO 2 in situations that are beyond the scope of this final rule.
**Comment 3.2.19**  **:** EPA NPRM Statements pg 48078 Regarding the feasibility of testing CO2 streams, EPA acknowledges the commenter’s concern, but also notes that the hazardous waste regulations allow generators to apply their knowledge

— in lieu of testing

— of the hazard characteristic of a waste, in light of the materials or processes used, to determine whether that waste is a characteristic hazardous waste under RCRA. 40 CFR 262.11(c)(2). [fn 21 Any persons claiming that a waste is nonhazardous, based on knowledge in lieu of testing, should be prepared to substantiate this claim.] . . . EPA acknowledges the commenters’ underlying concerns related to RCRA characterization, and requests comment on this issue. EPA acknowledges that CO 2 streams cannot be tested by any existing test to determine whether those streams

– even if a solid waste

– are hazardous. How is the capturer of a CO 2 stream supposed to make this assessment if the existing tests cannot be used? If a CO 2 producer were required to classify a material based on “knowledge” rather than testing, what standard can be used to substantiate this claim? How then can any claim be deemed valid or not in the absence of applicable criteria? This is particularly pertinent because CO 2 is something we breathe day in and out without adverse effects, and we place large quantities of it in massively co nsumed beverages and other food products.43

These streams are not going to demonstrate the characteristic of ignitability or reactivity. Captured gaseous CO 2 streams will not meet either of the criteria set forth in section 261.22(a) of 40 CFR. Moreover, pi peline operators will not accept a CO 2 stream that would prove corrosive to the pipelines used to transport these streams to either EOR or GS operators. Consequently, these streams could only potentially be considered to exhibit a toxicity characteristic. But captured gaseous CO 2 emission streams cannot be tested with the Toxicity Characteristic Leaching Procedure, test Method 1311 in ‘‘Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,’’ EPA Publication SW

–846 as contemplated by section 26 1.24(a). Accordingly, the producers of CO 2 streams are left by EPA to determine whether a CO 2 stream is toxic
– presumably by assessing whether the gaseous CO 2 emission stream contains any of the forty section 261.24(b) contaminants at concentrations great er than those listed in that subsection. Nor are those concentration levels directly applicable to supercritical CO 2 streams. EPA cannot expect CO 2 producers to be able to do that without providing more detailed instructions on how that determination shoul d be made. Again, we recommend that EPA dispense with the need for developing any such instructions by concluding that captured gaseous CO 2 emission streams do not constitute solid waste. **Response:** EPA appreciates these commenters’ concerns regarding the application of the hazardous waste regulations to supercritical CO 2 streams being sequestered. EPA believes these concerns exist as a result of the unique circumstances associated with addressing the applicability of RCRA to CCS at such an early stage in the development of CCS. However, it is important to note that EPA did not set out in this rulemaking to conclude that those supercritical CO 2 streams that are solid wastes would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated in the pro posed rule that it could not unequivocally conclude that supercritical CO 2 streams will never exhibit any RCRA hazardous waste characteristic and commenters provided no information to the contrary. Alternatively, EPA acknowledges that some RCRA hazardous c haracteristics are unlikely to apply to a waste composed of >90% CO 2, such as ignitability (i.e., RCRA Waste Code D001). EPA acknowledges that additional guidance in determining when supercritical CO 2 streams would be defined as hazardous under the Toxici ty Characteristic may be useful, however EPA also notes that in light of the early state of data development in this area, EPA intends to bring additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from the definition of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic, or, where a generator chooses to comply with the conditional exclusion as a precautionary matter, if they are u nsure of the hazardous waste status of their CO 2 stream. See also R esponse s to Comment s 3.2.2 1 and 3.17.11. With respect to the comment that EPA should conclude that captured gaseous CO 2 emission streams do not constitute solid waste, see R esponse to Comm ent 3.2.2. **Comment 3.2.20**  **:** EPA NPRM Statements pg 48079 Today’s proposed conditional exclusion is based upon EPA’s existing knowledge of the composition of CO2 streams, and its analysis that compliance with the existing standards and regulations designed to prevent any exposure of CO2 (and any associated impurities) would render additional regulation under RCRA subtitle C unnecessary. The permit

-issuing authority is also authorized under EPA’s UIC permit regulations to add any additional conditions to the permit, as necessary, to assure compliance with applicable SDWA requirements (40 CFR 146.52(b)). Under this authority, the UIC44

Program Director (EPA or a State permitting authority) may add specific testing or chemical/waste limitations to the permit to prevent endangerment of USDWs, or to assure that unauthorized wastes are not injected with the CO2 stream. It is certainly true that any further regulation of CO 2 streams is completely unnecessary because the UIC regulations for all classes of wells that might receive CO 2 streams provide for all of the necessary regulation. EPA has promulgated a comprehensive UIC program that addresses CO 2 injected for EOR as well as GS. Because of the comprehensive scope of the UIC program, EPA’s RCRA requirements
— to the extent that any exclusion is adopted

— should provide an exclusion for any CO 2 stream sent to any well that holds a valid UIC permit to inject CO 2 . That should be sufficient to provide that the recipient is covered within the UIC program, and EPA can rely on the UIC program Directors to enforce the applicable requirements to assure proper injection of those streams without trying to impose enforcement responsibilities on the CO 2 producer. EPA need not add all of the CO 2 stream producers to the enforcement personnel in the UIC program, thereby imposing on those producers all of the burdens and costs of UIC program implementation meant to be shouldered by the respective UIC program Directors and their agencies. **Response:** See responses to Comments 3.2.7, 3.2.24 and 3.2.44.
**Comment 3.2.21**  **:** EPA NPRM Statements pg 48079 These non

- CO2 constituents may include, but are not limited to, sulfur dioxide (SO2 ), hydrogen sulfide (H2S), nitrous oxides (NOX), carbon monoxide (CO), methane (CH4), other hydrocarbons, water vapor (H2 O), as well as certain contaminants, that are also defined as hazardous contaminants in 40 CFR 261.24, such as arsenic, mercury, and selenium. The presence of “sulfur dioxide (SO 2 ), hydrogen sulfide (H 2S), nitrous oxides (NOX), carbon monoxide (C O), methane (CH 4 ), other hydrocarbons, or water vapor (H 2 O)” will not render a CO 2 stream hazardous for exhibiting the toxicity characteristic. Only the “hazardous contaminants in 40 CFR 261.24, such as arsenic, mercury, and selenium” could do that, but i t is not clear how CO 2 producers should be assessing their captured gaseous emission streams for the presence of these contaminants. **Response:** See response to 3.2.19. Also, t he preamble language from the proposed rule cited by the commenter was part of a discussion on how the Agency expects to obtain additional data on CO 2 streams, and was intended to describe the kinds of constituents that might be measured or identified as part of the UIC Class VI requirement to characterize CO 2 streams, which would inc lude constituents that are not part of the Toxicity Characteristic (as the commenter points out) as well as constituents that are. The point EPA was making was that these data will allow EPA to gain a better understanding of the nature and characteristics of captured CO 2 streams generally, and not solely in the context of the Toxicity Characteristic

. The Agency recognizes that there are potential questions associated with applying the RCRA definition of hazardous waste to sequestered CO 2 streams. Generators can conduct analyses to characterize the physical and chemical properties of their CO 2 streams, e.g., whether the CO 2 contains certain impurities, and what the concentrations of the impuries are, or apply their knowledge of the hazard characteristic of a waste, in light of the materials or processes used in order to determine whether a waste exhibits a RCRA characteristic.
**Comment 3.2.22**  **:**45

EPA NPRM Statements pg 48079 EPA today requests analytical data on the physical and chemical characteristics of captured CO2 , including the concentrations of hazardous contaminants, CO2 content, information on the type of CO2 capture process used, and how the samples were collected and analyzed. Some of this type of information is provided in the IOGCC report on car bon dioxide pipelines. IOGCC, A Policy, Legal, and Regulatory Evaluation of the Feasibility of a National Pipeline Infrastructure for the Transport and Storage of Carbon Dioxide 21, Table 4

– “ CO 2 Stream Compositions from Various Processes” (September 2010 ) (Attachment A). We understand that American Electric Power (AEP) intends to submit data from its Mountaineer project [FN4: http://www.aep.com/environmental/climatechange/carboncapture/ (accessed on October 6, 2011)] that has already been submitted to the West Virginia Department of Environmental Protection (DEP) and that Southern Company intends to submit data from its Plant Barry capture process.. **Response:** EPA thanks the commenter for its response

. **Comment 3.2.23**  **:** EPA NPRM Statements pg 48079 The Agen cy believes that this amendment to the RCRA hazardous waste rules, if finalized, will substantially reduce the uncertainty associated with defining and managing these CO2 streams under RCRA subtitle C. That is not true because EPA does not address the situation where a CO 2 stream is captured and sent for either EOR or GS . Moreover, EPA has proposed an illusory exclusion because the least noncompliance with the DOT transportation requirements or the Class VI requirements could result not only in a violatio n of those regulatory provisions but also in a potential transformation of the CO 2 stream into a hazardous waste by negating its exclusion. **Response:** EPA disagrees with the commenter. Regarding the comment about CO 2 stream s “...sent for either EOR or GS...” E PA refers to its responses to Comments 3.2.3 and 3.2.4. Regarding the comment about loss of the conditional exclusion, EPA refers to its response to c omments 3.2.24, 3.2.35, and 3.2.44.
**Comment 3.2.24**  **:** EPA NPRM Statements pg 48079 EPA believes that the management of these CO2 streams in accordance with the proposed conditions does not present a substantial risk to human health and the environment. It does not present a substantial risk, but the requirements for compliance impose a virtual impossibility . As described by the DC Circuit in its decision in Assn. of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, (D.C. Cir. 2000), the proposed provision “describes what is not a solid waste, unless it complies with the other provision. But the other provision . . . is an exclusion, and the consequence of not complying with the provision is, of course, loss of exclusion. In other words, read together, the provisions seem to say that something is not a solid waste unless it is not excluded from being a solid wast e. Lewis Carroll would be proud.” 208 F. 3d at 1051.46

**Response:** EPA notes that the comment does not provide a basis for its conclusion that “the requirements for compliance impose a virtual impossibility.” EPA believes that it is possible for generators a nd UIC Class VI well owners or operators to comply with the conditions of the conditional exclusion. The conditions EPA is establishing for this conditional exclusion largely follow existing requirements with which persons must already comply

– compliance with DOT provisions, and injection into UIC Class VI wells in compliance with UIC Class VI requirements (including a prohibition on mixing CO 2 streams with hazardous waste).
**Comment 3.2.25**  **:** EPA NPRM Statements pg 48082 EPA requests information on whether EPA’s estimates for captured CO2 volumes are accurate and reasonable, and whether the CO2 that is captured could be stored on

-site prior to being sent elsewhere for GS or any other purpose; if so, EPA requests detailed information on the duration and m ethod of storage, and what existing regulatory or voluntary controls and standards apply to such storage. Storage of CO 2 before injection is extremely unlikely given the large volumes we are talking about (multiple millions of tons per year for commercia l operations). Temporary on site storage of such volumes is impractical. For example, the AEP Mountaineer project did not store CO 2 after capture. It was either injected or sent back to the stack

. The plans for the 235 MW scale

- up of that project also did not include an option for storage of CO 2 before injection

. **Response:** T his comment (along with several others) supports EPA’s conclusion in the proposed rule (see 76 FR at 48081

- 82) that storage would not be expected to occur prior to delivery to a UIC Cla ss VI facility, because storage would be technically infeasible.
**Comment 3.2.26**  **:** EPA NPRM Statements pg 48082 Pipeline transportation of CO2 is subject to the PHMSA requirements in 49 CFR part 195, which apply to pipeline facilities used in the transporta tion of hazardous liquids or supercritical CO2. As further explained by IOGCC: “The federal Pipeline Safety Reauthorization Act of 1988 included a provision to regulate the safety of CO 2 pipelines. Pipelines that both ‘start and stop’ within a state bou ndary are considered intrastate and would be regulated by the state authority if that authority has adopted regulations that are at least as stringent as the applicable federal safety regulations. Pipelines traversing more than one state are interstate pip elines and their safety is regulated by the Federal Pipeline and Hazardous Materials Safety Administration (PHMSA) within the DOT. PHMSA also would regulate those intrastate facilities within a state that has not adopted regulations as stringent as federal safety regulations.” IOGCC, A Policy, Legal, and Regulatory Evaluation of the Feasibility of a National Pipeline Infrastructure for the Transport and Storage of Carbon Dioxide 24 (September 2010) (citations omitted) (Attachment A). **Response:** EPA consulte d with DOT and confirmed that with respect to the DOT regulations in 49 CFR Part 195 (which apply to pipeline facilities used in the transportation of hazardous liquids or supercritical CO 2 ), while some states have adopted regulations that apply to the tra nsportation of supercritical CO 2 and are certified by DOT to directly regulate these intrastate pipelines, many states do not have such a certification, and DOT remains the direct regulator of both interstate and intrastate pipelines in those states. EPA notes that state pipeline regulations are required to be at47

least as stringent as the federal DOT requirements; therefore, compliance with either the applicable DOT regulations or the applicable certified state regulations has the same effect under the pro posed conditional exclusion. Because the proposed condition at §261.4(h)(1) only referred to compliance with applicable DOT regulations, EPA decided to modify the wording of the condition to add language that also refers to compliance with “pipeline safety regulations adopted and administered by a state authority pursuant to a certification under 49 U.S.C. § 60105” to reflect situations where a pipeline facility must comply with state, rather than federal, regulation. Again, EPA is making this change in ord er to more accurately describe how pipeline facilities are already regulated under applicable pipeline regulations (be they state or federal). EPA also made a conforming change to the related certification language so as to mirror the revised condition in §261.4(h)(1).
**Comment 3.2.27**  **:** EPA NPRM Statements pg 48082 Pipeline transportation of CO2 is subject to the PHMSA requirements in 49 CFR part 195, which apply to pipeline facilities used in the transportation of hazardous liquids or supercritical CO2. T his statement also makes an important distinction that should be emphasized. Supercritical carbon dioxide is not considered or regulated as a hazardous liquid under the PHMSA regulations. That distinction is further emphasized in footnote 39: “The pipeline transportation of carbon dioxide and hazardous liquids are both regulated under the same regulatory framework. ‘‘Hazardous liquids,’’ for purposes of 49 CFR part 195, are defined by DOT as petroleum, petroleum products, and anhydrous ammonia, and are not the subject of this proposed rule. 49 CFR 195.2.” 76 Fed. Reg. at 48082, n. 39. It is important to emphasize this distinction to avoid the notion that supercritical CO 2 is regulated as a hazardous liquid. This problem and solution are explained in a recen t report from the Interstate Oil and Gas Compact Commission: “Some confusion has arisen from the fact that regulations applicable to CO 2 pipelines are included under the heading entitled "Transportation of Hazardous Liquids by Pipeline." 49 C.F.R. pt. 19 5. This led some commentators to assume, erroneously, that CO 2 is a "hazardous liquid" under the regulations. This is not accurate. The Department of Transportation proposed safety regulations for CO 2 pipelines in 1989 precisely because the regulations governing transportation of "hazardous liquids" did not apply to CO 2 . See Notice of Proposed Rulemaking, " Transportation of Carbon Dioxide by Pipeline ", 54 Fed. Reg. 41912 (October 12, 1989). The term " ‘hazardous liquid’ is defined at 49 C.F.R. § 195.2, and does not include carbon dioxide. Commentators were concerned that including CO 2 pipeline regulations under the section heading for "hazardous liquids" would lead to confusion. In response, the Office of Pipeline Safety said it had ‘no good reason to disput e’ this notion, and indeed it agreed that carbon dioxide ‘should not be included in the definition of “hazardous liquids”’. Id. Nevertheless, the Department said it would not change the title heading ‘because it would result in an awkward title’ Id. The di stinction between carbon dioxide and hazardous liquids is maintained at 49 C.F.R. § 195.0 which essentially provides that ‘[t]his part prescribes safety standards and reporting requirements for pipeline facilities used in the transportation of hazardous li quids or carbon dioxide.’ Id. (emphasis added) Although CO 2 is listed as a Class 2.2 (non

-flammable gas) hazardous material under DOE regulations (49 C.F.R. § 172.101), the agency applies nearly the same safety requirements to CO 2 pipelines as it does to p ipelines carrying hazardous liquids such as crude oil, gasoline, and anhydrous ammonia (49 C.F.R. § 195).’48

IOGCC, A Policy, Legal, and Regulatory Evaluation of the Feasibility of a National Pipeline Infrastructure for the Transport and Storage of Carbon Di oxide 24

- 25, n.70 (September 2010). **Response:** EPA acknowledges the comment, and does not believe that the factual descriptions and citations of the DOT regulations applicable to supercritical CO 2 should result in any confusion as to how supercritical CO 2 is regulated by DOT. EPA also notes that t his final rule does not change the status under DOT regulations of supercritical CO 2, nor does it change the manner in which supercritical CO 2 is regulated by DOT. **Comment 3.2.28**  **:** EPA NPRM Statements pg 48082 Finally, EPA requests comment and information on the procedures that have been or are expected to be used during maintenance and upset circumstances of the carbon capture system. With CCS not required, the captured stream would be returned to the stack and vented. If and when CCS is required, this is an issue that will need to be addressed in regulations and/or permits. Temporary storage of volumes generated during full scale operations will not likely occur. **Response:** EPA thanks the commenter for the info rmation.

. **Comment 3.2.29**  **:** EPA NPRM Statements pg 48083 EPA notes that it may be the case that some pipelines used to transport CO2 are not subject to the DOT requirements, because they are located onsite at the generator facility or at the UIC Class VI f acility. See, e.g., 49 CFR 195.1(b)(8). EPA requests information on how these pipelines are currently regulated, including any design and operating standards that apply to such pipelines. As detailed in an article by Philip Marston and Patricia Moore, th e regulatory status of CO 2 pipelines under existing law “was settled many years ago with respect to the Federal agencies charged with economic regulation under the Natural Gas Act and the Interstate Commerce Act, with findings that those statutes did not c onfer regulatory jurisdiction over CO 2 pipelines. The Bureau of Land Management (BLM), on the other hand has been found to have the legal authority to impose common carrier obligations on certain CO 2 pipelines that cross federal land. With regard to state law, the situation is more complex, with varying forms of carriage responsibilities being imposed on CO 2 pipelines depending on a number of different factors.” P. Marston & P. Moore, From EOR to CCS: The Evolving Legal and Regulatory Framework for Carbon C apture and Storage, 29 Energy L. J. 421, 451 (2008) [See Attachment PDF on policy, legal, and regulatory evaluation of feasibility of a national pipeline infrastructure for the transport and storage of CO 2 Docket ID: EPA

HQ

- RCRA

- 2010

-0695

-0084]. **Response :**  EPA thanks the commenter for the information.
**Comment 3.2.30**  **:** EPA NPRM Statements pg 48083 EPA still requests comment on the appropriateness of applying the RCRA subtitle C standards to these non

- DOT regulated pipelines. EPA should not apply RCRA su btitle C standards to any pipelines associated with the transportation49

of captured CO 2 emission streams because, as EPA has noted on numerous occasions, the pipeline transportation of uncontained gaseous emissions is outside the jurisdiction of RCRA. In ad dition, onsite piping will be covered by ASME B31.1, which is included in the engineering standards for the fabrication and installation of piping on

- site. In accordance with ASME B31.1, these pipelines are built to conform to a very protective set of stan dards, and that additional regulation is not necessary . [FN4: “The B31.1 code prescribes minimum requirements for the design, materials, fabrication, erection, test, inspection, operation, and maintenance of piping systems typically found in electric power generating stations, industrial institutional plants, geothermal heating systems, and central and district heating and cooling systems. The code also covers boiler external pi ping for power boilers and high temperature, high pressure water boilers in whic h steam or vapor is generated at a pressure of more than 15 psig; and high temperature water is generated at pressures exceeding 160 psig and/or temperatures exceeding 250 degrees F.”] **Response:** EPA agrees that RCRA subtitle C standards should not be appl ied to non - DOT regulated pipelines

. While EPA acknowledges that ASME standards are not by themselves regulatory requirements, 2 these standards (e.g., ASME B31) are designed to ensure that the piping and associated equipment meet certain quality and safety criteria. In addition, that these ASME B31 standards have been incorporated by reference in various federal and state regulatory programs illustrates the high degree of confidence and acceptance placed on these standards. Ultimately, EPA did not find a com pelling reason to require RCRA subtitle C standards to on

- site piping associated with supercritical CO 2 streams. Regarding the statement that “ as EPA has noted on numerous occasions, the pipeline transportation of uncontained gaseous emissions is outside t he jurisdiction of RCRA [,]” see Response to Comment 3.2.1. **Comment 3.2.31**  **:** EEPA NPRM Statements pg 48083 EPA requests comment on the extent to which non pipeline transportation will be used specifically for transporting CO2 streams to UIC Class VI facilities, and whether the use of the certification statement, together with compliance with applicable DOT hazardous material transportation requirements, are effective substitutes for the RCRA hazardous waste regulations that would apply to these specific circumstances. We do not think that non

- pipeline transportation will be feasible for any GS projects other than small scale pilot projects conducted for experimental purposes or test injections conducted to determine the appropriateness of a particular reservoir or formation to serve as an injection zone. In these cases, as in the case of pilot scale Phase II DOE Regional Carbon Sequestration Partnership projects, food grade CO 2 will be trucked in for injection. The information on these projects is available a t the DOE NETL website

. [FN6: http://www.netl.doe.gov/technologies/carbon_seq/infrastructure/rcsp.html (accessed October 5, 20110]. **Response:** EPA thanks the commenter for the information.

2 According to ASME, standards are considered voluntary and serve as guid elines. ASME publishes its standards, accredits users of standards to ensure that they are capable of manufacturing products that meet those standards, and provides stamps that accredited manufacturers place on their products, indicating that a product was manufactured according to a standard.50

**Comment 3.2.32**  **:** EPA NPRM Statements pg 48084 Pursuant to § 1421(d

)(2), the UIC program requirements for all well classes, promulgated under the authority of the SDWA, are designed to comprehensively ensure that an injection well is appropriately sited, operated, tested, monitored, and closed in a manner that ensures USD W protection and does not otherwise adversely affect the health of persons. This statement reflects a fundamentally correct assessment of the UIC program and provides a strong foundation for reframing any exclusion that might be adopted to rely on the effectiveness of the UIC program in its entirety

— and not just Class VI

— as the basis for any exclusion. Thus, it should be sufficient to require that the producer of a CO 2 stream send that stream to an injection well operator who holds a valid UIC permit to i nject CO 2 . That permit may be a Class II EOR permit, a Class V experimental permit or a Class VI permit (or even conceivably a Class I permit if the CO 2 stream is a hazardous waste through being combined with a listed hazardous waste stream). Under any of these circumstances, the injection well operator will be under the control of the UIC program and will hold a permit and be subject to requirements that can be enforced by the UIC program Director as necessary. **Response:** EPA disagrees that the conditional exclusion should be extended to UIC well classes beyond Class VI, and refers to its response to comment 3.2.7. **Comment 3.2.33**  **:** EPA NPRM Statements pg 48084 In developing standards for CO2 injection for GS, the Agency evaluated the applicability of the exi sting UIC program requirements for Class I wells (hazardous and non

-hazardous) through Class V wells, and determined that new, tailored regulations to address the injection of supercritical CO2 streams for GS, including any associated constituents that may be present in the CO2 streams, were warranted in order to protect USDWs from endangerment. This statement reflects the nature of the determinations that EPA made in promulgating the Class VI requirements. EPA also determined how these requirements should relate to the Class II requirements for EOR wells and established specific provisions for determining when the requirements applicable to the operation of those wells should be changed in order to provide the necessary protections of USDWs. Accordingly, i t is completely appropriate to rely on the UIC program provisions applicable to any injection of CO 2 streams. **Response:** See response to c omment 3.2.7. **Comment 3.2.34**  **:** EPA NPRM Statements pg 48084 [T]he Agency recognized that these established programma tic requirements required certain modifications and enhancements with respect to CO2 injection for GS in order to ensure USDW protection. By the same token, EPA decided that it was not necessary to apply the same modifications to CO 2 injection for EOR. T here is no reason for EPA to question that determination at this point and in this regulatory provision.51

**Response:** See response to c omment 3.2.7. **Comment 3.2.35**  **:** EPA NPRM Statements pg 48085 EPA is proposing to limit the scope of this exclusion by including a condition that no other hazardous waste can be mixed with, or otherwise co

-injected with, the CO2 streams as defined in today’s proposed rule. This is a perfectly acceptable and completely justifiable requirement, but one that is already achieved by the Class VI UIC requirements. 40 CFR 146.81(d) (emphasis added): “ Carbon dioxide stream means carbon dioxide that has been captured from an emission source (e.g., a power plant), plus incidental associated substances derived from the source materials an d the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261. ” This definition effect ively precludes the addition of a hazardous waste stream to a CO 2 stream for injection into a Class VI well. Nevertheless, we do not oppose inclusion of the provision if it is appropriately limited by recognizing that the hazardous waste resulting from su ch a mixture is generated at the time of mixture and by whoever does the mixing without eliminating the exclusion as applicable to any previous producer or manager of the CO 2 stream. This is important because the CO 2 producer cannot control the actions of subsequent handlers of the CO 2 stream. **Response:** Regarding the comment that the UIC Class VI rule already prohibits the mixing of hazardous waste with CO 2 streams, see Response to Comment 3.1.13. EPA can appreciate the commenter’s concern over the loss of the conditional exclusion due to the actions of subsequent handlers of the CO 2 stream (in this instance, mixing of hazardous waste into the CO 2 stream downstream of the “...previous producer or manager of the CO 2 stream .”). However, EPA maintains that th e rule conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not necessary. EPA’s Office of Enforcement a nd 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 t he 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 n egligence, 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

-fnl.pdf).
EPA has also made revisions to the certification statement better reflect actions over which each party has control. EPA has modified the certification requirement in the final rule so that there are52

now two separate certification statements worded slightly differently

– one for generators and another for UIC Clas s VI well owners or operators claiming this conditional exclusion

. EPA is making these revisions to better reflect actions over which each party has control. See EPA response to c omment 3.2.54. **Comment 3.2.36**  **:** EPA NPRM Statements pg 48086 EPA is proposin g that a certification statement be executed by an authorized representative of the generator and the Class VI injection facility owner/operator. It is asking too much to expect these individuals or companies to assure compliance by others not within the ir control with every regulatory provision of each of these other regulatory regimes. It should be sufficient for the capturer and injector to assure that the other links in the chain have the necessary permits. Further enforcement should come from the reg ulators implementing those programs. **Response:** EPA agrees that it may be difficult for generators and UIC Class VI well owners or operators to assure compliance by others not within their control . Therefore, EPA has made revisions to better reflect action s over which each party has control. EPA has modified the certification requirement in the final rule so that there are now two separate certification statements worded slightly differently

– one for generators and another for UIC Class VI well owners or o perators claiming this conditional exclusion

. EPA is making these revisions to better reflect actions over which each party has control. See EPA response to comment 3.2.54 **Comment 3.2.37**  **:** EPA NPRM Statements pg 48087 EPA requests comment on the certifica tion statement, and particularly seeks comment on whether this measure will appropriately ensure compliance with the conditional exclusion, including the mixing prohibition

. The certification statement goes too far in the extent of policing that is requi red of the certifying company. Producers of CO 2 streams are not in a position to police the compliance of transporters with all of the applicable state or federal requirements. Nor can CO 2 producers police the compliance of Class VI injection well operators with all of the individual requirements of Parts 144 and 146 of the UIC program regulations. EPA has already undertaken extensive training to prepare state and federal UIC program officials to carry out enforcement [FN7: See http://water.epa.gov/type/gro undwater/uic/class6/gsinformation.cfm “Rule Implementation Workshops”]. It would be expecting too much for CO 2 producers to possess the same capabilities. Moreover, the imposition of such an exacting compliance restriction really renders the exclusion ephe meral. As worded, it could be argued that any instance of noncompliance with the recently delineated 57 pages of individual Class VI program requirements [FN8: Draft UIC Program Class VI Primacy Application and Implementation Manual for State Directors, EP A 816

- D

- 11

-001 at Appendix A

- 3 through A

- 60 (June 2011).] would extinguish the exclusion and potentially expose the CO 2 producer to the full range of RCRA liability

. **Response:** See EPA responses to Comment 3.2.24, 3.2.35 and 3.2.54. **Comment 3.2.38**  **:**53

EPA NP RM Statements pg 48087 EPA also requests comment on how CO2 sources, who add excluded CO2 streams into an existing (or future) CO2 pipeline network, can ensure that the CO2 reaches a UIC Class VI facility. As noted previously, it is unrealistic to expect the CO 2 producer to be able to assure any more than that it has a contract for the operator of a UIC injection well to receive and inject a specific quantity of CO 2 into a well covered by a valid UIC permit to inject CO 2 . The expectation that the type of assurance required by the proposed language could be provided is unrealistic because transportation is as likely

— if not far more likely

— to be through a common carrier pipeline as through a dedicated pipeline running from a single source to a single recipie nt. **Response:** See responses to comments 3.2.3, 3.2.4, 3.2.6 and 3.2.7. **Comment 3.2.39**  **:** EPA NPRM Statements pg 48087 Finally, EPA requests comment on whether transporters, as well as pipeline owners and operators, should also sign such a certification statement. It is neither reasonable nor necessary to have transporters, pipeline owners, or pipeline operators sign such a certification statement. It is sufficient to rely on the state or federal officials who have enforcement responsibility to police the transporters and pipeline operators. Indeed, it is most unlikely that these CO 2 streams will be transported by means other than pipelines except when small quantities are used in experimental wells, and most of those CO 2 streams have been food grade CO 2 th at will not be hazardous waste under any circumstances. **Response:** EPA agrees that a certification by the transporter is not necessary, and the final rule does not include a transporter/pipeline owner or operator certification

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

. For these reasons, EPA does not see the need for a transporter certification, and is not changing its proposed approach a nd transporters and pipeline owners and operators will not be required to sign a certification statement as a condition of the exclusion

.54

**Comment 3.2.40**  **:** EPA NPRM Statements pg 48087 EPA requests comment, including supporting information, on whether (and if so, what type of) additional monitoring, recordkeeping, and reporting of the CO2 composition by generators and transporters (including pipeline operators), might aid EPA and the states in their ability to detect improper mixing of hazardous waste with CO2 streams. The extensive existing requirements of the UIC program are sufficient and will be further supported by the requirements that will be routinely imposed by pipeline operator specifications. **Response:** As noted by this commenter, EPA had request ed comment on what additional monitoring, recordkeeping, and reporting requirements on the CO 2 stream composition would help ensure compliance with the condition that hazardous waste is not be mixed with excluded CO 2 streams
. EPA received several comments in response to this specific request, all stating that additional monitoring, recordkeeping, and reporting requirements were not necessary with respect to CO 2 stream composition and the condition that hazardous waste not be mixed with excluded CO 2 streams
. Lacking any other information, EPA did not amend the final rule to include any additional monitoring, recordkeeping, and reporting requirements related to CO 2 stream composition. See Response to Comment 3.2.55. **Comment 3.2.41**  **:** EPA NPRM Statements pg 48087 EPA also requests comment on whether there are other conditions, such as a minimum CO2 content, that could enhance compliance with the proposed ‘‘no mixture’’ condition. For example, EPA is aware that under the PHMSA requirements for the pipeline transportation of supercritical carbon dioxide, the definition of carbon dioxide specifies a CO2 content of greater than ninety percent. 49 CFR 195.2. EPA should not use this means to impose any content restrictions. **Response:** EPA received very little substa ntive comment on its specific request regarding whether adding a minimum CO 2 content as an additional condition would enhance compliance w ith the no mixture condition . T herefore , lacking any other information, EPA did not amend the final rule to include a condition in the final rule related to a minimum CO 2 content as an additional condition to enhance compliance with the no mixture condition

. One commenter injecting on

- site (AEP) did provide information on the monitoring of their CO 2 streams, and stated t hat additional monitoring requirements were not necessary, but did not address the issue of setting a minimum CO 2 content as part of the RCRA rulemaking

. **Comment 3.2.42**  **:** EPA NPRM Statements pg 48087 EPA notes that it is requesting comment on whether per sons engaged in the movement of conditionally excluded CO2 streams, including transporters, as well as pipeline owners or operators, should certify that they meet the conditions of today’s proposed conditional exclusion. It is neither reasonable nor nece ssary to have transporters, pipeline owners, or pipeline operators sign such a certification statement. It is sufficient to rely on the state or federal officials who have55

enforcement responsibility to police the transporters and pipeline operators. Indeed , it is most unlikely that these CO 2 streams will be transported by means other than pipelines except when small quantities are used in experimental wells, and most of those CO 2 streams have been food grade CO 2 that will not be hazardous waste under any ci rcumstances. **Response:** EPA agrees that a certification by the transporter is not necessary, and the final rule does not include a transporter/pipeline owner or operator certification

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

. **Comment 3.2.43**  **:** EPA NPRM Statements pg 48087 EPA is also requesting comment on whether any new monitoring, recordkeeping or reporting requirements are necessary (including as those might apply to pipeline owners or operators) to ensure that the conditions of the proposed exclusion are met. EPA emphasizes that aside from seeking comment in these two areas, EPA is not proposing any new requirements applicable to pip elines or pipeline owner/operators. Such additional requirements are not necessary. **Response:** While EPA agrees that new monitoring, recordkeeping or reporting requirements are not necessary for pipeline owners or operators, EPA has added a provision in the final rule for the signed certification statement to be posted prominently on the signatory’s publicly

- available website, as discussed further in EPA’s R esponse to Comment 3.2. 55. **Comment 3.2.44**  **:** EPA NPRM Statements pg 48087

- 88 Failure to meet the con ditions results in the loss of the exclusion. As proposed, a violation of a56

condition at any point in the management of a CO2 stream (would result in that CO2 stream being subject to all applicable subtitle C regulatory requirements, from the point of generation. Thus, a violation of a condition at a UIC Class VI facility, for example, would mean that in addition to the UIC Class VI facility, the generator and transporter would also be considered to be managing (or to have managed) a hazardous waste. Moreover, imminent and substantial endangerment provisions under § 7003 of RCRA will continue to apply to conditionally

-excluded CO2 streams as a safeguard in the unlikely event of a release which could pose a health or environmental threat. This is true even if the CO2 stream does not otherwise meet the regulatory definition of hazardous waste. 49 [fn 49 EPA also notes that existing obligations to address corrective action at RCRA treatment, storage, and disposal facilities would not be affected by this proposed rule. In addition, today’s proposed conditional exemption would not preclude RCRA corrective action requirements from applying to a Class VI UIC facility if the facility were to engage in the management of hazardous waste that would require a RCRA permit (e.g., if the conditions of today’s proposed exemption were not met and the previously exempt CO2 streams were no longer exempt; or, if other hazardous wastes were treated, stored, or disposed of at the facility). EPA is setting up precisely the situatio n that the United States Court of Appeals for the District of Columbia Circuit has forewarned would likely be viewed as untenable. Assn. of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051 (D.C. Cir. 2000): “The new § 261.4(a)(17) gave a so - called ‘cond itional exclusion’: if the provision's criteria were met, reclaimed mineral processing secondary materials would not be classified as solid waste. We have trouble making sense of these two provisions. The first provision (§ 261.2(c)(3)) broadly describes w hat is not a solid waste, unless it complies with the other provision. But the other provision

- §261.4(a)(17)

- is an exclusion, and the consequence of not complying with the provision is, of course, loss of exclusion. In other words, read together, the provi sions seem to say that something is not a solid waste unless it is not excluded from being a solid waste. Lewis Carroll would be proud.” It is also worth noting that the exclusion under consideration in that case was far less demanding of regulatory perfe ction than the one proposed here. Assn. of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051

- 52 (D.C. Cir. 2000): As to the conditions set forth in § 261.4(a)(17), EPA's dividing line between “waste” and nonwaste is the manner of storage. If the mineral processor stores secondary material destined for recycling in tanks, containers, buildings, or on properly maintained pads, the materials are not considered “solid waste.” See id. § 261.4(a)(17)(iii), (iv). Given our assumption (and that of the parties), i f by

- products and sludges exhibiting a characteristic of hazardous waste are not stored in such a manner prior to being recycled, they may be regulated as hazardous “waste.” **Response:** In the first place, EPA is not quite certain what this comment means. However, based on the EPA preamble text to which the comment refers, the Agency interprets this comment to mean that the conditions of the rule that would render a waste not hazardous are not appropriate. In addition, the comment appears to say that the C O 2 should not be a hazardous waste for the generator if another person handling the waste violates one or more of the conditions. EPA disagrees with the comment as the Agency understands it. T he straightforward response is that the rule conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not necessary. Therefore, it follows that any management not in accordance with those conditions does not qualify for the exclus ion.57

Further, EPA’s Office of Enforcement and Compliance Assurance (OECA) is unable to provide definitive assurances outside the context of a formal enforcement proceeding that the government will not proceed with an enforcement response for a specific i ndividual 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, base d 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/res ources/policies/civil/rcra/rcpp2003

-fnl.pdf). EPA fails to understand the relevance of this comment's rather vague reference to Association of Battery Recyclers, Inc. , v. EPA , 208 F.3d 1047 (D.C. Cir. 2000) (“ABR”). First, ABR applies to whether the mate rial in question is a waste or not. This rule applies to material that is a waste, but is not a hazardous waste. Thus, the case is not on point. Second, nothing in ABR addresses whether a waste may lose its non

- hazardous designation (and become a hazard ous waste), from the point at which it is generated if either the generator or another person who handles the material should violate one or more of the conditions.
**Comment 3.2.45**  **:** EPA NPRM Statements pg 48088 EPA requests comment on the types and characteristics of substances that are added to CO2 streams to enable or improve the injection process. There are not current examples of substances that have been added to CO 2 streams to improve injectivity. The language contained in the Class VI rule has be en included in recognition that substances have been added to improve the injection process under other UIC well classes. The rule preserves the ability to do this, subject to appropriate permit conditions. A number of pilot and other projects have added t racers not to improve injectivity, but to improve the monitoring and plume tracking processes. **Response:** EPA acknowledges the comment

. **Comment: 3.2.46**  EPA NPRM Statements pg 48090 Our analysis also assumes all affected states will adopt the conditional exclusion and all generators that capture CO2 will claim the proposed conditional exclusion and send their CO2 streams to Class VI wells. These facilities would avoid the costs of determining whether their CO2 stream is RCRA hazardous or non

-hazardous, and would also avoid possible RCRA permitting costs and generator requirements. The economic analysis conducted in support of the proposal is inadequate and fails to consider the considerable costs that would be imposed on CO 2 producers if they are saddled with the burden to determine on a regular basis the comprehensive compliance status of pipeline operators and of Class VI injection well operators. As noted in these comments, it is completely unrealistic and unreasonable to impose such burdens. But it is also inadequate to estimate that the only cost of58

providing a certification is the cost of typing and signing the forms. The current formulation of the conditions would impose substantial auditing requirements for anyone choosing to claim the proposed cond itional exclusion. We have not attempted to estimate the costs of conducting such auditing, but we believe that the cost of requiring CO 2 producers to essentially enforce the Class VI UIC requirements will be substantial and may run as high as 50 to 75 mil lion dollars. The Ground Water Protection Agency (GWPC) has estimated that “UIC funding may need to be increased by as much as $75 million annually to effect full implementation” of the Class VI UIC program.[FN9: GWPC, An Assessment of State Needs for Regu lating Geologic Sequestration of Carbon Dioxide 2

- 3 (2011) (Attachment C): “Based on an analysis of expected staffing needs for states to implement the Class VI program, UIC funding may need to be increased by as much as $75 million annually to effect full implementation.”] As presently worded, the proposed exclusion would require CO 2 producers to undertake the same level of compliance assessment, if not more. **Response:** EPA disagrees with this comment. The Economic Assessment document does not attempt to assess costs associated with CO 2 producers who may seek to determine the status of pipeline operators and Class VI UIC injection well owner/operators because this is not a requirement of the final rule. Moreover, this conditional exclusion is voluntary, and CO 2 producers (generators) are not obligated to make use of this conditional exclusion. CO 2 producers who choose to use the conditional exclusion may conduct whatever level of oversight they believe appropriate

. **Comment 3.2.47**  **:** pg 48092 Under existin g RCRA statutory and regulatory requirements EPA must conclude that captured gaseous emission streams of CO2 are not solid waste for the reasons detailed throughout these comments. **Response:** See EPA response to comments 3.2.1 and 3.2.2.
**Comment 3.2.48**  **:** EPA NPRM Statements pg 48092 § 261.4 Exclusions. * * * * * (h) Carbon Dioxide Stream Injected for Geologic Sequestration. Carbon dioxide streams that are captured and transported for purposes of injection into an underground injection well subject to the requirements for Class VI Underground Injection Control wells, including the requirements in 40 CFR parts 144 and 146 of the Underground Injection Control Program of the Safe Drinking Water Act, are not a hazardous waste, provided the following conditions are met. If EPA insists instead on concluding that CO 2 streams can be solid waste, we recommend for the reasons stated above that the exclusion be revised as follows: § 261.4 Exclusions. (a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part: * * * * * (26) Carbon Dioxide Stream Injected for Geologic Sequestration.59

Carbon dioxide streams that are captured and transported for purposes of injection into an underground injection well holding a va lid permit for the injection of carbon dioxide under the Underground Injection Control Program of the Safe Drinking Water Act, are not solid waste, provided the following conditions are met. **Response:** EPA disagrees with the commenter’s suggested alternati ve regulatory approach to exclude these CO 2 streams from the definition of solid waste, including when they are injected into any class of UIC well “holding a permit for the injection of carbon dioxide[,]” and EPA does not agree that an exclusion from the definition of solid waste for CO 2 streams injected into UIC Class VI wells is appropriate, for the reaso ns EPA provides in response to comments 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5 and 3.2.7.
**Comment 3.2.49**  **:** pg 48093 Consistent with our comments, we recomme nd the following rewording: (1) Carbon dioxide streams that meet all of the following conditions are excluded from the definition of solid waste: **Response:** See response to c omment 3.2.48. **Comment 3.2.50**  **:** EPA NPRM Statements pg 48093 (i) Transportation o

f the carbon dioxide stream must be in compliance with applicable Department of Transportation requirements; This is not something that the capturer of CO 2 can assure because it is within the control of the pipeline operator. The capturer or producer can only assure that the pipeline is [permitted]. It is not reasonable to require the capturer or producer and the injection well operator to police the transporter or pipeline operator. Consistent with our comments, we recommend the following revision: (i) Transportation of the carbon dioxide stream must be by means authorized in compliance with applicable Department of Transportation requirements or alternatively applicable state pipeline requirements; **Response:** With respect to the suggested alternative l anguage addressing ‘applicable state pipeline requirements’ please see response to comment 3.2.26. Regarding the comment that compliance with DOT regulations is “... not something that the capturer of CO 2 can assure because it is within the control of the pi peline operator” and the parallel suggested regulatory language “by means authorized” EPA refers to its R esponses to Comments 3.2.35 and 3.2.54.
**Comment 3.2.51**  **:** EPA NPRM Statements pg 48093 (ii) Injection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 CFR parts 144 and 146;60

This is not something that the capturer of CO 2 can assure because it is within the control of the Class VI injection well operator to assure compliance with all of the requirements. The capturer or producer can only assure that the injection well operation has obtained the necessary Class VI permits. The assurance of compliance should reside with the operator and the enforcement mechanisms of the UIC program. Consistent with our comments, we recommend the following revised wording: (ii) Injection of the carbon dioxide stream must be in a well permitted to inject carbon dioxide in compliance with the appl icable requirements for Underground Injection Control wells, including the applicable requirements in 40 CFR parts 144 and 146; **Response:** EPA disagrees with the commenter’s suggested alternative regulatory approach to exclude these CO 2 streams from the d efinition of solid waste, including when they are injected into any class of UIC well “permitted to inject carbon dioxide[,]” and EPA does not agree that an exclusion from the definition of solid waste for CO 2 streams injected into UIC Class VI wells is ap propriate, for the reaso ns EPA provides in response to c omments 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5 and 3.2.7. Regarding the comment that compliance with applicable UIC Class VI requirements is the responsibility of the well owner/operator under the UIC pro gram, and is “... not something that the capturer of CO 2 can assure because it is within the control of the Class VI injection well operator ...” EPA refers to its responses to Comments 3.2.35 and 3.2.54.
**Comment 3.2.52**  **:** EPA NPRM Statements pg 48093 (iii) No other hazardous wastes may be mixed with, or otherwise co

-injected with, the carbon dioxide stream; and Why does the language say “other” when it excludes CO 2 streams? We question whether “other” is appropriate. Otherwise, this is most appropriate to req uire of the capturer or producer but only insofar as the captured CO 2 remains within the control of the producer. Accordingly, we request a clear explanation that whoever combines a CO 2 stream with a hazardous waste is the generator of the waste and this d oes not cause the original producer of the CO 2 stream to be subjected to RCRA hazardous waste provisions if the CO 2 stream has passed out of the producer’s control. **Response:** With respect to the comment requesting a clear explanation as to who is the gen erator, under the approach described in the proposed rule for implementing this conditional exclusion, the addition of hazardous waste to a conditionally excluded CO 2 stream at any point (including at a point after it leaves the control of the capture faci lity) would result in a loss of the exclusion back to the point of generation. EPA maintains that the rule conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not ne cessary. However, EPA can appreciate the commenter’s concern over the loss of the conditional exclusion due to actions outside the control of the generator

. While EPA’s Office of Enforcement a nd61

Compliance Assurance (OECA) is unable to provide definiti ve assurances outside the context of a formal enforcement proceeding that the government will not proceed with an enforcement response for a specific individual violation of an environmental protection statute, regulation, or legal requirement, EPA can (an d 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 grav ity

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 negligen ce, 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

-fnl.pdf). Regarding the commenter’s issue with the term “other,” EPA notes that this comment appears to contradict the commenter’s opinion of this condition (provided with caveats not related to the use of the term “other” in Comment 3.2.35) (“This is a perfectly acceptable and completely justifiable requirement, but one that is already achieved by the Class VI UIC requirements. ”). Nonetheless, for other reasons

– primarily due to Agency concerns that the term ‘other’ may be confusing

– EPA decided to revise the wording of the condition and is finalizing the following language: “ No hazardous wastes shall be mixed with, or otherwise co

- injected with, the carbon dioxide stream .”
**Comment 3.2.53**  **:** EPA NPRM Statements pg 48093 (iv) Any generator of a carbon dioxide stream, and any Class VI Underground Injection Control well owner or op erator, who claims that a carbon dioxide stream is excluded under paragraph (h)(1) of this section, must have an authorized representative (as defined in 40 CFR 260.10) sign a certification statement worded as follows: The injection well operator can be expected to provide such a certification for sole

- sourced CO 2 streams but not for integrated streams received through a common carrier pipeline. Consistent with our comments, we recommend rewording the certification as follows: (iv) Any generator of a ca rbon dioxide stream, and any Underground Injection Control well owner or operator, who claims that a carbon dioxide stream is excluded under paragraph (a)(26) of this section, must have an authorized representative (as defined in 40 CFR 260.10) sign a cert ification statement worded as follows: **Response:** EPA disagrees with the commenter’s suggested alternative regulatory approach to exclude these CO 2 streams from the definition of solid waste, including when they are injected into any class of UIC holding a permit for the injection of carbon dioxide. EPA does not agree that an exclusion from the definition of solid waste for CO 2 streams injected into UIC Class VI wells is justified, for the reasons EPA provides in response to comments 3.2.1, 3.2.2, 3.2.3, 3. 2.4, 3.2.5 and 3.2.7. **Comment 3.2.54:** EPA NPRM Statements pg 48093 I certify under penalty of law that the carbon dioxide stream that I am claiming to be excluded under 40 CFR 261.4(h)(1) meets all of the conditions set forth in that paragraph.62

This dep ends on how the language of the provision is revised. This is not an appropriate certification to expect under the proposed language because the assurances are beyond the capabilities of the responsible persons. **Response:** EPA agrees that it may be difficu lt for generators and Class VI Underground Injection Control (UIC) well owners or operators to certify to actions beyond their control. Therefore, in the final rule, the certification statement has been revised so that there are now two separate certifica tion statements worded slightly differently

– one for generators and another for UIC Class VI well owners or operators claiming this exclusion. As revised, the generator certification statement reads as follows: I certify under penalty of law that the ca rbon dioxide stream that I am claiming to be excluded under 40 C.F.R. §261.4(h) has not been mixed with hazardous wastes, and I have transported the carbon dioxide stream in compliance with (or have contracted with a pipeline operator or transporter to tra nsport the carbon dioxide stream in compliance with) Department of Transportation requirements, including the pipeline safety laws (49 U.S.C. § 60101 et seq.) and regulations (49 C.F.R. Parts 190

- 199) of the U.S. Department of Transportation, and the pipel ine safety regulations adopted and administered by a state authority pursuant to a certification under 49 U.S.C. § 60105, as applicable, for injection into a well subject to the requirements for the Class VI Underground Injection Control Program of the Safe Drinking Water Act. As revised, t he UIC Class VI well owner or operator certification reads as follows: I certify under penalty of law that the carbon dioxide stream that I am claiming to be excluded under 40 C.F.R. §261.4(h) has not been mixed with, o r otherwise co

- injected with, hazardous waste at the Underground Injection Control (UIC) Class VI permitted facility, and that injection of the carbon dioxide stream is in compliance with the applicable requirements for UIC Class VI wells, including the ap plicable requirements in 40 CFR parts 144 and 146. EPA is making these revisions to better reflect actions over which each party has control. EPA emphasizes that these revisions do not change how the conditional exclusion is implemented

– that a CO 2 stre am that is hazardous must meet all the conditions in 261.4(h)(1)

- (4) to qualify for and maintain the exclusion from the hazardous waste regulations

. **Comment 3.2.55**  **:** EPA NPRM Statements pg 48093 The signed certification statement must be kept onsite for no less than three years. The signed certification statement must be made available within 72 hours of a written request from the Regional Administrator or state Director (if located in an authorized state), or their designee, and shall be renewed every year by persons claiming the exclusion in 40 CFR 261.4(h). The yearly renewal of a certification statement under this paragraph means that an authorized representative must annually prepare and sign a new copy of the certification statement. Requiring production within 72 hours is too short. In addition, this requirement should reflect modern electronic filing systems where a paper copy may not be held in a file drawer. Making an63

electronic document available and submitting it electronically should both be al lowed. **Response:** EPA believes that 72 hours is sufficient time to provide a copy of the certification statement, since the generator and UIC Class VI well owner or operator should already have the statement on file. However, i n the final rule, EPA has add ed a provision for the statement to be posted prominently on the signatory’s publicly

- available website, if such website exists. As EPA made clear in the proposed rule, one of its key concerns with the certification statement was to ensure compliance with the terms of the conditional exclusion. Posting the signed certification statements on
- line will promote compliance and accountability by providing efficient access by regulatory authorities and interested members of the public (consistent with the inten t of the RCRA Enhanced Public Participation Rule cited by one commenter) to the exclusion certifications and the identities of the responsible officials. Moreover, EPA expects that posting the certifications on - line will simplify the reporting obligation for the regulated community because accessible internet posting obviates the need for a regulatory agency to request a hard copy. EPA notes that it is not requiring the creation of any new corporate or other website. Entities without a website thus would not be required to post their certifications on

- line. EPA expects, however, that most, if not all, affected entities already operate external websites to communicate to the public and, therefore, the posting requirement will be useful to regulators, the public, and the regulated community. The public disclosure of information is an increasingly common and important regulatory tool. 3 In 2010, the Office of Management and Budget (OMB) issued guidance with principles to assist agencies in using informatio n disclosure to achieve regulatory objectives, 4 and EPA believes that regulatory information disclosure can cost

-effectively improve compliance and accountability.



### 3.3 **American Electric Power (AEP)**
**Document ID: EPA** **- HQ** **- RCRA** **- 2010** **- 0695**  **- 0063**  **Comment 3.3.1:** Am erican Electric Power (AEP) appreciates this opportunity to provide comments on the proposed regulation, “Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities,” which was issued by the agency on August 8, 2011, 76 Fed. Reg. 48073. The U.S. Environmental Protection Agency (EPA) is proposing to revise the regulations for hazardous waste management under RCRA to exclude from the definition of hazardous waste, CO 2 streams that would otherwise be defined as hazardous, when these CO 2 streams are managed under certain conditions. The agency believes, and AEP agrees, that this amendment to the RCRA hazardous waste rules, if finalized, will reduce the uncertainty associated with defining and managing these CO 2 streams under RCRA Subtitle C. EPA has stated in the proposed rule that it has little information to conclude that CO 2 streams would qualify as RCRA hazardous wastes; therefore, AEP would like to take this opportunity to provide the

3 Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613, 613 (1999). 4 Memorandum for the Heads of Executive Departments and Agencies

– Disclosure and Simplification as Regulatory Tools (Cass R. Sunstein, OMB; June 18, 2010). http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclosure_principles.pdf64

agency with information obtained from AEP’s experience with sequestering and injecting CO 2 streams, as well as comment on the proposed rule. AEP appreciates the efforts EPA has made to engage and meet with stakeholders, not only during the Class VI rulemaking process, but also during the development of the guidance documents to date. As you know, AEP, along with its strategic partners, is a leader in the development of technology to capture CO 2 from flue gas emissions and inject the resultin g supercritical CO 2 into deep subsurface formations for long term storage. AEP’s pilot project for this technology is located at the company’s Mountaineer Plant in New Haven, West Virginia. AEP is in a unique position with its developing expertise to provi de comments on the proposed rule (attached) and hopes to continue this constructive dialogue as future rules and guidance documents are developed and issued. If you have any questions or need any additional information regarding these comments, please con tact (see docket for contact information). **Response:** EPA acknowledges the comment.
**Comment 3.3.2:** 1. Comments to EPA’s Preliminary Statements Regarding the Nature of the Proposed Rulemaking In EPA’s background to the proposed rule, EPA should consider adopting or referring to the definition of geologic sequestration (GS) found at 40 CFR § 144.3 to describe the process of GS. By referring to the UIC materials in the background information EPA can accurately characterize the sequestration process since these terms were vetted through the UIC rulemaking process. **Response:** EPA does not see a need to define “geologic sequestration” in the final conditional exclusion because one of the conditions is that the excluded CO 2 stream be sent to, and injected

“ in complia nce with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 CFR Parts 144 and 146” of the Underground Injection Control Program of the Safe Drinking Water Act
. ”
**Comment 3.3.3:** 2. EPA’s Application of RCRA to CO 2 Streams Injected into Permitted UIC Class VI Wells for Purposes of Geologic Sequestration is Inappropriate and Unnecessary EPA proposes that injected CO 2 may be considered a hazardous waste for RCRA purposes, if it exhibits a ny of the hazardous waste characteristics found in 40 CFR Part 261, Subpart C. 76 Fed. Reg. at 48078. While AEP believes that regulatory certainty in this area is critical to the successful deployment of the GS technology, AEP does not agree that the CO 2 s upercritical fluid should be assumed to be a hazardous waste. **Response:** EPA disagrees with the commenter but notes that EPA does not assume all CO 2 supercritical fluid is hazardous waste. I n EPA’s view, CO 2 streams that are sent to UIC Class VI wells for purposes of GS are RCRA solid wastes, and the RCRA hazardous waste regulations may apply to CO 2 streams in the absence of the conditional exclusion. However, EPA does not conclude that supercritical CO 2 streams that are solid wastes would, as a class, exh ibit a RCRA characteristic. Indeed, EPA indicated in the proposed rule that it could not unequivocally conclude that65

supercritical CO 2 streams will never exhibit any RCRA hazardous waste characteristic. Generators who are not managing a hazardous waste are not obligated to make use of this conditional exclusion and are not subject to the RCRA subtitle C regulations.
**Comment 3.3.4:** EPA notes “it has little information to conclude that CO 2 streams would qualify as RCRA hazardous wastes” and EPA does not have full knowledge of the range of possible CO 2 stream compositions (76 Fed. Reg. 48079). According to EPA, a supercritical CO 2 stream injected into a permitted UIC Class VI well for purposes of geologic sequestration (GS) qualifies as a RCRA solid waste, as that term is defined in RCRA § 1004(27) by considering the stream to be a “discarded material” within the plain meaning of the term. EPA acknowledges that the CO 2 streams under consideration are not specifically identified in 40 CFR Part 261, Subpart D as listed hazardous waste and the agency believes that the stream could be classified as hazardous if it exhibited any of the hazardous characteristics in 40 CFR Part 261, Subpart C. It is not known how a supercritical gas could be tested to determine if it had any of the hazardous characteristics, but EPA notes that the hazardous waste regulations allow generators to apply their knowledge, in lieu of testing, of the hazard characteristic of a waste, to determine whether that waste is a characteristic hazardo us waste under RCRA. In light of the underlying concerns with characterizing this supercritical fluid, EPA specifically requests comments related to RCRA characterization. The Carbon Sequestration Council (CSC), of which AEP is a member, addressed the iss ue of RCRA applicability for CO 2 streams in its comments on the agency’s proposed rule for geologic sequestration of carbon dioxide under the Safe Drinking Water Act (SDWA) “Federal Requirements Under the Underground Injection Control (UIC) Program for Car bon Dioxide (CO 2 ) Geologic Sequestration (GS)Wells,” 73 Fed. Reg. 4349 1

- 541 (July 25, 2008), Docket ID No. EPA

– HQ
–OW
– 2008
–0390 [See Attachment PDF on Comments of the Carbon Sequestration Council on Proposed UIC Program for Carbon Dioxide Geologic Sequestration Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

- 0063]. The CSC noted that in light of the current uses and potential future uses of CO 2 for enhanced oil/gas recovery, EPA had taken a sensible approach by proposing to create a new Class VI well category based on t he injection of the CO 2 stream as a fluid without characterizing that stream as a waste. It was neither necessary nor helpful to categorize CO 2 as a pollutant or waste, and such a determination would have likely proved detrimental to the development of CCS technology. The CSC was concerned that EPA’s discussion of the potential for injected CO 2 streams to be characterized as hazardous waste (or some type of hazardous release) was causing apprehension and possibly having a significant detrimental effect on a ny future deployment of carbon capture and sequestration technologies. Through the work of engineers and scientists familiar with capture technologies and the types of power plant flue gases likely to be sources of CO 2 for sequestration, the CSC did not be lieve that captured CO 2 streams should trigger the application of RCRA. Accordingly, it encouraged EPA to dispel concerns that geologic sequestration should be encumbered with those requirements. AEP shares these concerns, agrees with the CSC position, re iterates those comments here and encourages EPA to consider them as well. While the agency is proposing an exemption from RCRA for injected CO 2 streams, the very consideration of such an exemption unnecessarily suggests that these streams could be hazardou s.66

**Response:** In EPA’s view, a supercritical CO 2 stream sent to a permitted UIC Class VI well for purposes of GS is a RCRA solid waste, because it is a “discarded material” within the plain meaning of the term in RCRA §1004(27). Also, it is important to note that EPA did not set out in this rulemaking to conclude that those supercritical CO 2 streams that are solid wastes would, as a class, exhibit a RCRA characteristic. As EPA indicated in the proposed rule, EPA could not unequivocally conclude that supercr itical CO 2 streams will never exhibit any RCRA hazardous waste characteristic. In light of these circumstances, EPA thus seeks to bring additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from the definiti on of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic. As EPA pointed out in the proposed rule, analytical methods are available to characterize CO 2 streams (76 FR at 48078). EPA also notes that the Class VI Rule has several different CO 2 stream characterization requirements, that require sampling and analysis (see 40 CFR 146.82(a)(7)(iv) and 146.90(a)). EPA notes that generators who are not managing a hazardous waste are not obligated to make use of this conditional exclusion and are not subject to the RCRA subtitle C regulations. Finally, EPA made clear in the proposal that this final rule does not reopen the UIC Class VI rule, and that EPA would not respond to comments relat ed only to that rule. To the extent that the Carbon Sequestration Council’s (CSC) comments discussed by the commenter relate to the UIC Class VI regulation, they are beyond the scope of this rule. Consistent with this, EPA will also not provide additional responses to the CSC’s comments on that rule, attached to the AEP comments. **Comment 3.3.5:** Further, in its comments, the CSC noted that there were important categorical determinations that EPA could and should make with respect to the RCRA status of CO 2 . The CSC urged, and AEP again asks, EPA to make these determinations as follows: “First, EPA should clarify that gas

- phase CO 2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements. The RCRA defi nition of “solid waste” does not include gaseous material unless it is “contained.” RCRA 1004(27), 42 U.S.C. 6903(27). EPA has long taken the position that gasses do not qualify as “solid waste” under this definition unless they are “contained” in a cylind er or similar container. 54 Fed. Reg. 50968 at 50970, 50973 (December 11, 1989). It follows that gas

- phase CO 2 streams are not solid waste, are not subject to the waste determination requirements of 40 C.F.R. 262.11, and cannot be considered hazardous wast e for RCRA purposes. Second, EPA should clarify that supercritical CO 2 is not solid or hazardous waste for RCRA purposes and is not subject to any RCRA waste determination requirements.” **Response:** EPA disagrees with the commenter. First, the commenter’s discussion of “contained gaseous material” is not on

- point. Rather, as EPA noted in the proposed rule, the CO 2 streams that are delivered by pipeline and injected into UIC Class VI wells for GS are in a supercritical state, which EPA stated at proposal was “...rather unique in that it has properties intermediate between a liquid and a gas.” 76 FR at 48078. The scientific term used to describe or define this supercritical state (i.e., when a substance is at or above its critical temperature and critical pressu re) 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 agricultu ral 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” and67

does not speak to materials such as supercritical fluids. Like the listed “solid, liquid, semisolid, or contained gaseous material” specifically referenced, CO 2 streams sequestered for purposes of GS are “other discarded material” from industrial and commercial operatio ns and, therefore, are of a similar kind to the other types of wastes specifically referenced by the definition. They are, therefore, RCRA statutory solid wastes. Second, as was stated in the preamble to the proposed rule, GS is an option to reduce CO 2 emi ssions to the atmosphere by injecting the CO 2 streams into deep subsurface geologic formations, with the express purpose of isolating the CO 2 so that it does not return to the atmosphere (August 8, 2011; 76 FR at 48075). Therefore, EPA views these CO 2 stre ams as “discarded material” within the plain meaning of the term in RCRA §1004(27). That is, a supercritical CO 2 stream is a solid waste when it is to be discarded through abandonment by disposing of the material in a UIC Class VI well (see 40 CFR 261.2(a) (2)(i) and (b)(1)). EPA does not conclude that supercritical CO 2 streams that are solid wastes would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated in the proposed rule that it could not unequivocally conclude that supercritical CO 2 streams will never exhibit any RCRA hazardous waste characteristic. Generators that are not managing a hazardous waste are not obligated to make use of this conditional exclusion and are not subject to the RCRA subtitle C regulations. Moreover, because use of the conditional exclusion is voluntary, even those generators who characterize their streams as RCRA hazardous waste may continue to manage their streams as RCRA hazardous wastes from the point of generation. The only effect is upon those persons who c hoose to comply with the terms of the conditional exclusion. Finally, EPA made clear in the proposal that this final rule does not reopen the UIC Class VI rule, and that EPA would not respond to comments related only to that rule. To the extent that the Ca rbon Sequestration Council’s (CSC) comments discussed by the commenter relate to the UIC Class VI regulation, they are beyond the scope of this rule.
**Comment 3.3.6:** The CSC went on to explain, and AEP agrees, that, “the RCRA definition of solid waste is limited to “solid, liquid, semi

- solid, or contained gaseous material.” RCRA 1004(27). Because supercritical CO 2 is none of these things; a plain reading of the statutory text suggests that supercritical CO 2 should not be considered “solid waste.” This read ing of the statute makes sense, because RCRA is primarily aimed at the kind of material that could end up being dumped into a landfill. Uncontained supercritical CO 2 is not such a material. Instead, the physical properties of supercritical CO 2 are such tha t it would immediately vaporize

– becoming an uncontained gas

– before it could contribute to the contents of a landfill. A related practical consideration is the fact that the hazardous characteristics

– the broad waste determination criteria that provide a primary means for determining when solid waste is hazardous waste

– are based largely on test methods that are inapplicable to materials such as supercritical CO 2 . In particular, the toxicity characteristic depends on test methods that can only be appli ed to materials that are solids or liquids at standard temperatures and pressures. This is unsurprising, because the toxicity characteristic was designed to assess the threat waste would have in a municipal landfill disposal scenario, a scenario that

– as already discussed

– is inherently inapplicable to uncontained supercritical CO 2 . Accordingly, it makes no legal, policy, or practical sense to treat uncontained supercritical CO 2 as “solid waste” for RCRA purposes. EPA should therefore confirm that unconta ined supercritical CO 2 is not “solid waste” and is not subject to RCRA waste determination requirements.”68

“It follows that a CO 2 stream would only qualify as “solid waste” if it is actually in the form of a liquid (i.e., a liquid containing dissolved CO 2 ) . In such a case, the liquid would meet the statutory definition of “solid waste,” the requirement to perform a RCRA waste determination would be triggered, and the familiar test methods for waste determinations could be applied.” AEP encourages the agency to reconsider the comments of CSC and to confirm that it is not necessary to apply RCRA hazardous waste determinations to CO 2 streams intended for GS. **Response:** See response to comment 3.3.5. As stated there, EPA noted in the proposed rule that the CO 2 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 list ed, 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” sp ecifically referenced, CO 2 streams sequestered for purposes of GS are “other discarded material” from industrial and commercial operations and, therefore, are of a similar kind to the other types of wastes specifically referenced by the definition. They are, therefore, RCRA statutory solid wastes. EPA recognizes that there are potential questions regarding the application of the hazardous waste regulations to supercritical CO 2 streams being sequestered. While EPA could develop a toxicity test tailored for supercritical CO 2 streams, that is not necessary for the finalization of this rule. EPA does not apply any significant technical limitations on sampling and analyzing a CO 2 stream, even if it has been compressed to supercritical stage. Generators can cond uct ana lyses to characterize the physical and chemical properties of their CO 2 streams, e.g., whether the CO 2 contains certain impurities, what the concentrations of the impuri ti es are, and whether the CO 2 stream may be corrosive, or apply their knowledge of the hazard characteristic of a waste, in light of the materials or processes used in order to determine whether a waste exhibits a RCRA characteristic. EPA notes that the Class VI Rule has several different CO 2 stream characterization requirements that require sampling and analysis (i.e., at 40 CFR 146.82(a)(7)(iv) and 146.90(a)), and EPA did not receive comments that indicated that meeting these requirements would not be possible. Finally, EPA made clear in the proposal that this final rule does not reopen the UIC Class VI rule, and that EPA would not respond to comments related only to that rule. To the extent that the Carbon Sequestration Council’s (CSC) comments discussed by the commenter relate to the UIC Class VI regulation, they are beyond the scope of this rule.
**Comment 3.3.7:** 3. Status of AEP Mountaineer CCS Project The AEP Mountaineer CCS project in New Haven, West Virginia, is no longer in operation and plans for a 1.5 million metric tons per year scale

- up from an emission slipstream represen ting 235 MW, have been cancelled. Because of AEP’s experience with the supercritical CO 2 stream, we are69

providing the following information in response to EPA’s request for comments regarding CO 2 stream analytical data. Physical and Chemical Characteristi cs of Captured CO 2 EPA is requesting analytical data on the physical and chemical characteristics of captured CO 2, including the concentrations of hazardous contaminants, CO 2 content, information on the type of CO 2 capture process used, and how the sample s were collected and analyzed. These data will allow EPA to gain a better understanding of the nature and characteristics of captured CO 2 streams and support a determination by EPA that RCRA is inapplicable to these CO 2 streams. On September 30, 2009, pri or to the start of CO 2 injection at the AEP Mountaineer project, five samples of the CO 2 injection gas stream were collected and analyzed for parameters of interest including CO 2, oxygen (O 2 ), moisture, and ammonia (NH 3 ). Results are provided in Table 2

- 1 [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

-0063]. Procedures specified in United States Environmental Protection Agency (U.S. EPA) Method 3A (CO 2 and O 2 ), Method 4 (moisture), and CTM

-027 (NH 3 ) were used to determine these parameters. Analyses for CO 2 and O 2 were performed onsite by Shaw Environmental, Inc. using the MIDAC Fourier transform infrared analyzer. NH 3 analyses were performed by an off

- site laboratory (ALS Laboratory Group, Cincinnati, Ohio). Moisture is a calculated parameter. **Response:** EPA ack nowledges the comment. See Responses to Comments 3.3.9 through 3.3.16.
**Comment 3.3.8:** Table 2

- 1 [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

-0063] The chemical specification for the CO 2 injection stream, as provided in the Testing and Monitoring Plan (Battel le, 2009), is provided in Table 2

- 2 [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

-0063]. During the baseline sampling event, all tested parameters were within their anticipated operating range and met their design specification. CO 2 levels in all five samples exceeded the design specification of 99.7%, which is a minimum limit during normal operating conditions. Moisture was below its design specification of 0.2%, which is a maximum limit during normal operating conditions. NH 3 was below its design specificatio n of 50 parts per million by volume (ppmv), which is a maximum limit during normal operating conditions. All of these data have been provided to the West Virginia Department of Environmental Protection (WVDEP) through annual and semiannual monitoring reports. Table 2

- 2 [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

-0063] **Response:** EPA acknowledges the comment.
**Comment 3.3.9:** Sampling After CO 2 Injection Began Since the beginning of CO 2 injection in October 2009, the injectate stream has been sampled and analyzed on five occasions: January 27, 2010, April 6, 2010, June 16, 2010, December 21, 2010, and April 25, 2011. No testing/analysis of the CO 2 stream was conducted during the three

- month period from October 2009 through December 2009 due to the small amount of CO 2 that was injected during this period. Similarly, a sampling event was not conducted during the period from70

September through November 2010 because the CO 2 capture and injection system was shut down for the annual monitoring and well workover event. During this period, the MIDAC Fourier transform infrared analyzer was not operating properly; therefore, analyses for O 2 and CO 2 were obtained by off

- site laboratory analysis (Isotech) of CO 2 stream samples. Results are reported on Table 2

- 3 [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

- 0063]. As indicated on Table 2

- 3, the CO 2 content of the injection stream was within the expected operational range (97% to 99.7%) and above the design specification of 99.7%. Ammonia was below its design specification of 50 pp mv. The moisture content of the CO 2 stream was below its design specification of 50 ppmv. Table 2

- 3 [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

-0063] **Response:** EPA acknowledges the comment.
**Comment 3.3.10:** 4. On

- site Storage of Captured CO 2 Prior to Injection EPA is requesting information on whether the agency’s estimates for captured CO 2 volumes are accurate and reasonable, and whether the CO 2 that is captured could be stored on

- site prior to being sent elsewhere for GS or any other purpose; if so, EPA is requesting detailed information on the duration and method of storage, and what existing regulatory or voluntary controls and standards apply to such storage. EPA is also requesting information on the units and processes involved after the CO 2 is captured , and before it is either injected on

- site, or sent off

- site. Finally, EPA is requesting comment and information on the procedures that have been or are expected to be used during maintenance and upset circumstances of a carbon capture system (76 Fed. Reg

. 48082). During the operation of its CCS project in New Haven, WV, AEP did not “store” the CO 2 after it was captured from the flue

-gas slip stream. The CO 2was sent directly from the compressor to the pipelines for injection or was vented back to the stac k. In addition, plans for a 235 MW commercial scale project did not include a storage unit for CO 2 after capture. Based on AEP’s experience, it is difficult to envision a storage unit for CO 2 due to the large volumes involved. In cases of upsets or mainten ance, it would be better to vent the CO 2 back to the stack. **Response:** EPA thanks the commenter for the information, and agrees (based on this and other public responses confirming EPA’s similar expectations as discussed in the proposal) that the process of capturing and compressing CO 2 prior to delivery to a UIC Class VI facility, which would likely occur via a pipeline , will not involve on - site storage at the generator facility (i.e., at the CO 2 source) but rather will occur in a continuous fashion

. **Comm ent 3.3.11:**  5. Regulation of Pipelines that are not subject to DOT requirements EPA has requested information on pipelines that are not subject to DOT requirements, including any design and operating standards that apply to such pipelines. EPA is also requ esting information on the appropriateness of applying RCRA subtitle C standards to these non

- DOT regulated pipelines. For its CCS project, AEP used piping that met ANSI 31.3 chemical process piping standards. The CO 2 did not leave the plant property, therefore DOT standards did not apply.71

**Response:** EPA thanks the commenter for the information.
**Comment 3.3.12:** 6. Non

- pipeline Transportation and Certification EPA is requesting comment on the extent to which non

- pipeline transportation will be used specifica lly for transporting CO 2 streams to UIC Class VI facilities, and whether the use of a certification statement, together with compliance with applicable DOT hazardous material transportation requirements, are effective substitutes for the RCRA hazardous waste regulations that would apply to these specific circumstances (76 Fed. Reg. 48083). EPA should determine the likelihood that supercritical CO 2 will be a hazardous waste. AEP appreciates EPA’s recognition of other regulatory programs that govern CO 2 activ ities and its efforts to avoid duplication, but requiring a certification amounts to a duplication of effort for the generator/operator. See AEP’s monitoring comments below. Due to the large volumes of CO 2 that are handled during GS operations, it would b e preferable to use pipelines to transport the gas. The use of trucks for CO 2 transportation was not considered for the AEP GS projects and pipelines are being constructed for Southern Company’s Plant Berry project in Alabama. Pipelines are also the primary mode of bulk transportation for EOR projects. Trucks can be used for small

- scale CO 2 test injections, but they are impractical for large scale projects involving millions of tons of CO 2 per year. **Response:** EPA thanks the commenter for the information. EPA does not agree that the certification statement is a “duplication of effort” for the generator/operator, as there is no similar requirement of which EPA is aware, nor does the commenter describe specifically how the certification statement is duplicat ive. Regarding the comment that EPA should “ determine the likelihood that supercritical CO 2 will be a hazardous waste,” EPA notes that it is not required to affirmatively demonstrate, as part of this rulemaking, that a particular CO 2 stream, or a portion of all CO 2 streams, necessarily qualifies as RCRA hazardous waste. EPA acknowledges that some RCRA hazardous characteristics are unlikely to apply to a waste composed of >90% CO 2, such as ignitability (i.e., RCRA Waste Code D001). See also responses to comments 3.3.3 and 3.3.13.
**Comment 3.3.13:** 7. Signature Requirements for Certification Statements Use of a certification statement is to ensure compliance with the conditions of the proposed conditional exclusion, EPA is requesting comment on whether it s hould limit the categories of employees who would be required to sign this certification statement, to senior employees in the same manner as that which is required for RCRA permit applications under 40 CFR 270.11(a). Under this alternative approach, certi fication statements (for corporations) would need to be signed by a ‘‘responsible corporate office r’’ as defined in § 270.11 (a)(1 )(i), or, plant managers for facilities over a certain size as defined in § 270.11 (a)(1 )(ii); by a general partner or propri etor (for general partnerships or sole proprietorships, respectively) as specified in § 270.11 (a)(2); or, for public agencies, the chief executive officer, or certain other senior officers of that agency, as defined in § 270.1 1(a)(3). Accountability and enforceability may be improved when signatories to these types of certifications are at the highest levels of an organization.72

While EPA is not currently aware of specific examples where hazardous wastes are being mixed into or with CO 2 streams, particula rly at this early stage of CCS deployment, well

-designed rules are essential to the success of future enforcement efforts. EPA is, therefore, requesting comment on the certification statement, and particularly seeks comment on whether this measure will app ropriately ensure compliance with the conditional exclusion, including the mixing prohibition (76 Fed. Reg. 48087). Injected CO 2 is not hazardous; therefore, a certification statement is not necessary. Current signatory requirements are sufficient. If CO 2 were mixed with hazardous waste prior to injection, AEP would agree that RCRA requirements may be applicable, but EPA should evaluate the likelihood of this scenario occurring and whether existing regulations already apply to and discourage this practice. **Response:** With respect to the signature requirements for certification statements, it appears the commenter is quoting from EPA’s preamble discussion on this issue, and then concludes (without explanation) that “Current signatory requirements are suffici ent.” EPA received no other comment s specifically with respect to whether the certification should be signed by persons as described in 40 CFR 270.11 (as required for RCRA permit applications), rather than by “authorized representatives” as defined in 40 CFR 260.10. Lacking any other comments on this specific issue, EPA has decided to maintain the proposed approach that certifications must be signed by “authorized representatives” of the facility (in situations where the conditional exclusion is being used )

. Authorized representatives are defined as t he “ 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 pers on of equivalent responsibility” and EPA believe s that as defined, these “authorized representatives” will have both sufficient knowledge of, and responsibility for, the facility’s operations to be able to certify that the conditions are being met. With respect to the commenter’s conclusion that “inje cted CO 2 is not hazardous” EPA disagrees with the comment. The comment does not provi de any basis for its conclusion, and a s EPA has explained elsewhere, the RCRA hazardous waste regulations can apply to CO 2 streams sent to UIC Class VI wells for geologic sequestration. Because of this possibility, EPA is providing the final conditional exclusion, and has included the certifications as a means to ensure compliance with the terms of the exclusion. Moreover, as the commenter states, the RCRA hazardous waste regulations could also apply as a result of mixing hazardous wastes with CO 2 streams. For similar reasons, then, EPA also believes that a certification requirement is appropriate to ensure compliance with the mixing prohibition in today’s rule. Thus, these comments provide no reason for EPA to modify its approach. While mixing hazardous wastes with CO 2 streams is also prohibited by the UIC Class VI rules, EPA notes that this final rule applies upstream of the UIC facility; therefore, EPA believes that the c ertification can help ensure compliance with the mixing prohibition by other entities (e.g., the CO 2 stream generator). This difference in scope exists regardless of the likelihood of hazardous wastes being mixed with CO 2 streams. **Comment 3.3.14:** 8. Monitoring of CO 2 Composition EPA is requesting comment, including supporting information, on whether (and if so, what type of) additional monitoring, recordkeeping, and reporting of the CO 2 composition by generators and transporters (including pipeline operato rs), might aid EPA and the states in their ability to detect73

improper mixing of hazardous waste with CO 2 streams. EPA also requests comment on whether there are other conditions, such as a minimum CO 2 content, that could enhance compliance with the propose d ‘‘no mixture” condition. For example, EPA is aware that under the PHMSA requirements for the pipeline transportation of supercritical carbon dioxide, the definition of carbon dioxide specifies a CO 2 content of greater than ninety percent. 49 CFR 195.2. E PA also requests comment on what commercial, operational, or regulatory requirements or specifications already exist regarding CO 2 content in the management of supercritical CO 2 (76 Fed. Reg. 48087). Based on its experience with the Mountaineer CCS project in New Haven, West Virginia, AEP believes that the CO 2 monitoring program, developed for the project, in conjunction with the West Virginia Department of Environmental Protection, was adequate to ensure the integrity of the injected CO 2 . This monitoring program required, among other analyses, quarterly analysis of the carbon dioxide stream, continuous recording of injection pressure, rate and volume, quarterly corrosion monitoring, quarterly groundwater monitoring and additional monitoring as required by the agency [See Attachment PDF on Appalachian Power Company Mountaineer Plant Underground Injection Control Permit Docket ID EPA

- HQ

- RCRA

- 2010

-0695

-0063]. Monitoring results were to be reported to the agency on a semiannual and annual basis and any changes to the physical, chemical or other relevant characteristics of the CO 2 stream were to be noted [See Attachment PDF on Appalachian Power Company Mountaineer Plant Underground Injection Control Permit Docket ID EPA

- HQ

- RCRA

- 2010

-0695

-0063]. Procedures were al so established to report any conditions which would have endangered underground sources of drinking water, public health or the environment. This testing was adequate to ensure the quality and integrity of the CO 2 stream, which met the design criteria of 99.7% CO 2 (see Tables 2

- 1 and 2

- 3) [See PDF Docket ID: EPA

- HQ

- RCRA

- 2010

-0695

- 0063] and the PHMSA requirements for the pipeline transportation of supercritical carbon dioxide, which specifies a CO 2 content of greater than ninety percent. Groundwater testing included analysis of inorganic parameters, such as calcium, magnesium and potassium, metals, such as aluminum, barium, iron, and manganese, as well as alkalinity, DOC and pH. All chemical analyses were to be performed by a West Virginia certified laborato ry. Had injection of the CO 2 created a potentially hazardous condition due to the leaching of metals, it would have been detected by the extensive monitoring program designed for the project. Monitoring records for the project, including the nature and co mposition of all injected fluids, must be retained by AEP for the life of injection and after injection cessation, unless they are delivered to the agency. Permission for record disposal may be granted by the agency upon request, however, the agency may extend the period of record retention as its discretion [See Attachment PDF on Appalachian Power Company Mountaineer Plant Underground Injection Control Permit Docket ID EPA

- HQ

- RCRA

- 2010

-0695

-0063] **Response:** EPA thanks the commenter for the information. See Responses to Comments 3.2.40 and 3.2.41.
**Comment 3.3.15:** 9. Types and Characteristics of Substances Added to CO 2 Streams EPA has requested comments on the types and characteristics of substances that are added to CO 2 streams to enable or improve the injection process. During the operation of its CCS project, AEP did not add any substances to the CO 2 stream to improve its injectivity.74

**Response:** EPA thanks the commenter for the information.
**Comment 3.3.16:** Conclusion In addition to these comments, AEP a lso supports the comments submitted to EPA on this proposed rule by the Edison Electric Institute, the Carbon Sequestration Council, and the Utility Solid Waste Activities Group or USWAG. AEP appreciates EPA’s intent to provide regulatory certainty to the CO 2 stream and GS technology. AEP requests that EPA recognize that while the GS technology is still in the demonstration phase there is analytical information available on the CO 2 streams some of which AEP is providing as part of these comments. This data indicates that the CO 2 streams do not pose the same risk as contemplated by RCRA. AEP urges EPA to consider the information submitted herein and determine whether the CO 2 streams justify the imposition of management under RCRA. A sufficient regulatory and operational structure exists to ensure that hazardous wastes are not mixed with CO 2 streams. AEP fears that further regulatory requirements put upon the generator could have the unintended effect of discouraging the deployment of these types of projects in the future. AEP urges EPA to exclude CO 2 streams from RCRA hazardous waste regulations, but also recommends that the rule be revised as an exclusion of CO 2 streams from the definition of “solid waste”. Due to their unique properties, coupled with the fact that they are not “discarded,” CO 2 streams cannot be considered “solid waste”. **Response:** With respect to the comments from Edison Electric Institute, the Carbon Sequestration Council, and the Utility Solid Waste Activities Group or USWAG, please see resp onses to comments 3.15, 3.2, and 3.7, respectively. With respect to the comment regarding the mixing prohibition, see response to comment 3.3.13. EPA disagrees with the commenter’s suggested regulatory approach to exclude these CO 2 streams from the definit ion of solid waste because CO 2 streams that are injected for purposes of GS in Class VI UIC wells are solid wastes for the reasons stated in response to comment 3.3.5. With respect to the comment that this rule could discourage the deployment of GS, EPA di sagrees. EPA notes that the conditional exclusion has a limited effect on the regulated community directly and the exclusion imposes no affirmative obligations upon them. The only effect is upon those persons who choose to comply with the terms of the cond itional exclusion. Moreover, EPA believes this rule will substantially reduce the uncertainty associated with identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by providing additional regulatory certainty. T hus, EPA disagrees that it will have the effect of discouraging the deployment of GS. Finally, the commenter asks EPA to “consider the information submitted...and determine whether the CO 2 streams justify the imposition of management under RCRA.” The comme nter states that the submitted analytical data on the composition of their CO 2 streams “indicates that the CO 2 streams do not pose the same risk as contemplated by RCRA.” While EPA acknowledges that the CO 2 concentration in these CO 2 streams is very high (97 to 99.7% CO 2 ), EPA notes that these CO 2 stream composition data are limited (e.g., they do not include information on potential concentrations of hazardous constituents). Regardless, if any particular CO 2 stream is a hazardous waste, RCRA subtitle C wo uld apply

– but EPA has concluded that management of a hazardous CO 2 stream under the conditions in today’s rule is protective such that RCRA subtitle C requirements are not necessary.



### 3.4 **C12 Energy**75

**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0073 Comment 3.4.1:**  C1 2 Energy firmly believes in thorough regulation of geologic carbon dioxide (CO 2 ) sequestration. As leaders in this industry, we will take every step to ensure that CO 2 is stored safely in geologic formations. [FN1: C12 Energy is the leading CO 2 storage project developer in the United States. To date, we have secured CO 2 storage rights to approximately 400,000 acres of privately

-owned land with 13 projects in 10 different states, corresponding to approximately 10 billion tons of CO 2 storage capacity distribu ted throughout the nation. To put this in context, our sites are currently sufficient to permanently store CO 2 emissions from approximately 15% of the nation’s fleet of coal plants for the next 30 years, and we’re developing more capacity every day]. We co nsider the recently finalized UIC Class VI Rules to provide a thorough regulatory system for CO 2 storage, and strongly support the proposed Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide (CO 2 ) Stream in Geo logic Sequestration Activities (RCRA CO 2 Conditional Exclusion or Conditional Exclusion). As outlined in the comments below, the potential for additional regulation of CO 2 streams under the Resource Conservation and Recovery Act (RCRA) would not provide an y additional protections for public health or the environment, but it would almost certainly create a serious impediment to aggressive implementation of carbon sequestration, which represents one of the most significant opportunities to reduce CO 2 emission s in the United States. For the reasons outlined below, we strongly support the proposed CO 2 Conditional Exclusion. **Response:** EPA thanks the commenter for its support of the proposed rule.
**Comment 3.4.2:** 1 Introduction C12 Energy believes that risks a ssociated with CO 2 storage projects should be minimized, especially at the early stages of the industry. As a result of this view, we support the Class VI rules as they provide appropriate protections

– in fact, more stringent protections than Class I rule s – to prevent potential environmental harm associated with CO 2 sequestration. As leaders in this industry, we are concerned that the uncertainty surrounding whether CO 2 streams would be subject to regulation under RCRA Subtitle C would create a serious impediment to widespread implementation of CO 2 sequestration, which is essential to reduce U.S. CO 2 emissions. As EPA notes in the Proposed Rule: [F]ossil fuels are expected to remain the main source of energy production well into the 21st century, and inc reased concentrations of CO 2 are expected unless energy producers reduce CO 2 emissions to the atmosphere. For example, CCS could enable the continued use of coal in a manner that greatly reduces the associated CO 2 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.[FN2: Proposed Rule, Section III.B, Why is Geologic Sequestration Being Cons idered as Climate Change Mitigation Technology?] Commercial entities involved in the CCS industry, including utilities, equipment manufacturers, pipeline operators, and others, are very concerned about the potential for RCRA regulation of CO 2 streams as i t creates significant regulatory uncertainty. In the absence of the Conditional Exclusion, this uncertainty would act as a further barrier to widespread implementation of CO 2 storage76

without creating any additional environmental benefit. However, as EPA re cognizes in the proposed rule, Class VI rules provide appropriate environmental protections, and it is thus appropriate to conditionally exclude CO 2 streams disposed of in injection wells permitted under the Class VI program from RCRA Subtitle C. We strong ly support the proposed rule as it will accelerate the widespread deployment of CO 2 sequestration and thus greatly reduce our CO 2 emissions. **Response:** EPA acknowledges the comment. EPA believes this rule will substantially reduce the uncertainty associate d with identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by providing additional regulatory certainty. With respect to the commenter’s statement that “the Class VI rules... provide appropriate protections

– in fact, more stringent protections than Class I rules

– to prevent potential environmental harm associated with CO 2 sequestration” EPA notes that each UIC well class is designed for particular purposes, see response to comment 3.2.7. **Comment 3.4.3:** 2 Autho rity for Conditional Exclusion 2.1.1 Description EPA cites the following as authority for the Conditional Exclusion: * RCRA §§3001(a), 3002(a), 3003(a), 3004(a), 1004(5)(B) * Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998) * NRDC v. EPA, 25 F.3d 1063, (D.C. Cir 1994) * Edison Electric Institute v. EPA, 2F.3d 438 (D.C. Cir. 1993) * H. Rep. No. 94

- 1491, 94th Cong, 2d Sess. 6 (1976) [FN3: Proposed Rule, Section IV.A. Authority for Conditional Exclusion from RCRA Subtitle C Requirements]. We agree that these authorities and others provide EPA with the adequate authority to promulgate the Conditional Exclusion. 2.1.2 Requested Changes Fully support; no changes requested. **Response:** EPA agrees with the commenter that under its interpretati on of RCRA, it has the authority to issue conditional exclusions from the hazardous waste regulations. EPA’s authority to issue the rule is described in section II.B. of the final rule preamble.
**Comment 3.4.4:** 3 CO 2 Capture, Transportation, and Storage 3 .1.1 Description EPA requests further information on the process by which CO 2 will be captured, transported, and stored, particularly with regard to whether CO 2 will be stored at the point of capture and whether CO 2 will be transported in trucks or by pip eline. EPA notes that: EPA believes that the process of capturing and compressing CO 2 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 CO 2 source), but rather will occur in a continuous fashion (capture process

- > compression/dehydration

- > pipeline insertion). Once in the pipeline, EPA believes the applicable DOT requirements (which apply to supercritical CO 2 streams regardless of whether or not the se materials meet the definition of hazardous waste) will ensure that CO 2 streams are managed in a77

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 fa cility. [FN4: Proposed Rule, Section IV.B, CO 2 Streams Managed Prior to Underground Injection]. EPA goes on to observe that: * Even if the CO 2 were defined as a hazardous waste, under the scenario described above, where captured CO 2 streams are delivered in a continuous fashion to either on

- site injection wells, or to a pipeline for off

- site injection (and presumably in a totally

- enclosed manner, due to the need to maintain proper pressures) there would not be any substantive RCRA subtitle C requirement s applicable to this activity. [FN5: Proposed Rule, Section IV.B, CO 2 Streams Managed Prior to Underground Injection] * Were CO 2 streams to be subject to RCRA subtitle C as hazardous waste, they would not be regulated any differently under the part 195 regulations that are applicable to supercritical CO 2 streams. Consultations with PHMSA staff indicate that whether a CO 2 stream is defined as hazardous waste under RCRA subtitle C (in this instance, if it were to exhibit a RCRA characteristic) does not chan ge the technical and other requirements applicable to the transportation of supercritical CO 2 under PHMSA. [FN6: Proposed Rule, Section IV.B, CO 2 Streams Managed Prior to Underground Injection]. We make the following comments: * EPA is exactly right that the volumes involved in CO 2 storage are simply too large to allow for anything other than direct pipeline transport. Commercial

- scale CO 2 storage volumes are too large for on

- site storage or transport by truck. [FN7: See http://www.dakotagas.com/CO 2_Captu re_and_Storage/index.html]. * EPA is also right that any additional requirements for pipeline transport would not improve public health and safety as the existing PHMSA have proven effective in minimizing risks associated with CO 2 pipelines, of which hund reds of miles of CO 2 pipelines currently exist in the United States. [FN8: See http://petrolog.typepad.com/climate_change/2009/09/us

- power- plant

- emissions

- and

CO 2- pipelines.html]. 3.1.2 Requested Changes Fully support; no changes requested. **Response:** E PA acknowledges the comment and agrees (based on this and other public responses confirming EPA’s similar expectations as discussed in the proposal) that the process of capturing and compressing CO 2 prior to delivery to a UIC Class VI facility, which would likely occur via a pipeline , will not involve on - site storage at the generator facility (i.e., at the CO 2 source) but rather will occur in a continuous fashion

. Regarding truck transportation, EPA notes that other comment ers stated that truck transport wa s either not considered (3.3.12) or was used in a pilot or research (i.e., non

- commercial) scale situations (e.g., 3.2.31 , 3.20.12) or would be used under very limited occurrences (3.17.4)

. F inally, EPA agrees that additional RCRA requirements for pipelin e transportation beyond the existing DOT requirements are not necessary. As explained in section VI of the final rule preamble, the changes EPA made to the condition on compliance with DOT regulations only focused upon adding a reference to state pipeline regulations that may apply in lieu of DOT regulations.78

**Comment 3.4.5:** 4 Class VI Rules Contain Appropriate Protections 4.1 Description EPA notes that: [C]ompliance with the UIC Class VI requirements, which are designed to ensure isolation of supercri tical CO 2 streams, will also address the potential for effects on human health and the environment from the contaminants present in the stream. [FN9: Proposed Rule, Section IV.C, Underground Injection of CO 2 Streams at UIC Class VI Wells]. EPA further st ates that: The Class VI rule ... includes specific requirements designed to address the unique nature of CO 2 injection for GS, including the large CO 2 injection volumes anticipated at GS projects, the relative buoyancy of CO 2, its mobility within subsurface geologic formations, and its corrosivity in the presence of water. [FN10: Id.]. EPA finally notes that: [A] violation of a condition at any point in the management of a CO 2 stream would result in that CO 2 stream being subject to all applicable subtitl e C regulatory requirements, form the point of generation. Thus, a violation of a condition at a UIC Class VI facility, for example, would mean that in addition to the UIC Class VI facility, the generator and transporter would also be considered to be mana ging (or to have managed) a hazardous waste. [FN11: Proposed Rule, Section IV.E., Loss of the Conditional Exemption]. EPA also proposes to add to the definition of CO 2 stream “any substances added to the stream to enable or improve the injection process. ” [FN12: Proposed Rule, Definition of “Carbon dioxide stream”]. We fully agree and make the following comments: *UIC Class I, which would be the alternative regulatory system if CO 2 streams were classified as hazardous, does not include the same level o f protection as Class VI particularly with regard to the Area of Review. Under the Class VI Rules, Area of Review is determined with regards to the maximum extent of the separate

- phase plume or pressure front (MESPOP) [FN13: Area of Review Guidance, p. 31, http://water.epa.gov/type/groundwater/uic/class6/upload/GS_AoR_CA_Guidance_DRAFT_FINAL_ 031611.pdf]. The Class I Rules contain no such detailed description of Area of Review, and would likely result in an Area of Review being defined using the default quarter
- mile radius Area of Review determination under Class I, which would be much less protective than the delineation required under the Class VI Rules. * The Class VI Rules contain other provisions particular to CO 2 injection that would provide greater protection than would be provided under the Class I program. For example, the Class VI rules provide protections particular to CO 2 buoyancy, monitoring to ensure appropriate CO 2 plume tracking, and potential corrective action associated with CO 2 injection th at would not be included were CO 2 regulated under Class I. **Response:** EPA thanks the commenter for its statements of support for the cited EPA statements. The Class VI requirements are tailored to the unique aspects of carbon dioxide injection for GS79

(e.g. , large CO 2 injection volumes, the buoyant and mobile nature of the injectate) and EPA developed its RCRA conditional exclusion based upon injection in a UIC Class VI well. See section V.C. of the final rule preamble for a discussion of why EPA does not th ink it is appropriate to compare the UIC Class I and Class VI requirements point

- by

- point. However, if the carbon dioxide stream is considered to be hazardous and does not meet the requirements of the conditional exclusion, it would need to be disposed of in a manner appropriate for hazardous waste, such as injection into a Class I hazardous waste well. Regarding the comment’s citation to EPA’s discussion on the loss of the conditional exclusion, see response to comment 3.4.6. Regarding the phrase, “any s ubstances added to the stream to enable or improve the injection process,” see response to comment 3.4.7. **Comment 3.4.6:** * The Conditional Exclusion is predicated on appropriate management of the CO 2 stream under Class VI, and we fully agree that a breac h of the UIC permit

– in particular, the migration of the CO 2 beyond the Area of Review

– should result in a loss of the exclusion. It may be difficult to manage a CO 2 stream that migrates beyond the Area of Review, and in such a case, full regulatory auth ority, including RCRA, should apply to that stream. Consequently, we request that EPA expressly recognize the loss of the exclusion if a CO 2 stream migrates beyond the Area of Review. **Response:** A CO 2 stream must meet all the conditions to qualify for and maintain the exclusion from the definition of hazardous waste, including the condition that injection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the appli cable requirements in 40 CFR parts 144 and 146.
**Comment 3.4.7:** * It may be necessary to add substances to the CO 2 stream to improve injectivity, including substances to reduce viscosity, inhibit reactions with brine or formation rocks, or otherwise improve permeability. Consequently, we fully support the addition of “substances added to the stream to enable or improve the injection process” to the CO 2 stream definition. **Response:** EPA clarifies that any addition of substances to CO 2 streams to enable or im prove the injection process would be occurring as part of the UIC Class VI permitted activity (subject to that program’s oversight) and thus ultimately implemented in a manner to prevent the endangerment of underground sources of drinking water. EPA notes that this rule’s definition of carbon dioxide stream is consistent with the one in the UIC Class VI final rule, in order to provide the regulatory clarity sought through this rule. It is from the UIC Class VI rule definition of “CO 2 stream” that this phras e is drawn.
**Comment 3.4.8:** 4.2 Requested Changes We request that the proposed rule expressly recognize that the Conditional Exclusion is revoked if a CO 2 stream migrates beyond the Area of Review as determined under the Class VI permitting program. **Res ponse:**  See response to c omment 3.4.6. **Comment 3.4.9:** 5 Necessary Changes80

We fully support the Conditional Exclusion for the reasons stated above. We, however, request the following necessary revisions to improve the Proposed Rule. 5.1 Listed Wastes 5. 1.1 Description The Proposed Rule states in several places that the Conditional Exclusion applies to characteristic wastes. For example, EPA notes that: Under today’s proposed conditional exclusion, CO 2 streams that would otherwise be defined as RCRA ha zardous waste (BECAUSE THEY EXHIBIT A RCRA CHARACTERISTIC) and meet the proposed conditions, would not be defined as hazardous waste. [FN14: Proposed Rule, Section IV.C.4, Underground Injection of CO 2 Streams at UIC Class VI Wells, Subtitle C Corrective Action]. 5.1.2 Necessary Changes The Conditional Exclusion should not only apply to CO 2 streams that may meet the definition of a characteristic waste but also streams that include incidental substances that may be listed wastes. Consequently, the Propose d Rule should remove any reference to characteristic wastes unless also accompanied by a reference to listed wastes. **Response:** EPA’s discussion in the preamble to the proposed rule does reference characteristic hazardous wastes because as EPA explained at proposal, there are no listed hazardous CO 2 streams and the only way EPA can foresee a listing as applying to a CO 2 stream is where prohibited mixing occurs, which would be a violation of one of the conditions (thus the exclusion would not apply)

. Based on the information EPA used in developing the proposed rule , as well as information obtained in public comments, EPA does not anticipate i ncidental associated substances that are derived from the source materials, which are captured together with the CO 2, to be listed hazardous wastes. See also response to comment 3.28.1. **Comment 3.4.10:** 5.2 Pipeline certification 5.2.1 Description EPA proposes to require any generator of a CO 2 stream who claims the Conditional Exclusion to certify that the stream meets the conditions of the exclusion, including “the prohibition on mixing hazardous wastes with the CO 2 stream.” [FN15: Proposed Rule, Section IV.D, Prohibition on Introduction of Other RCRA Hazardous Wastes]. EPA further requests comment on “whether transp orters, as well as pipeline owners and operators, should also sign such a certification statement.” [FN16: Id]. We fully support the certification requirement as it is necessary to ensure unscrupulous operators do not seek to sidestep appropriate regulat ion by purposefully mixing hazardous wastes into a CO 2 stream. We further support a requirement that the pipeline operator, or other CO 2 transporter, sign a similar statement as it is necessary to ensure that such wastes are not inappropriately mixed into the CO 2 stream. Absent such certifications by both generators and pipeline operators, a CO 2 storage operator would face an undue burden of demonstrating that hazardous wastes had not been inappropriately mixed into the CO 2 stream. 5.2.2 Necessary Changes81

Require the pipeline operator, or other transporter of the CO 2 stream, to certify that hazardous wastes have not been purposefully mixed into the CO 2 stream. **Response:** The final rule maintains the condition that the generator and the UIC Class VI well o wner or operator each sign a certification statement, which have been revised so that each party certifies to actions over which they have control. However, EPA dis agrees that a certification by the transporter or pipeline owner or operator is necessary. F irst, i f EPA were to require such a certification, under the approach where EPA limits the scope of the certification to the conditions within the control of pipeline owners and operators or other transporters (the approach taken in the final rule for CO 2 stream generators and UIC Class VI well owners and operators), the certification would essentially address: 1) compliance with applicable DOT requirements, and 2) to not mix hazardous waste into the CO 2 streams. Regarding compliance with DOT requirements, EPA is persuaded by comments received on this issue that if persons transporting supercritical CO 2 must comply with the applicable transportation requirements for all supercritical CO 2 being moved, it seems unnecessary to require that they certify complian ce with DOT requirements for a specific material (i.e., supercritical CO 2 streams to be sequestered). Regarding mixing with hazardous waste, EPA does not have information, nor did commenters provide any new information, indicating that CO 2 pipeline owners and operators or other transporters would mix hazardous waste into CO 2 streams being delivered to UIC Class VI facilities. EPA expects that pipeline owners and operators engaged in delivering supercritical CO 2 have strong disincentives to mix any hazardous waste into their pipeline system, both in order to honor their contractual arrangement with customers, and also to maintain their equipment. Also, as EPA stated in the proposed rule premable, PHMSA requires that pipeline owners and operators ensure that s upercritical CO 2 streams be chemically compatible with the pipeline and any commodities in the pipeline and will not corrode the pipeline and pipeline system

. For these reasons, EPA does not see the need for a transporter certification, and is not changin g its proposed approach and transporters and pipeline owners and operators will not be required to sign a certification statement as a condition of the exclusion. 

### 3.5 **Natural Resources Defense Council (NRDC)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0082 Comment**  **3.5.1:** A. Introduction The Natural Resources Defense Council and Environmental Defense Fund thank the United States Environmental Protection Agency (EPA) for the opportunity to comment on the proposal to revise the regulations for hazardous waste managemen t under the Resource Conservation and Recovery Act (RCRA) to conditionally exclude carbon dioxide (CO 2 ) streams that are hazardous from the definition of hazardous waste. The Natural Resources Defense Council (NRDC) is a national, nonprofit organization o f scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 1.2 million members and online activists nationwide, served from offices in New York, Washington D.C., San Francisco, Los Angeles, Chicago and Beijing. The Environmental Defense Fund (EDF), founded in 1967, is a non

- profit organization that represents more than 500,000 members. EDF links science, economics and law to create82

innovative, equitable and cost

- effective solutions to society’s most urgent environmental problems. **Response:** EPA thanks the commenter for the information.
**Comment 3.5.2:** NRDC and EDF continue to believe strongly that geologic sequestration of CO 2 (GS), correctly implemented, must be a comp onent of the U.S. climate mitigation portfolio. We have supported deployment of CCS technologies and have shared the objective of establishing economic incentives for the technology. Deployment of CCS must, however, take place safely and effectively witho ut threatening human health or the environment. The governing regulatory framework is of primary importance to that effect. We have been actively working with EPA and other entities to ensure that the rules and regulations that govern CCS ensure that it is performed safely and effectively, without posing unacceptable risks. Ultimately, we believe that proper regulation is in the interests of CCS development, as it assures the public of adequate oversight and guards against sub

- standard projects that could j eopardize further deployment. **Response:** EPA agrees that the geologic sequestration of CO 2 in Class VI UIC wells should be done safely and effectively without threatening human health or the environment and that a consistent regulatory approach to GS will help facilitate development and deployment of CCS technologies in the United States. EPA intends to bring additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from the definition of hazardous waste

. **Commen t 3.5.3:**  Accordingly, we urge caution against using regulatory easements and exemptions in order to facilitate the deployment of CCS technologies. Unlike economic incentives that encourage deployment, regulatory relief approaches carry a real danger of adverse environmental consequences. Environmental statutes such as the Resource Recovery and Conservation Act (RCRA) offer important safeguards and exemptions should not be granted except in very specific situations. **Response:** EPA agrees that RCRA provides s afeguards to protect human health and the environment. However, after consideration of public comment, EPA has reached the conclusion that management of CO 2 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 CO 2 streams (including associated constituents that might be present). Additional RCRA subtitle C regulation is, therefore, unnecessary in these circumstances. E PA notes that this exclusion is specific to the terms outlined in the rule.
**Comment 3.5.4:** B. General Comments 1. EPA correctly identifies supercritical CO 2 as a solid waste. EPA correctly identifies a supercritical CO 2 stream injected in a Class VI wel l as a solid waste under RCRA. [FN1: Federal Register, Vol. 76, No. 152, Monday August 8, 2011, p. 48077 and p. 48079].83

RCRA defines solid waste as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution co ntrol facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material [...]”. [FN2: RCRA 1004(27), 42 U.S.C. 6903(27)]. Supercritical CO 2 is a fluid that behaves like a gas but has the density of a liquid. In addition , Class VI wells are defined as “[w]ells that are not experimental in nature that are used for geologic sequestration of carbon dioxide [...]” [FN3: 40 CFR §146.5 (f)], where geologic sequestration is in turn defined as “the long

-term containment of a gaseou s, liquid, or supercritical carbon dioxide stream in subsurface geologic formations” [FN4: 40 CFR §146.81(d).]. Thus, CO 2 injected in Class VI wells clearly constitutes “discarded material”. **Response:** EPA agrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are solid waste. **Comment 3.5.5:** C. Specific Comments on the Proposed Conditional Exemption 1. Prohibiting the mixing or co

- injection of other hazardous wastes in Class VI wells is appropriate, but also implies that subtitle C regulati on offers a greater degree of protection compared to Class VI regulation. If the proposed conditional exemption were to become final rule, EPA is correct in prohibiting the intentional co

- mingling of hazardous waste. The purpose of Class VI regulations is not to permit the construction and operation of hazardous waste disposal wells, but specifically the injection of CO 2 for geologic sequestration. However, in prohibiting the intentional co

- mingling of hazardous wastes, EPA is implicitly accepting that reg ulation under subtitle C of RCRA and injection in Class I Hazardous wells is indeed more appropriate for hazardous wastes than regulation under Class VI of the UIC Program. This can only be the case by virtue of subtitle C and Class I hazardous regulation offering greater safeguards than Class VI. This becomes important in ways that we outline directly below. **Response:** EPA does not agree that the hazardous waste mixing prohibition implies that UIC Class VI wells offer lesser safeguards than UIC Class I haz ardous waste wells, for CO 2 streams that are the subject of this conditional exclusion. This conditional exclusion is limited to a specific, unique waste

– CO 2 streams that are hazardous waste themselves (i.e., that exhibit a characteristic of hazardous wa ste due to the presence of impurities)

– therefore, EPA needed to make clear that any other type of hazardous waste injection must continue to occur in UIC Class I hazardous waste wells. EPA agrees that if the carbon dioxide stream is considered to be haz ardous and does not meet the requirements of the conditional exclusion, it would need to be disposed of in a manner appropriate for hazardous waste, such as injection into a Class I hazardous waste well.
**Comment 3.5.6:** 2. EPA’s clear admission that it “has little or no information to conclude that CO 2 streams would qualify as RCRA hazardous wastes” [FN5: Federal Register, Vol. 76, No. 152, Monday August 8, 2011, p. 48077

-48078] renders the conditional exemption premature. EPA does not argue that CO 2 st reams would likely qualify as RCRA hazardous wastes. Instead the Agency admits the lack of information that would enable it to conclude whether this is likely to happen or not. This directly calls in to question the need for the proposed conditional exempt ion. If84

there is no evidence that such streams would qualify, then the proposed exemption ranges from redundant, in that a clear need has not been identified, to unjustified, in that this very lack of knowledge may result in streams that do exhibit hazardo us characteristics being exempt from RCRA subtitle C requirements. **Response:** EPA disagrees that the conditional exclusion is premature or unjustified. As explained in response to comment 3.5.3, EPA has concluded that the injection of CO 2 streams, includin g incidental associated substances derived from the source materials and the capture process, can be performed in a protective manner under the conditions identified in this rule. Nor is the exclusion redundant. Several commenters have stated concerns rega rding the application of the hazardous waste regulations to supercritical CO 2 streams being sequestered. In light of the early state of data development in this area, EPA intends to bring additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from the definition of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic. Generators may also choose to make use of the conditional exclusion in situations where, for example, the generator may be uncertain regarding the hazardous waste status of the CO 2 stream. **Comment 3.5.7:** 3. EPA should not exempt CO 2 streams from subtitle C regulation without a better understanding of their composition, their potentially hazardous (or otherwise) characteristics in all plausible environments, and without identifying allowable contaminants and setting limits for their concentration in these streams. Expanding on the point above, EPA’s admission clearly in dicates a lack of knowledge of the probable composition of those CO 2 streams, their exact properties (in terms of corrosivity, ignitability, toxicity and reactivity or other potentially hazardous characteristics). In fact, EPA admits that little published data exists on the likely composition of those streams, that a previous call for data during the Class VI rulemaking process yielded little additional information, and makes a renewed call for “analytical data on the physical and chemical characteristics of hazardous contaminants, CO 2 content, information on the type of CO 2 capture process used, and how the samples were collected and analyzed” [FN6: Federal Register, Vol. 76, No. 152, Monday August 8, 2011, p. 48079] in order to “allow EPA to gain a better understanding of the nature and characteristics of captured CO 2 streams” [FN7: Id.]. EPA should not grant an exemption from RCRA subtitle C regulations for streams that contain unknown concentrations of potentially hazardous contaminants, and without know ledge of the exact nature of their hazardous characteristics. The definition of a CO 2 stream, which includes “incidental associated substances derived from the source materials and the capture process” is extremely broad and open ended, and may cover an un acceptably broad spectrum of substances and concentrations. These are likely to vary by facility depending on the particulars of the technology and plant layout, so it is especially important for EPA to be in possession of reliable information on the nature and concentration of these contaminants before it institutes an exemption from subtitle C regulation. Class VI regulations do require an analysis of the composition of the injected CO 2 stream, but those regulations are new and there is no database or exp erience base yet. EPA should wait for the collection of a reliable data set before proceeding with the proposed conditional exemption.85

If EPA proceeds with the conditional exemption, then it would provide a direct pathway for the co

control of pollutants that occur in capture plants (such as SOx, NOx and Hg) in Class VI injection wells. This would be a direct alternative to the conventional control of these substances through commonly established control methods. This would constitute a major policy shift which EPA should not undertake without a thorough review of the possible risks to the subsurface environment and groundwater, as well as to the air, land, and human health from their possible releases. The fact that control of some of these substances may be necessitated through pipeline regulations or by the nature of some CO 2 capture processes [FN8: Some of today’s CO 2 scrubbing solvents are sensitive to contamination by sulfur oxides and mercury, for example] does not constitute sufficient protection of human health and the environment, and in no way justifies EPA’s proposed exemption. **Response:** While EPA agrees that obtaining more data on the composition of CO 2 streams that will be injected into UIC Class VI wells is important overall, EPA disagrees wit h the commenter that the conditional exclusion should not be finalized without more information on the "...concentrations of potentially hazardous contaminants, and without knowledge of the exact nature of their hazardous characteristics." The particular inq uiry before EPA in this rulemaking is whether RCRA subtitle C regulation is necessary to protect human health and the environment. EPA has concluded that the injection of CO 2 streams, including incidental associated substances derived from the source mater ials and the capture process, can be excluded from the definition of hazardous waste under conditions that will ensure that CO 2 streams are managed in a manner that addresses the potential risks to human health and the environment. This is the case regard less of the precise nature of the CO 2 stream. EPA therefore has not altered its conclusion that the conditional exclusion is appropriate, and sees no need to delay further action on the conditional exclusion to gather additional data. EPA notes that the co mmenters did not identify the plausible environments to which they were referring.
**Comment 3.5.8:** Accordingly, if EPA were to finalize a conditional exemption of the nature contemplated in the proposal, it should identify a list of allowable contaminants that the CO 2 stream may contain, and set maximum limits for them. The list of allowable contaminants must be derived from well

founded science and data that clearly demonstrates that they will not pose undue risk to the subsurface environment, water, land , air and public health in their location of disposal or in the event of a release from Class VI wells or other potential leakage pathways in their vicinity. Appropriate tests and criteria must be identified to that effect. These may or may not be based on the existing TCLP test, but must capture the potentially hazardous nature of contaminants in the CO 2 stream in all possible environments where they may find themselves present intentionally or unintentionally. **Response:** EPA disagrees it needs to identify a list of allowable contaminants that the CO 2 stream may contain and set maximum limits for them. EPA has concluded that the injection of CO 2 streams, including incidental associated substances derived from the source mate rials and the capture process, ca n be performed in a protective manner at a permitted UIC Class VI well. This is the case regardless of the precise contaminants, and their concentrations, because the UIC Class VI permitting requirements will take into account the physical and chemical cha racteristics of the CO 2 streams before any injection may occur, as part of establishing the appropriate conditions for the successful confinement of CO 2 in a manner that is protective of USDWs. EPA emphasizes that the UIC Class VI regulations themselves re quire that the chemical composition and physical86

characteristics of the CO 2 streams be known as part of the initial permitting process, as well as during operation of the well, in order to ensure that these CO 2 streams can be injected in a manner that is p rotective of human health and the environment. EPA expects that this will provide a full understanding of the properties of the CO 2 streams being injected, including specific contaminants and their concentrations. EPA intends to monitor any data on the che mical composition and physical characteristics of the CO 2 streams being injected by the UIC Class VI permitting program and to use that information to determine whether changes to the conditional exclusion may be appropriate. **Comment 3.5.9:** 4. If EPA were to finalize the conditional exemption, it must provide further evidence and present a thorough analysis on a point

- by

- point basis showing that requirements for Class VI wells are at least as protective as those for Class I hazardous wells. While Class VI is the appropriate class of well for geologic sequestration of CO 2, EPA has not sufficiently demonstrated that it will be equally protective as Class I hazardous regulations if the CO 2 stream also contains hazardous constituents. Class VI does not contemp late the injection of hazardous CO 2 streams nor does it require operators to evaluate whether the presence of hazardous material in the CO 2 stream could result in increased endangerment to USDWs, or to develop strategies to mitigate any increased endangerm ent. That is not to say, however, that some requirements of Class VI are not at least as, or more, protective that Class I requirements

– but EPA has not provide adequate justification to that affect. Although EPA provides a summary of key elements of the Class VI rule and its requirements [FN9: Federal Register, Vol. 76, No. 152, Monday August 8, 2011, p. 48084

-44085], its description of Class I requirements is far more scant and does not enable a reliable enough comparison of requirements of the two well classes. In addition, it is not sufficient for EPA to use general descriptions of these requirements as support for the assertion that Class VI well regulations are as protective as those for Class I hazardous wells. For example, in asserting that “Class VI wells must meet the same stringent injection well construction standards as Class I hazardous waste wells”, EPA provides no references to these requirements or state what they are. In order for EPA to credibly claim an equivalent level of protection, it must provide a thorough, analytical comparison of rule requirements, ideally in tabulated manner, with references to and quoting the rule language verbatim. This may take place in the form of a comparison table in an appendix or in another form that enabl es the reader to compare requirements for the two injection well classes directly. **Response:** EPA disagrees that it needs to compare the UIC Class I hazardous waste and Class VI requirements point

- by

- point in order to demonstrate that the requirements for UIC Class VI wells are at least as protective as UIC Class I hazardous waste wells for CO 2 streams. Determining whether a conditional exclusion is appropriate includes consideration of whether a waste may not present a hazard because it is already subject to adequate regulation. In determining whether existing regulation is adequate, EPA does not necessarily need to show that each existing requirement has a corresponding analogue in the RCRA subtitle C regulations. W hile the Class VI requirements were not developed to address hazardous waste streams, EPA believes that the Class VI requirements provide the most appropriate and protective environmental management of carbon dioxide streams (including those streams that may be hazardous under RCRA subtitle C ) by addressing each technical aspect of injection well siting, construction, operation, and closure.87

The Class I hazardous waste requirements, available at Subpart G of 40 CFR Part 1 46, were developed for certain types of hazardous wastes (typically liqui d wastes, predominantly water), while t he UIC Class VI requirements are designed to ensure that the CO 2 streams (which may include low concentrations of hazardous constituents) remain isolated in the injection zone and confined by confining zones in an app ropriate, well

- characterized geologic setting that is continuously monitored to ensure that the CO 2 streams remain in the injection zone. EPA views the elimination of exposure routes through these requirements as determinative in its evaluation of whether the RCRA subtitle C regulatory requirements for hazardous waste disposal provide any substantial, additional protection for CO 2 streams which exhibit a characteristic of hazardous waste and are disposed in UIC Class VI wells. See response to c omment 3.5.8 Moreover, in some instances, a point

- by

- point comparison may not even be appropriate. For example, the UIC Class VI requirements are designed for the unique characteristics of CO 2, including its large volume and its buoyancy relative to other fluids in th e subsurface, unlike the typical fluids injected into UIC Class I hazardous waste wells. Finally, EPA also notes that the commenters, despite their general criticism that EPA did not undertake a particular enough analysis of the respective regulatory regim es, did not actually reject EPA’s ultimate conclusion that the UIC Class VI requirements are sufficiently protective, nor did they provide any evidence of gaps in protection or other deficiencies in the analysis that only a more particularized analysis wou ld reveal.
**Comment 3.5.10:** 5. If EPA were to finalize the conditional exemption, the signed certification must be submitted to the UIC Program Director and be available publicly. EPA’s current proposal only requires the signed certification to be kept on site. We believe that this requirement is not sufficient, especially given that requirements under RCRA’s Enhanced Public Participation Rule would not apply. The certification should be submitted to the UIC Program Director and be made publicly available on the regulator’s website. **Response:** EPA agrees that provision should be made for public availability of the certification, and has added a provision for the statement to be posted prominently on the signatory’s publicly

available website, if such websit e exists. As EPA made clear in the proposed rule, one of its key concerns with the certification statement was to ensure compliance with the terms of the conditional exclusion. Posting the signed certification statements on

- line will promote compliance and accountability by providing efficient access by regulatory authorities and interested members of the public (consistent with the intent of the RCRA Enhanced Public Participation Rule) to the exclusion certifications and the identities of the responsible o fficials. Moreover, EPA expects that posting the certifications on

- line will simplify the reporting obligation for the regulated community because accessible internet posting obviates the need for a regulatory agency to request a hard copy. EPA notes that it is not requiring the creation of any new corporate or other website. In the final rule, EPA is not requiring that the signed certification statement be submitted to the UIC Program Director. EPA does not believe that an additional submission requireme nt will be necessary because the signed certification statement will in most circumstances be directly accessible on the injection facility’s website. EPA also notes that as part of the process of obtaining a UIC Class VI permit, owners and operators who p lan to claim the conditional exclusion may88

choose to submit the certification to the UIC Program Director to provide the necessary clarity on the status of the CO 2 streams under RCRA.
**Comment 3.5.11:** D. Conclusion Due to the reasons listed above, we bel ieve that EPA has not sufficiently demonstrated that conditionally excluding CO 2 streams that are hazardous from the definition of hazardous waste is warranted or appropriate. Additional analysis is needed to determine whether CO 2 streams may contain hazardous material, the exact nature of the hazard in different environments and the potential concentrations of such material in CO 2 streams. In addition, EPA has not provided sufficient justification that disposing of such streams in Class VI wells will be as protective as those methods specifically designed for the disposal of hazardous waste under subtitle C of RCRA. **Response:** See responses to comments 3.5.6

- 3.5.9. The Agency commits to reviewing, in a manner similar to the adaptive approach planned for t he UIC Class VI rule, new research, data, and information related to this conditional exclusion, particularly with respect to compliance with the conditions of the exclusion and the nature and composition of CO 2 streams.



### 3.6 **Clean Air Task Force**
**Document ID: EPA** **- HQ** **- RCRA** **- 2010** **- 0695**  **- 0089**  **Comment 3.6.1:** The Clean Air Task Force (CATF) thanks the United States Environmental Protection Agency (EPA) for the opportunity to respond to EPA's proposed rules concerning Hazardous Waste Management System: Identification a nd Listing of Hazardous Waste: Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 76 Fed. Reg. 48,073 (August 8, 2011). We appreciate your consideration of these comments.[FN1: Solite Corp. v. EPA, 952 F.2d 473, 485 (D.C. Cir. 1991), holds that the Agency can consider and rely on information received after the close of a public comment period on a rule, where the added information is used to check or confirm prior assessments]. Founded in 1996, CATF is a nonprofit organization dedicated to restoring clean air and healthy environments through scientific research, public education, and legal advocacy. CATF strongly believes that geologic sequestration of CO 2 (GS), correctly implemented, must be a component of the U.S. climate change mitigatio n portfolio. CATF recognizes the important goal that this rulemaking seeks to foster, i.e. to "substantially reduce the uncertainty associated with identifying CO 2 streams under RCRA Subtitle C, and will also facilitate the deployment of GS by providing ad ditional regulatory certainty.” 76 Fed. Reg. at 48,074. **Response:** EPA acknowledges the comment.
**Comment 3.6.2:** Specifically, CATF can support a conditional exclusion, for CO 2 streams injected for the purpose of sequestration, from the RCRA definition of hazardous waste, and we recognize that EPA has provided with its proposal a good deal of support for many aspects of the conditional exclusion. **Response:** EPA thanks the commenter for its support of the conditional exclusion.89

**Comment 3.6.3:** EPA asserts t hat Class VI well regulations under the Safe Drinking Water Act’s Underground Injection Control Program (UIC) provide more protection than Class I well regulations to which the CO 2 streams would be subjected absent the exclusion; EPA asserts that the Class VI well regulations’ corrective action planning and enforcement program can take the place of the RCRA Land Disposal Regulatory Scheme (because Class VI rules are developed specifically for CO 2 streams as defined in the Class VI rules). Based on these as sertions, EPA proposes to exclude CO 2 injected for sequestration from RCRA Subtitle C requirements that would otherwise apply, provided that: 1) Transportation of the CO 2 stream is in compliance with Department of Transportation (DOT) regulations; 2) Inje ction is in compliance with the Class VI well requirements; 3) No other hazardous wastes may be mixed with or co

- injected with the CO 2 stream; and 4) A certification statement is signed by the generator, and the well owner or operator that these conditions are met. See 76 Fed. Reg. at 48,092

- 93 (proposed 40 C.F.R. § 261.4(h)). Implicit in the first condition is the satisfaction of the DOT requirement in 49 CFR §195.2, that CO 2 consists of “more than 90 percent carbon dioxide molecules compressed to a supe rcritical state ....” Id. at 48,082. This regulation addresses the need for sufficient CO 2 purity levels to avoid pipeline corrosion. Class VI wells and reservoirs are, in turn designed to handle CO 2 and “incidental associated substances derived from the sou rce materials and the capture process, and any substances added to the stream to enable or improve the injection process.” Id. at 48,088, 48,092 (proposed new RCRA definition, tracking class VI definition of “carbon dioxide stream”). Taken all together, CATF reads the proposed RCRA exclusion to be available to CO 2 streams with a purity level of 90 percent CO 2 commingled with incidental other substances up to 10%, but not commingled with or co

- injected with other substances that are listed or characteristic hazardous wastes. CATF notes that this is not clear from the proposed regulatory text. CATF also notes that the Agency requests further information about “the types and characteristics of substances that are added to CO 2 streams to enable or improve the injection process,” id. at 48,088, and about “whether there are other conditions, such as a minimum CO 2 content, that could enhance compliance with the proposed “no mixture” condition. Id. at 48,087. **Response:** The commenter summarizes how they generally interpret the conditional exclusion. With regard to the commenter’s statement that “ EPA asserts that Class VI well regulations under the Safe Drinking Water Act’s Underground Injection Control Program (UIC) provide more protection than Class I well regulatio ns to which the CO 2 streams would be subjected absent the exclusion ” EPA clarifies that t he UIC Class VI requirements are more appropriate for CO 2 streams than UIC Class I hazardous waste requirements, as the latter were developed for certain types of haza rdous wastes (typically liquid wastes, predominantly water), while t he UIC Class VI requirements are designed to ensure that the CO 2 streams (which may include low concentrations of hazardous constituents) remain isolated in the injection zone and confined by confining zones in an appropriate, well

- characterized geologic setting that is continuously monitored to ensure that the CO 2 streams remain in the injection zone. See response to c omment 3.5.9.90

EPA also clarifies that the proposed conditional exclusi on did not specify an minimum CO 2 content (nor does this final rule), rather, as EPA pointed out in the preamble to the proposed rule , the DOT requirements for supercritical CO 2 streams sent via pipeline limits the CO 2 content to 90 percent or greater. EPA believes the regulatory language finalized today is clear.
**Comment 3.6.4:** CATF suggests that EPA can and should go further in demonstrating in its final rule that there is sufficient protection in the provisions of the UIC Class VI rules combined with t he DOT regulation’s purity requirements, to replace the provisions of RCRA

– specifically with respect to the question whether Class VI regulations governing CO 2 streams as defined in the conditions precedent to the exclusion are as or more protective than the RCRA provisions which will no longer apply to these CO 2 streams when the exclusion is finalized. To that end, CATF engaged in a preliminary review of the history of acid gas injection (AGI) in the US and Canada, which appears to support EPA's position that the proposed conditional exclusion is sufficient to replace RCRA protections. As described in more detail below, in the US, AGI projects can involve mixtures of CO 2 and other materials where the CO 2 is less than 90 percent of the injectate (by volume ). These projects are permitted under UIC Class II wells, (which we believe are also less protective than Class VI wells and subpart RR requirements for sequestration). We understand that Canada has a similar regulatory scheme, although a comparative analysis of the US/Canadian permitting scheme was not undertaken by CATF. We note however, the existence of a body of Canadian technical research evaluating the 48 Alberta Basin AGI sites, which concludes that at no time during the three decades of AGI in Alberta was public safety at risk, including after over 2 million tons of injections.[FN2: Stefan Bachu & Theresa L. Watson, Review of Failures for Wells used for CO 2 and Acid Gas Injection in Alberta, Canada, 1 Energy Procedia 3531 (2009), attached as Exhibit 1]. Therefore, CATF suggests that EPA more closely examine the AGI experience in the US and Canada and evaluate it, in the record of the rule finalizing the proposed RCRA exemption for CO 2 streams in Class VI wells. We describe the Canadian technical rese arch below. Additionally, we suggest specific amendments to the proposed rule text in order to provide clarity to three specific aspects of the rule. **Response:** R egarding the comment referencing Acid Gas Injection (AGI), EPA agrees that AGI experience can inform GS injection activities, and EPA examined AGI as part of its research to support options selection for the Class VI Rule . M any of the findings of this research supported EPA’s final requirements for the construction and testing of Class VI wells, i ncluding the use of carbon dioxide

- compatible materials, corrosion monitoring, and continuous pressure, volume, and temperature monitoring to verify internal mechanical integrity. EPA notes that comments on the UIC Class VI rulemaking are beyond the scope of this final rule, and EPA did not consider AGI in developing the proposed hazardous waste exclusion

. While the Agency acknowledges that AGI takes place in the energy industry, it takes place using UIC Class II wells, not UIC Class VI wells, which were t he focus of EPA’s analysis in support of the conditional exclusion. Because AGI wells occur under well classes other than UIC Class VI wells, the protectiveness of those operations are beyond the scope of this rule. Regarding the commenter’s reference to the protectiveness of UIC Class II wells and subpart RR requirements, EPA did not develop information for inclusion in the proposal on well classes other than UIC Class VI wells. EPA did not compare the UIC Class II well regulations with the UIC Class VI well regulations, and such a comparison is irrelevant to this rulemaking. EPA notes that it did not91

propose to rely on, nor as part of the final rule did rely on, Clean Air Act controls as conditions. EPA does not believe this is necessary, as for reasons explained elsewhere, it believes the final rule conditions are appropriate in themselves.
**Comment 3.6.5:** A. EPA authority to create conditional exclusions from RCRA hazardous waste requirements CATF recognizes that EPA has discretion under the Resource Conservation and Recovery Act (RCRA) to create regulatory exclusions for particular wastes that would otherwise be qualified as "hazardous waste" under RCRA. See e.g., Military Toxics Project., v. EPA 146 F.3d 948 (D.C. Cir. 1998)(holding Agency has broad discretion to issue conditional exclusions that exempt waste streams from RCRA's definition of a hazardous waste). Additionally, CATF supports EPA's proposed reliance on DOT requirements, the Safe Drinking Water Act’s UIC Class VI well regulations, and th e Clean Air Act’s Green House Gas Reporting Rule, Subpart RR (GHG) requirements to manage CO 2 injected for the purpose of permanent sequestration, when utilizing such controls in conjunction with RCRA regulations would be repetitive and overly burdensome.[ FN3: 40 CFR §261.11(a)(3)(x): After considering factors, including, action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent, the Administrator may create an excl usion.]. RCRA provides a "cradle

-to
-grave" approach to the treatment, storage, and disposal of hazardous waste. [FN4: 42 U.S.C. §6921]. Under 42 U.S.C. §6921(a), the Administrator of the EPA is charged to "develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject to provisions of Subtitle C." While CATF acknowledges that under RCRA Congress has left discretion to EPA to determine how and when substances are classified a s a hazardous waste, that authority is, of course, not unbounded. [FN5: NRDC v. EPA, 25 F.3d 1063, 1070 (D.C.D.C. 1994)(stating, "of course, however reasonable the agency's interpretation of its regulations, we must not give those regulations effect if the y conflict with the governing statute.")]. EPA must base its final exclusion on considerations of whether the rules that will effectively replace RCRA requirements when an exclusion is created will be sufficient to protect human health and the environment. 40 CFR §261.11(a)(3)(x). **Response:** EPA has the authority to issue conditional exclusions from the hazardous waste regulations. EPA’s authority to issue the rule is described in section II.B. of the final rule preamble. EPA also believes that it appropria tely concluded that management of CO 2 streams under the terms of the final rule does not present a substantial risk to human health and the environment, making additional regulation under RCRA unnecessary. EPA notes that it did not propose to rely on, nor as part of the final rule did rely on, Clean Air Act controls as conditions. EPA does not believe this is necessary, as for reasons explained elsewhere, it believes the final rule conditions are appropriate in themselves.
**Comment 3.6.6:** B. CATF suggests that EPA consider and evaluate the AGI experience in finalizing the conditional exclusion. The experience to date with acid gas injections in Class II UIC wells, by the oil and gas industry in the US, as well as the acid gas injection experience in Canad a, may provide a basis of support for EPA’s proposed conditional exclusion from RCRA’s hazardous waste definition for CO 2 sequestered92

in GS wells governed by the protections offered by Class VI, Subpart RR and DOT pipeline regulatory limits on CO 2 quality. CATF suggests that EPA should review the experience with AGI projects undertaken under Class II well regulations over the past two decades. Although EPA states, "at this time, EPA has little information to conclude that CO 2 streams would qualify as RCRA hazardous wastes, which would make them subject to EPA's comprehensive RCRA hazardous waste management regulations" 76 Fed. Reg. at 48,077, 48,079, in fact AGI projects that have occurred in the United States and Canada for many years may provide EPA with evidence that the conditional exclusion is appropriate. U.S. AGI activity involves injections of CO 2 streams mixed with up to 76 percent hydrogen sulfide (H 2S), has occurred for many years in Class II wells. [FN6: J. Kenneth Klewicki et al., Acid Gas Inje ction in the United States. Proceedings of the Fifth Annual Conference on Carbon Capture and Sequestration, DOE/NETL (2006) attached as Exhibit 2]. By comparison, as described above, CO 2 streams injected for permanent subsurface containment in Class VI wel ls are governed by DOT standards requiring at least 90% CO 2 . Furthermore, EPA notes that UIC Class VI and CAA Subpart RR rules provide more regulatory protection for the sequestered CO 2 than does the Class II regulatory scheme, alone. The Class VI/Subpart RR/DOT regulatory framework embodied in the conditions EPA proposes for the RCRA exclusion therefore should be sufficiently protective of human health and the environment to justify the proposed conditional exclusion from the RCRA regulatory scheme for haz ardous waste for GS CO 2 streams. AGI operations in the United States are regulated under the Class II well standards of the Safe Drinking Water Act’s Underground Injection Control Program. Although EPA has classified H 2S as a hazardous waste, [FN7: 40 CFR 261.33, Hydrogen sulfide is designated as Hazardous Waste No. U135]. Congress amended RCRA in 1980 to exempt drilling fluids, produced waters, and other wastes associated with oil and gas [FN8: 40 C.F.R. §261.4(b)(5), provides that "Drilling fluids, produ ced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy" are solid wastes that are not hazardous wastes. Additionally, AGI is an activity that is characterized “underground inj ection for the secondary or tertiary recovery of oil and natural gas” or is associated with the “underground injection of brine or other fluids which are brought to the surface in connection with oil or natural gas production or natural gas storage operati ons,” and therefore in accordance with 42 U.S.C. §300h (b)(2), “Regulations of the Administrator under this section [the UIC program] ...may not prescribe requirements which interfere with or impede (A) The underground injection of brine or other fluids whic h are brought to the surface in connection with oil or natural gas production or natural gas storage operations, or (B) Any underground injection for the secondary or tertiary recovery of oil or natural gas, unless such requirements are essential to assure that underground sources of drinking water will not be endangered by such injection] from the RCRA definition of hazardous waste; [FN9: The Solid Waste Disposal Act Amendment of 1980 (SWDA), Pub. L. 96

- 482, 94 Stat. 2334, added the Bevill amendment to §3 001 of RCRA, "temporarily" suspending regulation of certain "special" wastes from oil and gas, mining, and utility industries] and therefore, AGI occurs in Class II rather than Class I wells, despite the hazardous characteristics of acid gas streams. As no ted above, U.S. AGI activity involves injections of CO 2 mixed with up to 80 percent H 2S by volume. For comparative purposes Table 1.1 provides compositions (by volume) of anthropogenic CO 2 streams derived from carbon capture facilities. These capture stre am compositions suggest that today’s pre

- and post

-combustion capture techniques yield CO 2 streams that characterized by93

purity levels on the order of 95% or greater CO 2, and 5 percent or less (by volume) of other impurities. CATF’s literature search sugge sts CO 2 purity levels for oxyfuel combustion occupy a broader range, from 85

- 99%, however, these streams are also characterized by several percent or more of the inert, non

- reactive gas argon by volume, thereby increasing their effective purities.
TABLE 1 .1[See PDF Docket ID EPA

- HQ

- RCRA

- 2010

-0695

-0089] Additionally, CATF’s preliminary literature search uncovered several studies documenting AGI experience in the Alberta Basin in western Canada, where 48 AGI injection sites were active. [FN13: Stefan Bachu & Kristine Hague, In Situ Characteristics of Acid Gas Injection Operations in the Alberta Basin, Western Canada: Demonstration of Geological Storage, Vol. 2, Carbon Dioxide Capture for Storage in Deep Geologic Formations

— Results From the CO 2 Capture Proje ct, 867 (Sally M. Benson, et al., eds.) (2005), attached as Exhibit 4; see also Stefan Bachu et al., Evaluation of the Spread of Acid Gas Plumes Injected in Deep Saline Aquifers in Western Canada as an Analogue for CO 2 Injection in Continental Sedimentary Basins, Published in: 1 Proceedings of 7th International Conference on Greenhouse Gas Control Technologies 479

- 487 (E.S.Rubin, D.W.Keith and C.F.Gilboy, eds.,) (2005); available at: http://uregina.ca/ghgt7/PDF/papers/peer/012.pdf.], [FN14: H.L. Longworth et al., Underground Disposal of Acid Gas in Alberta, Canada. Regulatory Concerns and Case Histories, SPE 35584 (1996), attached as Exhibit 5], [FN15: Bachu, supra note 2.] Well over two million tons of acid gas have been injected in these wells, in accorda nce with Alberta’s regulatory requirements [FN16: See Alberta Canada ERCB Guide, G

- 51, available at: http://www.ercb.ca/docs/documents/directives/Directive051.pdf] assertedly without any reported safety or leakage incidents. [FN17: Bachu, supra note 2]. And, insofar as CATF has been able to determine, there have been no reported incidents of groundwater contamination associated with AGI in the United States over the past several decades. [FN18: Review of the available scientific literature and searches fo r published legal cases involving the release of AG from Class II injection wells did not result in information documenting such releases, or evidence of any litigation over damages from any such releases. CATF suggests that EPA closely review any reports of H 2S releases, given the recent lifting of the administrative stay under EPCRA of §313 reporting requirements for hydrogen sulfide. See 76 Fed. Reg. 64,022 (Oct. 17, 2011)]. CATF suggests that because injected CO 2 streams have been commingled with volume s of H 2S that are far greater

– and therefore more corrosive

– than would be characteristic of CO 2 capture streams for Class VI wells (Table 1.1), and that because the Class II wells have apparently not experienced any harmful releases, the provisions of t he proposed conditional exclusion may be sufficient. That is, the proposed Class VI/Subpart RR/DOT scheme can be shown to be sufficiently protective of human health and the environment by comparison, and this comparison offers further support for the condi tional exclusion from RCRA regulation EPA has proposed. As we assume much of the data on AGI resides with the Agency, however, EPA will need to confirm this in the final rule. **Response:** EPA thanks the commenter for the information. See responses to commen ts 3.6.3
– 3.6.5. Acid gas injection (AGI) has indeed been conducted through the Agency’s UIC Class II program . However, the scope of this rule is expressly limited to CO 2 streams sent to a permitted UIC Class VI well for purposes of GS. P rotecti ons afford ed by the GS

- specific requirements of the UIC Class VI Rule include extensive site characterization, assessments of potential mineralization reactions between the carbon dioxide and subsurface rocks and fluids, identification of additional confining zones where needed, geomechanical assessment, and use of CO 2- resistant well94

construction materials . The UIC Class VI requirements are designed for the unique characteristics of CO 2, including its buoyancy relative to other fluids in the subsurface and potential presence of impurities (including hazardous contaminants which could cause the waste to be identified as hazardous) in captured CO 2 . EPA disagrees with the commenter’s statement that EPA has noted that “ UIC Class VI and CAA Subpart RR rules provide more regulatory protection for the sequestered CO 2 than does the Class II regulatory scheme, alone. ” See specifically response to comment 3.6.4. **Comment 3.6.7:** C. CATF suggests specific revisions to the proposed regulatory text, to reference subpart RR, to cl arify that the CO 2 itself is not hazardous, under the exclusion, and to conform the certification requirements with other Class VI recordkeeping requirements i. CATF suggests that the regulatory conditional exclusion should conform to the requirements of the UIC Rules and the Clean Air Rules that govern Class VI wells As written, the proposed conditional exclusion does not conform to or cross reference the language of the UIC or Clean Air Monitoring and Reporting Rules that govern Class VI wells. In an effort to promote clarity and consistency CATF suggests modifying the proposed conditional exclusion. EPA's proposed rule now states that, "Carbon Dioxide streams that are captured and transported for purposes of injection into an underground injection well subject to the requirements of Class VI underground Injection Control wells, including the requirements in 40 CFR parts 144 and 146 of the Underground Injection Control Program of the Safe Drinking Water Act, are not a hazardous waste, provided the followi ng conditions are met." CATF suggests that this portion read as follows "Carbon Dioxide streams that are captured and transported for THE PRIMARY purposes of injection into an underground injection well subject to the requirements of Class VI Underground Injection Control wells, including the requirements in 40 CFR parts 144 and 146 of the Underground Injection Control Program of the Safe Drinking Water Act, AND THE GREEN HOUSE GAS REPORTING PROGRAM CONTAINED IN 40 CFR PARTS 86, 87, 89, are not a hazardous waste, provided the following conditions are met." CATF suggests inserting the word "primary" in this portion because this language would help mirror 40 CFR §144.19 regarding Class II wells that transition into Class VI wells, [FN19: 40 CFR §144.19 state s that: Owners or operators that are injecting carbon dioxide for the primary purpose of carbon storage into an oil and gas reservoir must apply for and obtain Class VI geologic sequestration permit when there is an increased risk to USDWs compared to Clas s II operations. In determining if there is an increased risk to USDWs, the owner or operator must consider the factors specified in §144.19(b)] and therefore will help make it clear that it is the Class VI protections and other environmental regulations t hat will adequately address any risk posed by any plausible mismanagement of the CO 2 after injection. Using "primary purpose" in the conditional exclusion will provide clarification and consistency for Class II operators, as well. CATF also suggests inserting the reference to the Green House Gas Reporting Rule Subpart RR in this section because the preamble to the proposed rule states that the GHG Rule is an important rule that directly addresses GS, and provides additional protections for CO 2 sequestered in Class VI wells. 76 Fed. Reg. at 48,077. The GHG Rule contains reporting requirements that are important to95

GS activity in the context of the exclusion since they require analysis of the composition of the injectate. **Response:** EPA has not included the c ommenter’s suggested edits into the rule. EPA clarifies that 40 CFR 144.19 does not allow GS under the Class II requirements. Rather, it recognizes that construction of EOR/EGR wells could be grandfathered, but identifies criteria on which to base a determ ination that the project is no longer an EOR/EGR project and requires a Class VI permit. Injection projects that meet the criteria at 40 CFR 144.19 must be pre

- permitted as Class VI. If a determination is made under 40 CFR 144.19 that there is increased ri sk to USDWs and the operator cannot demonstrate that large

- scale injection for GS can be performed without endangering USDWs, the site cannot receive a Class VI permit and would not be eligible for the conditional exclusion. Again, EPA did not develop information for inclusion in the proposal on well classes other than UIC Class VI wells. EPA notes that it did not propose to rely on, nor as part of the final rule did rely on, Clean Air Act controls as conditions. EPA does not believe this is necessary, as for reasons explained elsewhere, it believes the final rule conditions are appropriate in themselves. Additionally, EPA points out that the UIC Class VI regulations themselves require that the chemical composition and physical characteristics of the CO 2 streams be known as part of the initial permitting process, as well as during operation of the well, in order to ensure that these CO 2 streams can be injected in a manner that is protective of human health and the environment.
**Comment 3.6.8:** ii. EPA must c larify that although no hazardous waste may be intentionally mixed with CO 2 qualifying for the exclusion, that the CO 2 itself is not “hazardous” under the exclusion The proposed conditional exclusion requires owner/operators and generators to sign a cert ification form that states their actions have conformed with all of the conditions, including the third condition that "no other hazardous wastes may be mixed with, or otherwise co

- injected with, the carbon dioxide stream." This sentence has grammatical is sues that should be modified to avoid confusion, and it also makes complying with the certification form problematic for generators, as explained below in part iii. The use of the word "other" in this sentence is confusing because the purpose of the exclu sion is to provide that the CO 2 stream is classified as non

- hazardous, provided all conditions are met. Including the word "other" indicates that a carbon dioxide stream is itself a hazardous waste and that no additional "other" hazardous wastes may be add ed to the hazardous carbon dioxide stream. Therefore, the word "other" should be removed from this sentence and the word "may" should be replaced with the word "shall." By using "may" rather than "shall" EPA is not, as it must, prohibiting knowingly commin gling hazardous wastes with the CO 2 stream. Therefore, the CATF suggests that the conditional exclusion should read, "NO HAZARDOUS WASTE SHALL BE MIXED WITH, OR OTHERWISE CO

- INJECTED WITH, THE CARBON DIOXIDE STREAM." **Response:** The Agency has concerns that the term ‘other’ may be confusing. EPA fails to see why the use of “may” instead of “shall” somehow makes the proposed mixing prohibition any less mandatory, since the proposed rule’s phrasing “No . . . hazardous wastes may be mixed with . . .” is clearly language of a prohibition. Nevertheless, to remove any doubt about this, EPA is changing96

the phrasing to “shall.” EPA does not understand this change to alter the meaning of the mixing prohibition, but merely to clarify it. Therefore, EPA decided to revis e the wording of the condition and is finalizing the following language: “No hazardous wastes shall be mixed with, or otherwise co

injected with, the carbon dioxide stream.”
**Comment 3.6.9:** iii. CATF suggests that the certification statement for the exclu sion be kept on

- site during the relevant operating and post

- closure period under UIC Class VI, and that the certification statement should be modified to promote clarity

. The proposed conditional exclusion only requires that the signed certification stat ement be kept on - site for a minimum of three years after the injection of a CO 2 stream, and that it be made available within 72 hours of a written request from the Regional Administrator or state Director (if located in an authorized state). Additionally, the certification statement must be renewed every year that the exclusion is claimed. By contrast, Class VI rules require site closure records to be kept for 10 years. 40 C.F. R. § 146.93(f). CATF suggests that EPA require owners/operators and generators to maintain certification forms for the same period for which Class VI well site closure records must be maintained. This will ensure that there is a complete record in the event that there is a release and questions regarding liability ensue. 40 CFR § 146 .93(f) requires that post

- closure site care records must be retained for 10 years. CATF suggests that certification statements be kept for the full period of injection, and as well, remain for the 10 years post closure, or the amount of time that the Director determines is appropriate, consistent with class VI regulations. **Response:** EPA is not entirely clear what type of release and resultant liability to which the commenter refers, however, EPA still believes that the 3

-year recordkeeping requirement for the certification statement is sufficient for purposes of allowing access to these documents. EPA notes that the conditional exclusion certification is not a one

-time requirement, but must be renewed annually, so that there is essentially a rolling 3

-year record retention requirement (for as long as the conditional exclusion is being claimed).
The 3

-year period is consistent with several other recordkeeping requirements under RCRA subtitle C. Generators and UIC Class VI well owners and operators can certai nly maintain these records for a longer period if they wish to do so , to help document their efforts to comply with the exclusion

. In addition, the final conditional exclusion also requires that the certification statement be posted prominently on the sig natory’s publicly

- available website, if such website exists. EPA believes makes this will make them more accessible to both the public and state directors. Finally, under the UIC Class VI regulations, UIC Directors have the option of requesting additional information from the permit applicant under 40 CFR 146.82(a)(21). Such information may include the certification ( if the exclusion is being claimed at that time ) and thus it would be maintained for a period of 10 years after site closure (see § 146.91(f)( 1)).
**Comment 3.6.10:** Furthermore, the certification form in its current form is overly burdensome for generators. The purpose of the certification form is to ensure that both generators and owners/operators attest that they meet the all of the conditions required to obtain the exclusion. The proposed rule, however, requires generators not only to guarantee that they have met all of the conditions, but97

they must also to certify that the owner/operator that the generator contracts with has not comingled any hazardous waste with the generator's CO 2 stream. But the generator has no way of determining whether an owner/operator has co

- mingled its CO 2 stream with hazardous waste. This creates an undue burden for generators to police owner/operators to ensure that owners/operators are complying with the conditions. For example an injection operator may add well stimulants to the CO 2 stream. Generators should be required to determine that the owner/operator that accepts the generator's CO 2 waste stream is properly pe rmitted as a Class VI well; however, the generator should not be required to monitor all downstream owners/operators to ensure that the owner/operator does not co

- injecting hazardous waste with the generator's CO 2 stream. Therefore, CATF suggest EPA modify the certification form language to ensure that generators are not unfairly burdened by this rule. **Response:** EPA agrees that it may be difficult for generators to certify compliance by the well owner or operator with the rule’s conditions. Therefore, EPA has modified the certification requirement in the final rule so that there are now two separate certification statements worded slightly differently

– one for generators and another for UIC Class VI well owners or operators claiming this conditional exclus ion. EPA has made these revisions to better reflect actions over which each party has control. Under the final rule, the certification statement that the generator would sign is specific to the activities within the generator’s control; likewise, the certi fication statement that the UIC Class VI well owner or operator would sign is specific to the activities within the owner or operator’s control.
**Comment 3.6.11:** Conclusion: CATF supports EPA’s issuance of a final rule providing for a conditional exclusio n of CO 2 from the RCRA definition of a hazardous waste, as further supported by additional scientific data gleaned from experience with the successful implementation of AGI projects. CATF also suggests that EPA modify the rule language promulgating the fin al conditional exclusion to promote clarity. **Response:** EPA believes it has brought additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from the RCRA s ubtitle C requirements that would apply in the event a generator determines that its CO 2 streams are hazardous waste . See responses to comments 3.6.3

- 3.6.10.



### 3.7 **Utility Solid Waste Activities Group (USWAG)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0066 Comment 3.7.1:**  The Utility Solid Waste Activities Group (“USWAG” ) submits these comments on EPA’s proposal to conditionally exclude carbon dioxide (“CO 2”) streams that exhibit a hazardous characteristic from the definition of hazardous waste under the Resource Conservation and Recovery Act (“RCRA”), provided those stre ams are captured from emission sources, are injected into underground injection wells for the purposes of geologic sequestration (“GS”) under the Underground Injection Control (“UIC”) program, and meet certain other conditions. 76 Fed. Reg. 48073 (Aug. 8, 2011) (“the RCRA Proposal”). USWAG is an association of over one hundred and ten energy utilities, utility operating companies, energy companies and associations, including the Edison Electric Institute (“EEI”), the American Public Power Association (“APPA”), and the National Rural Electric98

Cooperative Association “NRECA”). [FN1: EEI is the principal national association of investor

- owned electric power and light companies. APPA is the national association of publicly

-owned electric utilities. NRECA is the national association of rural electric cooperatives. Together, USWAG members represent more than 73 percent of the total electric generating capacity of the United States and service more than 95 percent of the nation’s consumers of electricity and 91 perc ent of the nation’s consumers of natural gas. Throughout these comments, we refer to our industry as the “utility” or “electric utility” industry. This term is intended to include those portions of the industry and those USWAG members that generate electri city but do not directly provide electricity to the public and are technically not “utilities.”]. As the leading utility organization responsible for interacting with EPA and other federal and state agencies concerning the management of materials from the combustion of coal and other fossil fuels, USWAG submitted comments in 2008 on EPA’s proposal to regulate CO 2 GS under the UIC program (see 73 Fed. Reg. 43492 (July 25, 2008)) and on the 2009 Notice of Data Availability (“NODA”) for CO 2 GS (see 74 Fed. Reg . 44802)). **Response:** EPA thanks the commenter for the information.
**Comment 3.7.2:** As expressed in our earlier comments on CO 2 GS issues, USWAG recognizes that the development of a viable carbon capture and sequestration (“ CCS”) regulatory program has b een cited by many as a prerequisite to the implementation of energy reform initiatives involving carbon reduction measures on both the federal and state level. EPA predicts that the electric power sector, including USWAG members, “will most likely be the l argest potential market for [CCS] technologies,” and predicts that CCS technology could lead to CO 2 reductions of approximately 80

- 90% at a single plant. 73 Fed. Reg. 44354, 44492 (July 30, 2008). USWAG’s decades of involvement with the management of fossi l fuel combustion materials, as well as our members’ experiences in the field, provide us with a valuable knowledge base and perspective from which to provide meaningful input to EPA as the Agency continues to reassess and refine its UIC regulations for CO 2 GS. We believe that the current RCRA Proposal to conditionally exclude CO 2 streams captured and injected for GS from RCRA’s stringent hazardous waste controls is an important step in shaping more practicable

– and therefore more effective

– CCS regulatio ns. **Response:** EPA believes this rule will substantially reduce the uncertainty associated with identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by providing additional regulatory certainty.
**Comment 3.7.3:** I. Background: USWAG Comments on the 2008 CO 2 GS Proposal USWAG’s comments on the original CO 2 GS proposal urged EPA to craft regulations that would prove flexible enough to be adapted as regulators and industry acquired data on, and experience with, la rge - scale CO 2 GS projects. USWAG also emphasized the need for regulatory certainty on particular issues of concern, noting that the lack of such certainty could serve as a significant disincentive to industry implementation of CO 2 GS projects. USWAG highli ghted the need for Agency clarification of what application, if any, RCRA could have to CO 2 streams injected for GS. USWAG noted that the proposal prematurely assumed that CO 2 injected for GS is being “discarded” within the meaning of RCRA and is therefore a solid waste under RCRA. The USWAG comments added that, to the extent there is any possibility that CO 2 GS injection operations could be subject to RCRA controls, EPA should either establish a conditional exclusion from the definition of solid99

waste for CO 2 GS streams or should exempt such activities from RCRA hazardous waste regulation under the well

- established contingent management concept since UIC permit conditions would provide adequate protection for injected CO 2 . The portions of USWAG’s comments on the 2008 proposal relevant to RCRA applicability are attached hereto (Attachment A) and hereby incorporated by reference in these comments on the RCRA Proposal. **Response:** EPA, through this rule, is establishing a conditional exclusion for CO 2 streams s ent to UIC Class VI wells for purposes of GS, under certain conditions. EPA believes this rule will substantially reduce the uncertainty associated with identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by p roviding additional regulatory certainty. 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 this conditional exclusion, particularly with respect to compliance with the conditions of the exclusion and the nature and composition of CO 2 streams. Se e response to comment 3.2.3. EPA notes that, despite the commenter’s statement that an Attachment A to their letter was submitted to EPA, EPA did not rece ive that attachment. EPA has provided extensive discussions of RCRA applicability questions in Section V of the final rule preamble, in response to USWAG’s other comments in this section 3.7, and in response to other commenters.
**Comment 3.7.4:** II. EPA I nappropriately Assumes that CO 2 Captured and Injected for CO 2 GS is a “Solid Waste” EPA incorrectly assumes in the preamble to the RCRA Proposal that supercritical CO 2 injected for GS is “clearly” a “discarded material” within the meaning of RCRA [Sectio n] 1004(27) and is therefore a RCRA solid waste. 76 Fed. Reg. at 48077

- 78. This statement is overly broad. As a threshold matter, supercritical CO 2 is best described as an “uncontained gas,” and as such is not included within RCRA’s statutory definition of solid waste. See RCRA [Section] 1004(27) (including only “contained gaseous material” within the statute’s definition of a solid waste); see also, e.g., in re BP Chemicals America, Inc., RCRA Appeal No. 89

-4, 1991 WL 208971, at *2 (EPA, Aug. 20, 1991) (ex plaining that only contained gaseous material is a solid waste under RCRA). [FN2: See also 47 Fed. Reg. 27520, 27530 (fume incinerators “ used to destroy gaseous emissions from various industrial processes ... are not subject to regulation under RCRA” becaus e “ the input [i.e., gaseous emissions to the fume incinerators] is not identifiable as a solid waste, according to the definition set forth in [Section] 261.2.” (emphasis added).]. Therefore, supercritical CO 2 is not subject to RCRA jurisdiction in the fi rst instance. **Response:** EPA disagrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste. See response to comment s 3.1.1 through 3.1.8.
**Comment 3.7.5:** Assuming for the purposes of argument that CO 2 can be viewed as a conta ined gas, and thus potentially subject to RCRA regulation, EPA mistakenly categorizes all CO 2 captured, transported, and injected for sequestration in a Class VI well as a solid waste under the rationale that it has been discarded. As USWAG stated in its comments on the 2008 CO 2 GS Proposal, CCS technology and implementation are still in a nascent stage; EPA should refrain from making categorical100

assumptions associated with this still

- emerging technology, including with respect to the status (i.e., discarde d or retaining value) of CO 2 captured and injected for CO 2 GS. A series of relevant judicial decisions holds that Congress intended to extend EPA’s authority to regulate “solid waste” under RCRA “only to materials that are truly discarded, disposed of, th rown away, or abandoned.” American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) (emphasis added); see also, e.g., Assn. of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051

- 52 (D.C. Cir. 2000). As EPA is well aware, CO 2 is a valuable comm odity used in a variety of manufacturing operations, including in the enhanced oil recovery (“EOR”) and enhanced gas recovery (“EGR”) production process. When used in these commercial applications, CO 2 is not “discarded” and therefore is not a solid waste. While large volumes of CO 2 will be produced and captured for injection under the new UIC Class VI regulations, it is premature for EPA to presume that these additional volumes of CO 2 will not retain commercial value and that their sequestration in Class V I wells automatically means that they have been “discarded” as that term has been defined under RCRA. This flawed assumption, if incorporated into a final rule, could have far

- reaching consequences for CCS, including opening the door for unfounded citize n suits under section 7002 of RCRA that would only serve to frustrate the successful implementation of CO 2 sequestration technologies across the country. Indeed, it has been reported that citizen groups have already identified RCRA’s citizen suit provision s as a vehicle to hamper the future deployment of CO 2 sequestration technologies. B. DiCosmo, “Activists Say EPA Plan for CCS Waiver Leaves Door Open to Citizen Suits,” InsideEPA (Aug. 10, 2011) (available online at www.insideepa.com). To avoid this counte r- productive result, EPA should refrain from categorizing all sequestered CO 2 as “discarded” and potentially subject to unwarranted and disruptive RCRA citizen suits. **Response:** See Responses to Comments 3.1.1 through 3.1.8. Regarding the commenter’s stat ement about section 7002 of RCRA, EPA believes that the correct finding is that these CO 2 streams injected into UIC Class VI wells for purposes of GS are discarded for the reasons EPA has explained throughout its responses to public comments, and a ny citiz en suit will succeed or fail on its own merits

. **Comment 3.7.6:** III. A Conditional Exclusion for CO 2 Streams Captured and Injected for GS is Both Necessary and Justified Assuming that a CO 2 stream captured, transported, and injected for GS is a “solid wa ste,” EPA has appropriately exercised its authority under RCRA to conclude that such a waste stream will not be mismanaged in manner that poses “a substantial present or potential hazard to human health or the environment” and, as such, does not warrant re gulation as a hazardous waste under subtitle C. See 76 Fed. Reg. at 48080

-81. Therefore, issuance of the conditional exclusion is fully authorized by the statute. [FN3: In fact, USWAG believes the conditional exclusion should exclude from the definition of solid waste, rather than from the definition of hazardous waste, CO 2 streams captured, transported, and injected for GS. This is important to help protect against unwarranted and disrupted citizen suits as described in section II, above]. **Response:** See R esponse s to Comment s 3.2.2. and 3.7.9.101

**Comment 3.7.7:** EPA acknowledges that there is little evidence suggesting “that CO 2 streams would even qualify as RCRA hazardous wastes.” Id. at 48077. [FN4: EPA emphasizes in the preamble to the Proposal that no haza rdous waste listings apply specifically to CO 2 streams; therefore, “ a CO 2 stream could only be defined as a hazardous waste [if it has been discarded and] if it exhibits a hazardous waste characteristic as defined in 40 CFR Part 261, subtitle C.” 76 Fed. Reg. at 48078]. Regarding whether CO 2 streams may exhibit the hazardous waste toxicity characteristic (“TC”), EPA considers in the preamble that it may be inappropriate to subject sequestered CO 2 to the TC regulation “because the TC was designed to assess the threat waste would have in a municipal solid waste landfill (“MSWLF”) disposal scenario, a scenario that is inherently inapplicable to uncontained supercritical CO 2 .” Id. at 48078 (internal quotations omitted). Because there is no record evidence that sequestered CO 2 is managed in a MSWLF

– in fact, the conditional exclusion is premised on the material being managed in a UIC Class VI well

– there is no basis for applying the TC to sequestered CO 2 . See Assn. of Battery Recyclers, 208 F.3d at 1064 (vacati ng the use of the Toxicity Characteristic Leaching Procedure (TCLP) as applied to MGP wastes because EPA failed to demonstrate that such wastes are likely to be disposed of in MSWLFs); see also EPA Memorandum from Elizabeth Cotsworth to EPA Regions, “Impli cation of Vacature of TCLP Use for Evaluating Manufactured Gas Plant (MGP) Wastes in the Battery Recyclers Case,” R.O. 14492. Therefore, subjecting CO 2 that is captured, transported, and injected for GS to the TCLP for purposes of assessing whether it is a hazardous waste would be contrary to law. **Response:** EPA disagrees with the commenter. First, EPA notes that the commenter appears to have inaccurately quoted some of EPA’s statements, and misconstrued other statements, in the proposed rule preamble. For example, in the proposed rule preamble, EPA was summarizing the concerns of others when it when it stated, “[c]ommenters also stated that the TC regulation was inappropriate for CO 2 streams because the TC was ‘. . . designed to assess the threat waste woul d have in a municipal landfill disposal scenario, a scenario that . . . is inherently inapplicable to uncontained supercritical CO 2 .’”. For its part, EPA noted in the preamble that the hazardous waste regulations allow generators to apply their knowledge

— i n lieu of testing

— of the hazard characteristic of a waste, in light of the materials or processes used, to determine whether that waste is a characteristic hazardous waste under RCRA. 40 CFR 262.11(c)(2). EPA appreciates commenters’ concerns regarding th e application of the hazardous waste regulations to supercritical CO 2 streams being sequestered. EPA believes these concerns exist as a result of the unique circumstances associated with addressing the applicability of RCRA to CCS at such an early stage in the development of CCS. However, it is important to note that EPA did not set out in this rulemaking to conclude that those supercritical CO 2 streams that are solid wastes would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated in the prop osed rule that it could not unequivocally conclude that supercritical CO 2 streams will never exhibit any RCRA hazardous waste characteristic and commenters provided no information to the contrary. Alternatively, EPA acknowledges that some RCRA hazardous ch aracteristics are unlikely to apply to a waste composed of >90% CO 2, such as ignitability (i.e., RCRA Waste Code D001). Thus, in light of the early state of data development in this area, EPA intends to bring additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from the definition of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic.102

EPA notes that it is not required to affirmat ively demonstrate, as part of this rulemaking, that a particular CO 2 stream, or a portion of all CO 2 streams, necessarily qualifies as RCRA hazardous waste. Rather, under the conditional exclusion concept, EPA considers whether RCRA subtitle C regulation i s necessary to protect human health and the environment. As explained in today’s rule, after consideration of public comment, EPA has reached the conclusion that management of CO 2 streams under existing standards, including the UIC requirements for Class V I wells, as well as DOT standards, will protect human health and the environment from potential risks associated with CO 2 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.
**Comment 3.7.8:** Moreover, as USWAG and others pointed out in 2008, and as EPA recognizes, uncertainty regarding the potential RCRA status of CO 2 GS streams and the associated implications for the type of UIC permit required (i.e., Class I or Class VI) would be “a significant impediment to widespread deployment of CCS technologies.” 76 Fed. Reg. at 48077. Because the final UIC Class VI rules do not contain the requested clarification regarding applicability of RCRA to the injection of CO 2, this regulatory uncertainty remains a significant concern to USWAG as it is lik ely to have a chilling effect on participation in CO 2 GS projects. The proposed conditional exclusion is necessary to remove this regulatory uncertainty and remove an unnecessary impediment to the successful development and employment of CO 2 sequestration technologies. **Response:** See response to comment 3.7.3. **Comment 3.7.9:** EPA’s authority to issue conditional exemptions from the RCRA subtitle C requirements where “a waste might pose a hazard only under limited management scenarios, and [where] other regu latory programs already address such scenarios” derives from RCRA itself and is supported by case law. See id. at 48080. Section 3001(a) of RCRA requires EPA, prior to listing a waste as hazardous, to consider whether the waste “should be subject to” subti tle C’s hazardous waste requirements. RCRA [Section] 3001, 42 U.S.C. [Section] 6921 (emphasis added). RCRA’s statutory definition of “hazardous waste,” in turn, provides that “a solid waste ... which because of its quantity, concentration, or physical, chemi cal or infectious characteristics may ... pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” RCRA [Section] 1004(5)(B), 42 U.S.C. [Section] 69 03(4)(B) (emphasis added); see also 76 Fed. Reg. at 48080. In other words, as EPA properly explains, “a waste that is otherwise hazardous does not require regulation [under subtitle C] so long as it is properly managed.” Id. at 48080. Put another way, if a waste is managed in a manner that ensures that it will not “be improperly treated, stored, transported, or disposed of, or otherwise mismanaged,” it does meet the statutory definition of “hazardous waste” and does not warrant regulation under RCRA subtitl e C. See id. at 48081 (“For CO 2 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” (emphasis added)). EPA’s longstanding practice in its administration of RCRA is based on this concept. As explained in the preamble,103

EPA has consistently interpreted section 3001 of RCRA to give [the Ag ency] 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 t hat a waste that is otherwise hazardous may not present a hazard if already subject to adequate regulation

. Id. at 48080 (emphasis added). This interpretation of the statute has been repeatedly upheld by the courts in litigation involving other condition al exclusions from hazardous waste regulation. For example, the United States Court of Appeals for the District of Columbia Circuit held in Military Toxics Project v. EPA that EPA’s exemption from subtitle C of military munitions, where those munitions were transported and stored in compliance with DOT and Department of Defense regulations, was “a permissible construction of [RCRA].” 146 F.3d 948 (D.C. Cir. 1998); see also 76 Fed. Reg. at 48080. The D.C. Circuit upheld similarly justified exemptions (i.e., based on existing regulatory controls independent from RCRA) in Natural Resources Defense Council v. EPA, 25 F.3d 1063 (D.C. Cir. 1994), and Edison Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993); see also 76 Fed. Reg. at 48080. In this case, EPA h as established a rulemaking record demonstrating that CO 2 (that is discarded and would otherwise exhibit a hazardous waste characteristic) managed in accordance with the proposed conditional exclusion will not be mismanaged and therefore should not be regu lated under RCRA subtitle C. 76 Fed. Reg. at 48081. In the preamble, EPA provides an overview of the alternative regulatory controls that would be applicable to the transport and sequestration of CO 2 that will ensure its proper management. These include co mprehensive DOT regulations applicable to the transportation of the captured CO 2 stream (id. at 48082

-83) and imposition of the UIC requirements governing permitting, construction, operation, and closure of Class VI wells (id. at 48083

- 85) on the CO 2 strea m. Moreover, as EPA correctly points out, the UIC regulations authorize the permit

- issuing authority to attach “any additional conditions to the [Class VI UIC] permit, as necessary, to assure compliance with applicable SDWA requirements (40 CFR 146.52(b)). ” Id. at 48079. This broad permitting authority allows regulators to address, on a case

- by

- case basis, any additional concerns raised by the potential presence of hazardous constituents in individual CO 2 streams intended for GS. In short, a full range of a lternative, pre

- existing regulatory controls apply to the management of CO 2 that will ensure that this material is not mismanaged in a way that poses a threat to human health and the environment. As such, it does not warrant regulation as a hazardous waste

. Accordingly, because EPA has determined that CO 2 streams will be properly managed under alternative regulatory regimes and will not be mismanaged, EPA has properly exercised its authority to exempt such streams from RCRA subtitle C and, in doing so, rem ove a significant barrier to this “key climate change mitigation technology.” Id. at 48077. **Response:** EPA has the authority to issue conditional exclusions from the hazardous waste regulations. EPA’s authority to issue the rule is described in section II. B. of the final rule preamble. EPA also believes that it appropriately concluded that management of CO 2 streams under the terms of the final rule does not present a substantial risk to human health and the environment, making additional regulation under RC RA unnecessary.104

**Comment 3.7.10:** IV. EPA Should Clarify Certain Issues in Finalizing a Conditional Exclusion from RCRA’s Subtitle C Regulations for CO 2 Streams Captured and Injected for GS If promulgated, the RCRA Proposal would exclude from RCRA hazard ous waste regulation any CO 2 GS streams that exhibit a hazardous characteristic from the definition of “hazardous waste” under RCRA, provided the following conditions are met: (i) The CO 2 stream is captured from emission sources and transported for purpos es of injection into an underground injection well subject to the requirements for UIC Class VI wells; (ii) Transportation of the CO 2 GS stream is in compliance with applicable Department of Transportation (“DOT”) requirements; (iii) Injection of the C O 2 stream is in compliance with the applicable UIC requirements for Class VI wells, including the requirements set forth at 40 C.F.R. Parts 144 and 146; (iv) No other hazardous wastes are mixed with, or otherwise co

- injected with, the CO 2 stream; and (v ) Any generator of a CO 2 stream, and any Class VI UIC well owner or operator who claims that a CO 2 stream is excluded under the conditional exclusion, has an authorized representative sign a certification statement and keep that signed statement on

- site fo r at least three years, to be made available within 72 hours of a written request from the regulating authority, and to be renewed every year by the person claiming the exclusion. Id. at 48092

-93 (proposed to be codified at 40 C.F.R. [Section] 261.4(h)). USWAG supports a conditional exclusion from RCRA’s hazardous waste requirements for discarded CO 2 GS streams, and believes that such an exclusion, provided it is crafted carefully, will provide much

- needed regulatory certainty and promote participation in CO 2 GS projects. However, certain issues raised in (or neglected by) the RCRA Proposal require attention and/or revision. These issues are raised below. **Response:** EPA has made some changes to the proposed rule, as summarized in Section IV of the final ru le preamble. EPA believes the rule as finalized will substantially reduce the uncertainty associated with identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by providing additional regulatory certainty. See responses to comments 3.7.11

– 3.7.14. **Comment 3.7.11:** A. “Incidental Associated Substances” The RCRA Proposal provides that CO 2 GS streams are ineligible for the conditional exclusion if they have been “mixed with, or otherwise co

- injected with,” any oth er hazardous waste stream. 76 Fed. Reg. at 48093. At the same time, the definition of “Carbon dioxide (CO 2 ) stream” in the preamble mirrors that in the current Class VI UIC regulations in that it includes not only the captured CO 2 but also “incidental asso ciated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process.” Id. at 48075 (emphasis added); see also 40 C.F.R. § 146.81(d). This component of the definition is critical to105

ensure that the conditional exclusion is practicable, as captured CO 2 will necessarily include associated substances included in the stream from the capture process, as well as substances intentionally added to the stream to facilitate inje ction operations. While the RCRA Proposal provides some information on estimated concentrations of certain constituents in the CO 2 stream (76 Fed. Reg. 48079), it is important that EPA make clear in the final rule that these values are not intended to be regulatory limits or otherwise interpreted to identify the amount or scope of “incidental associated substances” that may be included in an excluded CO 2 stream. Because the employment of CO 2 capture operations is still in the formative stages and CO 2 may b e captured from a variety of industrial sources, EPA must be careful not to inadvertently restrict the scope of CO 2 materials eligible for the conditional exclusion by inappropriately limiting the type of “incidental associated substances” and related substances that are legitimately included in a sequestered CO 2 stream. **Response:** The commenter makes the point that because of the condition that there can be no mixing of hazardous waste with the excluded CO 2 stream, together with the fact that excluded CO 2 streams may still contain (by definition) “incidental associated substances” and “substances added to the stream to enable the facilitate injection” EPA should clarify that the estimated constituent concentrations discussed in the preamble to the proposed rule (76 FR at 48079) are not intended to represent i n some manner limits on allowable concentrations of incidental associated substances in excluded CO 2 streams. EPA clarifies that this was not the purpose of presenting these constituent concentrations; rather, they were presented as part of the preamble discussion on the types of constituents that could be present in CO 2 streams captured from coal

-fired power plants. EPA is not identifying the amount or scope of “incidental associated substances” that ma y be included in an excluded CO 2 stream in this final rule. EPA has concluded that the injection of CO 2 streams, including incidental associated substances derived from the source materials and the capture process, can be performed in a protective manner a t a permitted UIC Class VI well. This is the case regardless of the precise contaminants, and their concentrations, because the UIC Class VI permitting requirements will take into account the physical and chemical characteristics of the CO 2 streams before any injection may occur, as part of establishing the appropriate conditions for the successful confinement of CO 2 in a manner that is protective of USDWs. EPA intends to monitor any data on the chemical composition and physical characteristics of the CO 2 streams being injected by the UIC Class VI permitting program and to use that information to determine whether changes to the conditional exclusion may be appropriate.
**Comment 3.7.12:** B. Prohibition on Mixing/Co

- Injecting Other Hazardous Wastes with CO 2 St ream It is clear that substances naturally occurring underground would not be “discarded” and therefore could not be hazardous wastes under RCRA. Nonetheless, to avoid a scenario in which the applicability of the conditional exclusion might be jeopardized as the result of post

- injection mixing of the CO 2 stream and other underground substances, EPA should clarify that such a scenario would not run afoul of the exclusion’s condition that injected CO 2 not be mixed or otherwise co

injected with other hazardous wastes. **Response:** EPA believes that the scenario described by the commenter regarding the potential behavior of CO 2 streams after injection into a UIC Class VI well would not affect the availability of the conditional exclusion, because the exclusion req uires injection into a UIC Class VI well (in106

compliance with all of the conditions), and any potential issues with the CO 2 stream post
- injection would be addressed as part of the site

- specific UIC Class VI permit.
**Comment 3.7.13:** C. Consequences of Minor/Technical Non

- Compliance As currently written, the terms of the proposed conditional exclusion would mean that non

compliance with any aspect of the conditional exclusion at any point in the management of the CO 2 stream results in the material being subje ct to all applicable subtitle C requirements beginning at the point of generation. Id. at 48087. This would mean, for instance, if there is minor paperwork violation by the Class VI UIC well operator, the CO 2 (assuming it is hazardous) would have been subj ect to all subtitle C generator and transportation requirements from the instant it was captured at the power facility, and that the well operator must be in immediate compliance with a different set of UIC Class I permit conditions. Clearly, this is not p ractical and, most importantly, not necessary. Compliance with existing applicable regulatory programs is the foundation of this conditional exemption. However, both the DOT regulations and UIC regulations potentially applicable to CO 2 streams captured fo r GS are complex, and contain a number of requirements that are administrative, rather than protective or risk

- based, in nature (e.g., the recordkeeping requirements for Class VI wells set forth at 40 C.F.R. [Section] 146.91(f)). As noted above, it is poss ible that an owner/operator could be deemed ineligible for the conditional exclusion as the result of a mistake that has no bearing on risk or environmental safety but nonetheless results in an immediate conversion of the entire CO 2 management stream to an entirely new set of controls that would be virtually impossible to meet. To avoid this kind of scenario, EPA should, a minimum, make clear that any noncompliance occurring during a specific phase of the CCS process (i.e., capture, storage, transportation , or injection) would only implicate that specific phase of CCS management for purposes of determining applicability of the exclusion to a given CO 2 stream. More generally, EPA should make clear that only a “material noncompliance” with applicable DOT and UIC regulations results in subjecting the CO 2 stream to any applicable subtitle C requirements. In particular, EPA should amend the language of the proposed conditional exclusion to clarify that non

- compliance that is administrative in nature and is not kn owing or willful on the part of the owner/operator will not alone render the CO 2 stream ineligible for the conditional exclusion. In addition, EPA should include in the conditional exclusion a provision granting the EPA (or, where applicable, state regulat or) discretion to, on a case - by

- case basis, apply the conditional exclusion even where some level of non

- compliance with DOT or UIC regulations exists or has existed. **Response:** In the final rule, EPA maintains that a CO 2 stream must meet all the condition s to qualify for and maintain the exclusion from the hazardous waste regulations, and a violation of a condition at any point in the management of a CO 2 stream (that is otherwise hazardous) would result in that CO 2 stream being subject to all applicable su btitle C regulatory requirements, from the point of generation. The rule conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not necessary. Therefore, it follows tha t any management not in accordance with those conditions does not qualify for the exclusion.107

However, EPA can appreciate the commenter’s concern over the loss of the conditional exclusion due to, for example, small administrative or clerical errors. EPA’ s Office of Enforcement a nd 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 no rmal 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 fo r 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/civi l/rcra/rcpp2003

-fnl.pdf).
**Comment 3.7.14:** D. Certification Statement One of the proposed conditions on which the exclusion would be based is that “[a]ny generator of a carbon dioxide stream, and any Class VI Underground Injection Control well owner or o perator, who claims that a carbon dioxide stream is excluded under” the conditional exclusion, must have an authorized representative certify “ under penalty of law” that the CO 2 stream “ meets all of the conditions set forth in [40 C.F.R. [Section] 261.4( h)(1)].” 76 Fed. Reg. at 48093 (proposed to be codified at 40 C.F.R. [Section] 261.4(h) (iv)). This certification statement is overly broad and impracticable. As discussed above, compliance with [Section] 261.4(h)(iv) includes compliance with all applicab le DOT and UIC regulations, including 40 C.F.R. Parts 144 and 146. Because a generator will in many cases not own or operate the Class VI well at which the CO 2 stream is injected and sequestered, this certification provision would require an individual to attest, under penalty of law, to facts which are not readily known to him and/or which are not under his control. Similarly, a Class VI well owner or operator may not have access to information regarding any potential non

- compliance with DOT regulations th at occurred while the CO 2 stream was in transit. It is fundamentally unfair and would create a regulatory disincentive to engage in CO 2 sequestration to require persons engaged in these operations to certify under penalty of law compliance with obligations which are not applicable to their particular activities and for which they have no direct control. For these reasons, the certification statement should be amended to require parties to attest compliance with only those conditions for which they have resp onsibility under the proposed exclusion (e.g., in the case of generators, a certification that the CO 2 stream was captured from an emission source and transported for purposes of injection into an underground injection well subject to the requirements for UIC Class VI wells). **Response:** EPA agrees and has modified the certification requirement in the final rule so that there are now two separate certification statements worded slightly differently

– one for generators and another for UIC Class VI well owners or operators claiming this conditional exclusion. EPA has made these revisions to better reflect actions over which each party has control. Under the final rule, the certification statement that the generator would sign is specific to the activities with in the generator’s control; likewise, the certification statement that the UIC Class VI well owner or operator would sign is specific to the activities within the owner or operator’s control.108

**Comment 3.7.15:** We appreciate the opportunity to comment on im portant proposal. If you have any questions regarding these comments, please contact USWAG counsel Douglas Green (see docket for contact information). **Response:** EPA acknowledges the comment.



### 3.8 **CCS Alliance**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0083 Comment**  **3.8.1:** The CCS Alliance, a multi

- industry group of entities whose mission is to address barriers to the potential deployment of carbon capture and sequestration, submits these comments in support of the Environmental Protection Agency's ("EPA" or "the Agen cy") proposed rule to conditionally exclude geologically sequestered CO 2 from regulation under the Resource Conservation and Recovery Act's ("RCRA") hazardous waste program. **Response:** EPA thanks the commenter for its support of the conditional exclusion.
**Comment 3.8.2:** Introduction The CCS Alliance favors a single, clear regulatory structure for geologic sequestration ("GS") of carbon dioxide, as opposed to a structure composed of multiple regulatory laws with overlapping enforcement regimes and penalty p rovisions. Unlike with other spheres of commercial activity, with GS the nation has the opportunity to establish a regulatory framework before the practice becomes widespread. Thus government may take into account the factors that specially characterize GS before regulating, as well as the public policy objectives surrounding it. GS is a practice the government desires to encourage, or at least desires not to discourage, to reduce emission of CO 2 into the atmosphere. We submit that a single, clear structure of regulation and enforcement suits this interest better than confusing requirements under multiple statutes. EPA already has established a detailed, comprehensive regulatory framework for GS through the Underground Injection Control ("UIC") program of t he Safe Drinking Water Act. We agree with the Agency's commentary in the proposed rule that the UIC Class VI program for GS wells that EPA established in 2010 is sufficient to protect the environmental and safety interests that RCRA was enacted to protect. Applying burdensome RCRA hazardous waste regulation on top of the UIC regulations not only would not advance the interests served by RCRA, but could drive up costs for and discourage deployment of GS, frustrating EPA's carbon dioxide emission reduction go als. **Response:** EPA agrees that management of CO 2 streams under existing standards, including the UIC requirements for Class VI wells, as well as Department of Transportation (DOT) standards, will protect human health and the environment from potential ris ks associated with CO 2 streams, making additional regulation pursuant to the Resource Conservation and Recovery Act’s (RCRA) hazardous waste regulations unnecessary.
**Comment 3.8.3:**109

EPA itself has acknowledged the burden of RCRA and the fact that many of i ts requirements are poorly suited to at least some of the activities to which they apply. EPA initiated a rulemaking in 2002 to reduce the burdens associated with the RCRA hazardous waste program. [FN1: Resource Conservation and Recovery Act Burden Reducti on Initiative, 67 Fed. Reg. 2518 (proposed Jan. 17,2002); see also RCRA Burden Initiative; Final Rule, 71 Fed. Reg. 16,862 (Apr. 4, 2006)]. The Agency noted, "[t]he existing hazardous waste regulations require the submittal of 334 notifications, reports, c ertifications, demonstrations, and plans from generators and TSDFs to demonstrate compliance with the RCRA regulations." [FN2: RCRA Burden Reduction lnitiative; Notice of Data Availability, 68 Fed. Reg. 61,662, 61,644 (Oct. 29, 2003)]. Reporting requireme nts are just one example of RCRA' s burdens. Construction, permitting, operating, monitoring, and post

- site closure requirements are much more burdensome for Class I hazardous wells than for the other types of injection wells. For instance, Class I hazardo us wells have a requirement that there be no migration for 10,000 years. Such strict requirements may be appropriate to protect USDWs and the environment from certain hazardous wastes, but were not established with the circumstances of GS of CO 2 in mind. Furthermore, if a facility were required to obtain a Class I UIC hazardous waste injection permit, all other waste management units at the facility could be subject to the full extent of RCRA's Subtitle C corrective action program, which is an extremely co stly and administratively complex program. Determining that CO 2 constitutes a hazardous waste and subjecting CO 2 injection and storage to the burdensome Class I well requirements would not promote underground injection and storage of CO 2 . Imposing extensi ve, burdensome RCRA regulations likely to have little benefit for human health and the environment may result in larger atmospheric releases of CO 2 if GS is not as widely deployed. **Response:** See response to comment 3.8.2. Where these comments relate only to the general burden of the RCRA requirements, as the commenter states, and the UIC Class I hazardous wells, these comments are outside the scope of this rulemaking. EPA agrees that while the requirements for each UIC injection well class address the spec ific 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 CO 2 injection volumes, the buoyant and mobile nature of the i njectate), an d EPA developed its RCRA conditional exclusion based upon injection in a UIC Class VI well. EPA believes this rule will facilitate the deployment of GS by providing additional regulatory certainty.
**Comment 3.8.4:** Issues with the Proposed Rule The CCS Alli ance supports a conditional exclusion from RCRA hazardous waste regulation for geologically sequestered CO 2 streams. This is an appropriate regulatory approach that we and others recommended in comments on the UIC Class VI proposed rule in 2008. Nonetheles s, there is one threshold issue the Agency needs to address, and there are several issues with the proposed exclusion that merit revision or clarification. **Response:** EPA thanks the commenter for its suppo rt of the conditional exclusion, and addresses the commenter’s further comments below.110

**Comment 3.8.5:** Applicability of RCRA EPA has not clearly explained in this proposed rule why RCRA is applicable at all to GS. RCRA's detailed regulatory scheme applies to "solid wastes." However, RCRA's definition of " solid waste" includes a "contained gaseous material" but does not include an uncontained gaseous material. [FN3: 42 U.S.C. 6903(27)] Does the Agency assert that CO 2 that is captured from a generation source - an electric generating facility, a gas processi ng facility, manufacturing facility, etc.

- that is to be geologically sequestered is a contained gas? Geologically sequestered CO 2 should be considered an uncontained gaseous material and therefore not a solid waste, based on agency precedent. In In re B P Chemicals America, Inc., RCRA Appeal No. 89

-4, 1991 WL 208971 (Admin., Aug. 20, 1991), the Agency held that uncondensable hydrogen cyanide from an acrylonitrile manufacturing plant that is "contained" within piping and other equipment within the plant an d thermally destroyed is not a solid waste subject to RCRA because it is not a contained gaseous material. Rejecting EPA Region V's argument for applying hazardous waste regulation, the Agency found: [T]he Agency views gaseous material to be "solid waste" only when it is containerized. Region V argues that BP's HCN vapor is "contained" by the various process units through which it passes, by associated piping, and by the plant as a whole. The Region's reading of the term "contained," however, cannot be reconciled with the Agency's treatment of fume incinerators. Such incinerators are used to treat vapors that are "contained" in the broad sense of being bound or controlled and not being emitted to the atmosphere, but the Agency considers such vapors to be ou tside the scope of the "solid waste" definition because they are not containerized in the narrower sense of being in an individual container such that the gas is amenable to shipment. [FN4: In re BP Chemicals America. Inc., RCRA Appeal No. 89

-4, 1991 WL 208971 (Admin., Aug. 20, 1991), p.2

- 3]. Similarly, in the case of CO 2 for GS, the CO 2 will be "contained" only in the sense that it is within piping and associated equipment inside, and ultimately outside, the industrial facility where it is captured. It w ill be shipped via pipeline, and the Agency precedent makes clear that such containment does not render a material a contained gas. Once it is sequestered in a geologic formation, it is subject to regulations to ensure that it remains within that formation , but it will not be "containerized in the narrower sense of being in an individual container such that the gas is amenable to shipment." We note that EPA earlier this year confirmed its interpretation of the "contained gaseous material" portion of the de finition of "solid waste." In response to questions raised by industry about whether an Agency document issued earlier this year was reinterpreting the term, EPA acknowledged the document has created concerns among the regulated community that the [EPA] has changed a long

- standing interpretation of what constitutes a "contained gaseous material" for purposes of defining the term "solid waste" under the Resource Conservation and Recovery Act (RCRA). We have not changed our prior interpretation. . .. We cla rify here that the Agency's previous statements and interpretations remain effective.111

[FN5: Letter from Suzanne Rudzinski, Director, Office of Resource Conservation and Recovery, to Tim Hunt, American Forest and Paper Association, May 13, 2011]. **Response:** EPA disagrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid wastes. See Responses to Comments 3.2.1 and 3.2.10.
**Comment 3.8.6:** Contours of Conditional Exclusion Incidental Associated Substances We note that the Agency did n ot consider it necessary to clarify in the proposed rule the term "incidental associated substances," which features in the definition of the term "carbon dioxide stream" in both the UIC Class VI regulation and the proposed rule. We believe that the context of the proposed rule makes clear that other substances captured together with the CO 2 from a gas stream are "incidental associated substances." If this is not the Agency's intent, we recommend that this term be clarified. The proposed rule states: [T]od ay's conditional exclusion would apply to CO 2 streams that are otherwise RCRA hazardous wastes .... EPA intends ... that it is clear that both RCRA hazardous CO 2 streams (that are excluded when managed pursuant to the terms of today' s proposed conditional exclusion) and nonhazardous CO 2 streams may be injected into a UIC Class VI well. [FN6: Proposed rule, 76 Fed. Reg. 48073, at 48088]. The motivation behind proposing the conditional exclusion is the fact that the presence of other substances in the CO 2 stream could trigger the definition of hazardous waste. Thus it is essential in order for the exclusion to be effective that the scope of the non

- CO 2 substances that may be part of the CO 2 stream is clear. As the proposed rule notes, the purity of the CO 2 stream will depend on a variety of factors, including the source material and the capture process employed. Furthermore, depending on the scope of future regulation, CO 2 streams may be captured from a variety of industrial facilities. The proposed rule li sts estimated concentrations of hazardous constituents, such as mercury and chromium, that may be expected to be present in the CO 2 stream. EPA does not appear to suggest that these estimated concentrations are limits, and that higher concentrations or the presence of other incidentally captured materials would void the exclusion. They merely inform EPA's decision that the conditional exclusion is protective of the environment. The type and amount of such substances that may be included in the stream is of critical importance, because the consequences of voiding the conditional exclusion could be severe. One might anticipate that a GS facility that inadvertently sequesters a CO 2 stream that is not subject to the conditional exclusion could be forced to meet the more stringent Class I hazardous regulations, which could require the facility to shut down temporarily or perhaps permanently. This may have "upstream" effects, as discussed below. **Response:** EPA confirms that “incidental associated substances derive d from the source materials and the capture process” is intended to refer to those substances that are captured together with the CO 2 . EPA also confirms that it did not intend that the numerical concentrations of hazardous constituents described in the pro posal’s discussion of RCRA characterization issues define what constitutes “incidental associated substances” in the proposed rule or in the final conditional112

exclusion. In the final rule, EPA is not identifying the type and amount of substances that may b e included as "incidental associated substances" in the carbon dioxide stream. EPA has concluded that the injection of CO 2 streams, including incidental associated substances derived from the source materials and the capture process, can be performed in a protective manner at a permitted UIC Class VI well. This is the case regardless of the precise contaminants, and their concentrations, because the UIC Class VI permitting requirements will take into account the physical and chemical characteristics of the CO 2 streams before any injection may occur, as part of establishing the appropriate conditions for the successful confinement of CO 2 in a manner that is protective of USDWs. EPA emphasizes that the UIC Class VI regulations themselves require that the chemi cal composition and physical characteristics of the CO 2 streams be known as part of the initial permitting process, as well as during operation of the well, in order to ensure that these CO 2 streams can be injected in a manner that is protective of human h ealth and the environment. EPA intends to monitor any data on the chemical composition and physical characteristics of the CO 2 streams being injected by the UIC Class VI permitting program and to use that information to determine whether changes to the con ditional exclusion may be appropriate. A RCRA hazardous CO 2 stream that does not meet the conditions of this rule would need to be managed as a RCRA hazardous waste, and, if well injection is selected as the means of disposal, injected into a UIC Class I hazardous well. EPA acknowledges that there would be implications to changing the regulatory status of a UIC Class VI well to that of a UIC Cl ass I hazardous well. See Responses to Comments 3.8.7 and 3.21.3.
**Comment 3.8.7:** Paperwork and other Minor Viola tions The proposed rule makes clear EPA's intention that the consequences of failing to maintain compliance with the conditions for the exclusion will end the exclusion: Failure to meet the conditions [of the proposed rule] results in the loss of the exc lusion. As proposed, a violation of a condition at any point in the management of a CO 2 stream would result in that CO 2 stream being subject to all applicable subtitle C requirements, from the point of generation. [FN7: Id. at 48087]. Among the conditions that must be maintained is a requirement that "[i]njection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 C.F.R. parts 144 a nd 146.” [FN8: Id. at 48093]. The requirements of these parts encompass dozens of pages of regulatory text and hundreds of individual requirements (many subject to interpretation of the EPA or the State, whichever may be implementing the program), includin g recordkeeping and reporting requirements, and others the violation of which may have no consequence to safety. If violation of a regulatory requirements results in closure of a GS facility, and that closure means that electric generators must shut down because they would be unable to operate without violating Clean Air Act carbon emission regulations, there could be serious impacts to electric reliability, with potential impacts to public health. An affected power plant may be vital to reliability not on ly because of the power it generates, but for the voltage support it provides to the transmission grid in the region. Note that the fossil

-fueled generating units that produce CO 2 typically are baseload generating units that typically are the primary sourc e of reactive power that provides voltage support. This concern about reliability would be attenuated if EPA were to choose113

another means to preclude the applicability of RCRA that could not result in the facility being potentially subject to hazardous waste regulation for minor violations. It is understood that full compliance with Class VI UIC regulation is expected, in addition to being legally required. What is unclear is what enforcement discretion the Agency has and intends to be applied (by EPA and the States) in implementing the regulations. We recommend that EPA provide guidance that in considering enforcement options, UIC program directors should take into account the broad consequences of those options, such as electric reliability and operation of "upstream" CO 2 generating facilities. **Response:** It is unclear to EPA the extent to which these comments relate to terms of the RCRA conditional exclusion, or the UIC Class VI rules themselves. To the extent that these comments relate to the UIC program , they are beyond the scope of this rulemaking. With respect to the comment regarding minor violations resulting in the loss of the conditional exclusion, EPA maintains that a CO 2 stream must meet all the conditions to qualify for and maintain the exclusi on from the hazardous waste regulations, and a violation of a condition at any point in the management of a CO 2 stream (that is otherwise hazardous) would result in that CO 2 stream being subject to all applicable subtitle C regulatory requirements, from th e point of generation. The rule's conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not necessary. Therefore, it follows that any management not in accordance with those conditions does not qualify for the exclusion. However, EPA can appreciate the commenter’s concern over the loss of the conditional exclusion due to, for example, small administrative or clerical errors. EPA’s Office of Enforcement a nd 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

-fnl.pdf).
**Comment 3.8 .8:**  Overbroad Certification Requirement Among the conditions for being subject to the proposed conditional exclusion is the requirement that well owners and operators and CO 2 stream generators have an authorized representative sign the following statement: I certify under penalty of law that the carbon dioxide stream that I am claiming to be excluded under 40 C.F.R. 261.4(h)( 1) meets all of the conditions set forth in that paragraph. [FN9: Id.]. As noted above, one condition is that the sequestration w ell must be in compliance with 40 C.F.R. parts 144 and 146. It is broadly recognized that in many instances, perhaps even the majority of the114

time, a generator will not own or operate the GS facility at which the generator's CO 2 stream is sequestered. One of many features in the regulatory structure that will contribute to safe operation of GS facilities is encouragement for generators to contract with competent, reputable GS facility operators. However, it is neither practicable nor appropriate for a generator to certify that a facility operator is in compliance with each UIC regulatory requirement. That should be the operator's obligation. Nor is it possible for a generator to certify to the compliance of other generators who send their CO 2 streams to the facility. The certification in proposed 40 C.F.R. 261.4(h)(1)(iv) should be limited to the regulatory obligations that are the responsibility of the party making the certification. For a generator, we believe there is only one such obligation, which is th at the injectate be qualified as a CO 2 stream. We recommend that the certification obligation for generators be amended to read as follows: I certify under penalty of law that the material being delivered is qualified as a carbon dioxide stream under 40 C.F.R. 146(d). **Response:** EPA agrees that the certification statement should better reflect the activities within the signatory’s control. EPA has revised the certification statement in the final rule so that there are now two separate certification statem ents
– one for CO 2 stream generators and another for UIC Class VI well owners or operators. Under the final rule, the certification statement that the generator would sign is specific to the activities within the generator’s control; likewise, the certific ation statement that the UIC Class VI well owner or operator would sign is specific to the activities within the owner or operator’s control. The certification statement EPA is finalizing for generators includes the prohibition on hazardous waste mixing an d delivery (or arranging for delivery) of the CO 2 stream to a UIC Class VI facility in compliance with applicable DOT (or state) requirements, which EPA finds would be in the generator’s control. The commenter provides no reasons to conclude that these are not in the generator’s control. Therefore, EPA does not agree that the generator certification should be limited to certifying that the injectate qualifies as a CO 2 stream. Note that these revisions do not change how the conditional exclusion is implement ed

– that a CO 2 stream that is hazardous must meet all the conditions in 261.4(h)(1)

- (4) to qualify for and maintain the exclusion from the hazardous waste regulations.
**Comment 3.8.9:** Potential Applicability of CERCLA We note that the issue of whether th e CO 2 stream is considered to be a hazardous waste not only determines whether RCRA would apply, but also would influence whether the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund") may apply. [FN10: 42 U.S.C . 9601 et seq.]. Under CERCLA, the President may compel cleanup actions "when the President determines that there may be an imminent and substantial threat to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility ....”[FN11: 42 U.S.C. 9606.]. In such cases, Superfund's joint, strict, several and retroactive liability scheme applies, a system that has been widely criticized for its expense, delay, and contentious legal wrangling. In fact, cleanups have been completed at fewer than one

- quarter of the sites placed on Superfund's National Priorities List since its inception in 1983.115

CERCLA defines a "hazardous substance" to include "any hazardous waste having the characteristics iden tified under or listed pursuant to Section 3001 of [RCRA].” [FN12: 1242 U.S.C. 9601(14) [Emphasis added]]. The CCS Alliance and many others commented in response to the Class VI UIC proposed rule that the Superfund liability scheme would deter deployment of CCS. Furthermore, were an incident requiring remediation to occur at a Class VI facility, applicability of Superfund could doom the cleanup to delays. Only 350 of the nearly 1,700 sites placed on Superfund's National Priorities List since its inception in 1983 have been cleaned up sufficiently to be removed from the list. [FN13: http://www.epa.gov/superfund/sites/npl/, accessed September 23, 2011]. **Response:** EPA notes that CERCLA and its related provisions are beyond the scope of this rulemaking.
**Comme nt 3.8.10:**  Conclusion We are pleased that the Agency has proposed this conditional exclusion from hazardous waste regulation. A legally justified and more effective means of precluding hazardous waste regulation would be to determine, consistent with Agency precedent, that CO 2 streams that are geologically sequestered are an uncontained gas. If EPA persists with a conditional exclusion, it should provide clarification with respect to the points noted above. **Response:** EPA thanks the commenter for its support of the conditional exclusion. For the reasons stated above, it is EPA’s position that a supercritical CO 2 stream sent to a UIC Class VI well for purposes of GS is a RCRA solid waste. EPA is finalizing the conditional exclusion as described.



### 3.9 **State of Uta h** 
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0086 Comment**  **3.9.1 :**  The State of Utah, through the Public Lands Policy Coordination Office (PLPCO), has reviewed this project. Utah Code (Section 63J

-4

- 601, et. seq.) designates PLPCO as the entity responsible to coordinate the review of technical and policy actions that may affect the physical resources of the state, and to facilitate the exchange of information on those actions among federal, state, and local government agencies. As part of this process, PLPCO makes use of the Resource Development Coordinating Committee (RDCC). The RDCC includes representatives from the state agencies that are generally involved or impacted by public lands management. **Response:** EPA acknowledges the comment.
**Comment 3.9.2**  **:** The Depart ment of Environmental Quality, Division of Water Quality is supportive of the rule change and offers one singular comment for your consideration: The conditional exclusion should extend to Class V Experimental Technology CO 2 wells for DOE's Phase III pilot projects. See foot note 54. Since EPA has made the following statement with regard to Class VI wells, "EPA is taking this action because the Agency believes that the management of these CO 2 streams under the proposed conditions does not present a substant ial risk to human health or the environment, and116

therefore additional regulation pursuant to RCRA's hazardous waste regulations is unnecessary" (see Summary at the top of the Federal Register Notice), the statement must surely apply to Class V Experimental Technology CO 2 wells. **Response:** EPA disagrees that the conditional exclusion should be extended to experimental projects that have been issued Class V experimental technology well permits. EPA simply did not include UIC Cl ass V wells in its evaluation. T he Class VI requirements are tailored to the unique aspects of carbon dioxide injection for GS (e.g., l arge CO 2 injection volumes, the buoyant and mobile nature of the Injectate ) , and EPA developed its RCRA conditional exclusion based upon inj ection in a U IC Class VI well. EPA’s analysis supporting the conditional exclusion did not include an evaluation of the UIC Class V well requirements, as those wells are beyond the scope of the rule as proposed.
**Comment 3.9.3**  **:** If you have any questions relative to th is comment or requirement please contact William E. Damery, P.G., NEPA Compliance Coordinator at [see docket for contact information]

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

. **Response:** EPA acknowledges the comment.



### 3.10 **National Mining A ssociation (NMA)** 
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0065**
**Comment 3.10.1**  **:** The National Mining Association (NMA) appreciates the opportunity to provide comments on the U.S. Environmental Protection Agency’s (EPA) proposed rule that would conditionally exclu de carbon dioxide ( CO 2 ) streams that are hazardous from comprehensive hazardous waste management regulations under the Resource Conservation and Recovery Act (RCRA). 76 Fed. Reg. 48,073 (Aug. 8, 2011). Specifically, CO 2 streams that are captured, transport ed and injected for geologic sequestration would not be treated as a hazardous waste under RCRA if the following requirements are met: (1) the transportation of the CO 2 stream is in compliance with applicable Department of Transportation (DOT) requirements ; (2) injection of the CO 2 stream is in compliance with the requirements for Class VI Underground Injection Control (UIC) wells; (3) no other hazardous wastes are mixed with, or otherwise co

- injected with, the CO 2 stream; and (4) an authorized representati ve of the generator of the CO 2 stream and the UIC Class VI well owner certify in writing that all the conditions are met. See Proposed § 261.4, 76 Fed. Reg. at 48,092

- 93. NMA is a national trade association representing the producers of most of America’s coal, metals, industrial and agricultural minerals; the manufacturers of mining and mineral processing machinery, equipment and supplies; and engineering, transportation, financial and other businesses that serve the mining industry. NMA strongly supports the development and use of carbon capture and storage (CCS) technologies given that they represent one of the most promising and effective long

-term options for large

-scale reductions in CO 2 emissions from coal

- based117

generation. NMA further believes that regulatory impediments must be removed to support investment in and development of CCS and thereby enable further development and deployment of this technology. **Response:** EPA acknowledges the comment.
**Comment 3.10.2**  **:** NMA appreciates that the goal of EPA’s proposed rule is to address stakeholder concerns over the uncertainty that RCRA hazardous waste requirements would be applied to CO 2 streams injected for geologic sequestration, which in turn would significantly obstruct the deployment of CCS technologies. See 76 Fed. Reg. at 48,077. NMA agrees with the agency that the proposed rule will reduce regulatory uncertainty and potentially help facilitate the deployment of CCS technologies. See id. at 48,074 (“EPA expects that this amendment will substantially red uce the uncertainty associated with identifying these CO 2 streams under RCRA Subtitle C, and will also facilitate the deployment of [geologic sequestration] by providing additional regulatory certainty.”) Id. at 48,074. However, NMA is troubled by the agen cy’s characterization of supercritical CO 2 streams injected into permitted UIC Class VI wells for geologic sequestration as being “clearly” within the plain meaning of “discarded material” and thus a “solid waste” under RCRA. See 76 Fed. Reg. at 48,077

- 8. This characterization is unsupportable. RCRA defines a “solid waste” as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semis olid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations . . .” 42 U.S.C. § 6903(27) (emphasis added). As a threshold matter, supercritical CO 2 streams are not a “contained gaseous material” and thus are not subject to RCRA jurisdiction. EPA recognizes that in a supercritical state CO 2 “exhibits physical properties intermediate to those of a liquid and a gas.” 76 Fed. Reg. at 48,076. Yet, EPA fails to explain how this unique characteristic of supercritic al CO 2 streams translates into labeling the material as a form of “solid waste” as defined by the statute. Supercritical CO 2 streams are best described as an “uncontained gas” and thus not subject to RCRA. Furthermore, even if supercritical CO 2 streams c ould be classified as a “contained gaseous material,” EPA incorrectly characterizes all CO 2 captured, transported, and injected for sequestration in a Class VI well as a solid waste under the rationale that it is “discarded material within the plain meanin g of the term in RCRA § 1004(27).” 76 Fed. Reg. at 48,078. The pivotal term in this analysis is “discard.” As the D.C. Circuit recognized in 1987 and reaffirmed in 2000, “[C]ongress clearly and unambiguously expressed its intent that “solid waste” (and the refore EPA ‟s regulatory authority) be limited to materials that are “discarded” by virtue of being disposed of, abandoned, or thrown away.” Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1051

- 52 (D.C. Cir. 2000) (quoting American Mining Congress v . EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987)). **Response:** EPA agrees with the commenter that conditional exclusion will reduce regulatory uncertainty for stakeholders and facilitate deployment of CCS technologies. EPA disagrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste. Regarding the commenter’s statements that supercritical CO 2 streams are not a ‘contained gaseous material,’ a s EPA noted in the proposed rule, the CO 2 streams are delivered by pipeline and injected int o 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 term118

used to describe or define this supercritical sta te (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 c ontained 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 R CRA 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, CO 2 streams sequestered fo r 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. Regard ing the question of whether or not these materials have been discarded, EPA disagrees that CO 2 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 CO 2 emi ssions to the atmosphere by injecting the CO 2 streams into deep subsurface geologic formations, with the express purpose of isolating the CO 2 so that it does not return to the atmosphere. August 8, 2011 (76 FR at 48075). Therefore, EPA views these CO 2 st reams as “discarded material” within the plain meaning of the term in RCRA §1004(27). The fact that the sequestration of CO 2 streams into deep geologic formations is at times labeled as “long

-term containment” or “long

-term storage” does not change this v iew.
**Comment 3.10.3**  **:** EPA, however, simply declares that “[a]n entity involved in the CCS process may generate CO 2 that qualifies as a solid waste under the RCRA hazardous waste regulations by making the decision to discard the material through abandonment by disposing of the material.” 76 Fed. Reg. at 48,078. NMA believes it is premature and wrong to assume that the volumes of CO 2 streams that will be produced and captured for injection under the new UIC Class VI regulations involves a final disposal decisi on. EPA wrongly assumes that these CO 2 streams will not have commercial value and that their sequestration will automatically mean they have been “discarded” and thus subject to RCRA. To the contrary, CO 2 is a valuable commodity used in enhanced oil or gas recovery production processes and other manufacturing operations. Additionally, CO 2 injected in saline reservoirs under UIC Class VI regulations may later be withdrawn at least partially and used for reservoir maintenance as part of concurrent long

-term storage/desalination operations. In these cases, and likely others in the future related to geologic sequestration, CO 2 is used beneficially and is not “discarded” and not a “solid waste.” **Response:** EPA acknowledges that the underground injection of CO 2 ha s largely been (and continues to be) for the purpose of EOR, and does not disagree that CO 2 can and does have a variety of commercial and manufacturing uses (e.g., urea yield boosting, enhanced oil recovery, food processing and packaging, beverage carbonat ion, and wine making), but this does not affect the regulatory status of CO 2 streams when they are to be injected into UIC Class VI wells for the purpose of GS, which is the focus of this final rule

. As EPA noted in the preamble to the proposed rule, this conditional exclusion is not intended to affect the regulatory status of CO 2 streams that are injected into wells other than UIC Class VI wells. Regarding the comment that CO 2 streams injected into UIC Class VI wells are not disposal, because they can late r be withdrawn, EPA disagrees and reiterates that CO 2 streams injected into UIC Class VI wells are solid wastes. As was119

stated in the preamble to the proposed rule, GS is an option to reduce CO 2 emissions to the atmosphere by injecting the CO 2 streams into deep subsurface geologic formations, with the express purpose of isolating the CO 2 so that it does not return to the atmosphere (August 8, 2011; 76 FR at 48075). Therefore, EPA views these CO 2 streams as “discarded material” within the plain meaning of th e term in RCRA §1004(27). That is, a supercritical CO 2 stream is a solid waste when it is to be discarded through abandonment by disposing of the material in a UIC Class VI well (see 40 CFR 261.2(a)(2)(i) and (b)(1)). EPA adds that t he RCRA conditional exc lusion does not preclude the removal of CO 2 at a later date

. How this activity is regulated would be a determination separate from the terms of the conditional exclusion in this rule.
**Comment 3.10.4**  **:** Assuming for purposes of argument that CO 2 streams capt ured, transported and injected for geologic sequestration are a “solid waste,” the next step in the analysis is whether the CO 2 streams are a “hazardous waste.” [FN1: EPA acknowledges that “no hazardous waste listings apply specifically to CO 2 streams” and that “a CO 2 stream could only be defined as a hazardous waste if it exhibits a hazardous waste characteristic as defined in 40 CFR part 261, subpart C.” 76 Fed. Reg. at 48,078

- 79. EPA acknowledges that there are issues with testing CO 2 streams to determin e whether they exhibit the hazardous waste toxicity characteristic. Id. at 48,078]. EPA acknowledges that it “has little information to conclude that CO 2 streams would qualify as RCRA hazardous wastes.” 76 Fed. Reg. at 48,079. Despite this acknowledgment, EPA proposes to move forward with this conditional exclusion in order to “substantially reduce the uncertainty associated with defining and managing these CO 2 streams under RCRA subtitle C.” Id. **Response:** EPA did not set out in this rulemaking to conclude that those supercritical CO 2 streams that are solid wastes would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated in the proposed rule that it could not unequivocally conclude that supercritical CO 2 streams will never exhibit any RCRA haz ardous waste characteristic; alternatively, EPA acknowledges that some RCRA hazardous characteristics are unlikely to apply to a waste composed of >90% CO 2, such as ignitability (i.e., RCRA Waste Code D001) . This was confirmed in the public comment period, in which commenters did not provide EPA with evidence that CO 2 streams could never qualify as RCRA hazardous wastes. Thus, in light of the early state of data development in this area, EPA intends to bring additional clarity to the regulatory regime throu gh this rule, by establishing a conditional exclusion from the definition of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic. Regarding the commenter’s reference to testing CO 2 streams, EPA notes that analytical methods do exist to analyze supercritical CO 2 streams, and that generators may also use knowledge to determine whether a waste exhibits a RCRA characteristic. Should a generator determine that they are not managing a hazardous waste, they are not obligated to make use of this conditional exclusion and are not subject to the RCRA subtitle C regulations. Moreover, because use of the conditional exclusion is voluntary, even those generators who characterize their streams as RCRA hazardous waste may continue to manage their streams as RCRA hazardous wastes from the point of generation. The only effect is upon those persons who choose to comply with the terms of the conditional exclusion.
**Comment 3.10.5**  **:** As stated above, NM A supports EPA’s goal of the conditional exclusion. NMA also believes that EPA has properly executed its authority to conditionally exclude those CO 2 streams injected for geologic120

sequestration that may be deemed to be a “solid waste” and also exhibit a ha zardous waste characteristic. As EPA correctly demonstrated in the proposed rule, “the existing UIC Class VI requirements sufficiently address any potential risk to human health and the environment, such that subtitle C regulation is unwarranted.” 76 Fed. Reg. at 48,086. NMA, however, is concerned with two aspects of the conditional exclusion as proposed. First, NMA is concerned that the conditional exclusion could be lost and subtitle C requirements could apply at the point of generation if a minor paperwork violation occurs. The DOT and UIC regulations are complex and contain a number of administrative rather than risk

- based requirements. An owner or operator should not lose the protections of the conditional exclusion simply because an administrative mi stake is made somewhere in the CCS process (i.e., capture, storage, transportatio n or injection). NMA urges EPA to clarify in the final rule that only “material non

compliance” of the regulations would result in the loss of the conditional exclusion, and that “material non

- compliance” does not include mistakes that are administrative in nature.
**Response:** While EPA maintains that the rule conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not necessary, EPA can appreciate the commenter’s concern over the loss of the conditional exclusion due to, for example, small administrative or clerical errors. EPA’s Office of Enforcement a nd Compliance Assurance (OECA) is unabl e 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 req uirement. 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, d egree 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

-fnl.pdf).
**Comment 3.10.6**  **:** Second, NMA is c oncerned that the certification statement is overly broad and unworkable. Specifically, a generator may not own or operate the Class VI well at which the CO 2 stream is injected and sequestered. In this case, the certification provision would require an ind ividual to attest, under penalty of law, to facts which are not readily known to him/her and/or not under his/her control. Class VI well owners and operators also may not have access to certain information regarding any potential non

- compliance with DOT re gulations that occur before they take possession. To correct this problem, NMA urges EPA to amend the certification statement to require parties to attest to compliance with only those conditions for which they have responsibility under the proposed exclus ion. Furthermore, NMA does not believe there is value in requiring transporters or pipeline owners or operators to sign a certification statement. **Response:** EPA agrees and has modified the certification requirement in the final rule so that there are now two separate certification statements worded slightly differently

– one for generators and another for UIC Class VI well owners or operators claiming this conditional exclusion . EPA has made these revisions to better reflect actions over which each party h as control. Under the final rule, the121

certification statement that the generator would sign is specific to the activities within the generator’s control; likewise, the certification statement that the UIC Class VI well owner or operator would sign is speci fic to the activities within the owner or operator’s control. EPA also agrees that there is no need for transporters or pipeline operators to be required to sign a certification statement as a condition of the exclusion . See response to c omment 3.2.39. T herefore, EPA is not changing its proposed approach.
**Comment 3.10.7**  **:** NMA appreciates the opportunity to comment on this important proposed rule. If you have any questions regarding NMA’s position, please contact me at (see docket for contact information).
**Response:** EPA acknowledges the comment.



### 3.11 **Texas Pipeline Association (TPA)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0068 Comment**  **3.11.1 :**  The Texas Pipeline Association (TPA) submits the following comments on the proposed revision to the regulations for hazardou s waste management under the Resource Conservation and Recovery Act (RCRA) to exclude carbon dioxide ( CO 2 ) streams from the definition of hazardous waste if they are injected into Class VI Underground Injection Control (UIC) wells for purposes of geologic sequestration and meet other specified conditions. TPA is an organization representing over 30 members who gather, process, treat, and transport natural gas and hazardous liquids materials through intrastate pipelines in Texas. **Response:** EPA acknowledges the comment.
**Comment 3.11.2**  **:** 1. TPA supports the overall goal of this rulemaking. TPA generally supports this proposal and commends EPA on its efforts to ensure that geologic sequestration remains a viable option for the storage of captured CO 2 streams. E xcluding CO 2 streams from the definition of hazardous waste for purposes of RCRA Subtitle C applicability is an important step in the right direction. As EPA recognizes, the imposition of Subtitle C requirements would be an undue burden on the implementati on and use of geologic sequestration technology, given the protections that are already in place by virtue of the requirements governing the construction and maintenance of UIC Class VI wells. **Response:** EPA acknowledges the comment

. EPA notes that it base d its conditional exclusion on its analysis demonstrating that management of supercritical CO 2 streams in accordance with the rule’s conditions does not present a substantial risk to human health or the environment, and therefore that additional regulation pursuant to RCRA' s hazardous waste regulations is unnecessary.
**Comment 3.11.3**  **:** 2. The definition of "carbon dioxide stream" should be revised. EPA proposes to define "carbon dioxide stream" to mean CO 2 that has been captured from "an emission source" plu s "incidental122

associated substances derived from the source materials and the capture proces s .... " 76 Fed. Reg. 48092. TPA believes that this definition would benefit from two revisions. First, the term "an emission source" should be revised to make cle ar that a "carbon dioxide stream" could be derived from multiple sources and still qualify for the exemption provided by the rule. As currently written, the definition could be interpreted as requiring the CO 2 stream to come from a single source to qualify for the exemption. CO 2 streams often come from a number of different "sources" and there is no reason for the exemption to be withheld under such circumstances. Second, the word "incidental" should be deleted. If a substance qualifies as an "associated s ubstance derived from the source materials and the capture process," then it should be within the exemption regardless of the quantity in which it exists in the stream. The word "incidental" connotes a volume limitation, and its use in the definition sugge sts that if such "associated substances" are present at sufficient volume, then they will no longer qualify as being "incidental," resulting in elimination of the exemption. The possibility of such a misinterpretation should be removed. Accordingly, TPA suggests the following revisions to implement the preceding comments: "Carbon dioxide stream means carbon dioxide that has been captured from an emission source OR SOURCES (e.g., power plant), plus <incidental> associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process." **Response:** Regarding t he commenter’s request that EPA revise the term “emission source” to make it plural (“sources”) , EPA never intende d to limit the conditional exclusion to CO 2 streams from a single source , and confirms that the existing language also would include CO 2 streams generated from two or more independently

- produced CO 2 streams, and both would be excluded provided that the con ditions of the exclusion are met for all streams for which it is being claimed. Thus, we are not making this suggested change. Regarding the request that EPA delete the term “incidental” from the proposed definition, EPA disagrees. In order to provide the regulatory clarity sought through this rule, it is critical that there be a consistent definition of carbon dioxide stream in both today’s final rule and the UIC Class VI final rule. This consistent definition is important because the applicability of the UIC Class VI requirements and the applicability of the conditional exclusion are linked in instances where the exclusion is being claimed. EPA is concerned that employing different definitions will result in confusion as to which streams are subject to both rules. In any event, EPA finds it unlikely that the applicability of the conditional exclusion will turn on how ‘incidental’ is interpreted; that is, in any instance where it has been determined that a “carbon dioxide stream” (as defined in either rule) can be safely and legally injected into a UIC Class VI well, the conditional exclusion is applicable, provided the other specified conditions are met.
**Comment 3.11.4**  **:** 3. Certification and monitoring requirements should not apply to persons engaged in the movement of excluded CO 2 streams. The rule being proposed by EPA would require any generator of a CO 2 stream, and any Class VI DIC well owner or operator, to certify that the CO 2 stream met all of the conditions set forth in 40 CFR 260.10. At 76 Fed . Reg. 48087, however, EPA raises the issue of whether certifications (and associated monitoring, recordkeeping, or reporting requirements)123

should also be required of persons engaged in the movement of conditionally excluded CO 2 streams, including transporters and pipeline owners or operators. TPA believes that no such additional requirement should be imposed. Under the rule as proposed, certifications as to content would already be obtained from the generator and from the well owner

- the parties who shoul d be expected to have the most knowledge of whether the CO 2 stream at issue qualifies for the proposed exemption. It should be unnecessary to secure additional, duplicative certification from a pipeline owner or other transporter, who may handle the stream for only a brief period and whose knowledge of the details concerning the CO 2 stream typically will be far inferior to that of the parties from whom certifications are already being obtained. TPA believes that requiring certifications as to content and ot her facts, under penalty of perjury, would result in a severely diminished willingness on the part of pipeline owners to transport CO 2 streams for geologic sequestration in U IC wells. This would be contrary to the very point of the geologic sequestration regulations, which is to ensure that this promising technology is utilized to its fullest extent. **Response:** EPA acknowledges the commenter’s comments regarding whether additional monitoring, reporting and recordkeeping requirements should be required, in t his case with respect to transporters and pipeline owners and operators, and we note that the final rule is unchanged from the proposal with respect to requirements for transporters or pipeline owners and operators in this regard. See Response s to Comment s 3.2.40 through3.2.43. Regarding the commenter’s comments on requiring certification statements be signed by transporters or pipeline owners and operators, EPA agrees that a certification by the transporter is not necessary. First, i f EPA were to require such a certification, under the approach where EPA limits the scope of the certification to the conditions within the control of pipeline owners and opera tors or other transporters (the approach taken in t he final rule for CO 2 stream generators and UIC C lass VI well owners and operators) , the certification would essentially address 1) compliance with applicable DOT requirements, and 2) to not mix hazardous waste into the CO 2 streams. Regarding compliance with DOT requirements, EPA is persuaded by comment s received on this issue that if persons transporting supercritical CO 2 must comply with the applicable transportation requirements for all supercritical CO 2 being moved, it seems unnecessary to require that they certify compliance with DOT requirements fo r a specific material (i.e., supercritical CO 2 streams to be sequestered). Regarding mixing with hazardous waste , EPA does not have information, nor did commenters provide any new information, indicating that CO 2 pipeline owners and operators or other tra nsporters would mix hazardous waste into CO 2 streams being delivered to UIC Class VI facilities. EPA expects that pipeline owners and operators engaged in delivering supercritical CO 2 have strong disincentives to mix any hazardous waste into their pipelin e system, both in order to honor their contractual arrangement with customers, and also to maintain their equipment. Also, as EPA stated in the proposed rule premable, PHMSA requires that pipeline owners and operators ensure that supercritical CO 2 streams be chemically compatible with the pipeline and any commodities in the pipeline and will not corrode the pipeline and pipeline system

. For these reasons, EPA does not see the need for a transporter certification, and is not changing its proposed approach and transporters and pipeline owners and operators will not be required to sign a certification statement as a condition of the exclusion

. **Comment 3.11.5**  **:** We appreciate the opportunity to submit these comments. Please let us know if you have any questions

.124

**Response:** EPA acknowledges the comment.



### 3.12 **Western Business Roundtable**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0071 Comment**  **3.12.1 :**  I am writing, on behalf of the multi

- sector membership of the Western Business Roundtable (“Roundtable”), in response to the E nvironmental Protection Agency’s (“EPA” or the “Agency”) proposed rule entitled “Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide (“CO 2”) Streams in Geologic Sequestration (“GS”) Activities.” [FN1: 76 Fed. Re g. 48073 (August 8, 2011)]. In this action, EPA proposes to revise the regulations for hazardous waste management under the Resource Conservation and Recovery Act (”RCRA”) to “conditionally exclude” CO 2 streams from the definition of hazardous waste, pro vided such streams meet certain capture and storage requirements.
ABOUT THE ROUNDTABLE The Roundtable is a broad

- based coalition of companies doing business in the Western United States. Our membership is comprised of a coalition of corporations and organ izations representing a broad cross

- section of Western business including, among others: manufacturing; mining; electric power generation/transmission/distribution; energy infrastructure development; energy supply exploration/development and transportation ; energy services; and environmental engineering. We work to defend the interests of the West and support policies that encourage economic growth and opportunity, freedom of enterprise and a sound approach to conservation and environmental stewardship.
M any of our members are centrally involved in the development, transportation and processing of a wide variety of energy resources

-- fossil, renewable and nuclear

-- as well as the generation and distribution of electricity across the West and technologies that facilitate greater energy conservation and efficiency. Roundtable members also are on the cutting edge of technology development related to the management of CO 2 emissions. I hope you will find the broad perspective and expertise reflected in these comments helpful as the Agency moves forward with its deliberations on this important policy issue. **Response:** EPA acknowledges the comment

. **Comment 3.12.2**  **:** IMPORTANCE OF CCS The Roundtable strongly supports the aggressive research and development efforts underway to facilitate commercial

- scale CO 2 capture and sequestration (“CCS”) projects. We also believe that expansion of enhanced oil recovery (“EOR”) present a meaningful opportunity to utilize CO 2 in a way that is beneficial to the global environment a nd both our nation’s economy and its energy125

security. Current research is moving America ever closer to technologies that can tap our domestic fossil resources with less and less environmental impact. The goal of near

- zero or zero -emission technologies, c apable of capturing CO 2, is now foreseeable. Key to these technologies is the assumption that effective sequestration/storage options will be available to dispose of the CO 2 once captured.
The whole issue of CO 2 management has tremendous macro

- economic, consumer pocketbook, environmental and national security implications. Extensive Congressional and regulatory reviews are underway regarding the efficacy of mandatory carbon regulations. A necessary predicate to any such regime must be a clear understanding of: * The effectiveness of sequestration and storage options; * Hurdles to the efficient implementation of those options; * CO 2 transportation system challenges; and * Liability issues associated with both transportation and storage of CO 2 . As policymakers and project developers work through the many nuances involved with large

-scale CCS, we believe that it is important to keep focused on this central tenet: strong and early investment in CCS technologies and infrastructure is a necessary foundation for any viable climate change regulatory regime. One of the biggest impediments to commercial

- scale CCS projects today is regulatory uncertainty. Meaningful investments will only occur in the presence of clear, carefully tailored regulatory constructs that he lp encourage early and robust development of projects and which aid in eliminating regulatory risk for such early investments. In that regard, we believe EPA’s actions in this proposed rule are extremely important. **Response:** EPA acknowledges the commente r’s support for CCS

. The commenter raises several points regarding the importance of CCS and factors that can contribute to the successful development of CCS. EPA agrees with the overall conclusion that CCS is indeed an important tool in reducing GHG emi ssions and mitigating climate change. While many of the commenter’s specific points are beyond the scope of this instant rulemaking, EPA agrees with the commenter that regulatory certainty is important to facilitate future deployment of CCS

. EPA believes this rule will substantially reduce the uncertainty associated with identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by providing additional regulatory certainty

. **Comment 3.12.3**  **:** We appreciate EPA’s statem ent that Agency “believes that the management of these CO 2 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 u nnecessary.” EPA expects that this amendment will “substantially reduce the uncertainty associated with126

identifying these CO 2 streams under RCRA subtitle C, and will also facilitate the deployment of GS by providing additional regulatory certainty.” [FN2: Id.]. **Response:** EPA acknowledges the comment

. **Comment 3.12.4**  **:** The Roundtable has long been on record urging EPA to avoid utilizing risk management approaches that discourage CCS deployment. Regulatory certainty is absolutely crucial, if meaningful inve stment is going to flow to CCS technologies and implementation. Public acceptance is also a crucial linchpin to any meaningful CCS program. This point was emphasized in a 2007 National Academy of Sciences report, which noted that a large

- scale CCS program cannot be successful “if a significant fraction of the public views it as dangerous or unacceptable.” [FN3: Prospective Evaluation of Applied Energy Research and Development of DOE (Phase Two), National Research Council (2007)]. Thus, we applaud the EPA for its clear sensitivity to the need for certainty in this arena. The Agency’s approach here, and under the Safe Drinking Water Act (SDWA), will set the general tone for how other federal and state regulatory bodies, investors and the general the public w ill treat CCS going forward. **Response:** See comment 3.12.2

. **Comment 3.12.5**  **:** RECOMMENDATIONS With the shared goal of regulatory certainty in mind, we would offer the Agency the following thoughts on how the proposed regulations might be clarified and stren gthened:
Exclude CO 2 Streams From the Definition of “Solid Waste” As we have noted, we appreciate EPA’s recognition that CO 2 streams captured from emission sources and injected into Class VI (UIC) wells for purposes of geologic sequestration “do not prese nt a substantial risk to human health and the environment, and therefore additional regulation pursuant to RCRA’s hazardous waste regulations are unnecessary.” [FN4: 76 Fed. Reg. at 48075]. The Roundtable supports what EPA is attempting to achieve with t he proposed “conditional exclusion.” We do fear, however, that this approach does not fully meet the goals of regulatory clarity and certainty. We believe the proposed rule would be strengthened if EPA simply excluded CCS CO 2 streams from the definition of “solid waste” under RCRA. **Response:** E PA disagrees that CO 2 streams injected into UIC Class VI wells for purp oses of GS are not solid waste. As was stated in the preamble to the proposed rule, GS is an option to reduce CO 2 emissions to the atmosphere by i njecting the CO 2 streams into deep subsurface geologic formations, with the express purpose of isolating the CO 2 so that it does not return to the atmosphere (August 8, 2011; 76 FR at 48075). Therefore, EPA views these CO 2 streams as “discarded material” w ithin the plain meaning of the term in RCRA §1004(27). That is, a127

supercritical CO 2 stream is a solid waste when it is to be discarded through abandonment by disposing of the material in a UIC Class VI well (see 40 CFR 261.2(a)(2)(i) and (b)(1)).
**Comment 3.12.6**  **:** Such an action is appropriate because:
* CO 2 Provides Beneficial Uses CO 2 does not fit into the purposes of RCRA as a hazardous waste management regime. It has all sorts of beneficial uses. Beyond its critical role in nature, it is a commodity us ed for a variety of industrial purposes (EOR being the most prevalent, but not the only, example). **Response:** See response to comment 3.2.2.
**Comment 3.12.7**  **:** * RCRA is Poorly Suited to Regulate CCS CO 2 Streams RCRA’s structure is to provide “cradle

-to
-grave” tracking and management of hazardous wastes. It is not clear to us how that can ever be achieved for CO 2 injected as part of CCS. In geologic sequestration, various streams of CO 2 would be injected and mixed. There is no practical way to track one stream vs. another. **Response:** It is not clear from the comment in what particular ways the commenter views mixed CO 2 streams as “poorly suited” for RCRA. In any case, CO 2 streams managed in accordance with the conditional exclusion would not be subject to ot her RCRA hazardous waste requirements, such as manifesting. Moreover, EPA believes that the applicable DOT requirements for pipelines and non

pipeline transport are sufficient to ensure proper handling and transport of CO 2 streams . The UIC Class VI well requirements also provide sufficient protections where they apply

. R egarding multiple sources of CO 2 streams, share d pipelines, and similar issues see Responses to Comments 3.2.3 and 3.2.4. **Comment:** * CO 2 Streams Are Not “Solid Wastes” The Roundtable sha res the opinion of the North American Carbon Capture and Storage Association that CCS CO 2 streams do not meet RCRA’s definition of solid waste. RCRA defines “solid waste” as including “discarded material, including solid, liquid, semi

- solid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations...”[FN5: 42 USC Section 6903(27)]. CCS CO 2 streams neither have the physical form of a solid waste (as defined under the Act), nor have they been “discarded.” **Respons e:**  See Responses to Comments 3.1.6 through 3.1.8

. See also Responses to Comments 3.14. 6 through 3.14.8.
**Comment 3.12.9**  **:** While CCS CO 2 streams are gases compressed to a supercritical state, they are not “contained.” RCRA regulations differentiate between t hose gases in non

-flow

-through containment systems (which are included in RCRA’s definition of solid waste) with those that are simply passing through128

infrastructure for a specific purpose. That latter situation fits CCS CO 2 streams, which are captured and then flow through a pipeline to a storage location. Under RCRA, such gases are considered “uncontained” and would be outside the definition of solid waste. **Response:** See response to comment 3.1.7. Accordingly, the distinctions the commenter seeks to ma ke between gases managed in “non

-flow

-through containment systems” and gases that are “passing through infrastructure” are not germane in this context.
**Comment 3.12.10**  **:** We also are unclear how CCS CO 2 streams can be considered “discarded” within the mea ning defined in RCRA. They are not being disposed of or abandoned. The fact that these streams are being stored implies their availability for future use. The fact that there are economic uses for CO 2, and that CO 2 is currently being utilized as a commodity, refutes the suggestion that the materials are a waste without future beneficial use. **Response:** See Responses to Comments 3.1.8, and 3.2.2.
**Comment 3.12.1**  **1 :**  *CO 2 Streams Are Not Hazardous EPA acknowledges in the proposed rule that it has little inform ation that would lead it to conclude that CO 2 streams would qualify as RCRA hazardous wastes. [FN6: 76 Fed. Reg. at 48078]. The gases that are emitted in flue gas stream of coal

-fired power plants would not generally contain constituents in sufficient conc entrations to warrant concern. EPA appears to be asserting RCRA authority to provide “belts

-and

- suspenders” regulatory coverage. **Response:** EPA appreciates commenters’ concerns regarding the application of the hazardous waste regulations to supercritical C O 2 streams being sequestered. EPA believes these concerns exist as a result of the unique circumstances associated with addressing the applicability of RCRA to CCS at such an early stage in the development of CCS. However, it is important to note that EPA did not set out in this rulemaking to conclude that those supercritical CO 2 streams that are solid wastes would, as a class, exhibit a RCRA characteristic. Indeed, EPA indicated in the proposed rule that it could not unequivocally conclude that supercri tical CO 2 streams will never exhibit any RCRA hazardous waste characteristic and commenters provided no information to the contrary. Alternatively, EPA acknowledges that some RCRA hazardous characteristics are unlikely to apply to a waste composed of >90% CO 2, such as ignitability (i.e., RCRA Waste Code D001). Thus, in light of the early state of data development in this area, EPA intends to bring additional clarity to the regulatory regime through this rule, by establishing a conditional exclusion from th e definition of hazardous waste that would apply in the event a generator determines that its CO 2 streams exhibit a RCRA hazardous characteristic.
**Comment 3.12.1**  **2 :**  While understanding EPA’s impulse to be cautious, we urge the Agency to be extremely carefu l in its characterization of CO 2 . As has been previously noted, a successful climate change control program will necessarily be predicated on development of

-- and public support for

-- CCS. EPA could inadvertently, and inappropriately, stigmatize CCS, if it veers into an unwarranted categorization of CO 2 as a potential hazardous waste. That would put advancement of CCS129

commercialization into a deep freeze. Such an outcome would clearly be counter

- productive. **Response:** See response to comment 3.12.1 1

. EPA believes a consistent regulatory approach to GS will help facilitate development and deployment of CCS technologies in the United States, rather than discourag e deployment.
**Comment 3.12.1**  **3 :**  Captured CO 2 streams are already covered under federal pipeline t ransportation regulations and the Agency’s own recently finalized SDWA Underground Injection Control Class VI Rule. **Response:** EPA acknowledges th e comment
. See response to comment 3.12.1 1

. That management of CO 2 streams is regulated by other federal programs does not affect the question of whether a particular CO 2 stream may exhibit a RCRA hazardous waste characteristic.
**Comment 3.12.1** **4 :**  Avoid Duplicative Recordkeeping Requirements In the proposed rule, EPA seeks comment on the need for additional monito ring record

- keeping and reporting requirements. We do not believe additional requirements should be placed on the generators or the operators of CO 2 sequestration wells. EPA already has established extensive requirements for monitoring and documentation un der its UIC Class VI well rulemaking. This appears to us a perfect opportunity for EPA to demonstrate its commitment to the goals set out in President Obama’s Executive 13563: Improving Regulation and Regulatory Review. **Response:** See Response s to Comment s 3.2.40 and 3.2.43

. It is not clear to which goals in E.O. 13563 the comment refers.
**Comment 3.12.15**  **:** CONCLUSION On behalf of the many member organizations of the Western Business Roundtable, thank you for the opportunity to provide our input on this cru cially important public policy issue, the implications of which are so pivotal to the continued vitality of the West. **Response:** EPA acknowledges the comment

.



### 3.13 **Greater Houston Partnership (GHP)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0074 Comment**  **3.13.1 :**  The Greater Houston Partnership (GHP) appreciates the opportunity to provide comments on the Environmental Protection Agency’s (EPA) proposed rule entitled “Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide ( CO 2 ) Streams in Geologic Sequestration Activities.”130

GHP represents the 10 -county Houston region’s business interests to promote economic prosperity through the growth of high paying jobs, international trade and capital investment. As the primary advocate of Houston’s business community, GHP lobbies on behalf of its Members regarding the development of environmental regulation for our 10 -county region. The proposed rule will have significant impact on the state of Texas. Texas has advantageous geologic forma tions for the storage of anthropogenic CO 2 . The state has one of the largest storage capacities in the country. The U.S. Department of Energy’s National Energy Technology Laboratory estimates Texas’ onshore storage capacity between 661 million and 2.4 bill ion tons of CO 2 . GHP concurs and supports the comments submitted by the American Petroleum Institute (API) and the North American Carbon Capture & Storage Association (NACCSA). **Response:** EPA acknowledges the comment and refers to the Agency’s Responses t o C omments in Sections 3.1 (API) and 3.14 (NACCSA)

. **Comment 3.13.2**  **:** GHP believes adequate enforcement mechanisms to protect human health and the environment from CO 2 streams currently exist under the Clean Air Act’s reporting requirements and under the Un derground Injection Control (UIC) Class VI Rule under the Safe Drinking Water Act to protect underground sources of drinking water. Additional regulation under the Resource Conservation and Recovery Act (RCRA) is redundant and could lead to unintended cons equences that would undermine beneficial uses of CO 2 streams for carbon capture and sequestration and enhanced oil and gas recovery. EPA should enact an exclusion of all carbon dioxide streams, with a conditional exclusion for supercritical CO 2 streams, from the RCRA definition of solid waste at this time. If CO 2 streams were deemed solid wastes, the potential regulatory burdens associated with that designation will discourage companies from handling CO 2 streams to the detriment of EPA’s efforts to remove CO 2 emissions from the atmosphere. **Response:** S ee Responses to Comment s 3.1.1. and 3.1.2. Regarding the commenter’s statement that regulation under RCRA is not necessary because of adequate regulation under other statutes, EPA in fact considered the effect of other statutory requirements, and this conditional exclusion is based upon EPA’s determination that the management of these CO 2 streams under other statutes provides protection to h uman health and the environment; therefore, additional regulation pu rsuant to RCRA hazardous waste regulations is unnecessary. R egarding the commenter’s references to “potential regulatory burdens” associated with CO 2 streams that are deemed solid wastes (management of which may be outside the scope of this rule) , and “unintended consequences” of additional regulation under RCRA, the commenter did not provide specific information or examples of these, and therefore, while EPA acknowledges these comments it cannot provide more specific responses.



### 3.14 **North American Carbon Capture & Storage Association (NACCSA)** 
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0078 Comment**  **3.14.1 :** 131

On behalf of the North American Carbon Capture and Storage Association ("NACCSA"), we are pleased to provide the Environmental Protection Agency ("EPA" or the "Agency") with these comments on the proposed rule entitled "Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide (" CO 2 ") Streams in Geologic Sequestration Activities." 76 Fed. Reg. 48073 (Aug. 8, 2011).[FN1: A technical correction was published on September 9, 2011. 75 Fed. Reg. 55846.] About NACCSA NACCSA is a nonprofit organization of companies in North America that support the development of a sustainable carbon dioxide capture and storage ("CCS") industry i n the United States and Canada. NACCSA members [FN2: NACCSA members are American Electric Power; American Petroleum Institute; Anadarko Petroleum Corporation; Arch Coal Inc.; Blue Source LLC; Denbury Resources, Inc.; Halliburton; Kinder Morgan; Occidental Petroleum Corporation; Peabody Energy; Sasol; Schlumberger Carbon Services; Shell; and Tenaska.] include companies involved in developing commercial processes to mitigate greenhouse gas emissions through CCS, and specialists engaged in the technical, comme rcial, financial and develop mental aspects of CCS activities in both the U.S. and Canada. **Response:** EPA acknowledges the comment

. **Comment 3.14.2**  **:** Executive Summary NACCSA supports the conditional exclusion for CO 2 streams from the Resource Conservation & Recovery Act's ("RCRA") hazardous waste regulations but recommends that it be recast as an exclusion from the definition of "solid waste" because of CO 2 's unique properties and uses, coupled with the fact that CO 2 streams are not "discarded." Failure of E PA to clarify that eligible CO 2 streams are not "solid wastes" will leave CCS projects with unnecessary regulatory uncertainty while doing little to advance public health and environmental protection, given the rigorous requirements of the recently finaliz ed Underground Injection Control ("UIC") Class VI rule. If EPA elects to retain the proposed approach of a conditional exclusion for CO 2 streams from RCRA's hazardous waste regulations, we recommend that the proposed regulation be clarified to remove as m uch regulatory ambiguity as possible, as we set forth in detail below. **Response:** See response to c omments 3.1.1 and 3.1.2.
**Comment 3.14.3**  **:** Specific Comments EPA proposes to "conditionally" exclude “ CO 2 streams”, [FN3: EPA explains that a "Carbon dioxide ( CO 2 ) stream" is “Carbon dioxide that has been captured from an emission source (e.g., power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process." 76 Fed.Reg. at 48075.] that "are hazardous from the definition of hazardous waste, provided these hazardous CO 2 streams are captured from emission sources, are injected into Class VI [UIC] wells for purposes of geologic sequestrat ion ... 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 CO 2 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 waste132

regulations is unnecessary." Id. EPA notes that the conditional exclusion will provide additional regulatory certainty. NACCSA supports the proposed "conditional excl usion" as far as it goes because it endeavors, albeit incompletely, to clarify the regulatory regime for CCS while ensuring stringent protection of human health and the environment. We nonetheless believe that the "conditional exclusion" falls short of wha t is needed to provide adequate regulatory certainty for industry for the following reasons. **Response:** See response to c omment 3.1.3. **Comment 3.14.4**  **:** A. CO 2 Streams Are Not "Wastes" EPA's proposal is premised on the notion that RCRA potentially applies t o " CO 2 streams" in the first instance. This premise is false for two reasons. First, Congress, in enacting RCRA, never envisioned regulation of a molecule such as CO 2 . In comparison to other materials regulated under RCRA, CO 2 is unique. It performs a var iety of beneficial and ubiquitous roles in a variety of natural (e.g., uptake by plants) and industrial ( i. e., enhanced o il recovery, or EOR) functions. Several states already have declared CO 2 to be a "commodity" for these reasons. [FN4: See, e.g., Oklaho ma SB 1610 ("Carbon dioxide is a valuable commodity to the citizens of the state").] If CO 2 is subject to RCRA, perhaps water should be, too. A person can drown in water, but that doesn't mean that H 2 O is hazardous within the meaning of RCRA. [FN5: We do n ot believe that Massachusetts v. EPA, 549 U.S. 497 (2007), a Clean Air Act case, bears on the status of CO 2 for purposes of geologic sequestration

. ] **Response:** See Response s to Comment s 3.1.4 and 3.1.5

. **Comment 3.14.5**  **:** Second, and similarly, RCRA was never meant to apply to CCS and thus the statute provides a poor tool to regulate the activity. Nothing in RCRA or its regulations purport to apply to CCS generally or geologic sequestration specifically. The RCRA model is prospective "cradle

-to
-grave" waste management and tracking. CCS, on the other hand, currently involves the injection of CO 2 for beneficial purposes. That activity, moreover, is envisioned to involve mixed streams of CO 2 from multiple sources, thereby frustrating the notion of tracking waste s through manifests and the like. There also is no standardized test method to evaluate supercritical CO 2 . For these and other reasons, trying to fit CCS under RCRA is the classic example of trying to wedge a square peg into a round hole. **Response:** See Re sponse s to Comment s 3.1.5 and 3.12.7

. **Comment 3.14.6**  **:** B. CO 2 Streams Are Not "Solid Wastes" The conditional exclusion is rooted on the unsupported premise that captured anthropogenic CO 2 is a "solid waste." EPA asserts that a "supercritical CO 2 stream ... is a RCRA solid waste, as it is a 'discarded material' within the plain meaning of the term in RCRA § 1004(27)." 76 Fed. Reg. at 48077

- 78. [FN6: Relevant provisions of RCRA § 1004(27) define "solid waste" as "other discarded material, including solid, liq uid, semisolid, or contained gaseous material resulting from ... industrial operations .... "]133

EPA does not offer a detailed justification for its claim that CO 2 streams are "discarded," so we begin with an analysis of how RCRA and its regulations define that term. Subtitle C of RCRA, which regulates hazardous wastes, applies only to a "solid waste" that is "hazardous.” [FN7: T. Garrett, ed., "The RCRA Practice Manual” at 2, 2nd ed. (ABA 2004)

. ] To be regulated as a "solid waste , " a material must satisfy three criteria, two of which are relevant: (1) it must have the physical form of a solid waste; and (2) it must be "discarded.” [FN8: Id. at 33.] Neither of these criteria is met here. **Response:** See Response s to Comment s 3.1.6 and 3.1.7

. **Comment 3.14.7**  **:** CO 2 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 ag ricultural operations .... " 42 U.S.C. § 6903(27) (emphasis added). Supercritical states of material, such as is relevant for CO 2, are not listed in this definition. Before it is compressed to a supercritical state, moreover, CO 2 is a gas. By "contained g as" in the definition above, EPA means [FN9: Id. at 33

- 34 (emphasis added)

. ]:

“ a gas that is contained in a cylinder or other non

-flow

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

. ” Applying this relatively narrow concept of "contained gas” it is clear that a CO 2 stream
- - which at minimum spends part of its life "flowing through a pipe” is not a solid waste because it does not have the necessary form to be swept up under RCRA's jurisdiction. [FN10: The fact that a CO 2 stream is not a "contained gas" should not be interpreted to suggest that geologic storage is not an effective means of long

-term storage, as it is. "Contained gas" is a regulatory concept only.] **Response:** See response to c omment 3.1.7. **Comment 3.14.8**  **:** CO 2 Streams Are Not Discarde d. 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 reg ulations explain that a "solid waste" is any " discarded material " that is "not excluded under § 261.4(a) [FN11: 40 C.F.R. § 261.4(a) excludes through numerous specific listings "[m]aterials which are not solid wastes."] or that is not excluded by a varianc e granted under §§ 260.30 [FN12: 40 C.F.R. § 260.30 deals with non

-waste determinations and variances from classification as a solid waste.] and 260.31[FN13: 40 C.F.R. § 260.31 sets forth standards and criteria for variances from classification as a solid waste.] or that is not excluded by a non

-waste determination under §§ 260.30 [FN14: See note 12, supra

. ] and 260.34 [FN15: 40 C.F.R. § 260.34 sets forth standards and criteria for non

waste determinations.]. " [FN16: 40 CF.R. § 261.2 (definition of " solid w aste") (emphasis and134

internal footnote references added).] A " discarded material," in turn, is " any material" that is: (1) abandoned; (2) recycled; or (3) considered inherently waste

- like

. [FN17: 40 C

. F.R. § 2 61.2 ( a )( 2 )( i)

. ] Although they do not define th e term " material," EPA's regulations set forth detailed criteria that must be met before a material is deemed to be " discarded" via the " abandoned," " recycled," or
" inherently waste

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

. F.R. § 261.2 ( b ) .] *Recycled. Ma terials 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) reclai med; or (d) accumulated speculatively. [FN19: 40 C .F.R. § 261.2(c) .] *Inherently waste

- like. Specifically identified materials, not including CO 2, also are " solid waste" if they are recycled in any manner, and thus deemed to be “inherently waste

- like mate rials.” [FN20: 40 C .F.R. § 261.2( d ) .]

" CO 2 streams" do not meet any of these three RCRA regulatory requirements. * CO 2 streams are not abandoned. CO 2 streams are not burned or incinerated, nor are they
" d isposed of." The " S" is CCS stands for either " sto rage" or " sequestration," neither of which contemplates " disposal." The Merriam Webster Dictionary defines " sequester" as " to set apart, segregate" or to " seclude, withdraw.” [FN21: http://www.merriam

webster.com/dictionary/seguestered?show=0&t=1315859974 .] Synonyms for " sequestration" include " isolation" and " seclusion. " [FN22: http://www.merriam

webster.com/dictionary/seguestration.] "Disposal," on the other hand, is defined as the act of "disposing," which means “to get rid of.” [FN23: http://www.merria m webster.com/dictionary/disposing.] " Abandonment" also suggests that the material being abandoned is not thereafter managed; under the Class VI rule, injected CO 2 will be

- and is required to be

- carefully managed. Based on a " plain meaning" analysis, C CS does not contemplate
" disposal

. " The concept of " disposal" is also inconsistent with how the bulk of CO 2 is currently being managed commercially today. With the exception of demonstration and related projects, most if not all of the CO 2 that is geologi cally injected today is used for EOR. In that application, it is purchased and transacted as a valuable commodity. As explained further below, EPA's Class VI rule envisions that concurrent EOR/storage may be conducted under Class II as long as certain cond itions are met

- a usage that flatly contradicts EPA's assertion here that injection is a “disposal activity."
CO 2 that is injected in saline reservoirs under Class VI also is not " disposed of." It is conceivable, for example, that such CO 2 may be later a t least partially withdrawn and put to a beneficial, but still non - atmospheric

- emitting, use. Such CO 2 may also be used for reservoir maintenance as part of concurrent long

-term storage/desalination operations, as explained by William Bourcier of Lawrence Livermore National Laboratory at the August 18, 2010 meeting of the California CCS Review Panel

. [FN24: http://www.climatechange.ca.gov/carbon capture review135

panel / meetings/2010

-08

- 18/presentations/01 Bourcier Cal CCS

- Pane l. pdf

. ]
CCS

- related offset credi ts 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 o f 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.

* CO 2 streams are not recycled. RCRA's provisions regarding "recycle" are detailed, and none of them apply to CO 2 streams
- nor has EPA claimed the same.[FN25: The fact that CO 2 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 CO 2 that is geologically injected is transacted as a valuable commodity as "co

- products," the recycle regulations do not apply. [FN26: T. Garrett, ed., "The RCRA Practice Manual," at 36.]

* C O 2 streams are not "inherently waste

- like." RCRA' s provisions regarding "inherently waste

- like" materials also are detailed, and none of them applies to C O 2 streams
- nor has EPA claimed the same. **Response:** See response to c omment 3.1.8

. In regards to the comment that careful management of the material would render material in a Class VI well not a waste and that ‘aban donment’ is not occurring because it is being managed, EPA disagrees. Whether the material is being managed, carefully or not, does not bear on whether injection into a Class VI well for purposes of GS is to discard a CO 2 stream. Injection of a CO 2 stream into a Class VI well for purposes of GS is effectively “getting rid of” the CO 2 stream by keeping it underground indefinitely. Indeed, RCRA hazardous wastes are subject to controls after disposal (e.g., post

- closure care at a RCRA hazardous waste landfill ). It is thus very clear that C O 2 streams managed in a Class VI well for purposes of GS are solid waste.
**Comment 3.14.9**  **:** C

. CO 2 Streams Are Not "Hazardous Wastes" Assuming for the moment that CO 2 streams are "solid wastes"

- and they are not, as described above

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

- called "mixture rule." Id.136

Neither of these hypothetical scenarios is plausible. With respect to whether a CO 2 stream exhibits hazardous characteristics, EPA seems to acknowledge that there is no available standardized analytical test method for supercritical materials such as CO 2 or a " CO 2 stream.” [FN29: 76 Fed. Reg. at 48078 n. 22 ("EPA notes that existing analytical test methods ... are available to quantify the levels of various hazardous constituents in gaseous streams, although sampling a supercritical CO 2 stream may require particular sampling protocols ") (emphasis added).] EPA may only define a characteristic of a hazardous waste if the characteristic can be: (1) measured by an "available standardized test method which is reasonably within the capability of generators of sol id waste or private sector laboratories that are available to serve generators of solid waste," or (2) "reasonably detected by generators of solid waste through their knowledge of their waste.” [FN30: 40 C.F.R. § 261.10(a)(2).] This two

-factor test simply cannot currently be met for supercritical CO 2 streams based on available standards. Even if a standardized analytical test method were available for supercritical CO 2, we are not aware of any information which would suggest that supercritical CO 2 meets an y of EPA's hazard characteristics. Supercritical CO 2 is not: (1) ignitable under 40 C.F.R. § 261.21; (2) corrosive under 40 C.F.R. § 261.22 [FN31: 31 Supercritical CO 2 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 CO 2 is not a "liquid" and does not corrode the steel pipelines through which it has been transported safely for several decades. EPA hints that corrosivity could be an issue down hole through interact ion with in

situ reservoir fluids, but that scenario is not contemplated by 40 C.F.R. § 261.22.]; (3) reactive under 40 C.F.R. § 261.23; or (4) toxic under 40 C.F.R. § 261.24

. [FN32: Toxicity is assessed under Test Method 1311, the so

-called Toxicity Chara cteristic Leaching Procedure ("TCLP"). 40 C.F.R. § 261.24(a)

. The TCLP is inapplicable to supercritical CO 2 and CO 2 streams, as the TCLP was "intended to reflect the potential for leaching to groundwater that results from the codisposal of toxic wastes in an actively decomposing municipal landfill generating an acidic leachate." T. Garrett, ed., "The RCRA Practice Manual," at 52. With reference to a 2006 paper from Lawrence Livermore National Laboratory, EPA suggests that certain impurities are "relevant" for toxicity regulation under § 261.24(a). However, all of the impurities referenced by EPA as potentially being present in certain CO 2 streams are at levels which are orders of magnitude lower than the relevant regulatory levels set forth in the regulation s. ] In the preamble to the final Class VI rule, EPA stated that it had reviewed estimates of CO 2 injectate quality, and based upon that assessment, "captured CO 2 could contain some impurities.” [FN33:75 Fed. Reg. 77230, 77260 (Dec. 10, 2010).] The possible presence of "impurities"

- the term used by EPA

-- does not trigger any of EPA's hazard characteristic tests. [FN34: We believe that it would be helpful to have regulatory clarity over sour gas injections related to gasification facilities. It is conceiva ble that in a gasification facility, for example, cost

effectiveness might dictate that a mixed stream of gaseous CO 2 and H 2S not be separated. If that combined stream were compressed to a supercritical state, and assuming that a standardized analytical te st method were available to assess it, the combined stream could in theory trigger the toxicity threshold. Even here, however, describing the H 2S as an "impurity" would have no regulatory significance.] The term "impurity" is irrelevant from a regulatory standpoint under RCRCA. In the absence of an available standardized analytical test method, the Agency asserts that the RCRA regulations "allow generators to apply their knowledge

- in lieu of testing

- of the hazard characteristic of a waste, in light of the materials or processes used, to determine whether that waste is a characteristic hazardous waste under RCRA.” [FN35: 76 Fed. Reg. 48078

. ] Section 262.11(c)(2) of the RCRA regulations provides that, in lieu of the use of a standardized analytical137

test m ethod, 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 mater ials and processes, coupled with current uses of CO 2, a generator is unlikely to have a reasonable belief that its CO 2 stream is hazardous. EPA references the following March 2006 study by Lawrence Livermore National laboratory to support an inference tha t certain "impurities" could be present in CO 2 streams from coal

- based facilities: Apps, J.A., "A Review of Hazardous Chemical Species Associated with CO 2 Capture from Coal

- Fired Power Plants and Their Potential Fate in Geologic Storage.” [FN36: Id. at 480 79 n. 24.] Contrary to EPA's suggestion that this study supports the notion that regulators should be concerned about the inadvertent constituents of CO 2 streams, the study proves just the opposite (id. at p. 44) :

“The preceding evaluation shows quite cle arly that the concentrations of other chemical components accidentally incorporated in CO 2, when captured from conventional coal fired power plants, or from advanced coal

-fired IGCC plants, will be at most, relatively insignificant . For minor volatile spec ies of S, N, F. and C L, the concentration of CO 2 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 pa per ultimately concludes that " the concentrations of inadvertent contaminants in the injected CO 2 would probably be comparable to the ambient concentrations in confining shales of the injection zone ." Id. at 1 (emphasis added). [FN37: The rest of the Lawre nce Livermore paper deals with the "mixture rule" scenario which, as noted above, is not relevant as that activity is already prohibited by the UIC Class VI rule.] In other words, according to this key reference cited by EPA, CO 2 streams have a comparable concentration of naturally occurring materials in the subsurface environment. With respect to the hypothetical scenario based on the mixture rule route of regulation, EPA has advanced no record evidence to support this case. Furthermore, the UIC Class VI rule itself prohibits the co

- injection of RCRA hazardous waste, so the mixture rule scenario is inapplicable.[FN38: 75 Fed. Reg. at 77260 ("Class VI wells may not be used for the co

- injection of RCRA hazardous wastes")

. ] **Response:** See response to c omment 3.1.9. With respect to the commenter’s request for clarity over the status of mixed CO 2 and H 2S streams, see response to c omments 3.6. 4, 3 .6.6, and 3.20.5 related to Acid Gas Injection (AGI)

. **Comment 3.14.1** **0 :** 138

D. NACCSA Otherwise Supports the Proposed Con ditional Exclusion, But Believes That EPA Could Provide Further Regulatory Clarity EPA's conditional exclusion is largely premised on the notion that CO 2 streams already are subject to stringent regulation. We agree. As to generators, in the vast majori ty of commercial scenarios, there will be no on

- site storage of CO 2 . Instead, as EPA states, captured CO 2 will be immediately transported offsite via pipelin e. [FN39: 76 Fed. Reg. at 48081.] From a geologic sequestration point of view, the industrial sourc e's role is rather perfunctory, aside from complying with the terms and conditions of the relevant CO 2 offtake contract.[FN40: A typical CO 2 offtake contract obligates the source to deliver specified volumes or quantities of CO 2 under minimum pressure and quality specifications at a nominated delivery point.] Subparts UU/RR to the GHG reporting rule also provide EPA with relevant information. [FN41: 76 Fed. Reg. at 48082 .] EPA also notes, and we agree, that the transportation of CO 2 is also stringently and effectively regulated by the U.S. Department of Transportation ("DOT”). [FN42: We do not entirely agree with EPA's characterization of DOT's regulation, however. Although the RCRA proposal refers to " CO 2 streams," EPA shifts gear here and refers only to " CO 2 ." Also, supercritical CO 2 does not appear in DOT's hazmat table. The hazmat table instead lists three forms of CO 2 : (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 empha size, as it already suggests, that DOT does not regulate the pipeline transportation of CO 2 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 reg ulates the interstate pipeline of CO 2 as a non - hazardous liquid, and relevant States apply comparable standards for intrastate pipelines. [FN43: Nordhaus, R., "Carbon Dioxide Pipeline Regulation," 30 Energy Law J. 85 (2009).] **Response:** See Response to 3.1 .10. **Comment 3.14.1**  **1 :**  We agree with the Agency that the UIC Class VI rule provides a comprehensive management regime for CO 2 streams that renders duplicative any potential additional regulation under RCRA. [FN44: 76 Fed. Reg. 48084

-48085.] We also agree th at CO 2 streams subject to the conditional exclusion would not be subject to RCRA's land disposal restrictions or separate provisions regarding corrective action. [FN45: Id. at 48085

-48086.] We do not understand why EPA proposes to make the conditional exc lusion subject to the additional requirement that no hazardous wastes may be mixed with, or otherwise co - injected with, the CO 2 stream, given that those activities are already barred under the UIC Class VI rule.[FN46: Id. at 48086.] EPA states that the co nditional exclusion may be lost at any time, a situation which may serve to substantially weaken the exclusion's salutary effects given that the Agency appears to be holding out the potential for down

- hole formation of carbonic acid at some future date in a storage facility's lifetime [FN47: Id. at 48087.]:

“ Failure to meet the conditions results in the loss of the exclusion. As proposed, a violation of a condition at any point in the management of a CO 2 stream would139

result in the CO 2 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

- h ole, due to no fault of any party, could be deemed to have created or liberated a material that a future regulator or claimant considers to be of concern. This situation will increase, not decrease, regulatory certainty.
**Response:** EPA acknowledges the comm enter’s agreement with EPA’s finding that the UIC Class VI rule provides a comprehensive management regime for CO 2 streams, such that management of CO 2 streams in accordance with these requirements and other conditions, does not present a substantial risk to human health and the environment, therefore additional regulation under RCRA is unn e cessary, and that CO 2 streams subject to the conditional exclusion would not be subject to RCRA's land disposal restrictions or separate provisions regarding corrective action. See Response s to Comment s 3.1.11

- 3.1.13. **Comment 3.14.1**  **2 :**  EPA emphasizes that the generator is responsible for the initial, and perhaps sole, hazard determination, but this conflicts with the definition of " CO 2 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 CO 2 to a storage site via a pipeline transporter, and the site owner/operator thereafter adds incidental ma terials to facilitate injection? It would be punitive in that situation to hold the industrial source liable for the site owner/operator's activities. The conditional exclusion is premised on a linear model of CCS operations under which a single source de livers CO 2 to a single transporter (expected to be a pipeline) who in turn delivers the CO 2 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 CO 2 into the same pip eline, which in turn will deliver the CO 2 to a storage site that receives and stores CO 2 from multiple sources. That storage site may also already hold, or accept for delivery, volumes of natural CO 2 . [FN48: This situation further supports our position tha t RCRA was never intended to apply to CCS.] Since CO 2 streams will be commingled, and CO 2 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 Su perfund, where at least there is the hope of finding labels on drums to identify sources and parties, no such hope exists for commingled CO 2 molecules, particularly after they have already been injected into the subsurface. [FN49: EPA's approach also assum es a simplistic, unitary model of pipeline operation and regulation that is unlikely to apply in initial projects. Experts have identified three models of pipeline operation and regulation

- one premised exclusively on deep saline injections, another premi sed exclusively on EOR, and a “hybrid" model that supports both (and potentially other) uses. Commercial operations under each model are expected to be unique, with deep saline pipelines having an “upstream" focus and EOR pipelines having a “downstream" fo cus. Marston P., "From EOR to CCS: The Evolving Legal and Regulatory Frame work for Carbon Capture and Storage," 29 Energy Law J. 421,463

-465 (2008). EPA's proposal adds to this already confusing framework a new consideration

- is the material being transp orted and commingled with other CO 2 a “solid waste" or "hazardous waste"?]140

**Response:** See response to c omment s 3.1.14, 3.2.3 and 3.2.4.
**Comment 3.14.1**  **3 :**  EPA states that the conditional exclusion only applies to " CO 2 streams" that have been captured for pu rposes of “geologic sequestration."[FN50: 76 Fed. Reg. at 48086.] EPA never explains how that purpose is to be determined, an ambiguity that could negatively impact concurrent EOR/storage. The Agency explains that [FN51: Id. at 48078 n. 16.]:

“The propos ed rule is not intended to affect the status of CO 2 that is injected into wells other than UIC Class VI wells. For example, CO 2 that is used for enhanced o il or gas recovery (EOR/EGR) in other than UIC Class VI wells, where some sequestration may occur in the process of recovering gas or o il , is beyond the scope of this proposal.” This limitation provides no regulatory clarity for UIC Class II concurrent EOR/storage projects that qualify for the risk

- based factor test of 40 C.F.R. § 144.19 under the UIC Cl ass VI rule which allows sequestration to occur under Class II if there is no increased risk to USDWs

. [FN52: 75 Fed. Reg. at 77245.] It is imperative that EPA make clear either that: (1) the conditional exclusion also applies to EOR operators under 40 C.F .R. § 144.19, or (2) the RCRA status of EOR operators under 40 CF.R. § 144.19 is identical to that of business

- as - usual EOR operators under Class II without claims of sequestration. [FN53: “The agency has decided not to regulate o il and gas industry exploration and production wastes and mineral extraction and beneficiation and certain mineral processing under RCRA Subtitle C

. " T. Garrett, ed., “The RCRA Practice Manual," at 3.] **Response:** See Responses to Comments 3.1.1, 3.1.11, 3.1.15 and 3.6.7

. **Comment 3.**  **14.1 4**  **:** EPA erroneously states that RCRA's § 7003 imminent hazard authorities would continue to apply under the conditional exclusion.[FN54: 76 Fed. Reg. at 48088.] For the reasons stated above, " CO 2 streams" are neither solid nor hazardous wastes, so § 700 3

- which only applies to solid or hazardous wastes

-- does not apply to CO 2 streams. For the same reason, EPA should clarify that RCRA's citizen suit provision

-- § 7002

- also does not apply to CO 2 streams. **Response:** See response to c omment 3.1.16. **Com ment**  **3.14. 15**  **:** We encourage EPA to clarify that CO 2 streams subject to the conditional exclusion also are not subj ect to Superfund. [FN55: A CERCLA "hazardous substance" is defined to include all RCRA hazardous wastes, and because CO 2 streams are not hazard ous wastes, it is appropriate for EPA, in this rulemaking, to provide critical regulatory clarity for CCS under the Superfund statute, too.] **Response:** See response to c omment 3.1.17. **Comment 3.14.**  **16 :**  Recommended Regulatory Changes For the reasons stated above, if EPA elects to continue to pursue the conditional exclusion route, we suggest that th e proposed exclusion in § 261.4( h) be revised to read as follows [FN56: The full text of EPA's proposed conditional exclusion is shown, with suggested additions u nderlined and141

deletions struck.]: (h) Carbon Dioxide Stream Injected for Geologic Sequestration. Carbon dioxide streams that are captured and transported for purposes of injection into an underground injection well subject to the requirements for Class VI Underground Injection Control wells, including the requirements of 40 CFR parts 144 and 146 of the Underground Injection Control Program of the Safe Drinking Water Act, are not a hazardous waste, provided the following conditions are met. (1) Carbon diox ide 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) requiremen ts; (ii) Injection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 CFR parts 144 (INCLUDING § 144.19) and 146; (iii) No <oth er> hazardous waste may be mixed with, or otherwise co

- injected with, the carbon dioxide stream AT THE GENERATOR'S FACILITY OR SITE; and (iv) Any generator of a carbon dioxide stream, and any Class VI Underground Injection Control well owner or operator, who claims that a carbon dioxide stream is excluded under paragraph (h)( 1 ) of this section, must have an authorized representative (as defined in 40 CFR 260.10) sign a certification statement worded as follows: I certify under penalty of law that the carb on dioxide stream that I am claiming to be excluded under 40 CFR 261.4(h)(1) meets all of the conditions set forth in that paragraph. The signed certification statement must be kept on

- site for no less than three years. The signed certification statement must be made available within 72 hours of a written request from the Regional Administrator (if located in an authorized state), or their designee, and shall be renewed every year by persons claiming the exclusion in 40 CFR 261.4(h). This yearly renewable of a certification statement under this paragraph means that an authorized representative must annually prepare and sign a new copy of the certification statement. **Response:** See response to c omment 3.1.1 8

. **Comment 3.14.17**  **:** In lieu of addressing the statu s of CO 2 streams under proposed exclusion in § 261.4(h), even as modified above, which leaves " CO 2 streams" as solid wastes, we recommend instead that EPA make clear that " CO 2 streams" are neither solid nor hazardous wastes. The Agency could do so by promu lgating a new § 261.4(a)(26) as follows [FN57: Suggested additions are {capitalized} .]: (a) Materials which are not solid wastes. * * *142

(26) CARBON DIOXIDE ( CO 2 ) STREAMS. CARBON DIOXIDE STREAMS THAT ARE CAPTURED AND TRANSPORTED FOR PURPOSES OF INJECTION INTO AN UNDERGROUND INJECTION WELL SUBJECT TO THE REQUIREMENTS FOR CLASS VI UNDERGROUND INJECTION CONTROL WELLS, INCLUDING THE REQUIREMENTS OF 40 CFR PARTS 144 (INCLUDING § 144.19) AND 146 OF THE UNDERGROUND INJECTION CONTROL PROGRAM OF THE SAFE DRINKING WATER ACT, ARE NOT A SOLID WASTE PROVIDED THAT THE GENERATOR ALSO COMPLIES WITH THE FOLLOWING REQUIREMENTS: (I) TRANSPORTATION OF THE CARBON DIOXIDE STREAM MUST BE IN COMPLIANCE WITH APPLICABLE DEPARTMENT OF TRANSPORTATION (OR ANALOGOUS STATE) REQUIREMENTS; (II) INJECTION OF THE CARBON DIOXIDE STREAM MUST BE IN COMPLIANCE WITH THE APPLICABLE REQUIREMENTS FOR CLASS VI UNDERGROUND INJECTION CONTROL WELLS, INCLUDING THE APPLICABLE REQUIREMENTS IN 40 CFR PARTS 144 (INCLUDING § 144.19) AND 146; (III) NO HAZAR DOUS WASTE MAY BE MIXED WITH, OR OTHERWISE CO

- INJECTED WITH, THE CARBON DIOXIDE STREAM AT THE GENERATOR'S FAC IL ITY OR SITE; AND (IV) ANY GENERATOR OF A CARBON DIOXIDE STREAM, AND ANY CLASS VI UNDERGROUND INJECTION CONTROL WELL OWNER OR OPERATOR, WHO CLAI MS 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 A M 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 W ITHIN 72 HOURS OF A WRITTEN REQUEST FROM THE REGIONAL ADMINISTRATOR (IF LOCATED IN AN AUTHORIZED STATE), OR THEIR DESIGNEE, AND SHALL BE RENEWED EVERY YEAR . THIS YEARLY RENEWABLE OF A CERTIFICATION STATEMENT UNDER THIS PARAGRAPH MEANS THAT AN AUTHORIZED RE PRESENTATIVE MUST ANNUALLY PREPARE AND SIGN A NEW COPY OF THE CERTIFICATION STATEMENT. **Response:** See response to c omment 3.1. 18

. **Comment 3.14.18**  **:** Conclusion NACCSA appreciates the opportunity to submit these comments and welcomes any requests by the Agency for additional information or comment. **Response:** EPA ac knowledges the comment.



### 3.15 **Edison Electric Institute (EEI)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0080 Comment**  **3.15.1 :** 143

The Edison Electric Institute (EEl) submits the attached comments on Hazardous Wast e Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide ( CO 2 ) Streams in Geologic Sequestration Activities, which was recently proposed by the Environmental Protection Agency. See 76 Fed. Reg. 48074 (Aug. 8,2011). This proposal would revise regulations for hazardous waste management under the Resource Conservation and Recovery Act to conditionally exclude CO 2 streams from the definition of hazardous waste, provided that they are injected into Class VI Underground Injection Control wells for the purpose of geologic sequestration. EEl is the association of shareholder

-owned electric companies, international affiliates and industry associates worldwide. Our U.S. members serve 95 percent of the ultimate customers in the shareholder

-o wned segment of the industry, and represent approximately 70 percent of the U.S. electric power industry. Many of our members have been and are actively involved in the research, development, demonstration and deployment of technologies to capture CO 2 from electricity production and inject it into geologic formations for long

-term storage, activities covered by the draft guidance documents. Carbon capture and storage is a critical element in the full portfolio of technologies and measures to reduce greenhou se gas emissions. EEl appreciates the opportunity to provide comments. Questions may be directed to (see docket for contact information). **Response:** EPA acknowledges the comment

. **Comment 3.15.2**  **:** COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON THE ENVIRONME NTAL PROTECTION AGENCY’S PROPOSED RULE ENTITLED HAZARDOUS WASTE MANAGEMENT SYSTEM: IDENTIFICATION AND LISTING OF HAZARDOUS WASTE: CARBON DIOXIDE ( CO 2 ) STREAMS IN GEOLOGIC SEQUESTRATION ACTIVITIES The Edison Electric Institute (EEI) [FN1: EEI is the natio nal association of shareholder

- owned electric utilities in the U.S. Our members represent about 70 percent of the U.S. electric power industry and serve 95 percent of the ultimate customers in the industry‘s investor

- owned segment.] submits these comments on the proposed Environmental Protection Agency (EPA or Agency) rule entitled “Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide ( CO 2 ) Streams in Geologic Sequestration Activities.” 76 Fed. Reg. 48073 (Aug. 8, 2011). [FN2: A technical correction was published on September 9, 2011. 75 Fed. Reg. 55846.] This proposed rule complements EPA‘s final rule for the Federal Requirements under the Underground Injection Control Program for Carbon Dioxide Geologic Sequestration (GS) Wells (the so - called “UIC Class VI rule” ) and associated guidance issued (and still being issued) thereunder. 75 Fed. Reg. 77230 (Dec. 10, 2010). EEI has actively participated in EPA‘s development of the UIC Class VI program under the Safe Drink ing Water Act (SDWA). EEI recently submitted consolidated comments on the following four March 2011 UIC Class VI draft guidance documents: 1) Site Characterization (EPA 816

- D

- 10

-006), 2) Area of Review (AOR) (EPA 816

- D

- 10

-007), 3) Well Construction (EPA 81 6

- D

- 10

-008) and 4) Plan Development (EPA 816

- D

- 10

-012). On February 8, 2011, EEI submitted comments on the draft guidance regarding financial responsibility for Class VI wells. EEI submitted comments to the Agency on October 15, 2009, on the Notice of Data Availability (NODA) and Request for Comment related to the Agency‘s proposed regulations for injection and GS of CO 2 under the authority of the SDWA UIC program, issued in July 2008 in Docket144

No. EPA

- HQ

- OW

- 2008

-0290, 73 Fed. Reg. 43491 (July 25, 2008). EE I submitted pre

- rulemaking comments to the Agency on May 15, 2008; provided oral and written testimony at EPA‘s September 30, 2008, public meeting on the proposed rules; and submitted written comments on December 24, 2008. EEI also provided testimony at th e public hearing on the NODA on September 17, 2009, and participated in the development of the proposed rule via webinars held in April and May 2009. These comments and testimony are incorporated by reference herein. **Response:** EPA acknowledges the comment, but notes that EPA made clear in the proposal that this final rule does not reopen the UIC Class VI rule, and that EPA would not respond to com ments related only to that rule. Consistent with this, EPA will not provide additional responses to the Edison Electric Institute’s comments on that rule, and that rule’s associated guidance

. **Comment 3.15.3**  **:** I. Introduction Carbon capture and storage (CCS) is a critical element in the full portfolio of options needed not only to reduce CO 2 emissions, but also to ensure continued affordable and reliable electric service to customers throughout the U.S. EEI thus supports the development of clear, defensible and appropriately tailored regulatory regimes that will facilitate development of and investment in CCS tech nology and projects while protecting against potential environmental risks. Clarifying the treatment of geologically injected and sequestered CO 2 under the Resource Conversation and Recovery Act (RCRA), which the Agency is addressing in the instant proposa l, is a key element in the development of this regulatory regime. EEI commends the Agency for establishing a CCS permitting regime through issuance of the UIC Class VI program, and appreciates the Agency‘s efforts to provide additional critical regulatory clarity under RCRA. II. Executive Summary EEI supports the conditional exclusion of CO 2 streams from RCRA‘s hazardous waste regulations, but recommends that EPA‘s rule be recast as an exclusion of CO 2 streams from the definition of “solid waste” because o f CO 2’ s unique properties and uses, coupled with the fact that CO 2 streams are not “discarded

. ” A failure to clarify that eligible CO 2 streams are not “solid waste s” would leave CCS projects with unnecessary regulatory uncertainty while doing little to adv ance public health and environmental protection, given the rigorous requirements of the UIC Class VI rule. If EPA elects to retain the proposed approach of a conditional exclusion for CO 2 streams from RCRA’ s hazardous waste regulations, the proposed regul ation should be clarified to remove as much regulatory ambiguity as possible. In addition, EPA should explicitly address the applicability of RCRA to concurrent enhanced oil recovery (EOR)/storage under the provisions of the UIC Class VI rule. **Response:** E PA thanks the commenter for its support of the conditional exclusion. Regarding the commenter’s suggestion that EPA promulgate a conditional exclusion from the definition of solid waste (rather than from the definition of hazardous waste), EPA disagrees a nd refers the commenter to response to c omment s 3.1.1 and 3.1.2. Regarding the commenter’s request for clarification on “the applicability of RCRA to concurrent enhanced oil recovery (EOR)/storage under the provisions of the UIC Class VI rule” EPA notes t hat status of CO 2 streams injected into UIC Class II wells for purposes of EOR is discussed in response to c omment 3.1.1. EPA also reiterates that today’s rule only applies to CO 2 injected into UIC Class VI wells, which would include any well that has tra nsitioned to a UIC Class VI well under the provisions of the UIC Class VI rule; that is, nothing145

in the conditional exclusion would prevent a Class VI well , that had previously transitioned from a Class II well, from be ing eligible for the RCRA conditional exclusion

. EPA would encourage persons to consult with the appropriate regulatory authority to address any fact

- specific questions they may have regarding the status of CO 2 in situations that are beyond the scope of this final rule.
**Comment 3.15.4**  **:** III. Specific Comments EPA proposes to “conditionally” exclude “ CO 2 stream” [FN3: EPA explains that a “carbon dioxide ( CO 2 ) stream” is “carbon dioxide that has been captured from an emission source (e.g., power plant), plus incidental associated substances der ived 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 CO 2 stre ams are captured from emission sources, are injected into Class VI Underground Injection Control [UIC] wells for purposes of geologic sequestration ... and meet certain other conditions” 76 Fed. Reg. at 48074. EPA explains that it is taking this action becau se it “believes that the management of these CO 2 streams under the proposed conditions does not present a substantial risk to human health or the environment, and therefore additional regulation pursuant to RCRA‘s hazardous waste regulations is unnecessary .” Id. EPA expects that the conditional exclusion will provide additional regulatory certainty, thereby facilitating CCS deployment. Id. EEI supports the proposed “conditional exclusion” insofar as it endeavors, albeit incompletely, to clarify the regulatory regime for CCS while ensuring stringent protection of human health and the environment. Nonetheless, the “conditional exclusion” falls short of what is needed to provide adequate regulatory certainty for industry for the following reasons. **Response:** E PA thanks the commenter for its support of the conditional exclusion , and addresses any specific comments on how the rule ‘falls short’ of what is needed below in EPA’s responses below.
**Comment 3.15.5**  **:** A. CO 2 Streams Are Not "Wastes" EPA's proposal is pre mised on the notion that RCRA potentially applies to "CO 2 streams" in the first instance. This premise is false for two reasons. First, in enacting RCRA, Congress never envisioned regulation of a molecule such as CO 2 . Compared to other substances or mater ials regulated under RCRA, CO 2 is unique. It performs a variety of beneficial and ubiquitous roles in a variety of natural (e.g., uptake by plants) and industrial (i.e., EOR) functions. Several states already have declared CO 2 to be a "commodity" for these reasons. [FN4: See, e.g., Oklahoma S

. B

. 1610 ("Carbon dioxide is a valuable commodity to the citizens of the state
. ").] **Response:** See response to c omment 3.1.4. **Comment 3.15.6**  **:** Second, and similarly, RCRA was never meant to apply to CCS, and thus the statute provides a poor tool to regulate the activity. Nothing in RCRA or its regulations purports to apply to CCS generally or geologic sequestration specifically. The RCRA model is prospective “cradle

-to
-grave” waste management and tracking. CCS, on the other hand, currently involves the injection of CO 2 for146

beneficial purposes. Moreover, that activity is envisioned to involve mixed streams of CO 2 from multiple sources, with injection of CO 2 from multiple sources, thereby defeating the goal of tracking wastes through manifests and the like. There also is no standardized test method to evaluate supercritical CO 2 . For these and other reasons set forth below, trying to fit CCS under RCRA is inappropriate. **Response:** See response to c omment s 3.1.5 and 3.12.7

. **Comment 3.15.7**  **:** B. CO 2 Streams Are Not “Solid Wastes.” The conditional exclusion is rooted on the unsupported premise that captured anthropogenic CO 2 is a “solid waste.” EPA asserts that a “supercritical CO 2 stream ... is a RCRA solid waste, as it is a ‘disc arded material’ within the plain meaning of the term in RCRA § 1004(27).” 76 Fed. Reg. at 48077

- 78. [FN5: Relevant provisions of RCRA § 1004(27) define “solid waste” as “other discarded material, including solid, liquid, semisolid, or contained gaseous mat erial resulting from ... industrial operations ....”] EPA does not offer a detailed justification for its claim that CO 2 streams are “discarded. ” An analysis of how RCRA and its regulations define that term demonstrates that CO 2 streams injected for storage are not discarded with the meaning of RCRA. Subtitle C of RCRA, which regulates hazardous wastes, applies only to “solid waste” that is “hazardous.” [FN6: The RCRA Practice Manual 2 (T. Garrett ed., ABA 2d ed. 2004).] To be regulated as a “solid waste,” a m aterial must satisfy three criteria, two of which are relevant: 1) it must have the physical form of a solid waste, and 2) it must be “discarded.” [FN7: Id. at 33.] Neither of these criteria is met here. **Response:** See response to c omment s 3.1.6, 3.1.7, an d 3.1.8.
**Comment 3.15.8**  **:** 1. CO 2 streams do not have the physical form of a solid waste. In relevant part, RCRA defines “solid waste” as “other discarded material, including s olid, 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 CO 2, are not explicitly listed. Before it is compressed, CO 2 is a gas. By “contained gas” in the definitio n above, EPA means:

“ a gas that is contained in a cylinder or other non

-flow

-through containment system. In contrast, an uncontained gas, such as gas flowing through a pipe, column, or tank, is not a solid waste. Since uncontained gases are not solid wastes and therefore cannot be hazardous wastes, as a general matter, units that manage uncontained gases are not regulated under RCRA . [FN8: Id. at 33

- 34 (emphasis added).] ” Applying this relatively narrow concept of “contained gas,” it is clear that a CO 2 stream
– which at minimum spends part of its life “flowing through a pipe”

— is not a solid waste” because it does not have the necessary form to be swept up under RC RA’ s jurisdiction. [FN9: The fact that a CO 2 stream is not a “contained gas” should not be in terpreted to suggest that geologic storage is not an effective means of long

-term storage, because it is. “Contained gas” is a regulatory concept only].147

**Response:** See response to c omment 3.1.7. **Comment 3.15.9**  **:** 2. CO 2 streams are not discarded. RCRA defin es “solid waste” as “other discarded material , including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations ....” 42 U.S.C. § 6903(27) (emphasis added). EPA‘s regulations explain that a “solid waste” is any “ discarded material ” that is “not excluded under § 261.4(a), [FN10: 40 C.F.R. § 261.4(a) excludes through numerous specific listings “[m]aterials which are not solid wastes.”] or that is not excluded by a variance granted under §§ 260.30 [FN11: Id. at § 260.30 deals with non

waste determinations and variances from classification as a solid waste.] and 260.31, [FN12: Id. at § 260.31 sets forth standards and criteria for variances from classification as a solid waste.] or that is not excluded by a non

-waste determination under §§ 260.30 [FN13: Id. at § 260.30.] and 260.34” [FN14: Id. at § 260.34 sets forth standards and criteria for non

-waste determinations.], [FN15: Id. at § 261.2 (definition of “solid waste”) (emphasis and intern al footnote references added).] (emphasis added). A “discarded material,” in turn, is “any material” that is: 1) abandoned, 2) recycled or 3) considered inherently waste

- like. [FN16: Id. at. § 261.2(a)(2)(i).] Although they do not define the term “materi al,” EPA’ s regulations set forth detailed criteria that must be met before a material is deemed to be “discarded” via the “abandoned,” “recycled” or “inherently waste

- like” regulatory paths: *Abandoned. Materials are “solid waste” if they are abandoned by being: a) disposed of; b) burned or incinerated; or c) “[a]ccumulated, stored or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated.” [FN17: Id. at § 261.2(b).] * Recycled. Materials separately a re “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 specu latively. [FN18: Id. at § 261.2(c).] *Inherently waste

- like. Specifically identified materials, not including CO 2, also are “solid waste” if they are recycled in any manner, and thus deemed to be “inherently waste

- like materials.” [FN19: Id. at § 261.2(d) .]

“ CO 2 streams” do not meet any of these three RCRA regulatory requirements. **Response:** See response to c omment 3.1.8. **Comment 3.15.10**  **:** 3. CO 2 streams are not abandoned. CO 2 streams are not burned or incinerated, nor are they “disposed of

. ” The “S” in C CS stands for either “storage” or “sequestration , ” neither of which contemplates “disposal.” The Merriam

Webster Dictionary defines “sequester” as “to set apart, segregate” or to “seclude, withdraw.” [FN20: See http://www.merriamwebster. com/dictionary/seq uestered?show=0&t=1315859974.] Synonyms for “sequestration” include “isolation” and “seclusion.” [FN21: See http://www.merriam

- webster.com/dictionary/sequestration.] “Disposal , ” on the other hand, is defined as the act of “disposing,” which means “to get rid of.”[FN22: See http://www.merriam

-148

webster.com/dictionary/disposing.] The concept of “disposal” is inconsistent with how the bulk of CO 2 is currently being managed commercially today. With the exception of demonstration and related projects, most if not all of the CO 2 that is geologically injected today is used for EOR. In that application, it is purchased and transacted as a valuable commodity. As explained further below, EPA‘s Class VI rule envisions that concurrent EOR/storage may be conducted under Class II as long as certain conditions are met

–a usage that flatly contradicts EPA‘s assertion here that injection is a “disposal activity.”
CO 2 that is injected in saline reservoirs under Class VI also is not “disposed of.” For example, it is conceivable that such CO 2 may be later withdrawn and put to a beneficial, but still non

atmospheric

-emitting, use. Such CO 2 also may be used for reservoir maintenance as part of concurrent long

-term storage/desalination operations, as explained By William Bourcier of Lawrence Livermore National Laboratory at the August 18, 2010, meeting of the California CCS Review Panel. [FN23: See http://www.climatechange.ca.gov/carbon_capture_review_panel/meetings/2010

- 08

- 18/presentations/01_Bourcier_Cal_CCS

- Panel.pdf.] In addit ion, transactions of CCS

- related offsets credits are made on various carbon registries, such as the American Carbon Registry. This activity is inconsistent with the notion of “disposal.” Finally, it is worth noting that the terms “disposal” and “dispose” do not appear in any relevant port ion of the Class VI rule or EPA’ s preamble to the same. Because geologic sequestration/storage does not contemplate “ disposal, ” the regulatory “abandonment” provisions dealing with “[a]ccumulated, stored or treated ” also are inapplicable.
4. CO 2 streams are not recycled. RCRA’ s provisions regarding “recycle” are detailed, and none of them applies to CO 2 streams
– nor has EPA claimed that this is the case. [FN24: The fact that CO 2 is recycled in EOR operations is not directl y 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 pract ice CO 2 that is geologically injected is transacted as a valuable commodity as “co

- products,” the recycle regulations do not apply. [FN25: Seen.6, supra, at 36.]
CO 2 streams are not “in herently waste

- like.” RCRA’ s provisions regarding “inherently waste
- l ike” materials also are detailed, and none of them apply to CO 2 streams
– nor has EPA claimed the same. **Response:** See response to c omment 3.1.8. **Comment 3.15.11**  **:** C. CO 2 Streams Are Not “Hazardous Wastes.” Assuming arguendo that CO 2 streams are “solid wastes”

–and they are not, as described above

–they are not “hazardous wastes.” EPA states that it has “little information to conclude that CO 2 streams would qualify as RCRA149

hazardous waste.” 76 Fed. Reg. at 48077. The Agency also acknowledges that “ CO 2 strea ms are not listed hazardous wastes” under subpart D of part 261. Id. [FN26: Accord, 76 Fed. Reg. at 48078 (“EPA reiterates that no hazardous waste listings apply specifically to CO 2 streams.”)

. ] The Agency nonetheless believes that the “RCRA hazardous wast e regulations can apply to CO 2 streams” based upon two hypothetical scenarios: 1) a CO 2 stream exhibits hazardous characteristics; [FN27: 40 C.F.R. § 261.20(a)

. ] or 2) a CO 2 stream is mixed with a listed hazardous waste, thus triggering application of the so - called “mixture rule.” Id. Neither of these hypothetical scenarios is plausible. With respect to whether a CO 2 stream exhibits hazardous characteristics, EPA seems to acknowledge that there is no available standardized analytical test method for superc ritical materials such as CO 2 or a “ CO 2 stream.” [FN28: 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 supercriti cal CO 2 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 capa bility 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.” [FN29: 40 C.F.R. § 261.10(a)(2)

. ] Th is two

-factor test cannot currently be met for supercritical CO 2 streams based on available standards. Even if a standardized analytical test method were available for supercritical CO 2, we are not aware of any information which would suggest that supercr itical CO 2 meets any of EPA‘s hazard characteristics. Supercritical CO 2 is not: 1) ignitable under 40 C.F.R. § 261.21, 2) corrosive under 40 C.F.R. § 261.22, [FN30: Supercritical CO 2 is non

- aqueous, so section 261.22(a)(1) does not apply, and section 261.2 2(a)(2) only applies if the material is “liquid and corrodes steel.” Supercritical CO 2 is not a “liquid” and does not corrode the steel pipelines through which it has been transported safely for several decades. EPA hints that corrosivity could be an issue “down hole” through interaction with in

- situ reservoir fluids, but that scenario is not contemplated by 40 C.F.R. § 261.22

. ] 3) reactive under 40 C.F.R. § 261.23 or 4) toxic under 40 C.F.R. § 261.24. [FN31: 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 CO 2 and CO 2 streams, as the TCLP was “intended to reflect the potential for leaching to groundwater that results from the codispo sal of toxic wastes in an actively decomposing municipal landfill generating an acidic leachate.” See n.6, supra, at 52. Referring 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 referred to by EPA as potentially being present in certain CO 2 streams are at levels that are several orders of magnitude lower than the relevant regulatory level s set forth in the regulations.] In the preamble to the final Class VI rule, EPA stated that it had reviewed estimates of CO 2 injectate quality, and based upon that assessment, “captured CO 2 could contain some impurities.”[FN32: 75 Fed. Reg. 77230, 77260 (2010)

. ] The possible presence of “impuriti es” 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 th e 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.”[FN33: 76 Fed. Reg. 48078.] Section 262.11(c)(2) of the RCRA regulations provides that in lieu of the use of a standardized analytical test150

method, the generator of a hazardous waste may determine whether a material is hazardous by “[a]pplying knowledge of the hazardous characteristic of the wast e in light of the materials or processes used.” Based upon industry‘s knowledge of CCS

- related materials and processes, coupled with current uses of CO 2, a generator is unlikely to have a reasonable belief that its CO 2 stream is hazardous. EPA refer [s] to the following March 2006 study by Lawrence Livermore National Laboratory to support an inference that certain “impurities” could be present in CO 2 streams from coal

- based facilities: J.A. Apps, A Review of Hazardous Chemical Species Associated with CO 2 Capture from Coal

- Fired Power Plants and Their Potential Fate in Geologic Storage. [FN 34: 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 CO 2 streams, the study proves just the opposite:

“The preceding evaluation shows quite clearly that the concentrations of other chemical components accidentally incorporated in CO 2, when captured from conventional coal fired power plants, or from advanced coal

-fired IGCC plants, will be at most, relatively in significant . For minor volatile species of S, N, F. and CL, the concentration of CO 2 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. ” Id. at 44 (emphasis added). Significantly, the paper ultimately concludes that “the concentrations of inadvertent contaminants in the injected CO 2 would probably be comparable to the ambient concentrations in confining shales of the injection zone.” Id. at 1. [FN35: The rest of the Lawrence Livermore paper deals with the mixture

- rule scenario which, as noted below, is not relevant as that activity is already prohibited by the UIC Class VI rule.] In other words, CO 2 streams have a comparable concentration of impurities already found in the natural subsurface environment. With respect to the hypothetical scenario based on the mixture

- rule route of regulation, EPA has advanced no evidence to support this case. Furthermore, the UIC Class VI rule itself prohibits the co - injection of RCRA hazardous waste, so the mixture

- rule scenario is already prohibited. [FN36: 75 Fed. Reg. at 77260 (“Class VI wells may not be used for the co

- injecti on of RCRA hazardous wastes.”).] **Response:** See response to c omment 3.1.9. **Commen t**  **3.15.1 5**  **:** D. EEI Otherwise Supports the Proposed Conditional Exclusion, But EPA Could Provide Further Regulatory Clarity. EPA‘s conditional exclusion is largely premised on the notion that CO 2 streams already are subject to stringent regulation. We agree

.151

As to generators, in the vast majority of commercial scenarios, there will be no on

- site storage of CO 2 . Instead, as EPA states, captured CO 2 will be immediately transported offsite via pipeline. [FN37: 76 Fed. Reg. at 48081

. ] From a geologic sequestrat ion point of view, the industrial source ’ s role is perfunctory, aside from complying with the terms and conditions of the relevant CO 2 off

take contract. [FN38: A typical CO 2 off

-take contract obligates the source to deliver specified volumes or quantities of CO 2 under minimum pressure and quality specifications at a designated delivery point.] EPA‘s Mandatory Reporting Rule of Greenhouse Gases: Injection and Geologic Sequestration of Carbon Dioxide rule also provides EPA with relevant information. [FN39: 7 6 Fed. Reg. at 48082

. ] EPA notes, and we agree, that the transportation of CO 2 also is stringently and effectively regulated by the Department of T ransportation (DOT). [FN40: EPA’s characterization of DOT’ s regulation is incorrect. Supercritical CO 2 does not appear in DOT’ s hazmat table. The hazmat table instead lists three forms of CO 2 : 1) gas (UN 1013), 2) refrigerated liquid (UN 2187) and 3) solid or dry ice (UN 1845). 49 C.F.R. § 172.101. Finally, in the final rule EPA should emphasize, as the Agency a lready suggests in the proposed rule, that while DOT regulations impose “hazardous liquid” standards on CO 2 pipelines, the CO 2 transported in these pipelines itself has not been deemed hazardous by DOT. 76 Fed. Reg. at 48082; see also 49 C.F.R. § 195.0 (“[t]his part prescribes safety standards and reporting requirements for pipeline facilities used in the transportation of hazardous liquids or carbon dioxide. ”) (emphasis added)

. ] These regulations apply to all modes of transport, including pipelines. DOT re gulates the transportation of CO 2 in interstate pipelines as a non

- hazardous liquid, and states apply comparable standards for intrastate pipelines. [FN41: Robert Nordhaus, “Carbon Dioxide Pipeline Regulat ion,” 30 Energy L.J. 85 (2009).] **Response:** See Re sponse to 3.1.10. **Comment 3.15.1**  **6 :**  We agree with the Agency that the UIC Class VI provides a comprehensive management regime for CO 2 streams that renders duplicative any potential additional regulation under RCRA. [FN42: 42 76 Fed. Reg. 48084

- 85

. ] We also agree that CO 2 streams subject to the conditional exclusion would not be subject to RCRA’ s land disposal restrictions or separate provisions regarding corrective action. [FN43: Id. at 48085

- 86.] EPA proposes to make the conditional exclusion subject to th e additional requirement that no hazardous wastes may be mixed with, or otherwise co

- injected with, the CO 2 stream. This is unnecessary, given that those activities are already barred under the UIC Clas s VI rule. [FN44: Id. at 48086.] **Response:** See respon se to c omment 3.14.11. **Comment 3.15.1**  **7 :**  EPA asserts that the conditional exclusion may be lost at any time, a situation that arguably would weaken the exclusion ’ s salutary effects since the Agency appears to be holding out the potential for down

- hole form ation of carbonic acid at some future date in a storage facility’ s lifetime. However, we submit that the loss of the exclusion in this instance would impose greater regulatory burdens without any increase in environmental protection. As EPA notes, the UIC Class VI rule ’ s standards ensure environmental and health protections are in place in the event carbonic acid is152

formed after injection into the storage formation. “Thus, EPA expects that compliance with the UIC Class VI requirements, which are designed t o ensure isolation of supercritical CO 2 streams, will also address the potential for effects on human health and the environment, from contaminants in present in the stream.” 76 Fed. Reg . at 48084. This same logic holds true, even if carbonic acid is forme d when the CO 2 stream mixes with water in the storage formation. First, the UIC Class VI rules require that storage be sited to avoid any endangerment of underground sources of drinking water (USDW). Second, any endangerment to USDW would be addressed by t he UIC Class VI rule, which holds storage operators liable for environmental remediation, if necessary. Imposing cradle

-to
grave handling requirements under RCRA would not stop carbon acid from being formed or ensure any greater protection for USDW.
More generally, EPA‘s approach to the exclusion 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 the fault of no party, could be deemed t o have created or liberated a material that a future regulator or claimant considers to be of concern. This situation would increase, not decrease, regulatory certainty. Failure to meet the conditions results in the loss of the exclusion. As proposed, a v iolation of a condition at any point in the management of a CO 2 stream would result in the CO 2 stream being subject to all applicable subtitle C regulatory requirements, from the point of generation. [FN45: Id. at 48087.] As a general matter, EPA should state that minimal violations of the UIC Class VI rule, such as record

- keeping errors, do not result in the loss of the exemption. Only substantive violations of the UIC Class VI rules should result in a loss of the RCRA exemption. **Response:** See Responses to Comments 3.1.9, 3.1.13 and 3.1 0

. 5 **Comment 3.15.1** **8 :**  EPA emphasizes that the generator is responsible for the initial, and perhaps sole, hazard determination, but this conflicts with the definition of “ CO 2 stream,” which suggests that the injector may a dd materials to facilitate injection. It is unclear what liability the generator would incur if it delivered food

-grade CO 2 to a storage site via a pipeline transporter and the site owner/operator thereafter adds incidental materials to facilitate injectio n that may change initial characterization of the CO 2 stream. It would be punitive in that situation to hold the source lia ble for the site owner/operator’ s activities. The conditional exclusion is premised on a linear model of CCS operations under which a single source delivers CO 2 to a single transporter who in turn delivers the CO 2 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 CO 2 into the same pipeline, whi ch in turn will deliver the CO 2 to a storage site that receives and stores CO 2 from multiple sources. That storage site may also already hold, or accept for delivery, volumes of natural CO 2 . [FN46: This situation further supports the proposition that RCRA was never intended to apply to CCS.] Since CO 2 streams will be intermingled, and CO 2 mol ecules are identical, under EPA’ s construct this would set up a “Superfund

- esque” situation under which all parties, even the innocent, have the potential of being held liable. And unlike the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where at least there is the hope of finding labels on drums to identify sources and parties, no such hope exists for153

intermingled CO 2 molecules, particu larly after they have already been injected into the subsurface. **Response:** See response to c omment 3.1.14. **Comment 3.15.**  **19 :**  EPA states that the conditional exclusion only applies to “ CO 2 streams” that have been captured for purposes of “geologic sequestration.”[FN47: 76 Fed. Reg. at 48086

. ] EPA never explains how that purpose is to be determined, an ambiguity that could negatively impact concurrent EOR/storage. The Agency explains that:

“The proposed rule is not intended to affect the status of CO 2 that is injected into wells other than UIC Class VI wells. For example, CO 2 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 prop osal. ” [FN48: Id. at 48078 n.16.] This limitation provides no regulatory clarity for Class II concurrent EOR/storage projects that qualify for the risk

- based factor test of 40 C.F.R. § 144.19 under the Class VI rule, which allows sequestratio n to occur under Class II if there is no increased ris k to USDW. [FN49: Id. at 77245.] It is imperative that EPA clarify that either 1) the conditional exclusion also applies to EOR operators under 40 C.F.R. § 144.19, or 2) the RCRA status of EOR operators under 40 C.F.R. § 144.19 is identical to that of business

- as - usual EOR operators under Class II without claims of sequestration. [FN50: “The agency has decided not to regulate oil and gas industry exploration and production wastes and mineral extraction a nd beneficiation and certain mineral processing under RCRA Subtitle C.” See n.6, supra, at 3.] **Response:** See response to c omment 3.1.15 . Regarding the use of UIC Class II wells for EOR, see response to comment 3.1.1. Regarding concurrent EOR/storage and wells that transition to UIC Class VI wells, see response to c omment 3.15.3. **Comment 3.15.2** **0 :**  EPA erroneously states that RCRA’ s section 7003 imminent hazard authorities would continue to apply under the conditional exclusion . [FN51: 76 Fed. Reg. at 4808 8.] For the reasons stated above,

“ CO 2 streams” are neither solid nor hazardous wastes, so section 7003

–which only applies to solid or hazardous wastes

–does not apply to CO 2 streams. For the same reaso n, EPA should clarify that RCRA’ s citizen suit provisio n, section 7002, also does not apply to CO 2 streams. **Response:** See response to c omment 3.1.16. **Comment 3.15.2**  **1 :**  EPA should clarify that CO 2 streams subject to the conditional exclusion also are not subject to Superfund. A CERCLA “hazardous substance” is defined to include all RCRA hazardous wastes, and because CO 2 streams are not hazardous wastes, it is appropriate in this rulemaking for EPA to provide critical regulatory clarity for CCS under the Superfund statute, too. **Response:** See response to c omment 3.1.17. **Comment 3.15.2**  **2 :** 154

For the reasons stated above, if EPA elects to continue to pursue the conditional exclusion route, the proposed exclusion in section 261.4(h) should be revised to read as follows:[FN 52: The full text of EPA’ s proposed conditiona l exclusion is shown, with suggested additions underlined. No textual deletions are proposed.] (h) Carbon Dioxide Stream Injected for Geologic Sequestration. Carbon dioxide streams that are captured and transported for purposes of injection into an underground injection well subject to the requirements for Class VI Underground Injection Control wells, including the requirements of 40 CFR parts 144 and 146 of the Underground Injection Control Program of the Safe Drinking Water Act, are not a hazardous wast e, provided the following conditions are met. (1) Carbon dioxide streams that meet all of the following conditions are excluded from the definition of hazardous waste: (i) Transportation of the carbon dioxide stream must be in compliance with applicable Department of Transportation ( or analogous state ) requirements; (ii) Injection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 CFR parts 144 ( including § 144.19 ) and 146; (iii) No other hazardous waste may be mixed with, or otherwise co

- injected with, the carbon dioxide stream at the generator’s facility or site ; and (iv) Any generator of a carbon dioxide stream, and any Cla ss VI Underground Injection Control well owner or operator, who claims that a carbon dioxide stream is excluded under paragraph (h)(1) of this section, must have an authorized representative (as defined in 40 CFR 260.10) sign a certification statement word ed 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 n o 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 claim ing the exclusion in 40 CFR 261.4(h). This yearly renewable of a certification statement under this paragraph means that an authorized representative must annually prepare and sign a new copy of the certification statement. **Response:** See Response to 3.1.1 8. **Comment 3.15.2**  **3 :**  In lieu of addressing the status of CO 2 streams under proposed exclusion in section 261.4(h) (even as modified above), which leaves “ CO 2 streams” as solid wastes, we recommend instead that EPA clarify that “ CO 2 streams” are neither sol id nor hazardous wastes. The Agency could do so by promulgating a new section 261.4(a)(26) as follows [FN53: Suggested additions are {capitalized}

. ]: (a) Materials which are not solid wastes.155

* * * (26) Carbon dioxide (CO 2 ) streams. Carbon dioxide stre ams that are captured and transported for purposes of injection into an underground injection well subject to the requirements for Class VI Underground Injection Control wells, including the requirements of 40 CFR parts 144 (including § 144.19) and 146 of the Underground Injection Control program of the Safe Drinking Water Act, are not a solid waste provided that the generator also complies with the following requirements: (i) Transportation of the carbon dioxide stream must be in compliance with applicabl e Department of Transportation (or analogous state) requirements; (ii) Injection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 CFR parts 144 (including § 144.19) and 146; (iii) No other hazardous waste may be mixed with, or otherwise co

- injected with, the carbon dioxide stream at the generator’s facility or site; and (iv) Any generator of a carbon dioxide stream, and any Cla ss 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 c ertify 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 his designee, and shall be renewed every year. This yearly renewable of a certification statement under this paragraph means that an authorized representative must annually prepare and sign a new copy of the certification statement. **Response:** See Response to Comment 3.1.18.



### 3.16 **Texas Carbon Capture & Storage Association (TxCCSA)**
**Documen t ID: EPA** **- HQ** **- RCRA** **- 2010** **- 0695**  **- 0085**  **Comment 3.16.1**  **:** The Texas Carbon Capture & Storage Association (TxCCSA) is committed to promoting energy security and reducing greenhouse gas emissions through the advancement of carbon capture use and storage (CCUS) in Te xas. The association provides education and outreach on behalf of industrial plants, utilities, the oil and gas industry and their service providers to promote the acceptance of CCS and advance market

- based policies that encourage the development of a comm ercial CCUS industry in Texas.156

TxCCSA recognizes the EPA’s effort to facilitate CCUS through this proposal. While TxCCSA supports the conditional exclusion for CO 2 streams from the Resource Conservation & Recovery Act’s (“RCRA”) hazardous waste regulation s we recommend that it be recast as an exclusion from the definition of “solid waste” because of CO 2’s unique properties and uses, coupled with the fact that CO 2 streams are not “discarded”, and as explained in more detail below. We have reviewed and supp ort the comments submitted by the North American Carbon Capture & Storage Association and those comments are provided as Attachment I. We also comment on a potential regulatory “gap” created by the exemption’s reliance on securing a Class VI permit which c ould leave federal offshore CCUS activity without access to the conditional exemption. These comments are discussed in Attachment II. **Response:** Regarding this commenter’s support of comments submitted by the North American Carbon Capture & Storage Associa tion (Attachment I ) , EPA refers the comme nter to EPA’s responses in Section 3.14 of this document. These responses also address TxCCSA’s comment that EPA’s conditional hazardous waste exclusion should be ‘recast’ as an exclusion from the definition of sol id waste.
**Comment 3.16.2**  **:** [Attachment II] On August 8, 2011, EPA published a proposed rule in the Federal Register revising “the regulations for hazardous waste management under RCRA to exclude from the definition of hazardous waste CO 2 streams that woul d otherwise be defined as hazardous, when these CO 2 streams are managed under certain conditions.”[FN1: 76 Fed. Reg. at 48079]. These proposed conditions include compliance with existing regulatory regimes governing the transportation of the CO 2 stream and its injection in a UIC Class VI permitted well [FN2: Id]. As currently proposed, it is unclear whether the RCRA conditional exemption will apply to CO 2 storage in sub

- seabed geological structures (CS

-SSGS) on the Federal Outer Continental Shelf. As dis cussed above, the conditional exemption as currently proposed is largely based on compliance with SDWA UIC Class VI requirements. However, UIC Class VI permits are neither applicable nor required for geological storage under Federal offshore lands [FN3: 40 C.F.R. § 144.1(g)(2)(i)]. Application of the SDWA UIC Program is limited to lands located within the states’ territory, including state territorial waters, and including Federally

- owned land [FN4: As codified at 42 U.S.C. 300h (b)(1)(D)(ii), a state’s U IC program under that section cannot be approved by EPA unless it applies inter alia to underground injections “by any other person whether or not occurring on property owned or leased by the United States.” Where the state does not exercise primacy under the UIC program, the EPA administers the program directly] and Tribal lands, [FN5: See, e.g. Phillips Petroleum Company v. EPA, 803 F.2d 545 (10th Cir. 1986) (holding that SDWA applied to Tribal lands even before it was amended in 1986 to explicitly addres s Tribal lands)] but not to Federally

owned lands on the Outer Continental Shelf. The RCRA CCS exemption as proposed, however, presumes injection in a UIC Class VI well. To clarify coverage, the EPA must make clear its intent to expand the predicates for the conditional exemption to include additional Federal regulatory programs. We understand that currently, EPA157

and DOI are discussing applicable requirements for geological storage on Federal property including offshore waters. These discussions should re sult in regulations that complement the UIC Class VI requirements. The resulting regulations should therefore fall within the intent of the proposed RCRA exemption, providing a basis for coverage of Federal offshore CO 2 storage under the RCRA conditional e xemption. **Response:** The issue of the scope of the UIC Class VI rules’ applicability identified by the commenter is outside the scope of this rulemaking. Today’s rule was not proposed or finalized under the SDWA, nor does it change how the UIC Class VI re gulations apply. Likewise, EPA has made clear that the scope of this rule is expressly limited to CO 2 stream s sent to a permitted UIC C lass VI well for purposes of GS, so this request is outside the scope of the rulemaking and EPA thus declines the comment er’s request to include additional federal programs. However, EPA has indicated that in the future, it would review any new information and consider whether changes should be made to the conditional exclusion.
**Comment 3.**  **1 6.3**  **:** For the reasons stated above, if EPA elects to pursue the conditional exclusion as proposed, in addition to the revisions suggested by NACCSA, we suggest that the proposed exclusion in § 261.4(h) be revised to read as follows: (h) Carbon Dioxide Stream Injected for Geologic Seque stration. Carbon dioxide streams that are captured and transported for purposes of injection into an underground injection well AUTHORIZED UNDER FEDERAL REQUIREMENTS, INCLUDING <subject to the> requirements for Class VI Underground Injection Control wells, SPECIFIED <including the requirements> in 40 CFR parts 144 and 146 of the Underground Injection Control Program of the Safe Drinking Water Act OR REQUIREMENTS UNDER AN APPLICABLE FEDERAL INJECTION WELL PROGRAM, are not a hazardous waste, provided the foll owing conditions are met. (2) Carbon dioxide streams that meet all of the following conditions are excluded from the definition of hazardous waste: (v) Transportation of the carbon dioxide stream must be in compliance with applicable Department of Tran sportation requirements; (vi) Injection of the carbon dioxide stream must be in compliance with: A the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirements in 40 CFR parts 144 and 146; OR
B. RE QUIREMENTS UNDER AN APPLICABLE FEDERAL INJECTION WELL PROGRAM; (vii) No hazardous waste may be mixed with, or otherwise coinjected with, the carbon dioxide stream; and (viii) Any generator of a carbon dioxide stream, and any Class VI Underground Inject ion Control well owner or operator, who claims that a carbon dioxide stream is excluded under paragraph (h)(1) of this section, must have an authorized representative (as defined in 40 CFR 260.10) sign a certification statement worded as follows:158

I certi fy 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 4 0 CFR 261.4(h). This yearly renewable of a certification statement under this paragraph means that an authorized representative must annually prepare and sign a new copy of the certification statement. **Response:** See Response to C omment 3. 1 6.2

.



### 3.17 **Tri -** **Sta te Generation & Transmission Association, Inc. (Tri** 
**- State)** 
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0055 5** 
**Comment 3.17.1**  **:** Tri

-State Generation & Transmission Association, Inc. (Tri

-State) is a not

-for

- profit, wholesale electric power supply cooperative providi ng electric power to 44 member distribution systems that serve customers in a 250,000 square

- mile territory including New Mexico, Colorado, Nebraska, and Wyoming. The mission of Tri

-State is to provide our member

- systems with a reliable, cost

- based supply of electricity while maintaining high environmental standards. Tri

-State provides electricity to members based on a diverse mix of generation sources including coal, natural gas, hydroelectric, wind, and solar power.
Tri

-State owns and/or operates coal fi red electric generation in four states, and is collaborating with Sunflower Electric who has been issued a permit to build a new coal fired unit at a facility in Holcomb, Kansas. Our facilities are heavily regulated by state and federal agencies which incl ude: Colorado Department of Public Health and Environment, Arizona Department of Environmental Quality, New Mexico Environment Department, Wyoming Department of Environmental Quality, Kansas Department of Health and Environment, U.S. Environmental Protecti on Agency (EPA), Army Corps of Engineers, and Office of State Engineers. Tri

-State is routinely inspected for environmental requirements and has consistently been determined to be in compliance with the broad array of rules and regulations that are already placed on coal fired electric generating units.
**Response:** EPA acknowledges the comment. EPA does not take a position here on Tri

-State’s compliance status.
**Comment 3.17.2**  **:** In its proposed rule, EPA intends to conditionally exclude carbon dioxide ( CO 2 ) streams that meet the classification requirements of a hazardous waste from being defined as a hazardous waste, provided the CO 2 waste streams are captured from the emission source and injected into a Class VI Underground Injection Control (UIC) Program well for the purposes of geologic sequestration. Tri

State appreciates EPAs recognition that there are several programs that will effectively manage carbon dioxide once it is captured from an emission source, and that it does not need to be further

5 Identical to Docket ID EPA

- HQ

- RCRA

- 2010

-0695

-0056.159

regulated un der the Resource Conservation and Recovery Act as a hazardous waste if it is appropriately complying with other applicable regulatory programs implemented by the federal government. Tri

-State agrees with EPAs assertion that it is unlikely that most CO 2 st reams would meet the classification requirements to be identified as a hazardous waste. The gases that are emitted in the flue gas stream at a coal fired power plant would not generally contain constituents in sufficient concentrations that would exceed th ese requirements. However, the proposed exclusion will give CO 2 stream generators a level of certainty in this area that they did not previously have. Tri

-State agrees with and supports the EPA proposal to provide for the conditional exclusion of CO 2 strea ms from the classification as a hazardous waste **Response:** EPA thanks the commenter for its support of the conditional exclusion , and agrees with the commenter that management of CO 2 streams under the terms of the conditional exclusion (including complianc e with other regulatory programs) do es not present a substantial risk to human health and the environment, and that therefore additional regulation pursuant to RCRA’s hazardous waste regulations is unnecessary

. EPA also agrees that this conditional exclus ion offers an option that provides a level of certainty regarding the potential applicability of RCRA subtitle C to CO 2 streams being captured for injection into UIC Class VI wells for purposes of geologic sequestration

. **Comment 3.17.3**  **:** In the proposed rul e, EPA suggests that generators seeking to sequester CO 2 streams in the geologic subsurface would need to do so to a depth of at least 2600 feet below the surface in order for the CO 2 to be maintained in a supercritical state. Tri

-State believes that EPA i s correct in its belief that geologic sequestration sites and site owners will generally look to inject CO 2 streams at depths greater than 2600 feet below the surface, and that pressures and temperatures at this depth will maintain the injected CO 2 in a su percritical state, however, Tri

-State believes that injection at shallower depths would still maintain the CO 2 stream in the supercritical state. It should only take pressures achieved at about 850 feet below the surface with a temperature greater than 88° Fahrenheit to achieve a supercritical state for the CO 2 stream. Tri

-State believes that EPA should simply state the requirement to ensure that the CO 2 is maintained in the subsurface in a supercritical state for it to meet the conditions of the exclusion from the definition of being a hazardous waste.
**Response:** The information presented on injection depth was provided in the preamble to the proposed rule as background for the reader on geologic sequestration of CO 2 streams generally

. T he final conditional exclusion does not include a minimum injection depth requirement, nor did EPA propose to include such a requirement in the proposed rule. The terms of the conditional exclusion require that injection of the CO 2 stream that is claimed to be excluded be in compliance with the applicable requirements for UIC Class VI wells. 40 CFR 261.4(h)(2). EPA developed the conditional exclusion based on its analysis of the protectiveness of the UIC Class VI program, among other requirements. This analysis did not rely o n a specific injection depth, which EPA expects will be determined on a case - by

- case basis in the UIC Class VI permitting process. This process is separate from today’s RCRA conditional exclusion rule.
**Comment 3.17.**  **4 :** 160

Tri

-State believes that if it were to engage in the practice of carbon capture and sequestration, it would likely transport the captured CO 2 to an underground injection well via a pipeline. Tri

-State is currently involved with an interested group of organizations on a Department of Energy p roject to drill a geologic characterization well near Craig, Colorado. Tri

-State believes that if the geologic structure and lithologic characteristics are determined to be suitable for commercial sequestration, Tri

-State would likely use this well for inj ection of CO 2 waste streams, if carbon capture and sequestration were adopted as a requirement to reduce emissions of carbon dioxide.
Tri

-State believes that commercial scale geologic sequestration would likely need to be accomplished through offsite tran sport via a pipeline, given the volume of material in question. Tri

State supports the EPA proposal to not require the development of a hazardous waste manifest for the off

-site shipment of CO 2 streams when the CO 2 is transported offsite via a pipeline.
T ri

-State also believes that EPA should not require the use of a manifest for those very limited occurrences where CO 2 may be transported offsite via a tanker truck or other than pipeline means of conveyance

. **Response:** EPA had requested comment on t he exte nt to which non

- pipeline transportation will be used to transport CO 2 streams ; several commenters responded (including this commenter) and all agreed that pipelines would be the most likely way to move CO 2 stream s . Regarding the commenter’s support of EPA’s proposal to not require a hazardous waste manifest, EPA had discussed in the proposed rule its rationale for why a manifest was not needed for non

- pipeline transportation (see 76 FR at 48083), and requested comment on whether the certification statement together with the DOT hazmat requirements are effective substitutes for RCRA subtitle C requirements (which would include, in this context, the hazardous waste manifest). EPA did not rec eive any comments on this issue that caused it to alter its analysis, and th e final rule will not require a manifest for conditionally

-excluded CO 2 stream s transported via truck or other than pipeline, for the reasons set out in the proposed r ule

. **Comment 3.17.**  **5 :**  Tri

-State does not object to the proposed requirement that a certification statement by an authorized official attesting to the fact that the CO 2 stream was injected into a Class VI UIC program well be completed by an authorized representative of the generator, and retained on site for a period of no less than thre e years. **Response:** I n the final rule, in light of comments received from other commenters that the proposed certification would require signatories to attest to activities outside of their control, EPA has revised the certification statement so that there are now two separate certification statements

– one for CO 2 stream generators and another for UIC Class VI well owners or operators. EPA made these revisions to better reflect actions over which each party has control. Under the final rule, the certific ation statement that the generator would sign is specific to the activities within the generator’s control; likewise, the certification statement that the UIC Class VI well owner or operator would sign is specific to the activities within the owner or operator’s control. The certification statement EPA is finalizing for generators includes the prohibition on hazardous waste mixing, and transportation (or arranging for transport ) of the CO 2 stream in accordance with DOT (or certified state) for injection in to a UIC Class VI facility, which EPA finds would be in the generator’s control. EPA acknowledges the commenter’s support of the three

-year retention time for the certification statements; EPA agrees, and believes that the 3

-year recordkeeping161

requirement is sufficient. See 3.6.9

. **Comment 3.17.**  **6 :**  Tri

-State does not believe that transporters of CO 2 streams should need to complete such a certification. This certification statement should only be required from the generator. **Response:** EPA agrees that a cert ification by the transporter is not necessary . See Response to Comment 3.2.39. However, EPA also notes that where the exclusion is being applied, a certification statement is also required for the UIC Class VI owner/operator, in response to commenters wh o expressed concern with the proposed certification language that would have persons certifying to activities beyond their control (see Response to Comment 3.2.36).
**Comment 3.17.**  **7 :**  In the proposed rule, EPA seeks comment on the option that additional te sting could be required to ensure that generators are not mixing other hazardous waste into the CO 2 waste stream. Tri

-State believes that testing of the CO 2 waste streams can be done at any given time if there is a doubt or fear that the source is inapprop riately mixing in other hazardous wastes. As the geologic sequestration program begins, it would be helpful to generators if there would be fewer requirements and if, over time, there were program abuse then EPA could move to add this type of requirement. If EPA believes this type of req uirement is necessary, Tri

-State believes that it should be implemented through the UIC program and not the RCRA hazardous waste program. Keeping the regulatory requirements in one place will be useful to future users of car bon capture and sequestration. **Response:** EPA is not finalizing any new monitoring, recordkeeping, or reporting requirements related to the condition that no hazardous waste be mixed with excluded CO 2 streams. See Response s to Comment s 3.2.40 through 3.2. 43

. **Comment 3.17.**  **8 :**  Tri

-State supports the EPA proposed definition of CO 2 stream to allow for the inclusion of incidental associated substances that result from the source materials, and from the inclusion of substances that will enable or improve the inj ection process. Tri

-State believes that if EPA were to not allow the inclusion of these incidental substances it would negate the effect of the proposed rule, and make the effort of providing the exclusion meaningless. Tri

-State believes that it will be t echnically impossible to obtain a pure CO 2 stream from the combustion of coal or other fossil fuel, especially at the inception of this very important program. **Response:** Based on the information EPA presented in the proposed rule, EPA agrees that sources would be unlikely to obtain a pure CO 2 stream from the combustion of coal or other fossil fuel

. Regarding the commenter’s support of EPA’s definition of CO 2 stream to allow for the inclusion of incidental associated substances that result from the source materials, and from the inclusion of substances that will enable or improve the injection process, see Responses to Comments 3.7.11 and 3.8.6.
**Comment 3.17.**  **9 :**  In the proposed rule, EPA intends to restrict the operation of Enhanced Oil Recovery (EOR) from u sing the proposed exclusion. Tri

-State believes that EPA should reconsider the application of this exclusion for EOR. As EPA aptly notes in the preamble to the rule, there are very few CO 2 streams162

that would be considered a hazardous waste pursuant to the requirements for classification anyway. Most CO 2 injected into geologic formations today is for the purposes of EOR. Tri

-State believes that the application of the exclusion of CO 2 streams from the definition of hazardous waste would facilitate the injecti on of greater volumes of CO 2 into geologic formations from actual emitting facilities. Also, many of the EOR operations in effect today would meet many of the requirements set forth in the proposed rule. This would facilitate a greater amount of CO 2 sequestered into subsurface geologic formations and help grow the technology for sequestration. **Response:** EPA is not addressing the status of all CO 2 streams in this rulemaking; the scope of this rule is limited to CO 2 stream s injected into a permitted UIC C la ss VI well for purposes of GS. 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 CO 2 be used for its inte nded 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 regul atory authority to address any fact

- specific questions they may have regarding the status of CO 2 in situations that are beyond the scope of this final rule.
**Comment 3.17.**  **10 :**  In the proposed rule, EPA seeks comment of the need for additional monitoring rec ord keeping and reporting requirements. Tri

-State does not believe that additional monitoring, recordkeeping, or reporting requirements should be placed on the generator or the operator of the CO 2 sequestration well, in addition to the requirements that are set forth under the UIC program for Class VI wells, especially given EPA’ s adaptive approach that it is taking with the implementation of the UIC Class VI well rulemaking. EPA will be able to re

- evaluate the requirements in six years and should proceed i n a step wise fashion with these requirements. **Response:** See Response s to Comment s 3.2.40 through 3.2.43

. **Comment 3.17.1**  **1 :**  Tri

-State supports EPAs inclusion in the final rule of a provision to allow generators of CO 2 streams to submit those streams for h azardous waste testing and, if it is not determined to be a hazardous waste, waive any required compliance with the proposed rule. Some sources would find value in knowing that the CO 2 stream being injected into the geologic formation is not a hazardous wa ste, and may desire to establish a non

- hazardous waste classification for their CO 2 stream prior to injection into a subsurface geologic formation. This approach would preserve any future liability exposure that may present itself were the CO 2 stream deter mined to be a hazardous waste. EPA should focus greater discussion of this provision in the final rule. **Response:** EPA’s proposal did not include any new provision s for making hazardous waste determinations beyond what the existing regulations specify. U n der EPA’s existing hazardous waste regulations, all generators bear the obligation of determining whether or not their waste is hazardous, and for captured CO 2 streams destined for injection into UIC Class VI wells, this would be no different. However, EPA appreciates the commenter’s concerns regarding the application of the hazardous waste regulations to supercritical CO 2 streams being sequeste red, and EPA believes these concerns exist as a result of the unique circumstances associated with addressing the applicability of RCRA to CCS at such an early stage in the development of CCS. In t he meantime, a generator may choose to comply with the conditional exclusion as a precautionary matter, if they163

are unsure of the hazardous waste status of their CO 2 strea m . I t is not clear what it means to “preserve future liability exposure that may present itself were the CO 2 stream determined to be a hazardous waste” as the commenter states. EPA does note that issues of potential CERCLA liability for GS are outside the scope of this rule, if that is to wh at the commenter is referring

. **Comment 3.17.12**  **:** Tri

-State appreciates the opportunity to provide comment on this regulatory proposal from the EPA. Should you have any questions about these comments, or need additional i nformation, please contact (see docket for contact information). **Response:** EPA acknowledges the comment.



### 3.18 **Southern Company**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0061**
**Comment 3.18.1**  **:** Southern Company (“Southern” or “The Company”) appreciates the opportunity to provide comments on the U.S. Environmental Protection Agency’s (“EPA”) proposed rule to conditionally exclude geologically sequestered carbon dioxide (“ CO 2”) from regulation under the Resource Conservation and Recovery Act’s (“RCRA”) hazardous waste pro gram. As one of the largest generators of electricity in the nation, Southern serves both regulated and competitive markets across the southeastern U.S. Southern participates in all phases of the electric utility business with more than 42,000 megawatts of electric generating capacity and more than 27,000 miles of transmission lines. The Company provides electric service to over 4.4 million retail customers through its subsidiaries Alabama Power, Georgia Power, Gulf Power, and Mississippi Power. In additio n, Southern Power, Southern's competitive wholesale generation business, is among the largest wholesale energy providers in the Southeast, meeting the electricity needs of municipalities, electric cooperatives, and investor

-owned utilities. Carbon capture and storage (“CCS”) is critical to the mitigation of greenhouse gases and Southern is working to help bring this important technology towards commercial viability. Southern manages the Department of Energy’s (DOE) National Carbon Capture Center in Alabama , testing the next generation of technologies to capture carbon dioxide emissions. Also, Mississippi Power’s Plant Daniel was the host site for a DOE carbon sequestration demonstration project where 3,000 tons of CO 2 were injected and are being monitored. Beginning this year, Alabama Power's Plant Barry will capture up to 150,000 tons of CO 2 per year for underground storage, and Southern Company is constructing a commercial

-scale 582 MW integrated gasification combined cycle plant in Kemper County, Mississi ppi, with 65 percent CCS.
**Response:** EPA acknowledges the comment.
**Comment 3.18.2**  **:** Southern herby endorses and incorporates by reference the comments submitted to this docket on this proposed rule by the Utility Solid Waste Activities Group, the Edison Electric Institute, the Carbon Sequestration Council, and the CCS Alliance.164

**Response:** See Responses to Comments in Sections 3.7, 3.15, 3.2, and 3.8 of this document, respectively.
**Comment 3.18.3**  **:** In sum: 1. While the conditional exclusion from hazardous waste regulation is helpful, EPA has not yet met the burden of explaining why a CO 2 stream should be considered a solid waste. EPA has not explained how geologically sequestered CO 2 qualifies as a discarded material that would result in it being considered a waste, nor has it explained why geologically sequestered CO 2 should be considered a contained gas under RCRA's definition of solid waste. **Response:** See Responses to Comments 3.1.1 through 3.1.8, and 3.2.1 and 3.2.2.
**Comment 3.18.4**  **:** 2. Assuming geological ly sequestered CO 2 is a solid waste, the conditional exclusion should clarify that the exclusion will not be lost for minor administrative

-type violations that do not bear on the safety of the sequestration facility. **Response:** See Response to Comment 3.7 .13.
**Comment 3.18.5**  **:** 3. The certification statement required under the exclusion should be limited to matters properly within the control and knowledge of the party making the statement. Generators are not in a position to certify the behavior of the facil ity operator or other generators that send CO 2 to the facility. **Response:** See Response to Comment 3. 2.54 and 3.8.8

. **Comment 3.18.6**  **:** Southern supports a single regulatory structure for geologic sequestration of CO 2 as opposed to a structure composed of mul tiple regulatory laws with overlapping enforcement regimes and penalty provisions. The Company believes that the current RCRA proposal to conditionally exclude CO 2 streams captured and injected for geologic storage from RCRA’s stringent hazardous waste con trols is an important step in shaping practicable and effective CCS regulations. However, there are several issues that need to be addressed, and Southern Company requests that EPA take the recommendations summarized above, which are discussed in more deta il in the groups’ comments listed above. **Response:** EPA agrees that the final conditional exclusion is an important step in “shaping practicable and effective CCS regulations” which EPA believes includes addressing uncertainty with regard to RCRA subtitle C and CCS regulation. Regarding this commenter’s reference to other comments, see Responses to Comments in Sections 3.7, 3.15, 3.2, and 3.8 of this document.



### 3.19 **Xcel Energy, Inc.**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0072**165

**Comment 3.19.1**  **:** Xcel Energy, Inc. (X cel Energy) appreciates the opportunity to submit comments regarding the U.S. Environmental Protection Agency's (EPA) proposed Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide ( CO 2 ) Streams in Geologic Sequestration Activities, which were published at 76 Fed. Reg. 48073 (Monday August 8, 2011) [FN1: Technical corrections published September 9, 2011, 75 Fed. Reg. 55846] hereafter referred to as the proposed rule. Xcel Energy owns and operates four electric an d gas utilities: Northern States Power Company Minnesota, Northern States Power Company Wisconsin, Public Service Company of Colorado, and Southwestern Public Service. Xcel Energy serves 3.4 million electric customers and 1.9 million natural gas customers in our service territories. Xcel Energy has over 16,000 megawatts of generation capacity including hydroelectric, natural gas, coal and nuclear facilities. EPA's proposed rule provides a conditional exclusion of CO 2 Streams Injected for Geologic Sequestra tion (GS) from the Resource Conservation Recovery Act's (RCRA) definition of hazardous waste, provided the CO 2 Streams meet certain conditions. Xcel Energy supports EPA's proposal for conditional exclusion of CO 2 Streams from RCRA. However, Xcel Energy be lieves that the Underground Injection Control (UIC) regulations for Class VI wells and Department of Transportation (DOT) regulations (including DOT Pipeline Hazardous materials Safety Administration (PHMSA) regulations) are more appropriate than RCRA for regulating for CO 2 Streams Injected for Geologic Sequestration and are protective of human health and the environment. Inclusion of CO 2 Streams Injected for Geologic Sequestration in RCRA does not provide any additional protection to human health or the en vironment, but may result in additional administrative burden by generators, transporters, UIC Class VI well owners or operators, and the EPA as well as potential duplicative enforcement actions. **Response:** EPA thanks the commenter for their comment and ag rees that finalization of the conditional exclusion is appropriate. EPA believes that management of CO 2 streams under the terms of the conditional exclusion do es 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.
**Comment 3.19.2**  **:** In addition, Xcel Energy is in general agreement with comments on the proposed rule provided to the EPA by The Edison Electric Institute (EE1) dated October 7, 2011 and the Utility Solid Waste Activities Group (USWAG) dated October 7, 2011. Xcel Energy appreciates the opportunity to submit these comments. **Response:** See EPA’s responses to the Edison Electric Institute in Section 3.15 and to the Utility Solid Waste Activities Group in Section 3.7 of this document.



### 3.20 **Basin Electric Power Cooperative (Basin Electric)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0076**166

**Comment 3.20.1**  **:** Basin Electric Power Cooperative (Basin Electric) appreciates this op portunity to submit comments to the Environmental Protection Agency (EPA) in regard to the proposed rule for Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide (CO 2 ) Streams in Geological Sequestration Activiti es. I. Importance of CCS to Basin Electric and its Members: Executive Summary Basin Electric agrees that CO 2 should be considered non

- hazardous for the purpose of storage in geological formations. Basin Electric also believes that coal needs to remain via ble as a fuel source for electrical generation in the future. As EPA stated in the rule, carbon capture and storage (CCS) could enable the continual use of coal, and geological storage is a key component of CCS. The proposed rule will lessen the burden and provide more certainty for geological storage while still protecting human health and the environment. **Response:** EPA thanks the commenter for its support of the proposed rule. EPA agrees with the commenter that the conditional exclusion for CO 2 streams s ent to a Class VI well for purposes of GS will reduce regulatory uncertainty for stakeholders with no reduced protection to human health and the environment

. **Comment 3.20.2**  **:** Basin Electric understands that regulations need to be in place to safely handl e CO 2 sequestration in geological formations. However, the requirements for obtaining a Class VI well authorization for injection of CO 2 in geological formations are unnecessarily onerous. For meaningful development of geological sequestration of CO 2 to occur, a clear and consistent national regulatory structure must be developed. This regulatory structure must also allow for geologic

- specific and site

- specific differences to be considered. Basin Electric would urge that the States be given primacy for the Class VI portion of the Underground Injection Control (UIC) program as provided in EPA's UIC final rule, especially for those areas where geologic

- specific and site

- specific factors are to be weighed and considered. **Response:** As a general matter, EPA agre es that a clear regulatory framework is important to facilitate development of GS, and to do so in a manner protective of human health and the environment. With respect to the commenter’s comments regarding the UIC Class VI regulations, as EPA stated in th e proposed rule (76 FR 48077), the RCRA conditional exclusion rulemaking did not reopen the UIC Class VI rule, nor will EPA respond to comments related only to the UIC Class VI rulemaking, which are beyond the scope of this RCRA rulemaking.
**Comment 3.20.3**  **:** Basin Electric Power Cooperative Basin Electric is a regional, consumer

- owned, generation and transmission cooperative formed in 1961 to supply supplemental power to a consortium of rural electric distribution cooperatives. Basin Electric's core business is generating and delivering electricity to wholesale customers, primarily our member systems. Basin Electric owns 3.437 megawatts (MW) and operates 4.424 MW of electric generating capacity. Basin Electric supplies 135 rural electric member cooperative systems with wholesale electric power who in turn serve approximately 2.8 million consumers in a nine

- state area.167

Basin Electric has extensive institutional knowledge of coal gasification, carbon capture and CO 2 sequestration through its subsidiary, the Dakota Gasification Company ( D GC). DGC owns and operates the Great Plains Synfuels Plant (Synfuels Plant), the only commercial

- scale coal gasification plant in the United States that manufactures synthetic natural gas. The $2.1 billion Synfuels Plant began o perating in 1984. The Synfuels Plant uses the Lurgi gasification process to gasify lignite coal to produce valuable gases and liquids. The average daily production is 160 million standard cubic feet of synthetic natural gas (SNG), the majority of which is piped to Ventura, Iowa, for distribution in the eastern United States. Many co

- products are produced and marketed in the United States and Canada. DGC captures CO 2 from the gasification process and provides all the CO 2 sequestered in the largest anthropog enic CO 2 sequestration project in the world. Through 2010, DGC had successfully captured and marketed over 20 million tons of CO 2 to two Canadian customers. The current total CO 2 demand is 152.7 million standard cubic feet per day (MMscfd), which is approx imately 8,800 tons per day or 3 million tons per year. The CO 2 is being used for enhanced oil recovery (EOR) in oil fields near Weyburn, Saskatchewan. The CO 2 is expected to be permanently sequestered in the oil reservoir and is being monitored by the Inte rnational Energy Agency (lEA) Weybum CO 2 Monitoring and Storage Project. The 2000

- 2004 IEA GHG Weyburn CO 2 Monitoring & Storage Project Summary Report states in the conclusion that "modeling predicts that there is a 95% probability that 98.7% to 99.5% of t he initial CO 2- in

- place will remain in the geosphere for 5000 years." Basin Electric also conducted a front

- end engineering and design (FEED) study for a post

combustion CO 2 capture demonstration project. The proposed project was to capture 90 percent of the CO 2 from a 120 MW slipstream of flue gas at Basin Electric's Antelope Valley Station (AVS). AVS is a 900 MW pulverized coal power plant located adjacent to the Synfuels Plant near Beulah, North Dakota. After carefully analyzing the FEED study results, Basin Electric's Board of Directors put the project on hold. The reason was that a viable business plan could not be put in place to shield Basin Electric's members from undue financial burden. The FEED study was valuable. With the information from the FEE D study in hand, Basin Electric knows what the impacts of the costs and the operational challenges a project like this will have on the consumers. Additionally, Basin Electric is better equipped to understand how all levels of the organization would be affected if a full

- scale implementation of this capture technology were to be employed. **Response:** EPA thanks the commenter for the information

. EPA notes that uses of CO 2 for purposes other than injection into a UIC Class VI well for GS are beyond the scope of this rulemaking.
**Comment 3.20.4**  **:** II. Importance of Developing Reasonable CO 2 Storage Regulations The energy needs of the United States are dependent upon carbon based fuels. The development of reasonable regulations, including reasonable regulations fo r CCS, is crucial for CCS to fulfill its potential as one of the important ways to mitigate greenhouse gas impacts. "While other climate mitigation options exist

- such as energy efficiency improvements, a switch to less carbon

- intensive fuels, nuclear power, and renewable energy sources

- CCS is considered by many to be a crucial component of any U.S. approach or strategy for addressing the climate change issue, particularly given the United States' current reliance on coal for almost half of its electricity p roduction." [FN1: GAO, Federal Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key168

Mitigation Option, GAO

-08

- 1080 at 1 (Washington, D.C. September 30, 2008)]. The use of CO 2 for EOR is also generally recognized as important in developing geological storage data. The injection of CO 2 in deep geological formations involves many of the same technologies that have been developed in the oil and gas exploration and production industry. Well

- drilling technology, injection technology, computer simulation of storage reservoir dynamics and monitoring methods from existing applications are being developed further for design and operation of geological storage. **Response:** EPA agrees with the commenter that CCS has the potential to be key to achieving domestic greenhouse gas emissions reductions and that providing a consistent regulatory approach and regulatory certainty are important to facilitate future deployment of CCS. With respect to the commenter’s comments regarding the use of CO 2 for EOR, EPA agrees that data from such operations can inform GS injection activities in Class VI wells. As part of the adaptive approach on CCS generally, the Agency will continue to identify and address additional information and respond, including via rulem aking, should that be necessary. EPA emphasizes that where additional information may increase protectiveness, streamline implementation, or otherwise inform the requirements for GS injection of CO 2, 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.
**Comment 3.20.5**  **:** III. Comments on Identified Issues The fo llowing comments are directed to the specific questions and comments that were raised in the proposed rule. Federal Register Vol. 76, No. 152/Monday, August 8, 2011/Proposed Rules 1. Page 48079
– “ However, EPA acknowledges that at this time, it does not h ave knowledge of the range of possible CO 2 stream compositions. While guidance is still being developed regarding these requirements, at a minimum, the physical characteristics of the CO 2 stream will include temperature and pressure, while the chemical cha racteristics will include pH, carbon dioxide purity (as a percent), as well as concentrations of non

- CO 2 constituents (either in ppmv or in percent). These non

- CO 2 constituents may include, but not limited to, sulfur dioxide (SO 2 ) , hydrogen sulfide (H 2S), nitrous oxides (NOx), ca rbon monoxide (CO), methane (CH 4 ), other hydrocarbons, water vapor (H20), as well as certain contaminants, that are also defined as hazardous contaminants in 40 CFR 261.24, such as arsenic, mercury and selenium. ”
Comment: Basin Ele ctric supports EPA's proposal to conditionally exclude from the definition of hazardous waste CO 2 streams captured, transported, and injected into permitted underground injection control (UIC) Class VI wells. The 40 CFR part 146 regulations have adequate protection for drinking water aquifers and address corrective action, financial assurance requirements, and long

-term monitoring after closure. These requirements negate the need for any RCRA regulation. Impurities, such as H 2S or mercaptans, should not trigger a classification under RCRA. The success of existing acid gas injection operations into depleted oil and gas reservoirs conducted under the existing protective UIC regulations is further justification to exclude RCRA regulation. With the existing framework of RCRA, H 2S is not part of the toxic list for toxicity characteristic leaching procedure (TCLP) testing, and U

- listed wastes are only applicable to the listed chemical product in169

an essentially pure form. Also, historically, RCRA has been limited to containerized or condensed gases by the statute. Thus, the proposed exclusion of RCRA for injected CO 2 streams including streams that have impurities such as H 2S is warranted and makes sense. As for corrosion concerns, the Synfuels Plant experience il lustrates that corrosion has not been a problem when the captured and transported CO 2 is maintained as dry. The Synfuels Plant has been successful in maintaining a dry CO 2 gas (<10 ppm H20) and controlling a zero oxygen presence that is checked with lab re sults. DGC uses in line inspection tools capable of withstanding supercritical CO 2 at 2700 psig. The tools travel down the inside of the pipeline while it is in operation to allow for assessment of the pipeline condition. It is one of the most important diagnostic tools available to maintain compliance with the integrity management portion of the hazardous liquid pipeline regulations. The Synfuels Plant experience with CO 2 pipeline transportation has indicated little corrosion concern with in line inspect ions verifying pipeline mechanical integrity. Also, injected CO 2 should be considered a product and not a solid waste, as stored CO 2 in geologic storage could be retrieved in the future for industrial use. Any potential RCRA liability will be a deterrent to CO 2 storage projects. Class VI CO 2 injection operations should not be considered waste management activities. **Response:** EPA thanks the commenter for their comment and for the information provided. EPA agrees that finalization of the conditional exclusi on is appropriate. EPA believes that management of CO 2 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. Regarding the comment that injected CO 2 “should be considered a product and not a solid waste,” E PA disagrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste. See Respo nse to Comment 3.1.1 through 3.1.8, and 3.2.1 and 3.2.2. Regarding the comment stating that “ historically, RCRA has been limited to containerized or condensed gases by the statute” please see EPA Response to Comment 3.1.7. Regarding comment that UIC Cla ss VI injection operations should not be considered waste management, because of the potential for retrieval of CO 2 later, EPA disagrees that these operations do not involve solid waste (as described above) but adds that t he RCRA conditional exclusion does not preclude the removal of CO 2 at a later date

. How this activity is regulated would be a determination separate from the terms of the conditional exclusion in this rule. Regarding the comment referencing Acid Gas Injection, EPA did not consider the co - injection of H 2S streams in developing the proposed hazardous waste exclusion. While the Agency acknowledges that Acid Gas Injection takes place in the energy industry, it takes place using UIC Class II wells, not UIC Class VI wells, which were the foc us of EPA’s analysis in support of the conditional exclusion

. Because Acid Gas Injection wells occur under well classes other than UIC Class VI wells, the protectiveness of those operations as noted by the commenter are beyond the scope of this rule. EPA has indicated it may revisit the rule as part of the adaptive process, and any new information regarding, for example, the content of CO 2 streams or co - injection of H2S could be part of that review.170

Also, EPA agrees that H 2S would not cause a waste to b e h azardous under the Toxicity Characteristic as H 2S is not a TC contaminant; and EPA also agrees that as a waste generated from an industrial process, H 2S would not be classified as a U

- listed [commercial chemical product] waste. However, EPA notes that u nder the RCRA regulations, sulfide

- bearing wastes that can produce “toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment” are hazardous waste under the reactivity characteristic (40 CFR 261.23(a)(5))

. EPA emphasizes that it is not making any finding on the hazardous waste status of captured supercritical CO 2 streams as a class; these determinations are waste specific.
**Comment 3.20.6**  **:** 2. Page 48081
– “ For CO 2 streams that are captured, compressed, a nd transported to a UI C Class VI well, EPA believes that the full set of subtitle generator and transporter retirements are not necessary, because they do not provide any additional protection over existing regulatory requirements. ”
Comment: Basin Electri c agrees 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. The applicable Department of Transportation (DOT) requirements an d 49 CFR part 195 regulations will ensure that CO 2 streams are managed in a safe and environmentally protective state. Based on the Synfuels Plant's EOR experience, no on

- site storage is necessary. The capture/compression/pipeline process occurs on a cont inuous basis. Basin Electric would not contemplate storage necessary for sequestration activities. **Response:** EPA agrees with the commenter that additional requirements are not necessary when CO 2 streams are managed in accordance with the terms of the cond itional exclusion. EPA thanks the commente r for the information relating to its experience and plans regarding on - site storage of CO 2 . **Comment 3.20.7**  **:** 3. Page 48082
– “ EPA requests information on whether EPA's estimates for captured CO 2 volumes are accura te and reasonable, and whether the CO 2 that is captured could be stored on

- site prior to being sent elsewhere for GS or any other purpose. ”
Comment: Basin Electric does not believe that CO 2 that is captured could be stored on

- site. For example, at the Syn fuels Plant, approximately 153 million standard feet per day of CO 2 is captured and sent through a pipeline for EOR. This is approximately equal to the amount of CO 2 that would be captured from a 400 MW power plant if fully controlled with a carbon capture system. Storing even one week's worth of CO 2 would require over 1,000 million standard cubic feet of capacity. Even after compressing to supercritical conditions, millions of cubic feet capacity would be required. Design for large quantities of pressurize d CO 2 is unprecedented. If such storage tanks could be designed and constructed to hold that pressure, the size and number of the tanks would be impractical to store on site.171

**Response:** EPA thanks the commenter for the information provided regarding on

- sit e storage of CO 2 . See Response to Comment 3.2.25. **Comment 3.20.8**  **:** 4. Page 48082
– “ EPA also requests information on the units and process involved after the CO 2 is captured, and before it is either injected on

- site, or sent off

- site. ”
Comment: The Synfu els Plant's EOR experience provides CO 2 capture with a Rectisol cold methanol wash process. The compression process has three 20,000 HP compressors to provide supercritical CO 2 suitable for transport by pipeline. The CO 2 is compressed to an average of 2650 psi prior to metering to the CO 2 pipeline. **Response:** EPA thanks the commenter for the information.
**Comment 3.20.9**  **:** 5. Page 48082
– “ Finally, EPA requests comments and information on the procedures that have been or are expected to be used during mainten ance and upset circumstances of the carbon capture system. ”
Comment: Appropriate seals are used in the compression process to avoid fugitive emissions and odors. Also, during plant upsets, CO 2 may need to be flared for short periods due to H 2S present in the product. Pipeline CO 2 depressuring to the flare is much less frequent and flows are managed to avoid negative impacts and to allow proper operation of the flare. The Synfuels Plant has numerous procedures for managing activities for operation and main tenance including purging the lines and mechanical integrity testing. Separate procedures also cover accident investigations, pipeline safety related conditions, abnormal operating conditions, and suspected pipeline leak detection. The pipeline is operated with on

- line instrumentation and monitored with a leak detection system. Supercritical CO 2 pipelines are considered hazardous liquid pipelines, which are regulated by 49 CFR Part 195 in the United States and the Canadian Standard Association Z662 in Cana da. As a result, DGC must follow all of the same regulations as a pipeline operator transporting petroleum products. One of the requirements for operating a hazardous liquid pipeline on either side of the border is to have a dependable form of on

- line leak detection. In addition, the Canadian National Energy Board specifically requires a computational leak detection system (LOS). The LOS in operation at the Synfuels Plant to monitor the CO 2 pipeline is a sophisticated computer model that continuously querie s pipeline operating data to identify potential leaks in the piping system. Pressure and temperature readings are taken at both ends of the pipeline and at each of the 12 mainline valve stations. There is also a highly accurate mass flowmeter at each end of the pipeline to aid in the volume balance calculations of the LOS. The data is transmitted via microwave, hard wire, or radio communication to the control room at the Synfuels Plant, where it is automatically forwarded to the LOS computer. The software u ses this information to identify a potential leak and generate an audible and visual alarm on the pipeline control room screens. It can identify a potential leak location to within two miles, estimate the leak rate and report the total volume lost. A great deal of development work has gone into this system, by both the software vendor and OGC172

personnel because it is the first of its kind on a supercritical CO 2 pipeline. There is also a reverse 911 system at the Synfuels Plant. If a leak is suspected due to a leak detection system alarm or any other means, plant supervision will trigger the reverse 911 procedure. A computer at the Synfuels Plant is preprogrammed to call specific groups of residents and businesses that are determined by the supervisor to be i n the vicinity of the potential leak. The recording gives them general instructions on the nature of the potential emergency and advises them of the appropriate response. **Response:** EPA thanks the commenter for the information. The commenter’s description of the flaring during plant upsets at the Synfuels plant does not change EPA’s overall conclusion in the final conditional exclusion regarding the protectiveness of existing regulatory requirements

. It is assumed that the flaring would be performed in co mpliance with applicable air pollution control reiquirements. **Comment 3.20.10**  **:** 6. Page 48083
– “ EPA believes that these requirements, which focus on preventing release that might affect human populations and ecologically

- sensitive areas, further support of the conclusion of today's proposal that additional regulations of pipeline transportation under RCRA subtitle C is not necessary in order to protect human health and the environment. ”
Comment: Basin Electric agrees with the analysis. Pipeline transporta tion of CO 2 is subject to the 49 CFR Part 195 Transportation of Liquids by Pipeline requirements. The requirements govern pipeline design, construction, operation and maintenance, and emergency response planning. The regulations also require pipeline integ rity management systems to be in place including corrosion monitoring. These protective and detailed regulations and standards negate the need for further RCRA subtitle C regulation. **Response:** EPA agrees that DOT’s PHMSA requirements in 49 CFR part 195 su fficiently protect human health and the environment. EPA notes that were CO 2 streams to be subject to RCRA subtitle C as hazardous waste, they would not be regulated any differently under the part 195 regulations that are applicable to supercritical CO 2 streams. **Comment 3.20.11**  **:** 7. Page 48083
– “ Finally, EPA notes it may be the case that some pipelines used to transport CO 2 are not subject to the DOT requirements, because they are located on - site at the generator facility or at the UIC Class VI facility. See e.g. 49 CFR 195.1 (b)(8). EPA requests information on how pipelines are currently regulated, including any design and operating standards that apply to such pipelines. EPA still requests comment on the appropriateness of applying the RCRA subtitle C standards to these non

- DO T pipelines. ”
Comment: Basin Electric agrees with the EPA analysis in not proposing to apply RCRA subtitle C requirements to these on

- site pipelines. At the Synfuels Plant, non

- DOT regulated CO 2 pipelines on

- site are designed, con structed and maintained in accordance with the American Society of Mechanical Engineers Pipeline Transportation Systems for Liquid Hydrocarbons and Other Liquids (B31.4) engineering standards, good engineering practice, and vendor mechanical and control173

re quirements. The Synfuels Plant's CO 2 is transferred on a continuous basis to a pipeline system to an EOR well injection site. The CO 2 is not stored on - site. If there was any scenario of large storage on - site, the OSHA Process Safety Program regulation woul d apply at the Synfuels Plant due to H 2S thresholds. The Process Safety Management (PSM) regulation comprises 14 program elements including mechanical integrity, emergency response, and Process Hazard Analysis (PHA). **Response:** See Response to Comment 3.2 .30. EPA did not evaluate the OSHA PSM regulation as part of the conditional exclusion, but thanks the commenter for providing this information. **Comment 3.20.12**  **:** 8. Page 48083
– “Therefore, EPA requests comment on the extent to which non

- pipeline transportation will be used specifically for transporting CO 2 stream to UIC Class VI facilities, and whether the use of the certification statement, together with compliance with applicable DOT hazardous material transportation requirements, are effective substitu tes for the RCRA hazardous waste regulations that would apply to these specific circumstances. ”
Comment: Basin Electric would not anticipate using non

- pipeline transportation in operations. It is Basin Electric's understanding that the Plains CO 2 Reductio n (PCOR) Partnership did use CO 2 transportation by truck for a research project to demonstrate CO 2 storage in an un

- minable coal vein in North Dakota. It would be Basin Electric's belief that this "proof of concept" could be the type of projects where non

- pipeline transportation could be utilized. Further in Basin Electric's estimation, the extent of using non

- pipeline transportation would be very limited. **Response:** EPA thanks the commenter for the information

. **Comment 3.20.13**  **:** 9. Pages 48084

-48085
– “ Key Elements for the Class VI Well Requirements. Class VI provisions require that owners and operators maintain financial responsibility obligations guaranteeing that funds will be available for all SDWA corrective action, injection well plugging, PISC, site closure, and emergency and remedial response. ”
Comment: There are essentially four stages to a CCS project: *Siting and permitting; *Construction and operation (including monitoring); *Closure and Post

- closure activities (including monitoring); *Long

-ter m responsibilities after the injected plume stabilizes. The most important step is selection of a suitable geologic formation for long

-term storage. That first step minimizes risks and potential liabilities for all subsequent stages, including long

-term responsibilities after post

- closure activities cease. Once a suitable geologic site has been identified, financial responsibility instruments should be affordable, because the high

- risk projects will be eliminated during the permitting stage. Basin Electric supports consistent national regulations for financial responsibility requirements. But those regulations must consider site

- specific conditions, including the key consideration of the suitability of the prop osed geological formation, so that174

affordable financial responsibility instruments are available for low

- risk projects built and operated according to the permit conditions. A critical aspect of the regulations should be to tie the cost of the financial responsibility instruments to the overall suitabi lity and safety of the site. The division between federal and state authority should be divided along these lines:

 Consistent national regulations and oversight to eliminate higher

- risk sites, and to minimize financial responsibility obligations on low

- risk sites;

 Primacy to the states for permitting and making site

- specific, case

- by

- case determinations based on rules that distinguish between high

- risk and low

- risk sites.
Basin Electric supports the state rights of primacy for the Class VI portion of t he UIC program for making these s ite

- specific determinations. The State of North Dakota has established rules for geological storage and is working to make them compatible with EPA's UIC program. But the States, in Basin Electric's opinion, are the regulatory bodies that should develop and administer the rules for permitting Class VI wells. Basin Electric has many concerns relating to the requirements of permitting a Class VI well. One of Basin Electric's main concerns about obtaining a Class VI permit is the financial responsibility obligations. For the long

-term responsibilities after post

- closure activities are completed, the responsibility would be perpetual and would cause the geological sequestration costs to increase significantly. Basin Electric thi nks the State of North Dakota has the right approach in addressing liability. A certificate of completion can be issued 10 years after the last injection of CO 2 if the reservoir is determined to be stable as defined by the State of North Dakota. The State of North Dakota would then take ownership of the CO 2 and assume all rights, responsibilities and interests in the CO 2 . The company injecting the CO 2 in the geological formation would be released from all regulatory requirements. See N.D.C.C. § 38

- 22

- 17.
B asin Electric believes that the federal government should assume the liability of the CO 2 in a similar fashion. Until the long

-term responsibility issues after post

- closure are addressed, it is unlikely that any company will consider CCS. It is critical th at the rules be written so that high

- risk and low

- risk sites can be distinguished. This will allow affordable financial assurance instruments to be available for low

- risk sites. This will also allow for some kind of affordable pool of financial responsibi lity monies to be accumulated through an appropriate fee structure or other legal mechanism so that after low

- risk projects have gone through appropriate, rigorous post

- closure certification, long

-term responsibility may be transferred to the pool for thos e low

- risk projects that qualify. Another option would be for the federal government to assume this responsibility after appropriate post

-closure certifications are issued. **Response** : The above comments relate to the UIC Class VI final regulation, and are beyond the scope of this rule. See response to comment 3.20.2

.1 75

**Comment 3.20.14**  **:** 10. Page 48087
– “ Finally, EPA requests comment on whether transporters, as well as pipeline owners and operators, should also sign such a certification statement. ” Page 480 87
– “ EPA notes that it is requesting comment on whether persons engaged in the movement of conditionally

- excluded CO 2 streams, including transporters, as well as pipeline owners or operators, should certify that they meet the conditions of today's propose d conditional exclusion. ”
Comment: Basin Electric believes it is unnecessary and unwise to require transporters, pipeline owners and operators to certify that they meet the conditions of the proposed exclusion (FR 76 48087). Rather, Basin Electric support s each entity being responsible for the portions of the process that they have intimate knowledge of and that they control. Transportation through pipelines or by other means, must meet applicable transport requirements for all materials moved, and certifi cation that they meet these requirements only for a specific material (i.e., CO 2 to be sequestered) provides no additional protection and is unnecessary. In addition, in a manner similar to other existing rules associated with hazardous waste (40 CFR § 262 .11 and §263) the generator is responsible for waste determination and characterization, not the transporter. The transporter must depend on the statements and characterizations made by the generator regarding the material being transported. In the propose d rule Basin Electric recommends the same approach be taken. If the transportation mechanism is a common carrier pipeline, the pipeline owner/operator much certify that the combination of CO 2 streams from various sources in the pipeline meet the specificat ions to maintain the safe transport of CO 2 . The operator of the Class VI well should be responsible for certifying the characteristics of the CO 2 that is actually being injected. **Response:** EPA agrees that a certification by the transporter is not necessary, and the final rule does not include a transporter/pipeline owner or operator certification

. First, i f EPA were to require such a certification, under the approach where EPA limits the scope of the certification to the conditions within the control of pip eline owners and opera tors or other transporters (the approach taken in the final rule for CO 2 stream generators and UIC Class VI well owners and operators), the certification would essentially address: 1) compliance with applicable DOT requirements, and 2 ) to not mix hazardous waste into the CO 2 streams. Regarding compliance with DOT requirements, EPA is persuaded by comments received on this issue that if persons transporting supercritical CO 2 must comply with the applicable transportation requirements fo r all supercritical CO 2 being moved, it seems unnecessary to require that they certify compliance with DOT requirements for a specific material (i.e., supercritical CO 2 streams to be sequestered). Regarding mixing with hazardous waste , EPA does not have in formation, nor did commenters provide any new information, indicating that CO 2 pipeline owners and operators or other transporters would mix hazardous waste into CO 2 streams being delivered to UIC Class VI facilities. EPA expects that pipeline owners and o perators engaged in delivering supercritical CO 2 have strong disincentives to mix any hazardous waste into their pipeline system, both in order to honor their contractual arrangement with customers, and also to maintain their equipment. Also, as EPA state d in the proposed rule premable, PHMSA requires that pipeline owners and operators ensure that supercritical CO 2 streams be chemically compatible with the pipeline and any commodities in the pipeline and will not corrode the pipeline and pipeline system

. For these reasons, EPA does not see the need for a transporter certification, and is not changing its proposed approach and transporters and pipeline owners and operators will176

not be required to sign a certification statement as a condition of the exclusio n . EPA also agrees that the UIC Class VI well owners or operators should be responsible for a certification statement as suggested by the commenter

. EPA has modified the certification requirement in the final rule so that there are now two separate certification statements worded slightly differently

– one for generators and another for UIC Class VI owner/operators claiming this conditional exclusion . EPA has made these revisions to better reflect actions over which each party has control.
**Comment 3.20.1**  **5 :**  11. Page 48087
– “ EPA is also requesting comment on whether any new monitoring, recordkeeping, or reporting requirements are necessary (including as those that might apply to pipeline owners and operators) to ensure that the conditions of the proposed exclusion are met. ”
Comment: The regulations for Class VI wells as well as the DOT regulations under 49 CFR 195 provide extensive requirements for monitoring, recordkeeping, and reporting. Basin Electric believes no new requirements are necessary other tha n the exclusion certification and compliance with the conditions set forth. **Response:** See Response s to Comment s 3.2.40 through 3.2.43

. **Comment 3.20.16**  **:** 12. Page 48088
– “ EPA requests comment on the types and characteristics of substances that are added t o CO 2 streams to enable or improve the injection process. ”
Comment: With the Synfuels Plant's EOR experience, no substances are added to the CO 2 stream either at the Rectisol facility or the pipeline transport facility to improve the injection process.
**R esponse:**  EPA thanks the commenter for the information.
**Comment 3.20.17**  **:** 13. Page 48089
– “This sequestration may be conducted either with or without concurrent EOR. However, EOR itself is outside the scope of this rule, as proposed. ”
Comment: Basin Elect ric agrees that EOR is outside the scope of this rule. Basin Electric also believes that EOR will be the stepping stone for expanding more carbon dioxide capture in the United States. However, once EOR is completed, these formations could and should be use d to store more CO 2 if the need arises. EPA should give the States the primacy to determine how these EOR reservoirs could be recognized for acceptance of additional CO 2 for geological sequestration in the future. Thank you again for giving us the opportun ity to file these comments. **Response:** As the commenter notes, issues surrounding EOR itself are outside the scope of this rulemaking

. With respect to the comments on UIC primacy, s ee R esponse to Comment 3.20.2.



### 3.21 **Spectra Energy (Spectra)**177

**Document ID: E PA** **- HQ** **- RCRA** **- 2010** **- 0695**  **- 0088**  **Comment 3.21.1**  **:** Spectra Energy (“Spectra”) submits the following comments in the above

- referenced docket, relating to the U.S. Environmental Protection Agency’s (“EPA” or “the Agency”) proposed rule published at 76 Fed. Reg. 480 73 (August 8, 2011) to conditionally exclude geologically sequestered CO 2 from regulation as a hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). We appreciate the Agency’s recognition that if RCRA’s applicability to geologic sequestration were left unclear, it could discourage deployment of geologic sequestration in the U.S. While we have a number of issues on which we request the Agency’s clarification, the proposed rule appears to be a reasonable and favorable means of addressing this issue. About Spectra Energy Headquartered in Houston, Texas, Spectra has one of the largest natural gas transportation systems in North America, encompassing more than 19,100 miles of transmission pipelines and 305 billion cubic feet (Bcf) of stora ge capacity. Our U.S. operations include: *Texas Eastern Transmission which transports up to 6.7 Bcf per day from producing fields in the Gulf Coast region of Texas and Louisiana to high

- demand markets primarily in the Northeastern U.S. The pipeline comp rises 9,200 miles of onshore and offshore pipe into the Gulf of Mexico. *East Tennessee Natural Gas which transports up to 1.5 Bcf per day mainly through Tennessee and Virginia across 1,510 miles of pipeline. *Maritimes & Northeast which transports nat ural gas across the northeastern U.S. and Atlantic Canada. The U.S. portion, comprised of 343 miles of pipeline, currently transports up to 800 Mcf per day. *Algonquin Gas Transmission which plays a key role in servicing the New England region. Its 1,120 miles of pipeline transport up to 2.4 Bcf per day of natural gas. *Gulfstream Natural Gas in which Spectra has a 50% interest. Its 745 miles of pipeline transport 1.3 Bcf per day of natural gas from the Mississippi and Alabama coast to Florida. *South east Supply Header in which Spectra has a 50% interest. Its 274 miles of pipeline transport 1 Bcf per day of natural gas from northeast Louisiana to southwest Alabama. *Ozark Gas Transmission which transports up to 500 MMcf per day of natural gas from so utheastern Oklahoma to southeastern Missouri. It is comprised of 565 miles of pipeline transport and 365 miles of a gas gathering system which accesses Fayetteville Shale and Arkoma production. *Market Hub Partners, Bobcat Gas Storage, Saltville Gas Storage and Steckman Ridge through which Spectra Energy has significant gas reservoir and salt cavern natural gas storage capabilities. Our storage assets are strategically located in both supply and market areas, including Texas, Louisiana, Virginia, and Penn sylvania. *DCP Midstream is one of the nation’s largest natural gas gatherers and processors, the largest178

NGL producer and one of the largest NGL marketers in the U.S. DCP Midstream is a 50

- 50 joint venture between Spectra Energy and ConocoPhillips. DCP operates processing plants, gas gathering systems, and other assets. Since the mid 1990s, Spectra Energy’s Western Canadian business unit (SET West) has incorporated carbon capture and sequestration (CCS) and acid gas re

- injection (AGR) into our natural gas processing facilities in British Columbia and Alberta. Seven CCS facilities are in operation today at SET West. For example, our Kwoen facility is Spectra’s largest CCS/AGR operation in Canada, re

injecting approximately 100 Kt per year. Kwoen and SET West have been recognized by the Intergovernmental Panel on Climate Change (IPCC) as a leader in CCS. Further, a project at Spectra Energy’s Fort Nelson Gas Processing Plant, also in British Columbia, could result in the sequestration of up to 2.2 Mt CO 2/year, once fully operational. The Fort Nelson CCS project is a multi

- lateral partnership between Spectra Energy, the Province of British Columbia, Government of Canada (Natural Resources Canada), US Department of Energy/National Energy Technology Laboratory (Plains CO 2 Reduction Partnership). Today, Spectra Energy’s CCS/AGR projects safely capture and store approximately 150 Kt CO 2 per year. Imposition of excessive or unreasonable requirements could have negative implications for geologic sequestration act ivities in other jurisdictions such as Canada. **Response:** EPA acknowledges the comment. EPA believes a consistent regulatory approach to GS will help facilitate development and deployment of CCS technologies in the United States, rather than discourage dep loyment. The comment does not elaborate on what “negative implications for geologic sequestration activities in other jurisdictions such as Canada” the commenter has in mind. In any event, EPA believes that, for the reasons explained in the preambles and e lsewhere, that the requirements in the conditional exclusion are appropriate, and not excessive or unreasonable.
**Comment 3.21.2**  **:** General Commentary Subject to clarification of several issues discussed below, Spectra supports the proposed rule. As we stat ed in our comments to the proposed rule for UIC Class VI wells, RCRA’s hazardous waste regulatory regime is unnecessary and inappropriate for geologic sequestration of CO 2 . A CO 2 waste stream is not a hazardous waste, as will be discussed further below. RC RA hazardous waste regulation is burdensome, and a Class VI geologic sequestration well cannot be converted into a Class I Hazardous well. Furthermore, as EPA amply describes in the proposed rule, hazardous waste regulation is unnecessary for CO 2 streams being sequestered at Class VI wells, not only because CO 2 streams do not meet the criteria to be deemed hazardous, but because a comprehensive and adequate multi

faceted regulatory system already applies and serves the purposes for which hazardous waste regulation would be applied. A conditional exclusion is an appropriate mechanism to remove geologically sequestered CO 2 streams from hazardous waste regulation. EPA has long interpreted Section 3001(a) of RCRA, which directs the Agency to develop criteria for identifying characteristics of hazardous wastes “which should be subject to the provisions of” the hazardous waste management requirements of RCRA Subtitle C, to authorize it to conditionally exclude from such regulation wastes for which those require ments are not justified. A conditional exclusion offers the opportunity to make clear the179

circumstances when hazardous regulation will or will not apply. **Response:** EPA does agree that management of CO 2 in accordance with the terms of the final conditional exclusion (which include management in accordance with existing regulations such as the UIC requirements for UIC Class VI wells as well as DOT require ments) protects human health and the environment. Therefore, EPA finds it is appropriate and justified to establish a conditional exclusion for hazardous CO 2 streams injected for geologic sequestration. EPA agrees with the commenter that under its interpretation of RCRA (including RCRA section 3001(a)) it has the authority to issue conditional exclusions fro m the hazardous waste regulations. EPA’s authority to issue the rule is described in section II.B. of the final rule preamble. EPA responds to the commenter’s comments about the hazardous waste status of CO 2 streams in Response to C omment 3.2.19. **Comment 3.21.3**  **:** Specific Issues A. Minor Violations That Do Not Compromise Safety EPA should clarify that it does not intend that minor violations will void the exclusion, thereby triggering regulation of a facility as a hazardous waste facility. The exclusion for geologically sequestered CO 2 requires, among other conditions, that: Injection of the carbon dioxide stream must be in compliance with the applicable requirements for Class VI Underground Injection Control wells, including the applicable requirement s in 40 CFR parts 144 and 146. The exclusion also is conditioned upon the transportation of the CO 2 stream being in compliance with applicable Department of Transportation requirements. Furthermore, the exclusion does not apply unless an authorized repre sentative of the geologic sequestration facility owner or operator certifies under penalty of law that the injection of the carbon dioxide stream meets these and the other conditions set forth. EPA has a strong interest in promoting compliance discipline and not condoning noncompliant management. Industry shares this interest: violations at one facility could damage public perception of the safety of geologic sequestration. Nevertheless, the conditional exclusion should provide for flexibility in enforcem ent so that “paper” violations or non

- compliance that has not compromised the ability of the geologic sequestration facility to meet the environmental, health, or safety protection objectives of the applicable statutes does not result in closure of the fac ility. At a minimum EPA should commit to implementation that will take into account the consequences of closing a sequestration facility. Considerable impacts could occur upstream of a geologic sequestration facility should the facility be closed. While there are not today federal standards that necessitate that natural gas processors capture and sequester the CO 2 that is naturally commingled with raw natural gas streams in many natural gas fields, such requirements could be imposed in the future. Further more, some State greenhouse gas emissions limitations are stringent enough today that natural gas

-fired electric generating facilities may be required to capture and sequester CO 2 . The availability of a suitable sequestration site within the vicinity of a gas processing facility, power plant, or other industrial operation may be indispensable to that industrial facility being able to continue to operate without violating180

greenhouse gas emission restrictions. The Agency must bear in mind that for a period of some years, there likely will be only a limited number of geologic sequestration facilities in operation. Even if another sequestration site is in the vicinity, it is unlikely to be a simple matter for a generator to switch CO 2 deliveries to another facil ity. Bulk transportation of CO 2 is likely to occur via pipeline, and a pipeline must be constructed and have available capacity in order for a generator to change delivery points. It likely would be impossible or at least extremely difficult to reclassify a Class VI well as a Class I Hazardous well. Two differences in Class I Hazardous and Class VI regulations illustrate this. First, corrective action concerning a Class I Hazardous well effectively must be conducted up front. Regulations require that “No o wner or operator of a new Class I hazardous waste injection well may begin injection until all corrective actions required under this section have been taken.” [40 CFR 146.64(d)(2)]. This would include corrective action throughout all of the Area of Review, which could be very extensive in the case of a Class VI geologic sequestration well. Because the volumes for geologic sequestration are anticipated to be orders of magnitude larger than for other well classes, the plumes and Areas of Review also are expe cted to be much larger. This is why the Agency provided for phased corrective action for Class VI wells. [See 40 CFR 146.84(b)(iv)]. It may be impractical and prohibitively expensive to conduct corrective action all at once for a Class VI well, as EPA’s re gulation has recognized. Second, Class I Hazardous wells are subject to the requirement of 40 CFR 148.20, subparagraph (a)(1) of which requires that “reliable predictions can be made that . . . [f]luid movement conditions are such that the injected fluid s will not migrate within 10,000 years.” Supercritical CO 2 injected for geologic sequestration is a mobile, buoyant injectate that is expected to migrate. EPA’s Class VI rule expressly stated that the Agency “determined that tailored requirements, modeled on the existing UIC framework, are necessary to manage the unique nature of CO 2 injection for [geologic sequestration],” with those unique features including “the large volumes anticipated at geologic sequestration projects, the relative buoyancy of CO 2, [ and] its mobility within subsurface geologic formations. . . .”[FN1: “Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO 2 ) Geologic Sequestration (GS) Wells: Final Rule,” 75 Fed. Reg. 77230 at 77233, Vol. 75, No. 237, December 10, 2010]. EPA’s conditional exclusion must be implemented broadly enough that minor violations that do not compromise the safe functioning of the geologic sequestration facility will not result in its being closed, thereby disrupting “u pstream” activities. **Response:** The commenter makes the point that minor violations (such as paperwork violations) should not void the conditional exclusion, which the commenter notes would require a “reclassification” of a UIC Class VI well to a UIC Clas s I hazardous well, and which the commenter states would be difficult or impossible. The commenter also states that the conditional exclusion should be implemented such that these minor violations do not result in the closing o f that sequestration facility. Regarding the comment that minor violations should not void the exclusion, it is EPA’s view that the rule conditions, taken together, ensure that the excluded CO 2 streams are being managed in a protective manner such that subtitle C regulations are not necessary. Therefore, it follows that any management not in accordance with those conditions does not qualify for the exclusion. EPA nevertheless appreciates the commenter’s concern over the loss of the conditional exclusion due181

to, for example, small ad ministrative or clerical errors. EPA’s Office of Enforcement a nd 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 respons e 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 gi ven 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 req uirement. 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

-fnl.pdf). EPA agrees that there would very likely be significant logistical, regulatory and policy implications to changing the regulatory status of a UIC Class VI well to that of a UIC Class I haza rdous well. EPA also notes that comments on existing UIC regulations are outside the scope of this rulemaking.
**Comment 3.21.4**  **:** B. Substances Derived from the Capture Process The proposed rule excludes a “carbon dioxide stream” from regulation as a haz ardous waste, subject to the proposed rule’s conditions. A carbon dioxide stream is defined 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. This definition is identical to the definition of “carbon dioxide stream” in the Underground Injection Control program regulations for Class VI wells, with the exception that it does not exclude “any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.” [FN2: 40 CFR 146.81(d)]. EPA has not defined what constitutes an “incidental associated substance[] derived fro m the source materials and the capture process.” However, the proposed rule makes clear that such a material may be one the presence of which would make the CO 2 stream a hazardous waste. EPA explains: Because today’s conditional exclusion would apply to CO 2 streams that are otherwise RCRA hazardous wastes, EPA did not include [the language from the Class VI UIC rule excluding hazardous wastes] in today’s proposed definition of carbon dioxide stream. EPA intends for the two definitions to work in concert, however, such that it is clear that both RCRA hazardous CO 2 streams (that are excluded when managed pursuant to the terms of today’s proposed conditional exclusion) and non

- hazardous CO 2 streams may be injected into a UIC Class VI well. [FN3: Proposed rule , 76 Fed. Reg. 48073, at 48088]. The composition of the CO 2 stream that results from the industrial process that produces it will be determined largely by chance of nature, because of the source material involved (natural gas, coal, oil, or other). Raw na tural gas often contains a variety of contaminants, including (in addition to CO 2 ) acid gases like hydrogen sulfide and mercaptans, and sometimes trace metals such as mercury182

in elemental or other forms. The percentage of CO 2 and acid gases in raw natural gas vary. The methods of processing and capturing the CO 2 stream may have some effect on the constituencies as well. We appreciate the clarity with which EPA is attempting to define the issue. If there is room for interpretive confusion in the definition , we recommend that EPA take steps to clarify it, as the scope of the CO 2 streams covered is the essential feature of the conditional exclusion. We believe it is appropriate, given the Agency’s policy to pursue reductions in greenhouse gas emissions, for t he Agency to interpret this term in a manner that encourages the capture and injection of CO 2 streams. CO 2 mixtures from natural gas operations have been safely injected for nearly two decades and represent a significant opportunity for further reductions in atmospheric CO 2 emission through long

-term geologic sequestration. As a final comment on this topic, we note that the proposed exclusion is consistent with other current regulation, as re

- injection of carbon dioxide from gas processing is currently ex empt from Subtitle C requirements of RCRA. **Response:** While EPA acknowledges the commenter’s recommendation that EPA clarify the definition of Carbon Dioxide Stream (CO 2 Stream) “if there is room for interpretive confusion” or otherwise in a manner “that e ncourages the capture and injection of CO 2 streams,” the commenter did not provide specific guidance on how EPA should revise the definition to provide this clarity. T he proposed definition of CO 2 Stream is being finalized as proposed, for the reasons EPA discusses in Section V.F. in the preamble to the final rule. EPA notes that the adaptive approach being taken in the final rule (see response to comment 3.2.3) may provide future opportunity for clarifyi ng the definition if necessary. Regarding the comm ent on re
- injection of CO 2 from gas processing, EPA notes that that issue is beyond the scope of this rulemaking.
**Comment 3.21.5**  **:** C. Certification Is Based on Information Beyond Parties’ Control Proposed provision 40 CFR 261.4(h)(1)(iv) requires “[a]ny g enerator of a carbon dioxide stream, and any Class VI Underground Injection Control well owner or operator, who claims that a carbon dioxide stream is excluded [from hazardous waste regulation]” must sign a certification that states: I certify under pena lty of law that the carbon dioxide stream that I am claiming to be excluded under 40 CFR 261.4(h)(1) meets all of the conditions set forth in that paragraph. This certification requires that generators of CO 2 streams attest to information that is beyond their control and not reasonably possible for them to obtain. First, it requires that generators certify that the geologic sequestration facility, which is not under their control, meet all of the requirements of 40 CFR parts 144 and 146. Many geologic s equestration facilities are likely to be “merchant” facilities not under the control of the generator. Even where the generator insists upon one of its employees personally participating in an audit of the facility, which would be expensive, impractical, a nd have little benefit, generators who send materials to a merchant sequestration site cannot attest to ongoing compliance with these requirements. For example, information about plume movement, pressure calculations, and other183

operational, testing, and mo nitoring data are not under a generator’s control. Likewise, as drafted, the certification statement requires each generator to attest that the materials being injected by other generators are qualified as a carbon dioxide stream and do not void the haza rdous waste exclusion. Spectra does not believe it was the Agency’s intention to require parties to make a certification to facts pertaining to matters beyond their control. We recommend revising the certification requirement for generators to read as fol lows: I certify under penalty of law that the material being delivered is qualified as a carbon dioxide stream under 40 CFR 146(d). **Response:** EPA agrees that the certification statement should better reflect the activities within the signatory’s control . EPA has revised the certification statement in the final rule so that there are now two separate certification statements

– one for CO 2 stream generators and another for UIC Class VI well owners or operators. Under the final rule, the certification sta tement that the generator would sign is specific to the activities within the generator’s control; likewise, the certification statement that the UIC Class VI well owner or operator would sign is specific to the activities within the owner or operator’s co ntrol. EPA did not use the language suggested by the commenter for generators, however, but instead developed language that includes the prohibition on hazardous waste mixing, and delivery (or arranging for delivery) of the CO 2 stream to a UIC Class VI fa cility, which EPA finds would be in the generator’s control. See response to comment 3.8.8. **Comment 3.21.6**  **:** D. EPA Has Not Sufficiently Clarified that CO 2 for Geologic Sequestration is a Solid Waste In its comments to the proposed Underground Injection Co ntrol program rule for geologic sequestration wells, Spectra argued that there is a legitimate question whether CO 2 is a solid waste based on the statutory definition of “solid waste” expressly including “contained gaseous material.” 42 U.S.C. § 1004(27). EPA did not address this comment in the final rule, and it deserves clarification. If CO 2 in the context of geologic sequestration is not a solid waste, RCRA does not apply and there is no reason for a conditional exclusion. For a waste to be a hazardou s waste, it must first be a solid waste. Specifically, the term includes discarded material, including solid, liquid, semisolid, or contained gaseous material. . . .” 42 U.S.C. 6903(27) [Emphasis added]. EPA has consistently interpreted this term as exclud ing uncontained gases from the definition of solid waste. [FN4: See, e.g., 47 Fed. Reg. 27530 (June 24, 1982) (gases from fume incinerators not subject to RCRA, because fumes are not a solid waste); 54 Fed. Reg. 50973 (Dec. 11, 1989) (uncontainerized gases are excluded from RCRA)]. In In re BP Chemicals America, Inc., [FN5: RCRA Appeal No. 89

-4, 1991 WL 208971, at *2 (Admin., Aug. 20, 1991) ] the Administrator rejected the argument that otherwise uncontained gas passing through piping or the facility made i t “contained” and subject to RCRA. Specifically, the Agency determined: [T]he Agency views gaseous material to be “solid waste” only when it is containerized. Region V argues that BP’s HCN vapor is “contained” by the various process units through which i t passes, by associated piping, and by the plant as a whole. The Region’s reading of the term “contained,” however, cannot be reconciled with the Agency’s treatment of fume incinerators. Such incinerators are used to treat vapors that are “contained” in th e broad sense of being bound or controlled and184

not being emitted to the atmosphere, but the Agency considers such vapors to be outside the scope of the “solid waste” definition because they are not containerized in the narrower sense of being in an individ ual container such that the gas is amenable to shipment. [FN6: In re BP Chemicals America, Inc., RCRA Appeal No. 89

-4, 1991 WL 208971 (Admin., Aug. 20, 1991), p. 2

- 3]. Just within the past several months the Agency had occasion to address the uncontained gas issue when guidance related to reinterpretation of the definition of “solid waste” created confusion about whether the meaning of “contained gaseous material” was being altered. EPA clarified that it was not. [FN7: See Letter from Suzanne Rudzinski, Di rector, Office of Resource Conservation and Recovery, to Tim Hunt, American Forest and Paper Association, May 13, 2011: “We clarify here that the Agency’s previous statements and interpretations remain effective.”] Given this precedent and its very recent affirmation, CO 2 streams captured from industrial processes and transported by pipeline are “uncontained” gases. That classification also should extend to CO 2 that leaves the pipeline for injection into an underground formation. At no time is the gas “con tainerized in the narrower sense of being in an individual container such that the gas is amenable to shipment.” We believed in 2008 and believe now that CO 2 streams should be exempted from RCRA on this basis and that this issue should be addressed by the Agency. **Response:** EPA disagrees that CO 2 streams sent to UIC Class VI wells for purposes of GS are not solid waste. As EPA noted in the proposed rule, the CO 2 streams are delivered by pipeline and injected into UIC Class VI wells for GS in a supercritica l 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 indu strial, 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 “oth er discarded material” and does not speak to materials such as supercritical fluids. Like the listed “solid, liquid, semisolid, or contained gaseous material” specifically referenced, CO 2 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 3.21.7**  **:** E. Potential Applicability of Superfund Another benefit of the proposed rule is that it lessens the likelihood that the federal Superfund cleanup program will apply. The definition of “hazardous substance” includes RCRA hazardous wastes. [FN8: 42 U.S.C. 9601(14)]. The Superfund program, co mmon parlance for the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), is characterized by slow, overly expensive responses to releases and threatened releases of hazardous substances. Superfund still may apply if the definit ion of “hazardous substance” is otherwise triggered. As we submitted in our comments to the proposed Class VI UIC rule in 2008, the threat of CERCLA litigation and the potential liability to a site owner or operator is significant and could discourage185

th e deployment of geologic sequestration. The statute’s application is unnecessary, given the applicability of cleanup obligations and liability through other law. **Response:** EPA thanks the commenter but notes that CERCLA and its related provisions are beyon d the scope of this rulemaking.
**Comment 3.21.8**  **:** Conclusion In conclusion, we applaud EPA for its effort to clarify the applicability of RCRA’s hazardous waste requirements to geologic sequestration and believe that the commentary above will help make the clarification more useful. We believe that removing uncertainty about the applicability of RCRA’s hazardous waste requirements will encourage deployment of geologic sequestration. **Response:** EPA agrees with the commenter that the conditional exclusion wil l reduce regulatory uncertainty for stakeholders, and facilitate deployment of CCS technologies.



### 3.22 **Western Environmental Trade Association (WETA)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0060**
**Comment 3.22.1**  **:** The Western Environmental Trade Association (WETA) and the Montana Petroleum Association (MPA) appreciate this opportunity to submit comments to the Environmental Protection Agency (EPA) in regard to the proposed rule for Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide ( CO 2 ) Streams in Geological Sequestration Activities. WETA, organized in 1976, is a coalition of representatives of agriculture, labor, business, commercial industry, the scientific community, recreation, transportation and twenty

-one other trade associations, with an interest in promoting the economic well being of the people of Montana while protecting the state’s environment. These member associations, companies and other organizations collectively employ or represent thousands of Montanans. MPA is a voluntary, nonprofit trade association whose 169 members include oil and natural gas producers, gathering and pipeline companies, petroleum refineries, service providers and consultants. A majority of the oil and gas produced in Montana is produce d by MPA members. Our mission is to MPA’s strives to maintain a positive business climate for the petroleum industry in Montana, and its education program fosters public awareness of the industry’s contributions to the state and nation. We support EPA’s p roposal to conditionally exclude from the definition of hazardous waste CO 2 streams captured, transported, and injected into permitted Class VI wells. **Response:** EPA thanks the commenter for its support of the proposed rule

. **Comment 3.22.2**  **:** The 40 CFR part 146 regulations has adequate protection for drinking water aquifers and addresses corrective action, financial assurance requirements, and long term monitoring after closure. These requirements negate the need for any RCRA regulation.186

**Response:** EPA agree s that the management of these CO 2 streams, when meeting certain 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

. **Comment 3.22.3**  **:** RCRA was never meant to apply to CCS and thus the statute provides a poor tool to regulate the activity. Nothing in RCRA or its regulations purports to apply to CCS generally or geologic sequestration specifically. The RCRA model is prospective “c radle

-to
-grave” waste management and tracking. CCS, on the other hand, currently involves the injection of CO 2 for beneficial purposes. That activity, moreover, is envisioned to involve mixed streams of CO 2 from multiple sources, with injection of CO 2 from multiple sources, thereby defeating the notion of tracking wastes through manifests and the like. **Response:** See Responses to Comments 3.1.5 and 3.12.7.
**Comment 3.22.4**  **:** Impurities, such as H 2S or mercaptans, should not trigger a classification under RCRA . The success of existing acid gas injection operations into depleted oil and gas reservoirs conducted under the existing protective underground injection control (UIC) regulations is further justification to exclude RCRA regulation. **Response:** See Respon se to Comment 3.20.5.
**Comment 3.22.5**  **:** Corrosion has not been a problem when the captured and transported CO 2 is maintained as dry. **Response:** It is unclear to EPA how the comment is intended to relate to the proposed rule. To the extent the comment is refe rring to the RCRA hazardous characterization regulations, EPA discusses issues related to that topic in section V. B. of the final rule preamble.
**Comment 3.22.6**  **:** Also, injected CO 2 should be considered a product and not a solid waste, as stored CO 2 in geol ogic storage could be retrieved in the future for industrial use. Class VI CO 2 injection operations should not be considered waste management activities. The concept of “disposal” is also inconsistent with how the bulk of CO 2 is currently being managed co mmercially today. With the exception of demonstration and related projects, most if not all of the CO 2 that is geologically injected today is used for EOR. In that application, it is purchased and transacted as a valuable commodity. **Response:** Regarding th e subsequent retrieval of CO 2 from UIC Class VI injection operations, see Response to Comment 3.20.5. Regarding the comment that injected CO 2 “should be considered a product and not a solid waste,” and the use of CO 2 for EOR, see Responses to Comments 3.1 .8, 3.2.1, and 3.2.2.
**Comment 3.22.7**  **:**187

We agree 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. The applicable Department of Transportation (DOT) requirements and 49 CFR part 195 regulations will ensure that CO 2 streams are managed in a safe and environmentally protective state. **Response:** EPA acknowledges the comment. See responses to 3.22.9 and 3.22.10.
**Comment 3.22.8**  **:** We do not believe that CO 2 that is captured could be stored on

- site. Design for large quantities of pressurized CO 2 is unprecedented. If such storage tanks could be designed and constructed to hold that pressure, the size and number of the tanks would be impractical to store on site. **Response:** S ee response to 3.2.25

. **Comment 3.22.9**  **:** WETA and MPA agrees that additional regulations of pipeline transportation under RCRA subtitle C is not necessary in order to protect human health and the environment. Pipeline tran sportation of CO 2 is subject to the 49 CFR Part 195 Transportation of Liquids by Pipeline requirements. The requirements govern pipeline design, construction, operation and maintenance, and emergency response planning. The regulations also require pipeline integrity management systems to be in place including corrosion monitoring. These protective and detailed regulations/standards negate the need for further RCRA subtitle C regulation

. **Response:** EPA thanks the commenter and notes that EPA does agree that m anagement of CO 2 in accordance with the terms of the final conditional exclusion (which include management in accordance with existing regulations such as the UIC requirements for UIC Class VI wells as well as DOT requirements ) protect human health and the environment. Therefore, EPA finds it is appropriate and justified to establish a conditional exclusion for hazardous CO 2 streams injected for geologic sequestration.
**Comment 3.22.10**  **:** We agree with the EPA analysis in not proposing to apply RCRA subtitle C requirements to these on - site pipelines. Non

- DOT regulated CO 2 pipelines on

-site are designed, constructed and maintained in accordance with ASME. **Response:** See Response to Comment 3.2.30. **Comment 3.22.11**  **:** WETA and MPA support the state rights of pri macy for the Class VI portion of the UIC program. **Response:** C omments on existing UIC regulations, such as the Class V I requirements, are outside the scope of this rule making.
**Comment 3.22.12**  **:** We believe it is unnecessary to require transporters, pipeline owners and operators to certify that they meet the conditions of the proposed exclusion (FR 76 48087). Transport through pipelines or by other means, must meet applicable transport requirements for all materials moved, and188

certification that they meet the se requirements only for a specific material (i.e., CO 2 to be sequestered) provides no additional protection and is unnecessary. We do not believe it is necessary to have transporters or pipeline operators certify that they meet the conditions of the prop osed exclusion for CO 2 . Only the operator for the Class VI well should have to certify the conditions of the proposed conditional exclusion for CO 2 . The regulations for Class VI wells as well as the DOT regulations under 49 CFR 195 provide extensive requi rements for monitoring, recordkeeping, and reporting. We believe no new requirements are necessary other than the exclusion certification and compliance with the conditions set forth. **Response:** Regarding the comment that a certification is not necessary fo r transporters or pipeline owners, s ee Response to Comment 3.2.39. EPA acknowledges the comment that additional monitoring, recordkeeping, and reporting requirements are not necessary under the final conditional exclusion because “regulations for Class VI wells as well as the DOT regulations...provide extensive requirements for monitoring, recordkeeping and reporting

. ” EPA disagrees with the commenter, however, that only the UIC Class VI well operator need sign a certification under the conditional exclusion , and EPA is retaining in the final rule that a certification from the CO 2 generator be signed (where they choose to use the conditional exclusion)

. Th is is because th e generator plays a key role in the transaction of sending the CO 2 stream to the off

- sit e UIC Class VI well (assuming the injection is not on

- site). They are most knowledgeable about the characteristics of their CO 2 stream, they are in the position to arrange for delivery of the CO 2 stream to a UIC Class VI well , and are also in the position to know whether any hazardous waste has been mixed with the CO 2 stream while at their facility

. These are conditions of the exclusion that the generator would be able to confirm have been met, and therefore the certification is appropriate.
**Comment 3.22.**  **13 :**  We agree that EOR is outside the scope of this rule. Thanks again for the opportunity to forward these comments. **Response:** As the commenter notes, issues surrounding EOR itself are outside the scope of this rulemaking

.



### 3.23 **Chevron**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0064 Comment**  **3.23.1 :**  Chevron has been in operation for more than 130 years. We are vertically integrated with operations that range from oil and gas production to power generation to refining and marketing of transportation fuels. We belie ve that all feasible energy alternatives will be needed for the US189

economy to grow and prosper. As reduction of greenhouse gas emissions becomes a governmental priority, carbon capture and sequestration (CCS) is one part of a portfolio of emerging energy t echnologies that may help manage carbon in the future. Chevron supports continuing research and development of CCS and is participating in many joint industry

-government partnerships aimed at reducing the cost of carbon dioxide ( CO 2 ) capture and doing so i n a manner that is protective of human health and the environment. While we appreciate EPA’s efforts to provide regulatory clarity to the status of CCS under the Resource Conservation and Recovery Act (RCRA) by proposing to conditionally exclude CO 2 stre ams destined for geologic sequestration from regulation as a “hazardous waste,” we believe that the proposal does not go far enough to reduce regulatory uncertainty. The proposed exclusion is predicated on a conclusion

- which we believe to be inaccurate

- that supercritical CO 2 being sequestered in geologic formations is a “solid waste” because it is being “discarded,” as those terms are defined and interpreted under RCRA. We believe this conclusion deviates fundamentally from years of RCRA precedent and i s at odds with Congressional intent underlying enactment of the law. **Response:** With respect to the comment, “the proposal does not go far enough to reduce regulatory uncertainty” see Response to C omment 3.2.3. Regarding the comments that CO 2 is not a so lid waste, not discarded, and that this conclusion deviates from RCRA precedent and Congressional intent, see Responses to Comments 3.2.1, 3.2.2, and 3.1.1 through 3.1.8.
**Comment 3.23.2**  **:** RCRA was never intended to address continuously emitted gaseous stre ams such as CO 2 even if they are captured, condensed and temporarily “contained” in pipelines or other transport mechanisms as part of a strategy to prevent their release to the atmosphere. The regulations that were developed under RCRA are alien to this t echnology, and we believe EPA’s attempt to “fit” CCS into that existing regulatory paradigm is tantamount to trying to fit a square peg into a round hole. For example, the analytical methods that were developed to identify characteristic hazardous wastes a re not suitable for analysis of gaseous materials, including gases that exist for some transient period of time in a supercritical state. Similarly, the RCRA management requirements contemplate tangible wastes that can be physically picked up, moved around , placed on the ground, treated in treatment systems, or disposed of in landfills. None of these attributes is directly applicable to the processing and injection of bulk CO 2 streams. **Response:** EPA disagrees with the comment; RCRA expressly applies to “so lid wastes,” which EPA has explained elsewhere includes CO 2 streams sent to a UIC Class VI well for purposes of GS. EPA also disagrees that the “attributes” of the RCRA regulations cited by the commenter necessarily lead to the conclusion that supercrit ical CO 2 cannot be defined as a RCRA statutory solid waste or that it cannot be defined as a RCRA hazardous waste. The RCRA regulations apply by their terms. As already discussed elsewhere in this comment response document and in the final rule preamble, EPA finds that supercritical CO 2 streams, when sent to UIC Class VI wells for purposes of GS, are not only RCRA “solid wastes,” but also may be RCRA hazardous wastes. See also Responses to Comments in Section 3.1 of this document.190

**Comment 3.23.3**  **:** In addi tion, the general custody concepts underlying RCRA are ill

- suited to supercritical CO 2 transport by pipeline. In this regard, we note that the proposed exclusion would apply at the point where a decision is made to send the CO 2 to a UIC Class VI well.” [FN 1: 76 Fed. Reg. at 48086.] However, CO 2 streams have multiple purposes including, most notably, use as an enhanced recovery fluid in oil and gas operations. Thus, streams from multiple sources, with different intended end uses, can be and often are co

- mana ged in a single pipeline system. These gases from different sources and with different end uses are miscible, resulting in a regulatory morass if any component of the combined stream is viewed as a “solid waste” simply because it is destined for geologic s equestration as opposed to enhanced recovery or some other use as a product. EPA’s own preamble is replete with examples of the types of problems and uncertainties that will inevitably arise. **Response:** See responses to comments 3.2.3, 3.2.4., and 3.2.6.
**Comment 3.23.4**  **:** We do not believe that EPA’s offhand comment in Footnote 16 that “the proposed rule is not intended to affect the status of CO 2 that is injected into wells other than UIC Class VI wells . . . [such as] CO 2 that is used for enhanced oil or gas recovery,”[FN2: 76 Fed. Reg. at 48078 n. 16.] provides the necessary level of assurance to enhanced recovery (ER) [FN3: Enhanced recovery means enhanced recovery of hydrocarbons such as oil or natural gas.] operators or other segments of the business community that may be using CO 2 streams for industrial purposes. In short, Footnote 16 begs the question as to the regulatory status of CO 2 used for purposes other than geologic sequestration. Today, ER operators using Class II wells are the largest immedi ate customers of CO 2 capturers and they currently handle CO 2 as a valuable product. If CO 2 streams are generically classified as “solid wastes,”CO 2 destined for ER operations would need to be evaluated to determine whether it exhibits a characteristic of h azardous waste before it could be shipped to ER customers. Conversely, these same capturers would have no such obligation if their CO 2 streams were destined for Class VI injection well customers. This disparity will surely create regulatory confusion and a dministrative nightmares. And, as the regulatory burdens would be greater for ER customers, the result may be that capturers would be unwilling to sell to ER customers, adversely impacting CO 2 supplies to ER customers and thereby undermining both ER and CCS operations. **Response:** EPA does not, through this RCRA rulemaking, generically classify as solid wastes CO 2 streams destined for EOR/EGR operations. See response to comment 3.2.4. **Comment 3.23.5**  **:** There is a much more straightforward solution to this pro blem. In our view, EPA should exercise its statutory authority to exclude all CO 2 streams from classification as a “solid waste” under RCRA. Over the years, EPA has adopted many conditional exclusions from the definition of “solid waste” where such exclusi ons make good policy sense and can be implemented without significant risk to human health or the environment. This is exactly such a case. Each of EPA’s stated reasons for proposing to exclude CO 2 streams destined for geological sequestration from regulat ion as a “hazardous waste” is equally applicable to an exclusion from regulation as a “solid waste.” And, the same conditions that EPA proposes to attach to the hazardous waste exclusion can be attached to the solid waste exclusion and will adequately prot ect human health and the environment. We believe this alternative approach is warranted for the following reasons:191

*Regulation of CO 2 streams, whether in an ambient gaseous or supercritical state, was never intended to fall under RCRA and the regulatory framework applicable to management of hazardous wastes is not germane to these types of materials. * Excluding CO 2 streams from regulation as a “solid waste” under RCRA will eliminate all uncertainty about the potential applicability of RCRA to CCS activit ies or other uses of CO 2 (for example, as an enhanced recovery fluid in oil and gas operations), without sacrificing any protection of human health and the environment *For the reasons stated above, we believe that EPA should exclude all CO 2 streams as so lid waste, by enacting the following section as a new § 261.4(a)(26): [FN4: Suggested additions are {capitalized} .] (a) Materials which are not solid wastes. * * * (26) CARBON DIOXIDE STREAMS INJECTED FOR ENHANCED RECOVERY OR GEOLOGIC SEQUESTRATION. CAR BON DIOXIDE STREAMS AS DEFINED IN 40 CFR § 146.81(D) ARE NOT SOLID WASTE WHEN CAPTURED AND TRANSPORTED FOR PURPOSES OF INJECTION INTO AN UNDERGROUND INJECTION WELL SUBJECT TO THE REQUIREMENTS FOR CLASS II OR CLASS VI UNDERGROUND INJECTION CONTROL WELLS, IN CLUDING THE REQUIREMENTS IN 40 CFR PARTS 144 AND 146 OF THE UNDERGROUND INJECTION CONTROL PROGRAM OF THE SAFE DRINKING WATER ACT, PROVIDED THAT THE CO 2 STREAM HAS NOT BEEN INTENTIONALLY MIXED WITH HAZARDOUS WASTE REGULATED UNDER THIS PART OR OTHERWISE COIN JECTED WITH HAZARDOUS WASTE UNLESS SPECIFICALLY AUTHORIZED UNDER THE UIC PROGRAM. We wish to point out that we have purposefully limited the scope of our proposed solid waste exclusion to CO 2 streams that are used for ER or geologic sequestration, both of which involve underground injection. We have limited the exclusion in this manner because we believe CO 2 streams that are manufactured and used as products in a myriad of industrial or commercial applications cannot be viewed as “solid waste” under any re asonable interpretation of the law. Accordingly, we do not believe it is necessary to establish an all

- encompassing, generic exclusion for CO 2 streams, and are focusing on those that are destined for underground injection. Thank you for this opportunity to provide comments, if you have any questions regarding our comments please contact us. **Response:** Please s ee Response to Comment 3.1.1, 3.1.5, 3.1.18 and 3.2.2

.



### 3.24 **Texas Oil and Gas Association (TxOGA)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0067 Comment**  **3.2 4.1**  **:** Texas Oil and Gas Association (TxOGA) is the largest and oldest petroleum organization in Texas, representing over 4,500 members. The membership of TxOGA produces in excess of 90 percent of192

Texas' crude oil and natural gas, operates nearly 100 percent of the st ate's refining capacity, and is responsible for the vast majority of the state's pipelines. According to the most recent data, the oil and gas industry employs 315,000 Texans, providing payroll and benefits of over $30 billion in Texas alone. In addition, large associated capital investments by the oil and gas industry generates significant seconda ry economic benefits for Texas. TxOGA member companies produce a quarter of the nation's oil, a third of its natural gas and account for one

-fourth of t he U.S. refining capacity. We support the comments and recommendations submitted by the American Petroleum Institute (API) relating to the Proposed Rule on Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Carbon Dioxide St reams in Geologic Sequestration Activities. **Response:** EPA acknowledges the comment; please refer to EPA’s responses to API’s comments in Section 3.1 of this document

. **Comment 3.24.2**  **:** The Clean Air Act provides mechanisms to protect human health and the e nvironment from carbon dioxide ( CO 2 ) streams and the Class VI U nderground Injection Control (UI C) rules protect underground sources of drinking water from CO 2 streams. As detailed in the API comments, additional Resource Conservation and Recovery Act (RCRA) regulation is redundant and we believe it will undermine beneficial uses of CO 2 streams for carbon capture and sequestration and enhanced recovery. Therefore, we join API in recommending that EPA enact an exclusion of all CO 2 streams from the RCRA defin ition of solid waste. Should you have any questions concerning these comments please contact me at (see docket for contact information). **Response:** Please see Responses to Comments 3.1.1 through 3.1.18.



### 3.25 **Florida Department of Environmental Protection (DEP)**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0059 Comment**  **3.25.1 :**  There are numerous wells permitted for carbon sequestration that are not going to be Class VI wells but will initiate or continue carbon sequestration under Class I, II, or V (experimental) status. The only part of this proposed rule that addresses carbon sequestration through wells other than Class VI status is a footnote at the bottom of the middle column on p. 48089 of the notice. That footnote only states that wells permitted as Class II and Cla ss V experimental can transition to Class VI wells. It is appropriate to include any class of well being used for carbon sequestration in this proposed rule and not limit it to only Class VI wells. Use of classes other than Class VI will achieve the same goal as Class VI wells, namely to remove carbon from potential air pollutants and instead sequester it underground. Failure to include other classes of wells leaves the well owner and the permitting authority open to legal challenges as to a hazardous waste determination of the carbon dioxide. **Response:** See response to comment 3.1.11. As the commenter has correctly noted, this conditional exclusion only applies to carbon dioxide streams injected into Class VI wells for purposes of GS, and only when the cond itions of 40 CFR 261.4(h)(1) through (4) are met. While t he193

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., l arge CO 2 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 does note that nothing in the c onditional exclusion would prevent a Class VI well , that had previously transitioned from a Class II well , from be ing eligible for the RCRA conditional exclusion

.



### 3.26 **Joyce Dillard**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0081 Comment**  **3.26.1 :**  What are the criteria for Injection wells and related pipelines for solid waste carbon sequestration injection such as we have in the City of Los Angeles Terminal Island Renewable Energy Project

- Class V Experimental? Methane is a concern, if we are correct. You would want a m anifest regarding its transportation movement, in case of an explosion. How are this gas and its related dangerous gases considered without being defined as hazardous and appear to be exempt from regulations around the term “hazardous.” There is a poten tial market for the gas created via delivery through a pipeline to a neighboring refinery, as energy. Dewatering may be a problem and how will that be addressed, if applicable. Being sequestered in or around faults, what is the effect of an earthquake or natural disaster? What consideration is being made for heavily populated areas? As a citizen viewing this, we want that oversight to include our Public Health and Safety concerns. **Response:** This commenter has identified t he City of Los Angeles Termina l Island Class V Experimental Well, and all of their comments appear to be associated with this particular facility, which is a biosolids injection well. EPA notes that this well is a Class V Experimental well, and it is therefore outside the scope of thi s rulemaking. EPA further clarifies that while carbon (in situ) sequestration is identified in the Class V permit for this facility as an a spect that could be quantified, other in situ, quantifiable attributes specific to the permit are identifie d (e.g., slurry placement, biodegradation rates, carbon dioxide and methane separation, carbon sequestration and saturation in formation brine, free gas migration, commercial methane production potential and timeframes ). E PA refers this commenter to the appropriat e website for regarding this facility, including a copy of the permit, related public comments and EPA’s responses, and additional information on this facility: http://www.epa.gov/region9/water/groundwater/uic

- permits.html#la

.194

Finally, EPA notes that t he requisite Class V injection well requirements can be found at 40 CFR 144 through 146

. However, because of the unique experimental aspects of this permit, requirements specific to this permit also include requirements and standards found in Class I (non

- hazardous) portions of these regulations.



### 3.27 **Anonymous 1**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0058 Comment**  **3.27.1 :**  This proposal generally appears to further the goals of the EPA and promote efficiency within the Agency. The implementation of this rule woul d promote the ability of the EPA to promote human health and environmental cleanliness, while simultaneously ensuring that the EPA does not overstep its bounds by regulating and monitoring sources of CO 2 that do not pose such risks. It thus seems beneficia l for the EPA to adopt this rule. **Response:** EPA acknowledges the comment and is finalizing the rule.



### 3.28 **Anonymous 2**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0069 Comment**  **3.28.1 :**  Regarding the statements on p 48078 (2nd column) that: (1) “ CO 2 streams are not listed RCRA hazardous wastes” but that such streams would be so listed if “mixed with a listed hazardous waste” via 261.3(a)[2](iv), and (2) the CO 2 streams addressed in this proposal “are not included within the Bevill exemption under 261.4(b)(4)”: My understanding of the 261.4(b)(4) “fly ash” exclusion is that it is permissible for fuel consisting of up to 50% listed hazardous waste to be burned in a qualifying boiler [as per 266.112(a)(1)]. It is also our understanding that, under EPA’s 261.3(c)(2)(i) “deri ved

-from” rule, any non

- Bevill

-exempt residuals derived from such burning must take on the same listed waste codes as that of the hazardous waste fuel. As a consequence, it would appear that condensed CO 2 obtained from the burning of the listed hazardous w aste fuel would be required, under these two EPA provisions, to take on the same listed waste codes as the hazardous waste fuel (unless the proposed exclusion were to apply). Am I correct in my analysis that, under EPA’s regulations, the condensed CO 2 is i n fact a “residual” for purposes of EPA’s 261.3(c)(2)(i) “derived

-from” rule? [FN1: Or potentially EPA does not consider the condensed CO 2 to be a residual subject to the derived

-from rule because it was briefly an uncontained and uncontainerized gas and t herefore perhaps not a solid waste as defined in RCRA’s 1004

- 27 (p 48077, 3rd col of the proposal). Or potentially EPA does not consider the hazardous waste fuel components to have partitioned to residuals, analogous to its position for products produced b y industrial furnaces. (Aug 17, 1988, p 31127)]. **Response:** The most common CCS scenario contemplated as EPA developed the proposed rule was coal

-fired power plants (e.g., “While CCS can be applied to a variety of stationary sources of CO 2, its applicatio n to coal

-fired power plant emissions offers the greatest potential for GHG reductions. ” Executive Summary: Report of the Interagency Task Force on Carbon Capture and Storage , August 2010, p.1). The commenter is requesting that EPA confirm whether any of several interpretations (offered by the commenter) of the RCRA hazardous waste regulations correctly apply to a195

hypothetical scenario. While EPA notes generally that it has authority under RCRA subtitle C (e.g., RCRA 3004(n)) to regulate air emissions from the combustion of hazardous waste, EPA lacks sufficient information to conclude whether and if so at what point the captured CO 2 may or may not be desi gnated a listed hazardous waste when listed hazardous waste is part of the boiler fuel. The Agency em phasizes that it is not aware of any coal

-fired power plants th at burn listed hazardous waste, and such facilities would be require d to have a RCRA hazardous waste boiler permit

. 

### 3.29 **Anonymous 3**
**Document ID: EPA -**  **HQ -**  **RCRA -**  **2010 -** **0695 -** **0070 Comment**  **3.29.1 :**  Additi onal Comment on 8/8/2011 proposed Hazardous Waste Exclusion for sequestered carbon dioxide Regarding the statement on p 48078 (3rd col) that the TCLP test method requires the measurement of total constituents concentrations (as opposed to measurement of th e extract) in situations “where wastes are liquids that contain less than 0.5% solids”: It is my understanding that such a “totals” analysis would require an analysis of the entire sample including the solids, whereas a TCLP analysis would require that the sample first be filtered

-- with the filter residue discarded and not analyzed

-- since the filtered waste “is defined as the TCLP extract.” (Method 1311 at 2.1 and 7.2.5) This could lead to significantly different analytical results. For example, a sampl e consisting of water and 4999 mg/L silver metal flake would show a “totals” silver concentration of 4999 ppm, but a TCLP concentration of near zero (depending on the solubility of silver metal in water). As a result, I would like to respectfully suggest t hat the above preamble statement be amended to state that a measurement of total constituent concentrations in a waste is required by the TCLP test method “WHERE WASTE ARE ENTIRELY LIQUIDS.” Without this amendment, generators and regulators could incorrect ly classify wastes with less than 0.5% solids (but more than 0%) as hazardous waste when in fact they may not be. **Response:** EPA clarifies that its description at 76 FR at 48078, cited by the commenter, could have been clearer (i.e., EPA should have more c learly indicated that where liquid samples contain less than 0.5% solids, the totals analysis is performed on the filtrate, not the unfiltered waste). However, EPA notes that this same preamble text contained a footnote to the correct analytical method (P art 2.1 of Method 1311), which clearly describes the procedure to which EPA was referring. EPA thus clarifies that t he totals analysis referred to in the preamble is as described in Part 2.1 of the protocol , which calls for totals testing of the filtrate of wastes conta ining less than 0.5% solids, and in these instances, t he solids are not tested

.196



## Appendix A: Substantive Data Received from Commenters Below are t ables from Comment Letter EPA

- HQ

- RCRA

- 2010

-0695

-0063 from American Electric Power. AEP was the only commenter to provide CO 2 stream data with its comment

.197198199