Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 48073 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 50 

[EPA–HQ–OAR–2007–1145; FRL–9449–1] 

RIN 2060–AO72 

Public Hearing for Secondary National 

Ambient Air Quality Standards for 

Oxides of Nitrogen and Sulfur 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Announcement of public 

hearing. 

SUMMARY: The EPA is announcing a 

public hearing to be held for the 

proposed rule titled ‘‘Secondary 

National Ambient Air Quality Standards 

for Oxides of Nitrogen and Sulfur’’ 

which was published in the Federal 

Register on August 1, 2011. The hearing 

will be held in Arlington, Virginia on 

Thursday, August 25, 2011. 

DATES: The public hearing will be held 

on August 25, 2011. Please refer to 

SUPPLEMENTARY INFORMATION for 

additional information on the public 

hearing. 

ADDRESSES: Hearing. The hearing will 

be held at the following location: 

Potomac Yard Conferencing Center, 

First Floor Conference Room South, 

Room S–1204–06), Office of Pesticides 

Programs, 1 Potomac Yard, 2777 S. 

Crystal Drive, Arlington, Virginia 22202, 

phone: 703–347–8930. 

Note: All persons entering the Potomac 

Yard Conferencing Center must have a valid 

picture ID such as a driver’s license and go 

through federal security procedures. All 

persons must go through a magnetometer and 

all personal items must go through x-ray 

equipment, similar to airport security 

procedures. After passing through the 

equipment, all persons must sign in at the 

guard station and show their picture ID. 

Comments. Written comments on this 

proposed rule may also be submitted to 

the EPA electronically, by mail, by 

facsimile, or through hand delivery/ 

courier. Please refer to the notice of 

proposed rulemaking published in the 

Federal Register on August 1, 2011, (76 

FR 46084) for the addresses and detailed 

instructions for submitting written 

comments. 

A complete set of documents related 

to the proposal is available for public 

inspection at the EPA Docket Center, 

located at 1301 Constitution Avenue, 

NW., Room 3334, Washington, DC 

between 8:30 a.m. and 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. A reasonable fee may be 

charged for copying. Documents are also 

available through the electronic docket 

system at http://www.regulations.gov. 

The EPA Web site for the rulemaking, 

which includes the proposal and 

information about the public hearing, 

can be found at: http://www.epa.gov/ttn/ 

naaqs/standards/no2so2sec/cr_fr.html. 

FOR FURTHER INFORMATION CONTACT: If 

you would like to speak at the public 

hearing or have questions concerning 

the public hearing, please contact Mrs. 

Sherry Russell at the address given 

below under SUPPLEMENTARY

INFORMATION. 

Questions concerning the ‘‘Secondary 

National Ambient Air Quality Standards 

for Oxides of Nitrogen and Sulfur’’ 

proposed rule should be addressed to 

Rich Scheffe, U.S. EPA, Office of Air 

Quality Planning and Standards, Air 

Quality Assessment Division, (C304– 

02), Research Triangle Park, NC 27711, 

telephone: (919) 541–4650, e-mail: 

scheffe.rich@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

proposal for which the EPA is holding 

a public hearing was published in the 

Federal Register on August 1, 2011, (76 

FR 46084) and is available on the 

following Web site: http://www.epa.gov/ 

ttn/naaqs/standards/no2so2sec/ 

cr_fr.html. 

The public hearing will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning the proposed rule. The EPA 

may ask clarifying questions during the 

oral presentations, but will not respond 

to the presentations at that time. Written 

statements and supporting information 

submitted during the comment period 

will be considered with the same weight 

as any oral comments and supporting 

information presented at the public 

hearing. Written comments must be 

postmarked by the last day of the 

comment period, as specified in the 

proposal. 

The public hearing will be held in 

Arlington, Virginia on August 25, 2011. 

The public hearing will begin at 10 a.m. 

and continue until 7 p.m. or later, if 

necessary, depending on the number of 

speakers wishing to participate. The 

EPA will make every effort to 

accommodate all speakers that arrive 

and register before 7 p.m. The EPA is 

scheduling a lunch break from 1 until 

2:30 p.m. If you would like to present 

oral testimony at the hearing, please 

notify Mrs. Sherry Russell, (C504–02) 

U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, e-mail (preferred method for 

registering): russell.sherry@epa.gov; 

telephone: (919) 541–0306 no later than 

5 p.m. on August 23, 2011. She will 

arrange a general time slot for you to 

speak. The EPA will make every effort 

to follow the schedule as closely as 

possible on the day of the hearing. 

Oral testimony will be limited to five 

(5) minutes for each commenter to 

address the proposal. We will not be 

providing equipment for commenters to 

show overhead slides or make 

computerized slide presentations unless 

we receive special requests in advance. 

Commenters should notify Mrs. Russell 

if they will need specific audiovisual 

(AV) equipment. Commenters should 

also notify Mrs. Russell if they need 

specific translation services for nonEnglish speaking commenters. The EPA 

encourages commenters to provide 

written versions of their oral testimonies 

either electronically on computer disk 

or CD–ROM or in paper copy. 

The hearing schedule, including lists 

of speakers, will be posted on EPA’s 

Web site for the proposal at http:// 

www.epa.gov/ttn/naaqs/standards/ 

no2so2sec/cr_fr.html prior to the 

hearing. A verbatim transcript of the 

hearing and written statements will be 

included in the rulemaking docket. 

How can I get copies of this document 

and other related information? 

The EPA has established the official 

public docket for the ‘‘Secondary 

National Ambient Air Quality Standards 

for Oxides of Nitrogen and Sulfur’’ 

under Docket Number EPA–HQ–OAR– 

2007–1145. The EPA has also developed 

a Web site for the proposal at the 

address given above. Please refer to the 

proposal, published in the Federal 

Register on August 1, 2011, (76 FR 

46084) for detailed information on 

accessing information related to the 

proposal. 

Dated: August 2, 2011. 

Mary Henigin, 

Acting Director, Office of Air Quality Planning 

and Standards. 

[FR Doc. 2011–20029 Filed 8–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 260 and 261 

[EPA–HQ–RCRA–2010–0695; FRL–9448–9] 

RIN 2050–AG60 

Hazardous Waste Management 

System: Identification and Listing of 

Hazardous Waste: Carbon Dioxide 

(CO2) Streams in Geologic 

Sequestration Activities 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
48074 Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

proposing to revise the regulations for 

hazardous waste management under the 

Resource Conservation and Recovery 

Act (RCRA) to conditionally exclude 

carbon dioxide (CO2) streams that are 

hazardous from the definition of 

hazardous waste, provided these 

hazardous CO2 streams are captured 

from emission sources, are injected into 

Class VI Underground Injection Control 

(UIC) wells for purposes of geologic 

sequestration (GS), and meet certain 

other conditions. EPA is taking this 

action because the Agency believes that 

the management of these CO2 streams 

under the proposed conditions does not 

present a substantial risk to human 

health or the environment, and therefore 

additional regulation pursuant to 

RCRA’s hazardous waste regulations is 

unnecessary. EPA expects that this 

amendment will substantially reduce 

the uncertainty associated with 

identifying these CO2 streams under 

RCRA subtitle C, and will also facilitate 

the deployment of GS by providing 

additional regulatory certainty. 

DATES: Comments must be received on 

or before October 7, 2011. Under the 

Paperwork Reduction Act, comments on 

the information collection provisions 

must be received by the Office of 

Management and Budget (OMB) on or 

before September 7, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

RCRA–2010–0695, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: rcra-docket@epa.gov. 

• Fax: 202–566–9744 

• Mail: RCRA Docket, Environmental 

Protection Agency, Mailcode: 28221T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. Please include a 

total of two copies. In addition, please 

mail a copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Attn: Desk Officer for EPA, 725 

17th St., NW., Washington, DC 20503. 

• Hand Delivery: Deliver two copies 

of your comments to EPA West 

Building, Room 3334, 1301 Constitution 

Avenue, NW., Washington, DC 20460. 

Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–RCRA–2010– 

0695. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the RCRA Docket is (202) 

566–0270. 

FOR FURTHER INFORMATION CONTACT: Ross 

Elliott, Office of Resource Conservation 

and Recovery (5304P), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

telephone number: 703–308–8748; fax 

number: 703–308–0514; e-mail address 

elliott.ross@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me? 

This is a proposed regulation. If 

finalized, this rule may apply to 

generators, transporters, and owners or 

operators of treatment, storage, and 

disposal facilities engaged in the 

management of carbon dioxide streams 

that would otherwise be regulated as 

hazardous wastes under the RCRA 

subtitle C hazardous waste regulations 

as part of geologic sequestration 

activities. This includes entities in the 

following industries: Operators of 

carbon dioxide injection wells used for 

geologic sequestration; and certain 

industries identified by their North 

American Industry Classification 

System (NAICS) code: oil and gas 

extraction facilities (NAICS 211111); 

utilities (NAICS 22); transportation 

(NAICS 48–49); and manufacturing 

(NAICS 31–33). More detailed 

information on the potentially affected 

entities is presented in Section VI of this 

preamble. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information on a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with the procedures set 

forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 48075 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

3. Docket Copying Costs. The Docket 

Center no longer has hard copies of 

original OSWER documents. The 

documents were converted to PDF 

format. Oversized documents were 

retained and may be copied. Patrons are 

allowed 93 free copied-pages. 

Thereafter, they are charged 15 cents per 

page. When necessary, an invoice 

stating how many copies were made, the 

cost of the order, and where to send a 

check will be issued to the patron. 

There is also an administrative fee of 

$14.00 added to the cost of the order. 

Documents also are available on 

microfilm. The EPA/DC staff can help 

patrons locate needed documents and 

operate the microfilm machines. There 

is no fee for printing documents from 

microfilm or microfiche. 

Patrons who are outside of the 

metropolitan Washington, DC, area can 

request documents by telephone, 

however, patrons are asked to submit 

requests by e-mail to ensure accuracy. 

The photocopying fee is the same as for 

walk-in patrons. There is no charge for 

converting microfilm/microfiche to PDF 

format and sending it to a customer. If 

an invoice is necessary, EPA/DC staff 

can mail one with the order. 

Preamble Outline 

I. Statutory Authority 

II. Abbreviations, Acronyms, and Definitions 

A. Abbreviations and Acronyms 

B. Definitions Used in This Preamble 

III. Background 

A. What is Geologic Sequestration? 

B. Why is Geologic Sequestration being 

considered as a climate change 

mitigation technology? 

C. What other recent EPA rulemakings are 

related to CCS? 

D. RCRA Applicability to GS Activities 

E. CO2 Stream Characterization 

IV. Detailed Discussion of This Proposed 

Rule 

A. Authority for Conditional Exclusion 

From RCRA Subtitle C Requirements 

B. CO2 Streams Managed Prior to 

Underground Injection 

1. CO2 Streams Generated at Capture Sites 

2. Transportation of CO2 Streams to UIC 

Class VI Injection Well 

C. Underground Injection of CO2 Streams 

at UIC Class VI Wells 

1. Development of UIC Class VI Wells 

Under SDWA 

2. Key Elements of the UIC Class VI Well 

Requirements 

3. RCRA Land Disposal Restrictions 

4. Subtitle C Corrective Action 

5. Conclusion 

D. Prohibition on Introduction of Other 

RCRA Hazardous Wastes 

E. Loss of the Conditional Exclusion 

F. Adaptive Approach 

G. Definition of Carbon Dioxide Stream 

V. State Authorization 

A. Applicability of the Rule in Authorized 

States 

B. Effect on State Authorization 

VI. What are the costs and benefits of the 

proposed rule? 

VII. Statutory and Executive Order (EO) 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Usage 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. Statutory Authority 

These regulations are proposed under 

the authority of sections 2002, 3001– 

3009 and 3013 of the Solid Waste 

Disposal Act (SWDA) of 1970, as 

amended by the Resource Conservation 

and Recovery Act (RCRA) of 1976, and 

the Hazardous and Solid Waste 

Amendments of 1984 (HSWA), 42 

U.S.C. 6912, 6921–6929, 6934. 

II. Abbreviations, Acronyms, and 

Definitions 

A. Abbreviations and Acronyms 

AoR Area of Review. 

CAA Clean Air Act. 

CCS Carbon Capture and Storage. 

CERCLA Comprehensive Environmental 

Response, Compensation, and Liability 

Act. 

CO2 Carbon Dioxide. 

EOR Enhanced Oil and Natural Gas 

Recovery. 

EPA Environmental Protection Agency. 

GHG Greenhouse Gas. 

GS Geologic Sequestration. 

HSWA Hazardous and Solid Waste 

Amendments. 

RCRA Resource Conservation and Recovery 

Act. 

SDWA Safe Drinking Water Act. 

TC Toxicity Characteristic. 

TCLP Toxicity Characteristic Leaching 

Procedure. 

UIC Underground Injection Control. 

USDW Underground Source of Drinking 

Water. 

B. Definitions Used in This Preamble 

Authorized representative: The 

person responsible for the overall 

operation of a facility or an operational 

unit (i.e., part of a facility), e.g., the 

plant manager, superintendent or 

person of equivalent responsibility. 

Carbon dioxide (CO2) stream: Carbon 

dioxide that has been captured from an 

emission source (e.g., power plant), plus 

incidental associated substances derived 

from the source materials and the 

capture process, and any substances 

added to the stream to enable or 

improve the injection process. 

Enhanced Oil or Gas Recovery (EOR/ 

EGR): Typically, the process of injecting 

a fluid (e.g., water, brine, or CO2) into 

an oil or gas bearing formation to 

recover residual oil or natural gas. The 

injected fluid thins (decreases the 

viscosity) or displaces small amounts of 

extractable oil and gas, which is then 

available for recovery. This is also 

known as secondary or tertiary recovery. 

Supercritical CO2: Carbon dioxide 

that is above its critical temperature 

(31.1 ° C, or 88 °F) and pressure (73.8 

bar, or 1070 psi). Supercritical 

substances have physical properties 

intermediate to those of gases and 

liquids. 

III. Background 

A. What is Geologic Sequestration? 

Geologic Sequestration (GS) is the 

process of injecting carbon dioxide 

(CO2) captured from an emission source 

(e.g., a power plant or industrial facility) 

into deep subsurface rock formations in 

order to isolate the CO2. GS is a key 

component of a set of climate change 

mitigation technologies referred to as 

‘‘carbon capture and storage’’ or CCS. 

CCS can be described as a three-step 

process, beginning with the capture and 

compression of the CO2 stream from 

fossil-fuel power plants or other 

industrial sources, after which the CO2

stream is transported (usually in 

pipelines) to an on-site or off-site 

location, where it is then injected 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
48076 Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 

1Report of the Interagency Task Force on Carbon 

Capture and Storage, August 2010, p. 8. 

2Carbon Dioxide Capture and Storage. 

Intergovernmental Panel on Climate Change (IPCC), 

2005. 

3 Guidelines for Carbon Dioxide Capture, 

Transport, and Storage. World Resources Institute, 

2008. 

4CRS Report for Congress. Carbon Dioxide (CO2) 

Pipelines for Carbon Sequestration: Emerging Policy 

Issues. Paul W. Parfomak and Peter Folger. January 

17, 2008. 

5Carbon Dioxide Capture and Storage. IPCC, 

2005. 

6 Ibid. 

7National Research Council (2011) Climate 

Stabilization Targets: Emissions, Concentrations, 

and Impacts over Decades to Millennia. 

Washington, DC: National Academies Press. 

8 Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) 

Global Climate Change Impacts in the United 

States. Cambridge University Press, Cambridge, 

United Kingdom. 

9Trenberth, K.E. et al. (2007) Observations: 

Surface and Atmospheric Climate Change. In: 

Climate Change 2007: The Physical Science Basis. 

Contribution of Working Group I to the Fourth 

Assessment Report of the Intergovernmental Panel 

on Climate Change [Solomon, S., D. Qin, M. 

Manning, Z. Chen, M. Marquis, K.B. Averyt, M. 

Tignor and H.L. Miller (eds.)]. Cambridge 

University Press, Cambridge, United Kingdom and 

New York, NY, USA. 

10National Oceanic and Atmospheric 

Administration (NOAA) (2009a) The Annual Global 

(land and ocean combined) Anomalies (degrees C). 

ftp://ftp.ncdc.noaa.gov/pub/data/anomalies/ 

annual.land_ocean.90S.90N.df_1901- 

2000mean.dat. Accessed April 28, 2011. 

11 Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) 

Global Climate Change Impacts in the United 

States. Cambridge University Press, Cambridge, 

United Kingdom. 

12 IPCC (2007b) Summary for Policymakers. In: 

Climate Change 2007: Impacts, Adaptation and 

Vulnerability. Contribution of Working Group II to 

the Fourth Assessment Report of the 

Intergovernmental Panel on Climate Change [M.L. 

Parry, O.F. Canziani, J.P. Palutikof, P.J. van der 

Linden and C.E. Hanson (eds.)]. Cambridge 

University Press, Cambridge, United Kingdom and 

New York, NY, USA. 

13 Karl, T., J. Melillo, and T. Peterson (Eds.) (2009) 

Global Climate Change Impacts in the United 

States. Cambridge University Press, Cambridge, 

United Kingdom. 

14Report of the Interagency Task Force on Carbon 

Capture and Storage, August 2010, p. 14. 

underground for purposes of 

sequestration.1

To transport the captured CO2 stream 

for GS, the CO2 stream will typically be 

compressed into a supercritical fluid.2

CO2 exists as a supercritical fluid at 

approximately 1,070 pounds per square 

inch (psi) and 88 °Fahrenheit (F), and in 

this state it exhibits physical properties 

intermediate to those of a liquid and a 

gas. As mentioned, the majority of CO2

is expected to be delivered to the 

sequestration site by dedicated 

pipeline; 3 however, transport by truck, 

rail, barge or supertanker may also 

occur, but these have been described as 

‘‘logistically impractical’’ for large-scale 

CCS operations.4 Whether by pipeline, 

or these other means, the transportation 

of supercritical CO2 is regulated by the 

U.S. Department of Transportation 

(DOT) under regulations found in 49 

CFR parts 171–180 (governing the 

transportation by air, rail, highway, and 

water) and parts 190 and 195–199 

(governing the transportation of 

hazardous liquids and carbon dioxide 

by pipeline). The CO2 stream is then 

injected into deep subsurface rock 

formations via one or more wells, using 

technologies that have been developed 

and refined by the oil and gas and 

chemical manufacturing industries over 

the past several decades. To sequester 

the CO2 stream, EPA believes that many 

GS site owners or operators will inject 

the CO2 stream to depths of greater than 

800 meters (or 2,625 feet), for the 

purpose of maximizing capacity and 

storage, and where ambient pressure 

and temperature are sufficient to 

maintain the CO2 stream in a 

supercritical state. December 10, 2010 

(75 FR at 77233). 

When injected in an appropriate 

receiving formation, the CO2 stream is 

sequestered by a combination of 

trapping mechanisms, including 

physical and geochemical processes, as 

summarized below. 

Æ Physical trapping occurs when the 

relatively buoyant CO2 rises in the 

formation until it reaches a stratigraphic 

zone with low fluid permeability (i.e., 

geologic confining system) that inhibits 

further upward migration. Physical 

trapping can also occur as residual CO2

is immobilized in formation pore 

spaces. A portion of the CO2 will 

dissolve into the groundwater and 

hydrocarbons present in the receiving 

formation, and CO2 molecules can also 

attach onto the surfaces of coal and 

certain organic-rich shales (a process 

called preferential sorption), displacing 

other molecules, such as methane. The 

effectiveness of physical CO2 trapping is 

demonstrated by natural analogs 

worldwide in a range of geologic 

settings, where CO2 has remained 

trapped for millions of years. For 

example, CO2 has been trapped for more 

than 65 million years under the Pisgah 

Anticline, northeast of the Jackson 

Dome in Mississippi and Louisiana, 

with no evidence of leakage from the 

confining formation.5

Æ Geochemical trapping occurs when 

chemical reactions between the 

dissolved CO2 and minerals in the 

receiving formation result in the 

precipitation of solid carbonate 

minerals.6 The timeframe over which 

CO2 will be trapped by these 

mechanisms depends on the properties 

of the receiving formation and the 

injected CO2 stream. Research is 

currently ongoing to further understand 

these mechanisms and the time required 

to trap CO2 under various conditions. 

Additional background information 

on the GS of CO2 streams can also be 

found in the final rule and associated 

record for the final rule for UIC Class VI 

wells published on December 10, 2010 

(75 FR 77230). 

B. Why is Geologic Sequestration being 

considered as a climate change 

mitigation technology? 

Climate change is happening now, 

and the effects can be seen on every 

continent and in every ocean. While 

certain effects of climate change can be 

beneficial, particularly in the short term, 

current and future effects of climate 

change pose considerable risks to 

human health and the environment.7

There is now clear evidence that the 

Earth’s climate is warming: 8

Æ Global surface temperatures have 

risen by 1.3 °F when estimated by a 

linear trend from 1906 to 2005.9

Æ Worldwide, the last decade has 

been the warmest on record.10

Æ Ocean temperatures and sea levels 

are rising and glaciers are retreating 

around the world.11

Most of this recent warming is very 

likely the result of human activities.12

Many human activities (such as the 

combustion of fossil fuels) release 

greenhouse gases (GHGs) into the 

atmosphere. The levels of several of 

these gases, including CO2, have 

reached concentrations not seen on 

Earth in hundreds of thousands of 

years.13

In addition, fossil fuels are expected 

to remain the main source of energy 

production well into the 21st century, 

and increased concentrations of CO2 are 

expected unless energy producers 

reduce CO2 emissions to the 

atmosphere. For example, CCS could 

enable the continued use of coal in a 

manner that greatly reduces the 

associated CO2 emissions, while other 

alternative energy sources are developed 

in the coming decades. CCS has the 

potential to be key to achieving 

domestic GHG emissions reductions, 

and as already mentioned, GS is a key 

component of CCS.14

GS is therefore one of a portfolio of 

options that could be deployed to 

reduce CO2 emissions to the atmosphere 

and help to mitigate climate change. 

Other options include, but are not 

limited to, energy conservation, 

efficiency improvements, and the use of 

alternative fuels and renewable energy 

sources, including solar and wind 

power. 


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Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 48077 

15Toxicity Characteristic Leaching Procedure, or 

TCLP. See 40 CFR 261.24. A solid waste is defined 

as hazardous when a representative sample of that 

waste leaches a particular chemical or compound— 

for example, arsenic—above a specified regulatory 

concentration, using the TCLP. 

C. What other recent EPA rulemakings 

are related to CCS? 

In an effort to establish a regulatory 

framework that supports the future 

development and deployment of CCS 

technologies, EPA has set out a goal to 

provide the regulatory certainty needed 

to foster industry adoption of CCS. As 

mentioned above, EPA believes that GS 

is a key climate change mitigation 

technology. Therefore, providing a 

consistent regulatory approach to GS 

will promote its future use in the United 

States. Two important EPA rulemakings 

that directly address GS activities are 

requirements under the Greenhouse Gas 

(GHG) Reporting Program; and Federal 

Requirements under the Underground 

Injection Control (UIC) Program for 

Carbon Dioxide (CO2) Geologic 

Sequestration (GS) Wells. These are 

described in more detail below. 

• EPA Greenhouse Gas (GHG) 

Reporting Program: The GHG Reporting 

Program was established under 

authority of the Clean Air Act (CAA) 

and requires reporting of GHG 

emissions and other relevant 

information from certain source 

categories in the United States. On 

October 30, 2009, EPA issued a final 

rule (74 FR 56260) that requires 

reporting by facilities with production 

process units that capture a CO2 stream 

under subpart PP of the program. These 

facilities are required to report the 

amount of CO2 in a stream captured, 

and provide information on the 

downstream CO2 end use (e.g., food and 

beverage, EOR, GS, etc.). On December 

1, 2010, EPA issued a final rule (75 FR 

75060) that requires reporting from 

facilities that inject CO2 underground 

for GS under subpart RR of the program. 

The rule requires facilities that inject 

CO2 underground for GS to report basic 

information on CO2 received for 

injection, develop and implement an 

EPA-approved site-specific monitoring, 

reporting and verification plan, and 

report the amount of CO2 sequestered 

using a mass balance approach and 

annual monitoring activities. 

• EPA Class VI Underground 

Injection Control (UIC) Rule: On July 25, 

2008, EPA proposed to amend the UIC 

program (73 FR 43492) to establish a 

new class of injection well (Class VI) 

and to establish minimum Federal 

requirements under the Safe Drinking 

Water Act (SDWA) for the underground 

injection of CO2 for the purpose of GS. 

The proposed requirements would 

ensure that GS is conducted in a manner 

that protects Underground Sources of 

Drinking Water (USDWs) from 

endangerment, by tailoring existing 

components of the UIC program to 

address the unique nature of GS. On 

December 10, 2010, EPA finalized the 

new UIC Class VI injection well 

standards. These requirements are 

intended to provide certainty to 

industry and the public about the 

requirements that would apply to 

injection for purposes of GS, by 

providing consistency regarding the 

requirements across the U.S., and 

transparency about what requirements 

apply to permitted UIC Class VI facility 

owners or operators. For a more detailed 

discussion of these requirements, see 

the final rule in the December 10, 2010 

Federal Register (75 FR 77230). 

D. RCRA Applicability to GS Activities 

In response to the July 25, 2008 

proposed rule for UIC Class VI wells, 

EPA received a number of comments 

regarding the potential applicability of 

RCRA subtitle C to CO2 streams being 

geologically sequestered. As a result of 

those comments, EPA decided to initiate 

work on today’s proposal. EPA also 

considered those RCRA-related 

comments in the development of today’s 

proposed rule. EPA notes, however, that 

should persons wish to comment on the 

RCRA applicability issues raised by 

today’s proposal, it is necessary to 

submit comments to the docket 

established for today’s proposed rule as 

described above in the ADDRESSES

section of this Federal Register notice. 

EPA will not provide further responses 

to comments submitted on the UIC rule 

as part of this rulemaking. In addition, 

today’s proposal is not reopening the 

UIC Class VI final rule, nor will EPA 

respond to comments related only to 

that rule. 

At this time, EPA has little 

information to conclude that CO2

streams would qualify as RCRA 

hazardous wastes, which would make 

them subject to EPA’s comprehensive 

RCRA hazardous waste management 

regulations. However, commenters have 

cited the potential for RCRA hazardous 

waste requirements to attach to some 

CO2 streams (i.e., some CO2 streams 

might be classified as hazardous waste 

and therefore, would be subject to RCRA 

subtitle C), as a significant impediment 

to widespread deployment of CCS 

technologies. Today’s proposal seeks to 

address this concern and provide 

regulatory clarity through a revised 

RCRA regulatory approach for CO2

streams. Simultaneously, as discussed 

below, EPA expects that management in 

accordance with the conditions in 

today’s proposal will provide no 

reduced protection to human health and 

the environment. 

After issuance of the proposed UIC 

Class VI rule, EPA received public 

comments that the proposed 

requirements were unclear as to 

whether the CO2 stream would be a 

RCRA hazardous waste, and expressed 

concern that this created uncertainty 

regarding the type of permit needed for 

GS. Many commenters stated that a CO2

stream should not be treated as a RCRA 

hazardous waste on the grounds that it 

is neither a listed hazardous waste nor 

exhibits a hazardous characteristic, or is 

even a solid waste. Other commenters, 

however, asserted that CO2 in the 

presence of water could exhibit the 

RCRA corrosivity characteristic. 

Additionally, some commenters raised 

the issue of whether the analytic 

procedures used under RCRA (in 

particular, the toxicity characteristic 

leaching procedure, TCLP) 15 can be 

applied to supercritical CO2 streams, 

and whether or not the UIC Class VI 

regulations would better ensure the 

proper management of CO2 streams, 

compared with the RCRA subtitle C 

hazardous waste requirements. 

EPA believes that the RCRA 

hazardous waste regulations can apply 

to CO2 streams being geologically 

sequestered. Subtitle C of RCRA and its 

implementing regulations establish a 

‘‘cradle to grave’’ regulatory scheme 

over certain ‘‘solid wastes’’ which are 

also ‘‘hazardous wastes.’’ RCRA defines 

solid waste as ‘‘any garbage, refuse, 

sludge from a waste treatment plant, 

water supply treatment plant, or air 

pollution control facility and other 

discarded material, including solid, 

liquid, semisolid, or contained gaseous 

material * * *.’’ See RCRA 1004(27), 42 

U.S.C. 6903(27). EPA has further 

defined the term ‘‘solid waste’’ for 

purposes of its RCRA hazardous waste 

regulations. 40 CFR 261.2. To be 

considered a hazardous waste, a 

material first must be classified as a 

solid waste. Under EPA’s regulations, 

generators of solid waste are required to 

determine whether their wastes are 

hazardous wastes. 40 CFR 262.11. A 

solid waste is a hazardous waste if it 

exhibits any of four characteristics 

(ignitability, corrosivity, reactivity, or 

toxicity), 40 CFR 261.20–.24, or is a 

listed waste, 40 CFR 261.30–.33 (these 

include wastes from non-specific 

sources, such as spent solvents; byproducts from specific industries; and 

discarded, unused commercial chemical 

products). 

A supercritical CO2 stream injected 

into a permitted UIC Class VI well for 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
48078 Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 

16The 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. 

17Report to Congress: Wastes from the 

Combustion of Coal by Electric Utility Power 

Plants, February 1988, EPA–530–SW–88–002; and 

Report to Congress: Wastes From the Combustion of 

Fossil Fuels, Vol. 1 & 2, U.S. EPA, March 1999, 

EPA–530–S–99–010 and EPA–530–R–99–010. 

18EPA notes that even if CO2 streams from the 

combustion of fossil fuels were exempt from 

regulation as hazardous waste under § 261.4(b)(4)— 

which it does not believe to be the case—the Bevill 

exemption would only apply to CO2 generated from 

the combustion of materials in boilers to generate 

steam for the purpose of generating energy, and not 

to other CO2 streams generated from other sources. 

19As already mentioned, a hazardous waste 

determination must be made when a waste is first 

generated (§ 262.11); however, knowing whether a 

solid waste is a hazardous waste is necessary at any 

point during the management of that waste, in order 

for persons to ensure that they are in compliance 

with the hazardous waste requirements if and when 

they are managing hazardous waste. See 40 CFR 

261.3(b)(3) and 45 FR 33096 (May 19, 1980). 

20 It is also possible that a CO2 stream could 

become a hazardous waste if it is mixed with a 

listed hazardous waste, or, mixed with a 

characteristic hazardous waste and the resultant 

mixture exhibits a characteristic of hazardous 

waste. This is commonly referred to as the ‘‘mixture 

rule.’’ See 40 CFR 261.3. We note that today’s 

proposed exemption includes the condition that 

prohibits the mixing of CO2 streams with hazardous 

waste. 

21Any persons claiming that a waste is nonhazardous, based on knowledge in lieu of testing, 

should be prepared to substantiate this claim. 

22E.g., EPA notes that existing analytical test 

methods, such as SW–846 Methods 0060, 0010, and 

0031, are available to quantify the levels of various 

hazardous constituents in gaseous streams, 

although sampling a supercritical CO2 stream may 

require particular sampling protocols. 

23See SW–846, Method 1311, Section 2.1. 

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. An 

entity involved in the CCS process may 

generate CO2 that qualifies as a solid 

waste under the RCRA hazardous waste 

regulations by making the decision to 

discard the material through 

abandonment by disposing of the 

material (see 40 CFR 261.2(a)(2)(i) and 

(b)(1)). Once the decision is made that 

the supercritical CO2 stream will be sent 

to a UIC Class VI well for discard, EPA 

considers this material to be a solid 

waste. This decision may be made 

upstream of the injection well facility. 

As discussed above, EPA’s regulations 

require that generators of a solid waste 

determine whether their wastes are 

hazardous wastes, and if so, manage 

them in accordance with EPA’s RCRA 

hazardous waste regulations. 40 CFR 

262.11. 

One commenter to the UIC proposed 

rule suggested that the captured CO2

stream was exempt from the RCRA 

hazardous waste regulations under the 

exemption for ‘‘fly ash waste, bottom 

ash waste, slag waste, and flue gas 

emission control waste, generated 

primarily from the combustion of coal 

or other fossil fuels,’’ also referred to as 

the ‘‘Bevill exemption.’’ (See 40 CFR 

261.4(b)(4).) 

EPA studied the fossil fuel 

combustion wastes as directed by 

Congress, and published two Reports to 

Congress,17 and issued two Regulatory 

Determinations on the management and 

use of coal and other fossil fuel 

combustion products, one on August 9, 

1993 and a second one on May 22, 2000 

(58 FR 42466 and 65 FR 32214, 

respectively). CO2 captured for purposes 

of GS was not included in either of 

these Regulatory Determinations, or in 

the underlying studies upon which 

these determinations were based. The 

Agency has consistently interpreted the 

§ 261.4(b)(4) exemption as only 

encompassing those wastes that were 

studied, and EPA did not study CO2 that 

has been captured for GS. Therefore, 

EPA believes that the CO2 streams 

discussed in today’s proposed rule are 

not included within the Bevill 

exemption under § 261.4(b)(4).18

EPA notes that CO2 streams are not 

listed RCRA hazardous wastes (i.e., CO2

streams are not specifically identified as 

one of the hazardous wastes listed in 40 

CFR part 261, subpart D). However, the 

CO2 stream would be a hazardous waste 

if it exhibits any of the hazardous 

characteristics in 40 CFR part 261, 

subpart C, or, is mixed with a listed 

hazardous waste. See § 261.3(a)(iv). 

Under the UIC Class VI final rule, 

injection site owners and operators must 

determine whether the CO2 stream is 

hazardous under the RCRA regulations, 

and if so, injection of the CO2 stream 

may only occur in a UIC Class I 

hazardous waste injection well.19

Conversely, UIC Class VI wells cannot 

be used for the injection of RCRA 

hazardous wastes. Today’s proposal, if 

finalized, would allow CO2 streams that 

would otherwise qualify as RCRA 

hazardous wastes to be managed in a 

Class VI well, provided that they meet 

the conditions of this proposed rule. 

As already noted, commenters to the 

UIC Class VI proposed rule also raised 

questions about the appropriateness and 

feasibility of applying the RCRA 

hazardous waste characteristics to CO2

streams and, in particular, the Toxicity 

Characteristic (TC). See § 261.24. Some 

commenters stated that the TCLP test 

method associated with the TC could 

not be used on materials other than 

solids or liquids, and that EPA would 

have to develop new testing regulations 

and guidelines specifically for 

evaluating supercritical CO2. 

Commenters also stated that the TC 

regulation was inappropriate for CO2

streams because the TC was ‘‘* * * 

designed to assess the threat waste 

would have in a municipal landfill 

disposal scenario, a scenario that * * * 

is inherently inapplicable to 

uncontained supercritical CO2.’’ Many 

commenters also expressed concern 

over the uncertainty in determining how 

the RCRA hazardous waste regulations, 

including the hazardous waste 

identification issues described here, 

apply to CO2 streams being sequestered 

in UIC Class VI wells. 

In light of these comments, EPA 

reiterates that no hazardous waste 

listings apply specifically to CO2

streams; therefore, a CO2 stream could 

only be defined as a hazardous waste if 

it exhibits a hazardous waste 

characteristic as defined in 40 CFR part 

261, subpart C.20 Regarding the 

feasibility of testing CO2 streams, EPA 

acknowledges the commenter’s concern, 

but also notes that the hazardous waste 

regulations allow generators to apply 

their knowledge—in lieu of testing—of 

the hazard characteristic of a waste, in 

light of the materials or processes used, 

to determine whether that waste is a 

characteristic hazardous waste under 

RCRA.21 40 CFR 262.11(c)(2). EPA also 

notes that methods exist for sampling 

and analyzing gaseous emissions in 

order to identify and quantify hazardous 

constituents that may be present.22

Regarding whether a TCLP leach test 

can be applied to a supercritical CO2

stream, EPA notes that the TC 

regulation, and the TCLP test method, 

allow for measurement of total 

constituent concentrations in a waste, in 

lieu of running the leach test, and under 

certain circumstances even require it 

(such as where wastes are liquids that 

contain less than 0.5% solids).23

However, EPA acknowledges the 

commenters’ underlying concerns 

related to RCRA characterization, and 

requests comment on this issue. 

E. CO2 Stream Characterization 

As noted above, EPA is proposing to 

conditionally exclude from the 


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Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 48079 

24Apps, J.A., A Review of Hazardous Chemical 

Species Associate with CO2 Capture from CoalFired Power Plants and Their Potential Fate in CO2

Geologic Storage, Lawrence Berkeley National 

Laboratory, March 2006. 

25 Ibid, Table 13b. EPA notes that the presence of 

hazardous constituents or contaminants does not 

automatically mean that a CO2 stream is a 

hazardous waste. 

26See Exhibits 1 and 2 in EPA’s analysis of the 

potential costs and benefits associated with this 

action, entitled Assessment of the Potential Costs, 

Benefits, and Other Impacts of the Conditional 

Exclusion from the RCRA Definition of Hazardous 

Waste for CO2 Streams Managed in UIC Class VI 

Wells for the Purposes of Geologic Sequestration, as 

Proposed. A copy of this document is available in 

the docket established for this action. 

27As used here in the context of the UIC program, 

‘Director’ means the person responsible for 

permitting, implementation, and compliance of the 

UIC program. For UIC programs administered by 

EPA, the Director is the EPA Regional 

Administrator or his/her authorized representative; 

for UIC programs in Primacy States, the Director is 

the person responsible for permitting, 

implementation, and compliance of the State, 

Territorial, or Tribal UIC program. 40 CFR 144.3. 

definition of hazardous waste CO2

streams captured, transported (or 

otherwise delivered to) and injected into 

permitted UIC Class VI wells for 

purposes of GS. At this time, EPA has 

little information to conclude that CO2

streams would qualify as RCRA 

hazardous wastes, which would make 

them subject to EPA’s comprehensive 

RCRA hazardous waste management 

regulations. Today’s proposal is 

intended to provide clarity for 

deployment of CCS under conditions 

that EPA believes would not present a 

substantial risk to human health and the 

environment. However, EPA 

acknowledges that at this time, it does 

not have full knowledge of the range of 

possible CO2 stream compositions. 

Today’s proposed conditional exclusion 

is based upon EPA’s existing knowledge 

of the composition of CO2 streams, and 

its analysis that compliance with the 

existing standards and regulations 

designed to prevent any exposure of 

CO2 (and any associated impurities) 

would render additional regulation 

under RCRA subtitle C unnecessary. 

Nevertheless, EPA is proceeding with 

this proposal, and notes that the UIC 

Class VI regulations include 

requirements that the owner or operator 

of the injection well provide an analysis 

of the physical and chemical 

characteristics of the CO2 stream, both 

during permit application and 

periodically during operation (See 40 

CFR 146.82, 146.90 and 146.91). The 

permit-issuing authority is also 

authorized under EPA’s UIC permit 

regulations to add any additional 

conditions to the permit, as necessary, 

to assure compliance with applicable 

SDWA requirements (40 CFR 146.52(b)). 

Under this authority, the UIC Program 

Director (EPA or a State permitting 

authority) may add specific testing or 

chemical/waste limitations to the permit 

to prevent endangerment of USDWs, or 

to assure that unauthorized wastes are 

not injected with the CO2 stream. 

EPA has reviewed estimates of CO2

stream composition that were calculated 

using information, such as the 

composition of flue gas from the 

burning of fossil fuels and other likely 

sources, existing flue gas emission 

control technologies (e.g., electrostatic 

precipitators and scrubbers), and data 

from applied capture technology.24

These estimates indicate that captured 

CO2 could contain (based upon the 

information used in developing those 

estimates) low concentrations of 

hazardous constituents (e.g., estimated 

concentrations expressed in parts per 

million by volume, or ppmv, are: 

0.0022–0.0097 arsenic, 0.0462–0.4623 

barium, 0.0002–0.0085 cadmium, 

0.0016–0.0171 chromium, 0.0022– 

0.0028 mercury, 0.0011–0.0045 lead, 

and 0.0074–0.0244 selenium). EPA 

notes that these contaminants derived 

from the combustion flue gas are 

relevant to the TC regulation in 

§ 261.24.25 These estimates also indicate 

that the types of impurities and their 

concentrations would likely vary by 

facility, coal composition, plant 

operating conditions, and pollutant 

removal and carbon capture 

technologies. 

EPA solicited comment in the July 25, 

2008 proposed UIC Class VI rule on the 

presence of impurities in CO2 streams, 

but did not receive any analytical data 

on the composition of captured CO2

streams in response. As various CCS 

pilot projects 26 move forward and 

continue to generate information, EPA 

expects the amount of available 

analytical data on captured CO2 to 

increase. In addition, EPA expects that 

data will become available under the 

recently promulgated UIC Class VI 

regulations. As discussed above, the 

final UIC Class VI regulations require 

that prior to issuance of a permit, the 

owner or operator of the well must 

submit to the Director 27 proposed 

operating data for the proposed GS site, 

including an analysis of the chemical 

and physical properties of the CO2

stream (40 CFR 146.82(a)(7)(iv)). The 

UIC rule also requires that, throughout 

the operational life of the Class VI well, 

the injected CO2 stream be analyzed by 

owners or operators with sufficient 

frequency to yield data representative of 

its physical and chemical characteristics 

(40 CFR 146.90(a)). Owners or operators 

must also submit semi-annual reports 

that include any changes to the 

physical, chemical, and other relevant 

characteristics of the CO2 stream from 

the proposed operating data (40 CFR 

146.91(a)(1)). While guidance is still 

being developed regarding these 

requirements, at a minimum, the 

physical characteristics of the CO2

stream will include temperature and 

pressure, while the chemical 

characteristics will include pH, carbon 

dioxide purity (as a percent), as well as 

concentrations of non-CO2 constituents 

(either in ppmv or in percent). These 

non-CO2 constituents may include, but 

are not limited to, sulfur dioxide (SO2), 

hydrogen sulfide (H2S), nitrous oxides 

(NOX), carbon monoxide (CO), methane 

(CH4), other hydrocarbons, water vapor 

(H2O), as well as certain contaminants, 

that are also defined as hazardous 

contaminants in 40 CFR 261.24, such as 

arsenic, mercury, and selenium. EPA 

expects that these data will provide an 

indication of any impurities that may be 

present, their concentrations, and 

whether such impurities might alter the 

corrosivity or other properties of the 

CO2 stream after injection. 

EPA today requests analytical data on 

the physical and chemical 

characteristics of captured CO2, 

including the concentrations of 

hazardous contaminants, CO2 content, 

information on the type of CO2 capture 

process used, and how the samples were 

collected and analyzed. This data will 

allow EPA to gain a better 

understanding of the nature and 

characteristics of captured CO2 streams. 

IV. Detailed Discussion of This 

Proposed Rule 

EPA is proposing to revise the 

regulations for hazardous waste 

management under RCRA to exclude 

from the definition of hazardous waste 

CO2 streams that would otherwise be 

defined as hazardous, when these CO2

streams are managed under certain 

conditions. The Agency believes that 

this amendment to the RCRA hazardous 

waste rules, if finalized, will 

substantially reduce the uncertainty 

associated with defining and managing 

these CO2 streams under RCRA subtitle 

C. For the reasons discussed below, EPA 

believes that the management of these 

CO2 streams in accordance with the 

proposed conditions does not present a 

substantial risk to human health and the 

environment. These proposed 

conditions include, but are not limited 

to, compliance with the existing 

regulatory regimes governing the 

transportation of the CO2 stream, and its 

injection in a UIC Class VI permitted 

well. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
48080 Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 

A. Authority for Conditional Exclusion 

From RCRA Subtitle C Requirements 

EPA has previously interpreted RCRA 

section 3001(a) to authorize the issuance 

of ‘‘conditional exemptions’’ from the 

requirements of subtitle C, where it 

determines that ‘‘a waste might pose a 

hazard only under limited management 

scenarios, and other regulatory 

programs already address such 

scenarios.’’ 62 FR at 6636 (February 12, 

1997); 66 FR at 27222–27223 (May 16, 

2001). Today’s proposal takes a similar 

approach to those earlier rules. 

Section 3001(a) provides the Agency 

with flexibility to consider the need for 

regulation in deciding whether to list or 

identify a waste as hazardous. 

Specifically, RCRA section 3001(a) 

requires that EPA, in determining 

whether to list a waste as a hazardous 

waste, or to otherwise identify a waste 

as a hazardous waste, decide whether a 

waste ‘‘should be subject to’’ the 

requirements of subtitle C. Hence, RCRA 

section 3001 authorizes EPA to 

determine when subtitle C regulation is 

appropriate. EPA has consistently 

interpreted section 3001 of RCRA to 

give it broad flexibility in fashioning 

criteria for hazardous wastes to enter or 

exit the subtitle C regulatory system. 

EPA’s longstanding regulatory criteria 

for determining whether wastes pose 

hazards that require regulatory control 

incorporate the idea that a waste that is 

otherwise hazardous may not present a 

hazard if already subject to adequate 

regulation. (See, e.g., 40 CFR 

261.11(a)(3)(x), which requires EPA to 

consider action taken by other 

governmental agencies or regulatory 

programs based on the health or 

environmental hazard posed by the 

waste.) 

EPA’s interpretation is further 

supported by the text of RCRA sections 

1004(5), and 3002–3004, and RCRA’s 

legislative history. This interpretation 

has also been upheld upon judicial 

review. See, e.g., Military Toxics Project 

v. EPA, 146 F.3d 948 (D.C. Cir. 1998) 

(upholding conditional exemption for 

storage of military munitions, based on 

EPA determination that such wastes are 

subject to binding standards that meet 

or exceed RCRA standards, in addition 

to an institutional oversight process). 

The statutory definition of hazardous 

waste, section 1004(5)(B), informs EPA’s 

interpretation that EPA may consider 

good management practices in 

determining the need to regulate waste 

as hazardous. That section defines a 

‘hazardous waste’ as ‘‘a solid waste, or 

combination of solid wastes, which 

because of its quantity, concentration, or 

physical, chemical or infectious 

characteristics may * * * (B) pose a 

substantial present or potential hazard 

to human health or the environment 

when improperly treated, stored, 

transported, or disposed of, or otherwise 

managed.’’ (Emphasis added.) EPA has 

interpreted the statutory definition as 

incorporating the idea that a waste that 

is otherwise hazardous does not require 

regulation so long as it is properly 

managed. For example, EPA’s standards 

for listing hazardous wastes require 

consideration of a waste’s potential for 

mismanagement. See 40 CFR 

261.11(a)(3)(vii) (incorporating the 

language of RCRA section 1004(5)(B) 

and requiring EPA to consider 

‘‘plausible types of improper 

management’’). 

The statute also directs EPA to 

regulate hazardous waste generators 

(RCRA § 3002(a)), transporters (RCRA 

§ 3003(a)) and treatment, storage and 

disposal facilities (RCRA § 3004(a)) ‘‘as 

may be necessary to protect human 

health and the environment.’’ By 

extension, the decision of when a waste 

should be subject to the regulatory 

requirements of subtitle C is a question 

of whether such regulatory controls are 

necessary to protect human health and 

the environment. 

Thus, where a waste might pose a 

hazard only under limited management 

scenarios, and other regulatory 

programs already address such 

scenarios, EPA is not required to 

classify a waste as hazardous waste 

subject to regulation under subtitle C. At 

least three decisions by the U.S. Court 

of Appeals for the D.C. Circuit provide 

support for this approach to regulating 

wastes as hazardous waste only where 

necessary to protect human health and 

the environment. In Military Toxics 

Project v. EPA, 146 F.3d 948 (D.C. Cir. 

1998), the court upheld a conditional 

exemption whereby the storage and 

transportation of certain military 

munitions are not considered hazardous 

waste subject to regulation under RCRA 

subtitle C, provided the munitions are 

stored and transported in compliance 

with regulations issued by the 

Department of Defense and the 

Department of Transportation, 

respectively. See 40 CFR 266.203, 

266.205. The court ruled that EPA’s 

interpretation of RCRA as authorizing a 

conditional exemption is ‘‘a permissible 

construction of the statute.’’ 146 F.3d at 

958. The court cited its own precedent 

as recognizing ‘‘‘that Congress intended 

the agency to have substantial room to 

exercise its expertise in determining the 

appropriate grounds for listing,’ ’’ id. 

(citing NRDC v. EPA, 25 F.3d 1063, 

1070 (D.C. Cir. 1994)), and concluded 

that, although the military munitions 

rule ‘‘does not involve the listing 

regulations at issue in NRDC v. EPA, we 

think the principle at work there also 

supports the conditional exemption at 

issue here.’’ Id. 

In NRDC v. EPA, the court held that 

EPA appropriately used its discretion in 

relying on several existing regulatory 

frameworks governing used oil in 

determining not to list certain used oils 

as a hazardous waste. NRDC, 25 F.3d at 

1071. Similarly, in Edison Electric 

Institute v. EPA, 2 F.3d 438 (D.C. Cir. 

1993), the court upheld a temporary 

exemption from subtitle C for 

petroleum-contaminated media based 

on the fact that the potential hazards of 

such materials are already controlled 

under the underground storage tank 

regulations under RCRA subtitle I. In 

reaching its decision, the court 

considered the fact that the subtitle I 

standards could prevent threats to 

human health and the environment to 

be an important factor supporting the 

exemption. Id. at 453. 

The legislative history of RCRA 

subtitle C also supports this 

interpretation, stating that ‘‘the basic 

thrust of this hazardous waste title is to 

identify what wastes are hazardous in 

what quantities, qualities, and 

concentrations, and the methods of 

disposal which may make such wastes 

hazardous.’’ H. Rep. No. 94–1491, 94th 

Cong., 2d Sess. 6 (1976), reprinted in A 

Legislative History of the Solid Waste 

Disposal Act, as Amended, 

Congressional Research Service, Vol.1, 

567 (1991) (emphasis added). Finally, as 

discussed above, in proposing this 

conditional exemption from RCRA, EPA 

is in part relying on the regulatory 

controls for Class VI wells, under the 

UIC program of the SDWA, 42 U.S.C. 

300f et seq. EPA notes that such reliance 

is also consistent with the direction 

provided in section 1006(b) of RCRA, 

which directs EPA to integrate the 

provisions of RCRA, for purposes of 

administration and enforcement and to 

avoid duplication, to the maximum 

extent practicable, with those of certain 

other statutes, including the SDWA, to 

the extent that it can be done in a 

manner that is consistent with the goals 

and policies of both RCRA and the other 

relevant statute(s). 

B. CO2 Streams Managed Prior to 

Underground Injection 

Under the subtitle C hazardous waste 

program, the generator requirements (40 

CFR part 262) contain provisions 

designed to ensure that hazardous 

wastes are properly managed by persons 

who generate the wastes. This is 

accomplished through certain 

requirements governing the temporary 


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28The generator regulations in 40 CFR part 262 

provide for limited, temporary on-site hazardous 

waste storage (accumulation) without a RCRA 

permit or being subject to the interim status 

standards, provided certain conditions are met (see 

§ 262.34). While generators are not required to send 

hazardous waste off-site for disposal, they often do 

so because they do not wish to engage in RCRApermitted hazardous waste activity on-site. 

29This is because use of the hazardous waste 

manifest is triggered by the transport of hazardous 

waste (see discussion in Section IV.B.2. in this 

preamble, including Footnote 41). 

30 DOE/NETL’s Carbon Capture R&D Program for 

Existing Coal-Fired Power Plants, DOE/NETL– 

2009–1356, February 2009. 

31Figueroa, Jose D. et al., 2008. Advances in CO2

capture technology—the U.S. Department of 

Energy’s Carbon Sequestration Program, 

International Journal of Greenhouse Gas Control 2, 

2008 (9–20). 

32The term ‘‘store’’ or ‘‘storage’’ used throughout 

this preamble refers to the holding of waste for a 

temporary period above ground, and does not refer 

to the placement of CO2 streams in underground 

formations through the process of GS. See 40 CFR 

260.10. 33CCS Task Force Study, August, 2010, 

Appendix A. 34Carbon Dioxide Capture and Storage. 

Intergovernmental Panel on Climate Change (IPCC), 

2005, p. 61. 

storage (i.e., accumulation) of hazardous 

wastes, in units, such as tanks or 

containers, at the site of generation. 

These requirements include technical 

requirements for the tanks or containers, 

and time limits on hazardous waste 

storage, if the waste is to be sent off-site 

to a treatment, storage or disposal 

facility.28 These requirements also 

include recordkeeping and reporting, 

and certain pre-transport requirements, 

such as packaging, labeling, and 

preparing a hazardous waste manifest to 

accompany the waste. Generators must 

also notify EPA of their hazardous waste 

management activity, and obtain an EPA 

identification (ID) number. Likewise, 

hazardous waste transporters (e.g., 

persons transporting waste, including 

over the highway or by rail) have certain 

requirements in 40 CFR part 263, to 

ensure that the hazardous wastes are 

properly transported to a hazardous 

waste treatment, storage, or disposal 

facility. These transporter requirements 

include notifying EPA and obtaining an 

EPA ID number, recordkeeping, and 

compliance with the hazardous waste 

manifest. EPA notes that under the 

RCRA subtitle C regulations, a 

hazardous waste manifest is not 

required for hazardous wastes sent offsite via pipeline.29

For CO2 streams that are captured, 

compressed, and transported to a UIC 

Class VI well, EPA believes that the full 

set of subtitle C generator and 

transporter requirements are not 

necessary, because they do not provide 

any additional protection over existing 

regulatory requirements. Regarding the 

generator requirements, EPA believes 

that the process of capturing and 

compressing CO2 prior to delivery to a 

UIC Class VI facility via a pipeline, as 

the Agency understands it, will not 

involve storage at the generator facility 

(i.e., at the CO2 source), but rather will 

occur in a continuous fashion (capture 

process → compression/dehydration → 

pipeline insertion). Once in the 

pipeline, EPA believes the applicable 

DOT requirements (which apply to 

supercritical CO2 streams regardless of 

whether or not these materials meet the 

definition of hazardous waste) will 

ensure that CO2 streams are managed in 

a manner that addresses the potential 

risks to human health and the 

environment that these materials may 

pose, prior to arrival at a Class VI 

injection well facility. 

1. CO2 Streams Generated at Capture 

Sites 

While certain technologies for 

removing (capturing) CO2 have been in 

use commercially for over 60 years (e.g., 

natural gas processing, production of 

food-grade CO2), research has been 

underway to develop more cost-effective 

technologies to capture CO2 for 

purposes of CCS. Regardless of the 

capture technology that is ultimately 

implemented, information currently 

available to EPA indicates that once the 

CO2 stream is captured at the source 

(e.g., coal-fired power plant), it will be 

dehydrated (to meet pipeline 

specifications preventing corrosion) and 

compressed (to match designated 

pipeline pressures) in preparation for 

transport, primarily via CO2

pipeline.30 31

However, evaluating in more detail 

how CO2 streams will be managed at the 

CO2 source prior to GS in a UIC Class 

VI facility, and what regulations or other 

standards might apply to these activities 

in lieu of the RCRA generator standards, 

has proven somewhat difficult based on 

a review of the literature. This is either 

because many of the newer capture 

technologies are still in the 

developmental stages, or because the 

more established capture technologies 

used in commercial CO2 capture have 

not yet been scaled up to large facilities, 

such as coal-fired power plants. 

Nonetheless, EPA attempted to assess 

how captured CO2 streams would be 

managed in the context of the RCRA 

generator requirements identified above 

(e.g., EPA notification, standards for 

tanks or containers, time limits for onsite storage, recordkeeping and 

reporting, packaging, labeling, 

manifesting, etc.). 

First, it is unclear from existing 

information sources whether captured 

CO2 has been or will be stored at the 

generator site prior to insertion into a 

pipeline, so EPA examined the 

feasibility of storing captured CO2

streams at the source, since storage is a 

hazardous waste management activity of 

concern at RCRA generator sites 

generally.32 EPA looked at estimates of 

CO2 capture rates both in the CCS 

projects currently underway, as well as 

future scenarios where CO2 capture is 

deployed at full scale. A review of 

commercially-available CO2 capture 

facilities in 2009 identified 17 facilities, 

with CO2 capture rates ranging from 

50,000 metric tons/year to 3.63 million 

metric tons per year.33 According to the 

2010 CCS Task Force Report, the largest 

of these capture rates (3.63 million 

metric tons/yr) is close to the volume of 

CO2 required for capture at electric 

utility generating plants. It is also 

estimated that a 500MW (megawatt) 

coal-fired power plant emits close to 3 

million metric tons of CO2 per year.34

Similarly, the Mountaineer, West 

Virginia CCS project, which is currently 

capturing 100,000 metric tons CO2/year, 

will eventually scale up to 1.5 million 

metric tons of CO2 per year from an 

emission slipstream representing 

235MW. See 75 FR 32171, June 7, 2010. 

An annual CO2 capture rate of 1.5 

million metric tons translates to 

approximately 4,100 metric tons CO2

per day, or (at temperatures and 

pressures close to supercritical) 34,000 

cubic meters, which is approximately 9 

million gallons of CO2 per day. Even the 

smallest annual capture rate mentioned 

above (50,000 metric tons per year) 

equates to approximately 137 metric 

tons of CO2 per day, or 1,142 cubic 

meters, which is approximately 301,568 

gallons per day. 

Based on these estimates, the volume 

of CO2 streams either being captured, or 

anticipated to be captured, are quite 

large, and would require pressure 

vessels (i.e., tanks engineered for 

pressurized material) of inordinate size 

at the low end of these estimates, and 

are not likely to exist or be practicable 

at the upper end of these estimates. 

Therefore, EPA does not envision these 

large volumes of captured CO2 streams 

being stored on-site, and instead 

assumes that the CO2 streams will be 

dehydrated, compressed, and either 

injected on-site, or sent off-site, in a 

continuous fashion. EPA believes that 

even if the CO2 were defined as a 

hazardous waste, under the scenario 

described above, where captured CO2

streams are delivered in a continuous 

fashion to either on-site injection wells, 


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35 ‘‘Substantive’’ as used here describes those 

requirements that are directly related to storage, 

transportation, treatment, or disposal, and not 

notification or biennial reporting. 

36EPA notes that there are no stand-alone RCRA 

hazardous waste standards for pipelines only; 

rather, EPA regulates hazardous waste ‘‘tank 

systems’’ which includes technical standards for 

piping where that piping is ancillary to hazardous 

waste tanks. See 40 CFR 260.10 for the definition 

of tank system; see also July 14, 1986 Federal 

Register for discussion of ancillary equipment, 51 

FR at 25441. 

37CRS Report for Congress. Carbon Dioxide (CO2) 

Pipelines for Carbon Sequestration: Emerging Policy 

Issues. Paul W. Parfomak and Peter Folger. January 

17, 2008. 

38CRS Report for Congress. Regulation of Carbon 

Dioxide (CO2) Sequestration Pipelines: 

Jurisdictional Issues. Adam Vann and Paul W. 

Parfomak. April 15, 2008. 

39The 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. 

40HCAs include populated areas, and other areas 

particularly vulnerable to pipeline releases, such as 

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 35 RCRA subtitle C 

requirements applicable to this activity. 

EPA notes that there are no RCRA 

hazardous waste standards for 

pipelines, unless the pipelines are 

ancillary to a regulated hazardous waste 

tank, which does not appear to be the 

case here.36

Regarding other generator 

requirements, such as notification to 

EPA of hazardous waste activity, and 

recordkeeping and reporting, EPA 

believes there will be equivalent notice 

and reporting for facilities engaged in 

CO2 capture for purposes of GS. The 

new GHG reporting requirements 

promulgated on October 30, 2009 (74 FR 

56260) will provide information to the 

Agency regarding individual facilities 

engaged in CO2 capture activities. Under 

40 CFR part 98, subpart PP, of the GHG 

rule, facilities with production process 

units that capture a CO2 stream must 

annually report certain information to 

EPA, such as the amount of CO2 in the 

stream captured, and information on the 

fate of the CO2 stream (i.e., the 

downstream ‘end use’ of the CO2), 

including GS. See 40 CFR 98.426. The 

GHG rule also requires comprehensive 

recordkeeping, and records that must be 

retained for three years. See § 98.3(g) 

and § 98.427. EPA points out that these 

GHG requirements apply irrespective of 

whether a facility claims the RCRA 

exclusion being proposed today, if 

finalized. 

Therefore, with respect to generators 

of CO2 streams, EPA believes there 

would not be any additional protection 

to human health or the environment 

through the RCRA hazardous waste 

regulations of these operations. Absent 

any storage, the regulation of the 

movement of captured CO2 streams from 

the point of capture to either an on-site 

UIC Class VI injection well, or to an offsite DOT-regulated pipeline (discussed 

below), would not be significantly 

different in the presence or absence of 

today’s proposed conditional exclusion. 

While it is not clear what would be the 

procedure during maintenance or upset 

circumstances (such as if the capture 

process could not function), EPA 

assumes that the source emissions 

would be diverted for release under the 

facility’s Clean Air Act permit. 

EPA requests information on whether 

EPA’s estimates for captured CO2

volumes are accurate and reasonable, 

and whether the CO2 that is captured 

could be stored on-site prior to being 

sent elsewhere for GS or any other 

purpose; if so, EPA requests detailed 

information on the duration and method 

of storage, and what existing regulatory 

or voluntary controls and standards 

apply to such storage. EPA also requests 

information on the units and processes 

involved after the CO2 is captured, and 

before it is either injected on-site, or 

sent off-site. Finally, EPA 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. 

2. Transportation of CO2 Streams to UIC 

Class VI Injection Well 

While there may be instances where 

captured CO2 streams are injected onsite, most generators will likely 

transport their captured CO2 streams to 

UIC Class VI wells located off-site, and 

therefore EPA considered the 

transportation of CO2 streams under 

today’s proposed conditional exclusion. 

Carbon dioxide itself is listed under the 

DOT regulations as a Class 2.2 

hazardous material (non-flammable gas). 

See definitions in 49 CFR 172.101 and 

173.115(b). By this designation as a 

hazardous material, CO2 becomes 

subject to regulations established by 

DOT for the safe and secure 

transportation of hazardous materials in 

commerce. DOT’s Pipeline Hazardous 

Materials Safety Administration 

(PHMSA) is charged with overseeing the 

movement of hazardous materials, 

including CO2, over all modes of 

transportation. For purposes of this 

proposal, EPA examined existing 

requirements for pipeline, and nonpipeline, modes of transportation. 

Pipeline Transport—EPA presumes 

that pipeline transport of CO2 streams 

will be the principal mode of transport 

for CCS activities, either using existing 

or newly-built pipelines. For example, 

in 2008, a Congressional Research 

Service report stated that ‘‘[t]ransporting 

captured CO2 in relatively limited 

quantities is possible by truck, rail, and 

ship, but moving the enormous 

quantities of CO2 implied by a 

widespread implementation of CCS 

technologies would likely require a 

dedicated interstate pipeline 

network.’’ 37 In the United States, there 

are approximately 3,600 miles of 

dedicated CO2 pipelines, carrying about 

50 million metric tons of CO2 per year, 

primarily for EOR activities in the oil 

and gas industry.38 Experience and 

knowledge gained by the oil and gas 

industry, which has used CO2 pipelines 

over the past 35 years to transport large 

volumes of CO2 to oil fields, is directly 

applicable to carbon capture and GS 

operations and, thus, there is much 

experience with this activity. 

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 CO2.39 As defined in 49 

CFR 195.2, carbon dioxide is ‘‘a fluid 

consisting of more than 90 percent 

carbon dioxide molecules compressed 

to a supercritical state,’’ which would 

include supercritical CO2 streams 

transported for purposes of CCS. The 

requirements in 49 CFR part 195 govern 

pipeline design, construction, operation 

and maintenance, and emergency 

response planning, and EPA believes 

that by addressing these areas, the 

PHMSA requirements are consistent 

with the RCRA subtitle C goal of 

preventing releases in order to protect 

human health and the environment. 

Additionally, PHMSA’s goal is to 

improve the overall integrity of pipeline 

systems and reduce risks. See January 

10, 2011 Federal Register (76 FR 1504). 

To evaluate risk adequately, the 

Hazardous Liquid and Gas Transmission 

Pipeline Integrity Management (IM) 

requirements were created (49 CFR 

195.450 and § 195.452), which 

supplement PHMSA’s safety regulations 

mentioned above. The goal of the IM 

requirements is to identify and evaluate 

the physical and operational 

characteristics of each individual 

pipeline system, in order to ensure the 

quality of pipeline integrity in areas 

with a higher potential for adverse 

consequences (high consequence areas 

or HCAs).40 In addition, PHMSA’s IM 


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drinking water resources or certain ecologicallysensitive areas. 49 CFR 195.450. 41 40 CFR 260.10, 262.20(a)(1), and 263.20(a)(1). 

See also Memorandum from Marcia Williams, 

Director, Office of Solid Waste, to Barry [sic] 

Seraydarian, Director, Toxics and Waste 

Management Division, EPA Region 9, April 30, 

1986. 

42Memorandum to Docket EPA–HQ–RCRA– 

2010–0695, Personal Communication with Vince 

Holohan, PHMSA, U.S. DOT. 

43Apps, J.A., A Review of Hazardous Chemical 

Species Associate with CO2 Capture from Coal-Fired 

Power Plants and Their Potential Fate in CO2

Geologic Storage, Lawrence Berkeley National 

Laboratory, March 2006. 

requirements promote a more rigorous 

and systematic management of pipeline 

integrity and risk by operators; maintain 

the government’s prominent role in the 

oversight of pipeline operator integrity 

plans and programs; and increase the 

public’s confidence in the safe operation 

of the nation’s pipeline network. EPA 

believes that these requirements, which 

focus on preventing releases that might 

affect human populations and 

ecologically-sensitive areas, further 

support the conclusion in today’s 

proposal that additional regulation of 

pipeline transportation under RCRA 

subtitle C is not necessary in order to 

protect human health and the 

environment. 

With respect to there being no 

requirement to use a hazardous waste 

manifest under today’s proposal for CO2

streams that are conditionally excluded, 

it is important to note that under the 

RCRA subtitle C regulations, moving 

hazardous waste off-site through a 

pipeline does not trigger the use of a 

manifest, because pipelines are not 

included in the definition of 

‘‘transportation’’ under RCRA subtitle 

C.41 With respect to the use of a 

manifest, because the applicable 

requirements would not change under 

either the existing RCRA subtitle C 

regulations, or when managed in 

accordance with today’s proposed 

conditional exclusion, there is no 

change in protection to human health 

and the environment under today’s 

proposed rule. In fact, EPA notes that 

were CO2 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 CO2 streams. 

Consultations with PHMSA staff 

indicate that whether a CO2 stream is 

defined as hazardous waste under RCRA 

subtitle C (in this instance, if it were to 

exhibit a RCRA characteristic) does not 

change the technical and other 

requirements applicable to the 

transportation of supercritical CO2

under PHMSA.42

Finally, 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 

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 these pipelines are currently 

regulated, including any design and 

operating standards that apply to such 

pipelines. As discussed earlier in 

today’s preamble, EPA assumes that in 

the typical case, captured CO2 will not 

be stored at the generator facility, and 

will be transferred in a continuous 

manner either to an on-site or off-site 

UIC Class VI well. EPA is not proposing 

to apply RCRA subtitle C requirements 

to these pipelines as a condition of 

today’s proposed rule (as stated earlier, 

absent storage of hazardous waste by 

generators, piping alone would not be 

subject to subtitle C regulation in any 

event); but EPA still requests comment 

on the appropriateness of applying the 

RCRA subtitle C standards to these nonDOT regulated pipelines. 

Non-Pipeline Transport—While EPA 

expects that pipelines will be the most 

commonly used transportation method 

for moving supercritical CO2 from its 

source to a UIC Class VI injection well, 

other forms of transportation other than 

pipeline (e.g., highway, rail) are still 

possible. Supercritical CO2 streams 

being transported by means other than 

by pipeline must comply with 

applicable DOT hazardous materials 

transportation regulations, which 

address (for these modes of 

transportation) requirements, such as 

packaging, labeling, marking, 

placarding, emergency response, 

training, and shipping documentation. 

These regulations are found in 49 CFR 

parts 100–180 (hazardous materials 

regulations). EPA believes that these 

DOT requirements will adequately 

address risks to human health and the 

environment from the transportation of 

CO2 and, therefore, additional RCRA 

subtitle C requirements specifically 

relating to transportation will not 

provide substantially more protection. 

Where a hazardous waste manifest 

would otherwise be required for 

transporting CO2 streams that meet the 

definition of hazardous waste, under 

today’s proposed conditional exclusion, 

no hazardous waste manifest would be 

required. While the DOT hazardous 

materials shipping paper ensures that 

important information regarding the 

CO2 stream accompanies the shipment, 

and that persons offering the CO2 stream 

for transport must keep copies of the 

DOT shipping paper for two years, there 

is no tracking feature provided by the 

DOT shipping paper (as is the case for 

a hazardous waste manifest). EPA 

believes, however, that today’s proposed 

rule will provide adequate incentive to 

ensure that the CO2 stream is delivered 

to a UIC Class VI facility (for example, 

as discussed later in today’s preamble, 

EPA is proposing a condition requiring 

generators to certify that any CO2

stream, which they claim to be excluded 

from RCRA subtitle C, has been 

delivered to a UIC Class VI facility). 

EPA believes that this proposed 

certification statement, which must be 

signed by the generator, provides a 

strong incentive to ensure delivery to 

the designated UIC Class VI facility; this 

is because generators who claim the 

exclusion, but fail to ensure delivery of 

their CO2 stream that is hazardous to a 

Class VI facility, risk losing the 

exclusion and invoking the full 

hazardous waste requirements. 

Nonetheless, EPA notes that this 

certification statement does not provide 

the same type of tracking as a hazardous 

waste manifest would provide. 

Therefore, 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. 

C. Underground Injection of CO2

Streams at UIC Class VI Wells 

The UIC Class VI regulations 

specifically preclude CO2 streams that 

are defined as RCRA hazardous waste 

from being injected into a UIC Class VI 

well. See 40 CFR 146.81(d) (definition 

of Carbon Dioxide Stream in the UIC 

Class VI regulation). Instead, under the 

existing UIC and RCRA regulations, 

hazardous wastes (including CO2

streams that meet the definition of 

hazardous waste)—if injected—must be 

injected into a Class I hazardous waste 

well. As already discussed, EPA has 

little information about whether CO2

streams would exhibit a RCRA 

hazardous waste characteristic (in 

particular, the TC). However, because it 

is possible that captured CO2 streams 

could contain low concentrations of 

contaminants which could cause a 

waste to be identified as hazardous by 

the TC (e.g., arsenic, mercury, 

selenium),43 EPA considered whether 

the injection of captured CO2 streams 

into UIC Class VI wells would be 

properly managed, such that subtitle C 

regulation was duplicative and 

unnecessary. 


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44For example, the following general standard in 

the SDWA regulations applies to all classes of UIC 

wells: ‘‘No owner or operator shall construct, 

operate, maintain, convert, plug, abandon, or 

conduct any other injection activity in a manner 

that allows the movement of fluid containing any 

contaminant into underground sources of drinking 

water, if the presence of that contaminant may 

cause a violation of any primary drinking water 

regulation under 40 CFR part 142 or may otherwise 

adversely affect the health of persons. The applicant 

for a permit shall have the burden of showing that 

the requirements of this paragraph are met.’’ 40 CFR 

144.12(a). 

45EPA notes that the term ‘‘corrective action’’ is 

used in both the SDWA and RCRA programs, but 

refers to different activities under each. Under the 

UIC Class VI rule, the phrase refers to actions taken 

to correct situations where artificial penetrations 

(e.g., wells) could serve as unwanted conduits for 

CO2 or other fluid movement into or between 

USDW within the AoR. See 40 CFR 144.55, 146.7, 

and 146.64. Under RCRA subtitle C, corrective 

action generally refers to actions taken to address 

releases of hazardous wastes or hazardous 

constituents from solid waste management units at 

a treatment, storage, or disposal facility. The RCRA 

corrective action aspects of this proposed rule are 

discussed in Section IV.C.4 of this preamble. 

The UIC Class VI requirements are 

designed to ensure that the CO2 and any 

incidental associated substances will be 

isolated within the injection zone, and 

thus protect USDWs from 

endangerment. The UIC Class VI 

requirements are designed for the 

unique characteristics of CO2, including 

its buoyancy relative to other fluids in 

the subsurface, which requirements 

account for the potential presence of 

impurities (including hazardous 

contaminants which could cause the 

waste to be identified as hazardous by 

the TC) in captured CO2. See 75 FR at 

77234–5 (December 10, 2010). Thus, 

EPA expects that compliance with the 

UIC Class VI requirements, which are 

designed to ensure isolation of 

supercritical CO2 streams, will also 

address the potential for effects on 

human health and the environment 

from the contaminants present in the 

stream. Below is a description of key 

elements of the UIC Class VI 

requirements that EPA believes will 

ensure protection of human health and 

the environment, such that RCRA 

subtitle C regulation would be 

duplicative and unnecessary. 

1. Development of UIC Class VI Wells 

Under SDWA 

Section 1421(d)(2) of the SDWA 

provides, ‘‘Underground injection 

endangers drinking water sources if 

such injection may result in the 

presence in underground water which 

supplies or can reasonably be expected 

to supply any public water system of 

any contaminant, and if the presence of 

such contaminant may result in such 

system’s not complying with any 

national primary drinking water 

regulation or may otherwise adversely 

affect the health of persons.’’ Pursuant 

to § 1421(d)(2), the UIC program 

requirements for all well classes, 

promulgated under the authority of the 

SDWA, are designed to 

comprehensively ensure that an 

injection well is appropriately sited, 

operated, tested, monitored, and closed 

in a manner that ensures USDW 

protection and does not otherwise 

adversely affect the health of persons.44

In developing standards for CO2

injection for GS, the Agency evaluated 

the applicability of the existing UIC 

program requirements for Class I wells 

(hazardous and non-hazardous) through 

Class V wells, and determined that new, 

tailored regulations to address the 

injection of supercritical CO2 streams 

for GS, including any associated 

constituents that may be present in the 

CO2 streams, were warranted in order to 

protect USDWs from endangerment. In 

October 2007, EPA announced that it 

would develop tailored regulations for 

GS, by adapting the existing UIC 

program framework and by relying on 

that program’s experience—over 25 

years—in regulating the injection of 

fluids, including CO2 injected for 

enhanced hydrocarbon recovery. The 

Class VI rule, finalized in December 

2010, includes specific requirements 

designed to address the unique nature of 

CO2 injection for GS, including the large 

CO2 injection volumes anticipated at GS 

projects, the relative buoyancy of CO2, 

its mobility within subsurface geologic 

formations, and its corrosivity in the 

presence of water. In addition, EPA 

recognized that the CO2 stream could 

contain impurities, including those 

which could cause the waste to exhibit 

the TC under the RCRA subtitle C 

regulations. 

Throughout the regulatory 

development process for the Class VI 

requirements, the UIC program, in 

coordination with other EPA program 

offices, stakeholders, and the public 

relied upon the existing UIC regulatory 

framework and applicable requirements 

of other well classes (i.e., Class II, Class 

I industrial, Class I hazardous), as 

appropriate. However, the Agency 

recognized that these established 

programmatic requirements required 

certain modifications and enhancements 

with respect to CO2 injection for GS in 

order to ensure USDW protection. 

2. Key Elements of the UIC Class VI 

Well Requirements 

The UIC Class VI final regulations 

include specific requirements tailored to 

the particular nature of CO2 injection for 

GS. These program elements include 

site characterization, area of review 

(AoR) delineation, corrective action,45

well construction and operation, testing 

and monitoring, post-injection site care, 

site closure, and financial 

responsibility. Together, these program 

elements provide a comprehensive 

approach for verifiable isolation of the 

CO2 stream within the injection zone to 

ensure protection of USDWs from 

endangerment. Although not an 

exhaustive list, some requirements 

tailored for GS (Class VI) include: 

Æ Class VI well owners or operators 

must conduct and submit, with the 

permit application, an extensive, 

detailed assessment of the geologic, 

hydrogeologic, geochemical, and 

geomechanical properties of the 

proposed GS site to ensure that GS wells 

are located in suitable geologic 

formations, and that the geology 

provides containment. The owner or 

operator must also select a site with an 

injection zone of sufficient areal extent, 

thickness, porosity and permeability to 

receive the total anticipated volume of 

the CO2 stream, and, confining zones 

free of transmissive faults or fractures 

and of sufficient areal extent and 

integrity to contain the injected CO2

stream and displaced formation fluids. 

Class VI requirements also mandate a 

thorough process for the identification 

of features that might compromise the 

integrity of the containment system 

(e.g., abandoned wells) and remediation 

of those features through corrective 

action, within the AoR. Existing UIC 

regulations, including those for Class I 

hazardous wells, require that owners or 

operators define the AoR, within which 

they must identify artificial penetrations 

and determine whether they have been 

properly constructed or plugged; the 

Class VI regulations are consistent with 

this approach. 

Æ Class VI well owners or operators 

must delineate the AoR using a 

sophisticated computational model that 

incorporates available site 

characterization data and planned 

operational conditions. Throughout the 

life of the project, the AoR must be 

periodically reevaluated (at least once 

every 5 years) through the use of 

monitoring and operational data to 

verify that the CO2 plume and the 

associated area of elevated pressure are 

moving as predicted within the 

subsurface, and that the injected CO2

stream is isolated within the injection 

zone. With the exception of the UIC 

Class VI regulations, the existing UIC 

regulations (including Class I 

hazardous) do not include a 

requirement to reevaluate the AoR and 


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corrective action plan. This reevaluation 

is an additional level of protection that 

has been added for Class VI wells in 

order to address the unique 

characteristics of the CO2 stream 

injectate. This reevaluation will provide 

an ongoing dialogue between the 

Director and the owners or operators, 

while ensuring that if a circumstance 

changes, the AoR will be updated to 

address those changes, while ensuring 

protection of USDW. Because there will 

be inevitable plume movement, a 

reevaluation was deemed to be 

necessary to protect USDW for Class VI 

wells. 

Æ Class VI well owners or operators 

must also identify and evaluate all 

artificial penetrations within the AoR, 

and based on this review, identify the 

wells that need corrective action to 

prevent the movement of CO2 or other 

fluids into or between USDWs. Owners 

or operators must perform corrective 

action to address deficiencies in any 

wells (regardless of ownership) that are 

identified as potential conduits for fluid 

movement into USDWs. The Director 

must approve the methods used to 

identify the wells and the corrective 

action selected by the owners or 

operators. This inventory and review 

process is similar to what is required of 

all Class I and Class II injection well 

owners or operators. 

Æ Class VI wells must meet the same 

stringent injection well construction 

standards as Class I hazardous waste 

wells, in order to ensure that the well 

itself does not serve as a conduit for 

fluid movement. In addition, the Class 

VI rule requires that all well 

construction materials be compatible 

with the fluids with which the materials 

may come in contact (e.g., fluid 

formations; CO2 streams) over the life of 

the GS project. Class VI operating 

requirements also ensure that injection 

in a Class VI well will not propagate 

fractures within the injection and/or 

confining zones that could compromise 

containment. 

Æ Class VI owners or operators must 

conduct robust monitoring to ensure the 

integrity of the injection well, detect any 

changes in groundwater geochemistry 

that may indicate leakage, and track the 

evolution of the CO2 stream and 

associated pressure front. Class VI 

monitoring requirements are generally 

more detailed and rigorous than those 

for Class I hazardous waste injection 

wells, and are designed to verify 

isolation of the injected CO2 stream, and 

allow for early-warning of any possible 

fluid leakage. 

Æ The Class VI rule contains tailored 

requirements for extended, 

comprehensive post-injection 

monitoring and site care of GS projects 

following cessation of injection, until it 

can be demonstrated that movement of 

the CO2 plume and pressure will not 

pose a risk of endangerment to USDWs. 

Owners or operators must also plug 

injection and monitoring wells in a 

manner that protects USDWs. Proper 

plugging of injection and monitoring 

wells is a long-standing requirement in 

the UIC Program to ensure that existing 

wells do not serve as conduits for fluid 

movement following cessation of 

injection and site closure. Post-injection 

site care (PISC), which is unique to GS 

and Class I hazardous wells in the UIC 

program, is a protective measure that 

requires site monitoring to continue in 

order to ensure the injectate and any 

mobilized fluids do not pose a risk to 

USDW. 

Æ Class VI provisions require that 

owners or 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. 

These elements of the Class VI 

requirements are designed to provide 

verifiable control of the CO2 stream at 

the Class VI well, and containment of 

that stream within the injection zone, in 

order to ensure protection of USDW 

from endangerment. EPA believes that 

the elimination of exposure routes 

through these requirements will ensure 

protection of human health and the 

environment, and views this as 

determinative in its evaluation of 

whether the RCRA subtitle C regulatory 

requirements for hazardous waste 

disposal provide any substantial, 

additional protection for CO2 streams 

which exhibit a characteristic of 

hazardous waste and are disposed in 

UIC Class VI wells. Thus, EPA 

concludes (subject to consideration of 

public comment) that a conditional 

exclusion from RCRA subtitle C 

requirements is warranted for CO2

streams that are injected into UIC Class 

VI wells for purposes of GS. 

3. RCRA Land Disposal Restrictions 

Under today’s proposed rule, a CO2

stream that is conditionally excluded 

from the definition of hazardous waste 

would not be subject to the RCRA land 

disposal restriction (LDR) requirements 

in 40 CFR part 148 that apply to 

restricted hazardous wastes that are 

disposed of in UIC wells. EPA 

considered how the conditions 

proposed in today’s rule compare to the 

protections afforded by the RCRA LDR 

requirements (that would otherwise 

apply to a CO2 stream that exhibits a 

RCRA characteristic and is disposed of 

in an injection well). As discussed 

below, EPA believes that with respect to 

CO2 streams that are conditionally 

excluded for purposes of GS, the LDR 

requirements would not provide more 

protection to human health and the 

environment than the UIC Class VI 

requirements provide. 

The LDR program ensures that 

hazardous waste cannot be placed on or 

under the land—i.e., land disposed— 

until the waste meets specific treatment 

standards to reduce the mobility or 

toxicity of the hazardous constituents in 

the waste. These treatment standards are 

waste-code specific, and either specify 

an allowable concentration of hazardous 

constituents or specify a method of 

treatment. These treatment standards 

must be satisfied before land disposal of 

the waste occurs. The alternative to 

meeting the treatment standards is to 

make a successful demonstration to EPA 

that no hazardous constituents will 

migrate from the disposal unit (or, in the 

case of injection wells, the ‘‘injection 

zone’’ (see RCRA section 3004(d)(1)) for 

as long as the waste remains hazardous 

(a ‘‘no-migration’’ petition). See RCRA 

sections 3004(f) and (m). The LDR 

requirements are found in 40 CFR part 

268, and the LDR requirements 

regarding injection wells are located in 

40 CFR part 148. 

LDR requirements attach to wastes 

that are hazardous at the point of 

generation. Chemical Waste 

Management v. EPA, 976 F. 2d 2, 13,14 

(D.C. Cir. 1992), so that if a waste is 

conditionally excluded from being a 

hazardous waste, LDRs do not apply. 

EPA evaluated the protections afforded 

under the Class VI regulations and the 

LDR program to assure that this is an 

appropriate outcome here. 

Class VI wells are required to 

demonstrate (through the initial 

permitting process, and periodically 

during the operational life of the well), 

on a well-by-well basis, that there are no 

features near an injection well that 

would allow injected fluid to move into 

a USDW or displace native fluids into 

USDWs resulting in their endangerment. 

EPA interprets the UIC Class VI 

isolation requirements as meeting the 

objectives of the RCRA LDR 

requirements. This is because the same 

individualized determination, using the 

same or similar decision tools, with 

essentially the same ultimate 

determination (no migration of 

hazardous constituents from the 

injection zone of either a Class VI well 

or a Class I hazardous waste well) 

would apply in either instance. 

EPA thus believes (subject to 

consideration of public comment) that 

the Class VI well review process and 


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46 ‘‘Regional Administrator’’ as defined under 

RCRA subtitle C (40 CFR 260.10) includes any 

designee of the Regional Administrator; therefore, 

written requests may be made by a designee of the 

Regional Administrator or state Director. Today’s 

proposed regulatory text reflects this. 

isolation requirements will meet 

essentially the same requirements and 

objectives as the RCRA no-migration 

process, affords similar procedural 

safeguards (individualized 

determinations in both instances), and 

will protect human health and the 

environment via proper management 

under the Class VI regulations. Thus, 

the proposed conditional exclusion 

appears reasonable with respect to 

otherwise-applicable LDR requirements. 

In addition, we note that RCRA 

section 1006(b) provides that EPA ‘‘shall 

integrate all provisions of this chapter 

for purposes of administration and 

enforcement and shall avoid 

duplication, to the maximum extent 

practicable, with the appropriate 

provisions of the * * * Safe Drinking 

Water Act.’’ For the reasons just 

discussed, it appears that the RCRA LDR 

provisions duplicate the requirements 

and procedures of the Class VI rules and 

that a conditional exclusion from being 

a hazardous waste avoids this 

duplication. See Chemical Waste 

Management v. EPA, 976 F. 2d 2, 23– 

24 (integration of RCRA LDR and Clean 

Water Act direct discharger 

requirements). 

4. Subtitle C Corrective Action 

EPA also reviewed the subtitle C 

corrective action requirements, which 

apply to any hazardous waste treatment, 

storage or disposal facility, including 

Class I UIC hazardous waste facilities. 

Under today’s proposed conditional 

exclusion, CO2 streams that would 

otherwise be defined as RCRA 

hazardous waste (because they exhibit a 

RCRA characteristic) and meet the 

proposed conditions, would not be 

defined as hazardous waste. Therefore, 

the RCRA corrective action 

requirements would not be triggered at 

the UIC Class VI facility as a result of 

the management of conditionallyexcluded CO2 streams. EPA does not 

believe, however, that the absence of 

RCRA corrective action authority at a 

Class VI UIC facility is of concern with 

respect to the management of excluded 

CO2 streams in the Class VI UIC well 

under a SDWA permit. In EPA’s view, 

the comprehensive Class VI UIC 

regulations provide multiple, 

enforceable mechanisms to correct 

permit violations and other situations 

that may pose a risk to USDW. These 

include enforceable requirements to 

develop, maintain, and update an 

emergency and remedial response plan, 

and to undertake emergency or remedial 

response actions for any unauthorized 

releases from the well or injection zone. 

See 40 CFR 146.94. 

5. Conclusion 

In conclusion, consistent with the 

SDWA and RCRA, the integrated 

application, implementation, and 

enforcement of the UIC Class VI 

requirements will protect human health 

and the environment by ensuring that 

the CO2 streams (which may include 

low concentrations of hazardous 

constituents as discussed above) 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 CO2 streams remain 

in the injection zone. EPA believes that 

with respect to CO2 streams as 

discussed in today’s proposed 

conditional exclusion, the existing UIC 

Class VI requirements sufficiently 

address any potential risk to human 

health and the environment, such that 

subtitle C regulation is unwarranted. 

D. Prohibition on Introduction of Other 

RCRA Hazardous Wastes 

The UIC Class VI well program was 

specifically developed for the unique 

purpose of GS of CO2 streams. Today’s 

proposed conditional exclusion only 

applies to CO2 streams that have been 

captured for purposes of GS and are to 

be injected into a UIC Class VI well. 

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. Thus, if 

hazardous waste is mixed with the CO2

stream, under today’s proposal that 

stream would not be eligible for the 

conditional exclusion. That stream 

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 expects that where facilities have 

made the significant economic 

commitment to capture and/or inject 

CO2 streams for purposes of GS, such 

facilities will not wish to jeopardize this 

arrangement by mixing hazardous waste 

into the CO2 stream in violation of the 

explicit prohibition in the UIC Class VI 

rule, as well as the condition being 

proposed today in 40 CFR 

261.4(h)(1)(iii). EPA seeks to safeguard 

the efforts of the CO2 sources and 

injection facilities that comply with the 

mixing prohibition by designing a 

regulatory scheme that is enforceable 

and is structured to ensure compliance, 

thus obtaining the full benefit of the 

regulation that the public expects. 

In order to better ensure that CO2

sources and UIC Class VI injection 

facilities choosing to use this 

conditional exclusion fully comply with 

the conditions of the exclusion, 

including the prohibition on mixing 

hazardous waste with the CO2 stream, 

EPA is proposing that a certification 

statement be executed by an authorized 

representative of the generator and the 

Class VI injection facility owner/ 

operator. The term ‘‘authorized 

representative’’ is defined in the RCRA 

regulations to mean ‘‘the person 

responsible for the overall operation of 

a facility or an operational unit (i.e., part 

of a facility), e.g., the plant manager, 

superintendent or person of equivalent 

responsibility.’’ 40 CFR 260.10. 

Because the function of the 

certification statement is to ensure 

compliance with the conditions of the 

proposed conditional exclusion, EPA 

requests comment on whether it should 

limit the categories of employees who 

would be required to sign this 

certification statement, to senior 

employees in the same manner as that 

which is required for RCRA permit 

applications under 40 CFR 270.11(a). 

Under this alternative approach, 

certification statements (for 

corporations) would need to be signed 

by a ‘‘responsible corporate officer’’ as 

defined in § 270.11(a)(1)(i), or, plant 

managers for facilities over a certain size 

as defined in § 270.11(a)(1)(ii); by a 

general partner or proprietor (for general 

partnerships or sole proprietorships, 

respectively) as specified in 

§ 270.11(a)(2); or, for public agencies, 

the chief executive officer, or certain 

other senior officers of that agency, as 

defined in § 270.11(a)(3). Accountability 

and enforceability may be improved 

when signatories to these types of 

certifications are at the highest levels of 

an organization. 

EPA is not requiring that these 

certifications be submitted to the 

Agency; rather, EPA is proposing that 

the signed certification statement be 

kept on-site for no less than three years, 

and that these signed certifications be 

made available within 72 hours of a 

written request from the Regional 

Administrator (or state Director, if 

located in a state implementing the 

conditional exclusion as part of their 

authorized RCRA program).46 EPA 

believes the retention time of three years 

is reasonable and appropriate, and 

consistent with the existing subtitle C 

recordkeeping requirements (e.g., 40 

CFR 262.40 and 268.7(a)(8) for 


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47Under subparts PP and RR of the GHG 

reporting program, facilities that capture CO2 and 

facilities that inject CO2 underground for GS 

(including UIC Class VI facilities) have certain 

reporting requirements. For more information, see 

Section III of this preamble. 

48The Agency is also aware that supercritical CO2

pipeline owner/operators follow certain 

requirements and specifications related to 

monitoring supercritical CO2 composition, 

including water content, and the identification of 

any impurities or other inert materials, that might 

negatively affect CO2 transport, or otherwise take up 

needed space. Pers. comm., Doug McMurrey, V.P. 

for Marketing and Business Development, Kinder 

Morgan, 7–21–2010. 

generators; 264.73 for TSDFs). Because 

EPA is not requiring the submittal of 

signed certification statements, today’s 

proposed rule does not impose any new 

reporting requirements; however, EPA 

will be aware of the universe of 

generator and UIC Class VI facilities that 

may potentially claim this proposed 

conditional exclusion, because under 

the existing regulatory framework for 

GS, facilities that capture and sequester 

CO2 must identify themselves, and 

report specific information regarding 

their CO2 capture and GS activity, to the 

Agency.47 Therefore, EPA believes that 

it will have adequate opportunity to 

determine whether any particular 

facility is claiming the exclusion, as it 

anticipates a relatively gradual increase 

in the deployment of CCS activities in 

the near term. EPA is also proposing 

that these certifications shall be 

renewed every year that the generator or 

UIC Class VI well owner/operator 

claims the RCRA conditional exclusion, 

in order to ensure that the certification 

is kept current (e.g., facility personnel 

may change, etc.). This yearly renewal 

of the certification statement means that 

an authorized representative must 

annually prepare and sign a new copy 

of the certification statement, to be 

retained on-site for no less than three 

years. 

The language for this certification is 

in proposed 40 CFR 261.4(h)(1)(iv), and 

reads 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.’’ 

While EPA is not currently aware of 

specific examples where hazardous 

wastes are being mixed into or with CO2

streams, particularly at this early stage 

of CCS deployment, well-designed rules 

are essential to the success of future 

enforcement efforts. EPA requests 

comment on the certification statement, 

and particularly seeks comment on 

whether this measure will appropriately 

ensure compliance with the conditional 

exclusion, including the mixing 

prohibition. 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. 

Finally, EPA requests comment on 

whether transporters, as well as pipeline 

owners and operators, should also sign 

such a certification statement. 

In addition to the conditions and 

requirements being proposed today, the 

Agency recognizes that other conditions 

or requirements could possibly improve 

EPA’s and the states’ ability to monitor 

compliance with the mixing 

prohibition. For example, there are 

certain existing requirements for the 

physical and chemical characterization 

of CO2 streams that apply at the UIC 

Class VI facility (discussed in Section 

III.E. of this preamble), and the 

prohibition that no hazardous waste be 

injected in the UIC Class VI well. 

However, there are no CO2 stream 

characterization requirements that EPA 

could identify upstream of the UIC Class 

VI well, such as at the CO2 source or in 

a pipeline, other than the general 

requirement that generators make a 

hazardous waste determination for any 

solid waste they generate (40 CFR 

262.11), and the PHMSA requirement 

that supercritical CO2 streams be 

chemically compatible with the pipeline 

and any commodities in the pipeline (49 

CFR 195.4), and will not corrode the 

pipeline and pipeline system (49 CFR 

195.579).48 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. EPA also requests 

comment on whether there are other 

conditions, such as a minimum CO2

content, that could enhance compliance 

with the proposed ‘‘no mixture’’ 

condition. For example, EPA is aware 

that under the PHMSA requirements for 

the pipeline transportation of 

supercritical carbon dioxide, the 

definition of carbon dioxide specifies a 

CO2 content of greater than ninety 

percent. 49 CFR 195.2. EPA also 

requests comment on what commercial, 

operational, or regulatory requirements 

or specifications already exist regarding 

CO2 content in the management of 

supercritical CO2. 

EPA notes that it is requesting 

comment on whether persons engaged 

in the movement of conditionallyexcluded CO2 streams, including 

transporters, as well as pipeline owners 

or operators, should certify that they 

meet the conditions of today’s proposed 

conditional exclusion. EPA is also 

requesting comment on whether any 

new monitoring, recordkeeping or 

reporting requirements are necessary 

(including as those might apply to 

pipeline owners or operators) to ensure 

that the conditions of the proposed 

exclusion are met. EPA emphasizes that 

aside from seeking comment in these 

two areas, EPA is not proposing any 

new requirements applicable to 

pipelines or pipeline owner/operators. 

EPA understands that much of the 

existing U.S. pipeline infrastructure is 

used to transport materials that are not 

RCRA solid wastes. EPA also 

appreciates that because of this, the 

potential application of subtitle C 

jurisdiction may raise questions over 

whether EPA is proposing to extend its 

existing RCRA jurisdiction in today’s 

proposed rule. EPA wishes to clarify 

that this is not the case, as EPA 

generally already has RCRA jurisdiction 

over solid and hazardous waste. While 

pipelines are not included in the 

definition of ‘‘transportation’’ under the 

RCRA subtitle C regulations (40 CFR 

260.10), EPA retains RCRA subtitle C 

jurisdiction over solid and hazardous 

wastes generally, including when these 

materials are in pipelines. At the same 

time, however, EPA again notes that, 

provided the conditions proposed today 

are met (when final), persons engaged in 

transportation or pipeline delivery of 

conditionally-excluded CO2 streams are 

not managing a RCRA hazardous waste. 

E. Loss of the Conditional Exclusion 

The conditional exclusion being 

proposed today does not preclude 

regulation or enforcement by EPA or the 

states against generators, transporters, or 

treatment, storage, or disposal facilities 

who are not eligible for the conditional 

exclusion, or who do not meet the 

conditions of the exclusion. Because 

this hazardous waste exclusion is 

conditional, a claimant must meet the 

conditions to qualify for and maintain 

the exclusion from the hazardous waste 

regulations. Failure to meet the 

conditions results in the loss of the 

exclusion. As proposed, a violation of a 

condition at any point in the 

management of a CO2 stream would 

result in that CO2 stream being subject 

to all applicable subtitle C regulatory 

requirements, from the point of 

generation. Thus, a violation of a 

condition at a UIC Class VI facility, for 

example, would mean that in addition 

to the UIC Class VI facility, the 

generator and transporter would also be 

considered to be managing (or to have 


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49EPA 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). 

managed) a hazardous waste. Moreover, 

imminent and substantial endangerment 

provisions under § 7003 of RCRA will 

continue to apply to conditionallyexcluded 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

F. Adaptive Approach 

EPA is using an adaptive approach in 

the UIC Class VI final rule to allow it to 

consider making changes to the UIC 

Class VI program to incorporate new 

research, data, and information about 

GS and associated technologies. In the 

UIC Class VI final rule, EPA stated that 

the Agency plans, every six years, to 

review the rulemaking and data on GS 

projects to determine whether the 

appropriate amount and types of 

information and appropriate 

documentation are being collected, and 

to determine if modifications to the UIC 

Class VI requirements are appropriate or 

necessary. See December 10, 2010 

Federal Register (75 FR at 77240–41, 

77243, and 77257). This new 

information may increase 

protectiveness, streamline 

implementation, or otherwise inform 

the requirements for GS injection of 

CO2. 

Consistent with EPA’s stated intent in 

the UIC Class VI rule, EPA also plans to 

evaluate any new information related to 

the conditional exclusion being 

proposed today at the same time as is 

planned for the UIC Class VI rule. EPA 

intends to use the information gathered 

by the UIC Class VI program described 

above, as well as additional information, 

such as data on the chemical and 

physical characteristics of the CO2

streams being injected, to inform its 

consideration of whether changes 

should be made to the conditional 

exclusion (such changes could require 

additional rulemaking). Thus, the 

Agency commits to reviewing, in 

coordination with the adaptive 

approach planned for the UIC Class VI 

rule, new research, data, and 

information related to today’s proposed 

conditional exclusion (if finalized), 

particularly with respect to compliance 

with the conditions of the exclusion, 

and the nature and composition of the 

CO2 stream. 

G. Definition of Carbon Dioxide Stream 

Today, EPA is also proposing to add 

a definition for the term carbon dioxide 

(CO2) stream to the hazardous waste 

regulations in 40 CFR 260.10. Under 

today’s proposed rule, carbon dioxide 

(CO2) stream is defined as ‘‘carbon 

dioxide that has been captured from an 

emission source (e.g., a power plant), 

plus incidental associated substances 

derived from the source materials and 

the capture process, and any substances 

added to the stream to enable or 

improve the injection process.’’ The 

same definition is used in the UIC Class 

VI regulations in 40 CFR 146.81(d), with 

one exception. The definition in 

§ 146.81(d) includes additional language 

that reads, ‘‘This subpart does not apply 

to any carbon dioxide stream that meets 

the definition of a hazardous waste 

under 40 CFR part 261,’’ thus, 

prohibiting the injection of hazardous 

waste into UIC Class VI wells. Because 

today’s conditional exclusion would 

apply to CO2 streams that are otherwise 

RCRA hazardous wastes, EPA did not 

include similar language 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 CO2 streams (that are 

excluded when managed pursuant to 

the terms of today’s proposed 

conditional exclusion) and nonhazardous CO2 streams may be injected 

into a UIC Class VI well. Finally, EPA 

notes that in today’s proposed 

definition, ‘‘substances added to the 

stream to enable or improve the 

injection process’’ refers to non-waste 

substances that serve the legitimate 

purpose as stated (i.e., to enable or 

improve the injection process), and does 

not include listed or characteristic 

hazardous wastes. EPA requests 

comment on the types and 

characteristics of substances that are 

added to CO2 streams to enable or 

improve the injection process. 

V. State Authorization 

A. Applicability of the Rule in 

Authorized States 

Under Section 3006 of RCRA, EPA 

may authorize qualified states to 

administer their own hazardous waste 

programs in lieu of the Federal program 

within the state. Following 

authorization, EPA retains enforcement 

authority under Sections 3008, 3013, 

and 7003 of RCRA, although authorized 

states have primary enforcement 

responsibility. The standards and 

requirements for state authorization are 

found at 40 CFR part 271. 

Prior to enactment of the Hazardous 

and Solid Waste Amendments of 1984 

(HSWA), a state with final RCRA 

authorization administered its 

hazardous waste program entirely in 

lieu of EPA administering the Federal 

program in that state. The Federal 

requirements no longer applied in the 

authorized state, and EPA could not 

issue permits for any facilities in that 

state, since only the state was 

authorized to issue RCRA permits. 

When new, more stringent Federal 

requirements were promulgated, the 

state was obligated to enact equivalent 

authorities within specified time frames. 

However, the new Federal requirements 

did not take effect in an authorized state 

until the state adopted the Federal 

requirements as state law. 

In contrast, under RCRA Section 

3006(g) (42 U.S.C. 6926(g)), which was 

added by HSWA, new requirements and 

prohibitions imposed under HSWA 

authority take effect in authorized states 

at the same time that they take effect in 

unauthorized states. EPA is directed by 

the statute to implement these 

requirements and prohibitions in 

authorized states, including the 

issuance of permits, until the state is 

granted authorization to do so. While 

states must still adopt HSWA related 

provisions as state law to retain final 

authorization, EPA implements the 

HSWA provisions in authorized states 

until the states do so. 

Authorized states are required to 

modify their programs only when EPA 

enacts Federal requirements that are 

more stringent or broader in scope than 

existing Federal requirements. RCRA 

Section 3009 allows the states to impose 

standards more stringent than those in 

the Federal program (see also 40 CFR 

271.1). Therefore, authorized states may, 

but are not required to, adopt Federal 

regulations that are considered less 

stringent than previous Federal 

regulations. 

B. Effect on State Authorization 

The provisions in today’s notice are 

proposed pursuant to non-HSWA 

authority, and would eliminate the 

hazardous waste requirements for those 

CO2 streams that would otherwise meet 

the definition of hazardous waste, when 

these streams are managed in 

accordance with certain conditions. 

Therefore, this proposed exclusion is 

less stringent than the Federal program, 

and states are not required to adopt this 


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50EPA notes that decisions regarding whether a 

state rule is more stringent or broader in scope than 

the Federal program are made when the Agency 

authorizes state programs. 

51Some states incorporate the Federal regulations 

by reference, or have specific state statutory 

requirements that their state program can be no 

more stringent than the Federal regulations. In 

those cases, EPA anticipates that the conditional 

exemption proposed today, if finalized, would be 

adopted by these states, consistent with state laws 

and administrative procedures (unless explicit 

action is taken by such a state to decline the 

revisions, as specified under that state’s laws). 

52As discussed in Section IV.B.2. of this 

preamble, the off-site movement of hazardous waste 

through pipelines does not require the use of a 

hazardous waste manifest under the Federal subtitle 

C hazardous waste regulations. 

53This 50-year time period is consistent with the 

Office of Water Analysis for the Final Geologic 

Sequestration Rule: Draft Cost Analysis for the 

Federal Requirements Under the Underground 

Injection Control Program for Carbon Dioxide 

Geologic Sequestration Wells (Final GS Rule), EPA 

816–R–10–013, July 2010. 

54EPA notes that today’s proposed conditional 

exclusion only applies to CO2 streams that are to 

be injected into UIC Class VI wells; however, other 

classes of UIC wells that inject CO2 streams (e.g., 

Class II wells conducting EOR and Class V 

experimental wells) can transition to Class VI wells 

under certain conditions outlined in the final UIC 

Class VI rule. December 10, 2010 (75 FR at 77243– 

77249). 

55 Department of Energy, National Energy 

Technology Laboratory, Carbon Capture and Storage 

Database, http://www.netl.doe.gov/technologies/ 

carbon_seq/database/index.html. 

56We employ this bounding estimate for 

analytical purposes only due to the absence of 

supporting data. This assumption should not be 

construed as an EPA determination of CO2 stream 

status on a nationwide basis. These assumptions 

were developed solely for this proposed rule, and 

were not used in, or derived from, the supporting 

analysis in the UIC Class VI rulemaking. 

provision.50 Nevertheless, while states 

do not have to adopt this provision, EPA 

strongly encourages them to do so, 

because this amendment will 

substantially reduce the uncertainty 

associated with defining and managing 

these CO2 streams under RCRA subtitle 

C, which will remove the uncertainty 

regarding the type of permit needed for 

the GS of CO2 streams. 

EPA notes that because the 

conditional exclusion is less stringent 

than the current RCRA program, states 

are not required to adopt this rule, if 

finalized.51 In situations involving the 

interstate transportation of 

conditionally-excluded waste, the 

exclusion must be authorized in the 

state where the waste is generated, any 

states through which the waste passes, 

and the state where the UIC Class VI 

injection well is located, in order for 

that conditionally-excluded waste to be 

managed as excluded from subtitle C 

from point of generation to injection in 

a UIC Class VI well. A state that has not 

adopted the conditional exclusion may 

impose state requirements, including 

the uniform hazardous waste manifest 

requirement, if characteristicallyhazardous CO2 streams are being 

transported through that state.52

VI. What are the costs and benefits of 

the proposed rule? 

The economic assessment conducted 

in support of this action evaluated the 

costs, benefits, small entity impacts, 

environmental justice, and other 

impacts (e.g., children’s health, 

unfunded mandates, federalism) of the 

proposal. As part of the evaluation of 

potential costs and benefits, EPA first 

prepared a baseline characterization of 

the potentially affected universe. We 

then assessed the ‘‘baseline’’ behavior 

that the affected entities could be 

expected to display in the absence of the 

proposed rule. This baseline provided a 

reference point from which the 

incremental costs and benefits of the 

proposed rule were measured. Finally, 

we estimated how the affected entities 

would likely change their behavior in 

response to the rule, as proposed. The 

analysis estimated incremental costs 

and benefits of the proposed rule over 

a 50-year period.53

The universe of entities that may be 

directly affected by the proposed rule 

include CO2 generators/capturers, 

transporters, and sequestration facilities. 

CO2 generator facilities are likely to be 

entities that capture their CO2

byproducts and manage them in a 

manner other than releasing them into 

the atmosphere. Currently, EPA 

estimates that, at a maximum, there 

could be up to 27 CO2 capture facilities 

affected by the proposed rule. This 

estimate includes ten facilities that 

currently capture CO2, along with 17 

facilities expected to begin CO2 capture 

in the future. These 27 capture facilities 

include fossil fuel electric power 

generators, oil and gas extraction 

facilities, natural gas distribution 

facilities, ethyl alcohol manufacturers, 

and nitrogenous fertilizer 

manufacturers. Our low-end estimate 

considers only 13 CO2 capture facilities. 

This includes ten existing capture 

facilities, two capture projects 

associated with named DOE pilot 

projects, and one capture facility 

associated with the FutureGen Federal/ 

private partnership. 

EPA expects that captured CO2 will 

generally be transported by pipeline. As 

of 2008, there were 30 operating CO2

pipelines in the U.S., operated by 29 

separate entities. CO2 sequestration 

facilities inject the CO2 streams into UIC 

wells for the purposes of sequestration. 

This sequestration may be conducted 

either with or without concurrent EOR. 

However, EOR itself is outside the scope 

of this rule, as proposed.54 EPA 

estimates that as many as 29 planned 

sequestration facilities could be affected 

by the proposed rule. This estimate 

includes 15 planned commercial CO2

sequestration projects and 14 planned 

projects funded by DOE. The 15 

planned commercial projects are 

expected to include 12 EOR projects 

that transition to sequestration in the 

long term and 3 saline reservoir 

sequestration projects.55 Our low-end 

estimate considers only six CO2

sequestration facilities that will be Class 

VI UIC wells. This includes five 

sequestration projects associated with 

named DOE pilot projects and one 

sequestration facility associated with 

the FutureGen Federal/private 

partnership. 

In the baseline (absence of the 

proposed rule), generators of the 

captured CO2 streams would have to 

determine if their CO2 stream(s) is (are) 

a RCRA hazardous waste. Depending 

upon this determination, a capture 

facility is most likely to engage in one 

of four baseline management practices: 

(1) For CO2 streams that are determined 

to be nonhazardous waste, transport the 

material to a sequestration facility for 

injection in a Class VI well; for CO2

streams that are determined to be 

hazardous waste, either (2) cease 

capturing the CO2 stream—that is, 

continue to allow the CO2 stream to be 

emitted into the atmosphere; or (3) 

transport the CO2 stream to a 

sequestration facility for injection in a 

Class I hazardous well; or (4) treat the 

CO2 stream so that it is no longer 

hazardous and transport it to a 

sequestration facility for injection in a 

Class VI well. A generator’s 

determination as to how to manage a 

RCRA hazardous waste CO2 stream 

would depend on several factors. Due to 

the lack of definitive data on the RCRA 

hazardous characteristics of CO2

streams, we applied bounding estimates 

in our analysis. The high-end assumes 

that 90% of the CO2 streams are 

generated as RCRA hazardous waste, 

while the low-end assumes that only 

10% of the CO2 streams are RCRA 

hazardous waste.56 For all generators 

that capture CO2, we further assume the 

following: each facility would incur 

costs to determine if the CO2 stream is 

a RCRA hazardous waste; facilities that 

generate a CO2 stream that is 

characterized as a non-hazardous RCRA 

waste would face no further costs 

associated with the hazardous waste 

regulations, as would facilities who 

cease to capture CO2; facilities that 

generate RCRA hazardous waste CO2

streams and do not cease capturing the 


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57The reasoning behind this assumption is 

discussed in the supporting economic assessment 

document: Assessment of the Potential Costs, 

Benefits, and Other Impacts of the Conditional 

Exclusion from the RCRA Definition of Hazardous 

Waste for CO2 Streams Managed in UIC Class VI 

Wells for the Purpose of Geologic Sequestration, as 

Proposed. 

58Under the high-end estimate, the proposed rule 

is expected to result in undiscounted annualized 

net savings of approximately $56.6 million. 

Applying a 3 percent discount rate, the annualized 

net savings were found to be approximately $44.9 

million, while a 7 percent discount rate resulted in 

annualized net savings of approximately $32.0 

million. Under the low-end estimate, the 

undiscounted annualized net savings are $9.3 

million. Applying a 3 percent and 7 percent 

discount rate, the annualized net savings were 

found to be approximately $8.5 million and $7.3 

million, respectively. 

59See Section III of this preamble for a discussion 

of other recent EPA rules related to this strategy. 

CO2 would likely qualify as large 

quantity generators (LQGs) in the 

baseline and would be subject to 

applicable hazardous waste generator 

requirements; and, CO2 capture facilities 

that treat their RCRA hazardous waste 

CO2 streams would incur treatment 

costs, and may also incur RCRA 

permitting costs. 

The baseline universe of CO2

sequestration facilities is assumed to 

include a mix of facilities with Class VI 

wells and facilities with Class I 

hazardous wells that will meet the Class 

VI requirements. This analysis assumes 

that, under the high-end baseline 

assumption, approximately 57 percent 

of the sequestration wells would 

manage non-hazardous CO2 streams and 

treated CO2 streams in Class VI wells.57

The remaining wells would manage 

RCRA hazardous CO2 streams in Class I 

hazardous wells. For the low-end, our 

analysis assumes that approximately 97 

percent of the sequestration wells would 

manage non-hazardous CO2 streams and 

treated CO2 streams in Class VI wells. 

The remaining sequestration wells 

would manage RCRA hazardous CO2

streams in Class I hazardous waste 

wells. 

Under the proposed rule, CO2 streams 

that are captured, stored, transported, 

and injected into Class VI UIC wells in 

accordance with the conditions in the 

proposed rule would be excluded from 

the definition of hazardous waste and 

would therefore not be subject to EPA’s 

RCRA hazardous waste requirements. 

The exclusion would not apply if the 

CO2 stream was mixed or co-injected 

with any other hazardous wastes. 

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. They would 

only be required to submit an annual 

certification in accordance with the 

rule. These generators that capture CO2

would also be able to send their CO2

streams to UIC Class VI wells without 

any additional cost of treating the CO2

stream. Under the proposed rule, all 

CO2 sequestration facilities are assumed 

to be permitted as UIC Class VI wells, 

resulting in no need for a UIC Class I 

hazardous permit for those wells. 

The CO2 stream exclusion, as 

proposed, would result in three areas of 

savings for generators of CO2 streams: 

exclusion from the hazardous waste 

determination, exclusion from the need 

for hazardous waste treatment, and 

exclusion from compliance with any 

other hazardous waste-related 

requirements. CO2 sequestration 

facilities managing hazardous CO2

under a Class I hazardous well permit 

in the baseline would experience 

savings related to the hazardous waste 

determination and compliance with 

applicable hazardous waste regulations. 

Requirements and associated costs for 

pipeline transportation would be 

unchanged. 

Due to the high level of uncertainty 

regarding the percent of CO2 that may be 

generated as RCRA hazardous waste, 

and the uncertainty regarding the actual 

number of facilities potentially affected 

over the projected 50 year period, EPA’s 

best estimate for the impacts of the 

proposed rule ranges from a low-end 

annualized net savings of $7.3 million 

(7% discount rate) to the high-end 

annualized net savings of $44.9 million 

(3%discount rate).58 These cost savings 

are expected to occur without any 

discernible increase in negative impacts 

to human health and the environment. 

In addition to industry impacts, we 

project negligible cost increases to EPA 

and state governments for rule 

implementation. 

VII. Statutory and Executive Order (EO) 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Pursuant to the terms of 

Executive Order 12866, it has been 

determined that this rule is a 

‘‘significant regulatory action’’ because 

it raises novel legal or policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. In addition, EPA prepared 

an analysis of the potential costs and 

benefits associated with this action. 

This analysis is presented in the 

following support document: 

Assessment of the Potential Costs, 

Benefits, and Other Impacts of the 

Conditional Exclusion From the RCRA 

Definition of Hazardous Waste for CO2

Streams Managed in UIC Class VI Wells 

for the Purposes of Geologic 

Sequestration, as Proposed. A copy of 

this document is available in the docket 

established for this action. The 

methodology and findings from this 

analysis are briefly summarized in 

Section VI above. The reader is 

encouraged to review and comment on 

the full assessment document. The final 

rule will respond to any substantive 

comments received on the assessment 

document. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The Information Collection 

Request (ICR) document prepared by 

EPA has been assigned EPA ICR number 

2421.01. 

The Agency believes that this 

proposal is an important part of its 

efforts to establish a regulatory 

framework for GS.59

The certification included in the 

proposed rule would be required for 

entities wishing to take advantage of the 

flexibility provided by the conditional 

exclusion. The certification statements 

would be used by regulators to hold 

generators and UIC Class VI well owner/ 

operators accountable for knowing the 

conditions applicable to them (e.g., 

during an on-site inspection). The 

certification statements also would be 

used by generators and owner/operators 

to demonstrate that they are aware of, 

and complying with, the conditions. 

We believe that the certifications are 

a practical way to assure compliance 

because they hold a single person at 

each facility accountable for compliance 

(i.e., the authorized representative). 

Because of this, the representative has a 

personal incentive to make sure that the 

facility complies with the conditions. 

The proposed rule requires that the 

certification be renewed every year that 


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60 211111 (500 persons), 221112 (500 persons), 

322121 (750 persons), 324110 (1,500 persons), 

324199 (500 persons), 325120 (1,000 persons), 

325193 (1,000 persons), 325311 (1,000 persons), 

and 327310 (750 persons). 

the generator or UIC Class VI well 

owner/operator claims the RCRA 

conditional exclusion, in order to 

ensure that the certification is kept 

current. 

EPA estimates the total annual burden 

to respondents under the new 

paperwork requirements to be 79 hours 

and $6,753. However, EPA also 

estimates an annual burden savings 

under the existing RCRA subtitle C 

paperwork requirements of 303 hours 

and $25,428. Thus, this would result in 

a net annual savings of 224 hours and 

$18,675. The bottom-line burden 

savings over three years is estimated to 

be 672 hours and $56,025. There are no 

capital costs associated with this burden 

requirement. Burden is defined at 5 CFR 

1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this proposed rule, 

which includes this ICR, under Docket 

ID number EPA–HQ–RCRA–2010–0695. 

Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES

section at the beginning of this notice 

for where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street, NW., Washington, DC 

20503, Attention: Desk Officer for EPA. 

Since OMB is required to make a 

decision concerning the ICR between 30 

and 60 days after August 8, 2011, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by September 7, 2011. The final rule 

will respond to any comments on the 

information collection requirements 

contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

(based on Small Business 

Administration (SBA) size standards), 

that is primarily engaged in the 

generation, capture, storage, 

transportation, and GS of excluded 

hazardous CO2 streams, as defined by 

NAICS codes 211111, 221112, 322121, 

324110, 324199, 325120, 325193, 

325311, and 327310, with total 

corporate employment ranging from 500 

to 1,500 persons 60 (based on SBA size 

standards); (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a 

proposed rule has a significant 

economic impact on a substantial 

number of small entities, the impact of 

concern is any significant adverse 

economic impact on small entities, 

since the primary purpose of the 

regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities’’ 5 

U.S.C. 603 and 604. Thus, an agency 

may certify that a proposed rule will not 

have a significant economic impact on 

a substantial number of small entities if 

it relieves regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

proposed rule. This rule, as proposed, is 

projected to reduce the burden on 

regulated entities by conditionally 

exempting them from the RCRA subtitle 

C hazardous waste management 

requirements associated with CO2

streams captured, transported, and 

injected into UIC Class VI wells. We 

have, therefore, concluded that today’s 

proposed rule will relieve regulatory 

burden for all affected small entities. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. As 

explained above, this proposed 

exclusion is less stringent than the 

current RCRA Federal program, and 

states are therefore not required to adopt 

it. Moreover, the rule does not contain 

a Federal mandate that may result in 

expenditures of $100 million or more 

for state, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. Our analysis indicates that 

the proposed rule is expected to result 

in undiscounted annualized net savings 

to the regulated community ranging 

from $7.3 million to $44.9 million (3% 

discount rate). Incorporated into these 

net saving estimates is a negligible total 

estimated annualized cost to states of 

$70 to nearly $565, depending on the 

discount rate. Thus, this proposed rule 

is not subject to the requirements of 

sections 202 or 205 of UMRA. 

This proposed rule is also not subject 

to the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Occasional requests for and review of 

certification statements is the only 

potential impact on small governments. 

Furthermore, no small governments are 

known to be owners or operators of 

compressed CO2 facilities, storage 

facilities, transporters, or sequestration 

facilities. We encourage comments on 

potential unfunded mandates associated 

with this proposed action. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because the rule will 

not impose any requirements on States 

or any other level of government. As 

explained above, today’s proposed rule 

conditionally excludes CO2 streams that 

are hazardous from the definition of 

hazardous waste, where such streams, 

in accordance with the rule, are 

captured from emission sources and 

injected into UIC Class VI wells for 

purposes of GS, but States would not be 

required to adopt the rule. Thus, 

Executive Order 13132 does not apply 

to this action. 


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In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed action from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). No tribal governments are known 

to generate CO2 streams or own or 

operate UIC Class VI wells subject to the 

proposed rule. Furthermore, we have 

identified no existing CO2 pipelines that 

cross tribal lands. Thus, Executive 

Order 13175 does not apply to this 

action. EPA specifically solicits 

additional comment on this proposed 

action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this action presents a 

disproportionate risk to children. The 

public is invited to submit comments or 

identify peer-reviewed studies and data 

that are relevant to assessing the effects 

of early life exposure to CO2 streams 

captured from emission sources and 

transported to and injected into UIC 

Class VI wells for purposes of GS. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. The only 

effect of this action will be to 

conditionally exclude CO2 streams that 

are hazardous from the definition of 

hazardous waste, where such streams 

are captured from emission sources and 

injected into UIC Class VI wells for 

purposes of GS. This conditional 

exclusion would allow for the GS of 

CO2, while maintaining protection of 

human health and the environment, and 

would not significantly disrupt the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629, February 16, 1994) establishes 

Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The only effect of this 

action will be to conditionally exclude 

CO2 streams that are hazardous from the 

definition of hazardous waste, where 

such streams are captured from 

emission sources and injected into UIC 

Class VI wells for purposes of GS, and 

meet other conditions. Existing 

regulations governing the generation, 

transportation, and injection of CO2

streams in UIC Class VI wells are 

expected to provide safety to human 

health and the environment, making 

additional regulation under RCRA 

subtitle C unnecessary (see discussion 

under Section IV). 

List of Subjects in 40 CFR Parts 260 and 

261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements 

Dated: August 1, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, Parts 260 and 261 of title 40, 

Chapter I of the Code of Federal 

Regulations are proposed to be amended 

as follows: 

PART 260—HAZARDOUS WASTE 

MANAGEMENT SYSTEM: GENERAL 

1. The authority citation for Part 260 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921– 

6927, 6930, 6935, 6937–6939, and 6974. 

Subpart B—Definitions 

2. Section 260.10 is amended by 

adding in alphabetical order the 

definition of ‘‘Carbon dioxide stream’’ to 

read as follows: 

§ 260.10 Definitions. 

* * * * * 

Carbon dioxide stream means 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. 

* * * * * 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

3. The authority citation for Part 261 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921, 

6922, 6924(y), and 6938. 

4. Section 261.4 is amended by 

adding a new paragraph (h) to read as 

follows: 

§ 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. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 152 / Monday, August 8, 2011 / Proposed Rules 48093 

(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 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 and 146; 

(iii) No other hazardous wastes may 

be mixed with, or otherwise co-injected 

with, the carbon dioxide stream; 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 

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 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. 

[FR Doc. 2011–19915 Filed 8–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 370 

[EPA–HQ–SFUND–2010–0763; FRL–9448–8] 

RIN 2050–AG64 

Hazardous Chemical Reporting: 

Revisions to the Emergency and 

Hazardous Chemical Inventory Forms 

(Tier I and Tier II) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The U.S Environmental 

Protection Agency (EPA or the Agency) 

is proposing to revise the Emergency 

and Hazardous Chemical Inventory 

Forms (Tier I and Tier II) under Section 

312 of the Emergency Planning and 

Community Right-to-Know Act (EPCRA) 

to add new data elements and revise 

some existing data elements. 

DATES: Comments must be received on 

or before October 7, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

SFUND–2010–0763 by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: superfund.docket@epa.gov. 

• Fax: (202) 566–0224. 

• Mail: EPA Docket Center, 

Superfund Docket, Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. In addition, 

please mail a copy of your comments on 

the information collection provisions to 

the Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St., NW., Washington, DC 

20503. 

• Hand Delivery: Environmental 

Protection Agency West Building, Room 

3334, 1301 Constitution Avenue, NW., 

Washington, DC 20004. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–SFUND–2010– 

0763. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Superfund Docket, EPA/DC, EPA 

West Building, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the 

Superfund Docket is (202) 566–0276. 

FOR FURTHER INFORMATION CONTACT: Sicy 

Jacob, Office of Emergency 

Management, Mailcode 5104A, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., Washington 

DC 20004; telephone number: (202) 

564–8019; fax number: (202) 564–2620; 

e-mail address: jacob.sicy@epa.gov. You 

may also contact the Superfund, TRI, 

EPCRA, RMP and Oil Information 

Center at (800) 424–9346 or (703) 412– 

9810 (in the Washington, DC, 

metropolitan area). You may wish to 

visit the Office of Emergency 

Management (OEM) Internet site at 

http://www.epa.gov/emergencies. 

SUPPLEMENTARY INFORMATION: Here are 

the contents of today’s preamble. 

I. General Information 

A. Who is affected by this proposed rule? 

B. What should I consider as I prepare my 

comments for EPA? 

C. What is the statutory authority for this 

proposed rule? 

D. What is the background of this proposed 

rule? 

II. What are the revisions that EPA is 

proposing on the Tier I and Tier II forms? 

A. Facility Identification 

B. Name of the Facility’s Parent Company 

and Owner or Operator of the Facility 

C. Facility Emergency Coordinator 


emcdonald on DSK2BSOYB1PROD with PROPOSALS