```

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

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

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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[[Page 48074]]

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

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2010-0695, by one of the following methods:
    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).

[[Page 48075]]

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

Preamble Outline

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

I. Statutory Authority

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

II. Abbreviations, Acronyms, and Definitions

A. Abbreviations and Acronyms

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

B. Definitions Used in This Preamble

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

III. Background

A. What is Geologic Sequestration?

    Geologic Sequestration (GS) is the process of injecting carbon 
dioxide (CO2) captured from an emission source (e.g., a 
power plant or industrial facility) into deep subsurface rock 
formations in order to isolate the CO2. GS is a key 
component of a set of climate change mitigation technologies referred 
to as ``carbon capture and storage'' or CCS. CCS can be described as a 
three-step process, beginning with the capture and compression of the 
CO2 stream from fossil-fuel power plants or other industrial 
sources, after which the CO2 stream is transported (usually 
in pipelines) to an on-site or off-site location, where it is then 
injected

[[Page 48076]]

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

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

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

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

[[Page 48077]]

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

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

D. RCRA Applicability to GS Activities

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

[[Page 48078]]

purposes of GS is a RCRA solid waste, as it is a ``discarded material'' 
within the plain meaning of the term in RCRA Sec.  1004(27). Courts 
have stated that the plain meaning of ``discarded material'' refers to 
materials that have been disposed of, abandoned or thrown away.\16\ 
This clearly applies to supercritical CO2 stream (which, as 
already stated, is rather unique in that it has properties intermediate 
between a liquid and a gas) injected into UIC Class VI wells, 
regardless of whether the material is a hazardous waste or not. An 
entity involved in the CCS process may generate CO2 that 
qualifies as a solid waste under the RCRA hazardous waste regulations 
by making the decision to discard the material through abandonment by 
disposing of the material (see 40 CFR 261.2(a)(2)(i) and (b)(1)). Once 
the decision is made that the supercritical CO2 stream will 
be sent to a UIC Class VI well for discard, EPA considers this material 
to be a solid waste. This decision may be made upstream of the 
injection well facility. As discussed above, EPA's regulations require 
that generators of a solid waste determine whether their wastes are 
hazardous wastes, and if so, manage them in accordance with EPA's RCRA 
hazardous waste regulations. 40 CFR 262.11.
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    \16\ The proposed rule is not intended to affect the status of 
CO2 that is injected into wells other than UIC Class VI 
wells. For example, CO2 that is used for enhanced oil or 
gas recovery (EOR/EGR) in other than UIC Class VI wells, where some 
sequestration may occur in the process of recovering gas or oil, is 
beyond the scope of this proposal.
---------------------------------------------------------------------------

    One commenter to the UIC proposed rule suggested that the captured 
CO2 stream was exempt from the RCRA hazardous waste 
regulations under the exemption for ``fly ash waste, bottom ash waste, 
slag waste, and flue gas emission control waste, generated primarily 
from the combustion of coal or other fossil fuels,'' also referred to 
as the ``Bevill exemption.'' (See 40 CFR 261.4(b)(4).)
    EPA studied the fossil fuel combustion wastes as directed by 
Congress, and published two Reports to Congress,\17\ and issued two 
Regulatory Determinations on the management and use of coal and other 
fossil fuel combustion products, one on August 9, 1993 and a second one 
on May 22, 2000 (58 FR 42466 and 65 FR 32214, respectively). 
CO2 captured for purposes of GS was not included in either 
of these Regulatory Determinations, or in the underlying studies upon 
which these determinations were based. The Agency has consistently 
interpreted the Sec.  261.4(b)(4) exemption as only encompassing those 
wastes that were studied, and EPA did not study CO2 that has 
been captured for GS. Therefore, EPA believes that the CO2 
streams discussed in today's proposed rule are not included within the 
Bevill exemption under Sec.  261.4(b)(4).\18\
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    \17\ Report to Congress: Wastes from the Combustion of Coal by 
Electric Utility Power Plants, February 1988, EPA-530-SW-88-002; and 
Report to Congress: Wastes From the Combustion of Fossil Fuels, Vol. 
1 & 2, U.S. EPA, March 1999, EPA-530-S-99-010 and EPA-530-R-99-010.
    \18\ EPA notes that even if CO2 streams from the 
combustion of fossil fuels were exempt from regulation as hazardous 
waste under Sec.  261.4(b)(4)--which it does not believe to be the 
case--the Bevill exemption would only apply to CO2 
generated from the combustion of materials in boilers to generate 
steam for the purpose of generating energy, and not to other 
CO2 streams generated from other sources.
---------------------------------------------------------------------------

    EPA notes that CO2 streams are not listed RCRA hazardous 
wastes (i.e., CO2 streams are not specifically identified as 
one of the hazardous wastes listed in 40 CFR part 261, subpart D). 
However, the CO2 stream would be a hazardous waste if it 
exhibits any of the hazardous characteristics in 40 CFR part 261, 
subpart C, or, is mixed with a listed hazardous waste. See Sec.  
261.3(a)(iv). Under the UIC Class VI final rule, injection site owners 
and operators must determine whether the CO2 stream is 
hazardous under the RCRA regulations, and if so, injection of the 
CO2 stream may only occur in a UIC Class I hazardous waste 
injection well.\19\ Conversely, UIC Class VI wells cannot be used for 
the injection of RCRA hazardous wastes. Today's proposal, if finalized, 
would allow CO2 streams that would otherwise qualify as RCRA 
hazardous wastes to be managed in a Class VI well, provided that they 
meet the conditions of this proposed rule.
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    \19\ As already mentioned, a hazardous waste determination must 
be made when a waste is first generated (Sec.  262.11); however, 
knowing whether a solid waste is a hazardous waste is necessary at 
any point during the management of that waste, in order for persons 
to ensure that they are in compliance with the hazardous waste 
requirements if and when they are managing hazardous waste. See 40 
CFR 261.3(b)(3) and 45 FR 33096 (May 19, 1980).
---------------------------------------------------------------------------

    As already noted, commenters to the UIC Class VI proposed rule also 
raised questions about the appropriateness and feasibility of applying 
the RCRA hazardous waste characteristics to CO2 streams and, 
in particular, the Toxicity Characteristic (TC). See Sec.  261.24. Some 
commenters stated that the TCLP test method associated with the TC 
could not be used on materials other than solids or liquids, and that 
EPA would have to develop new testing regulations and guidelines 
specifically for evaluating supercritical CO2. Commenters 
also stated that the TC regulation was inappropriate for CO2 
streams because the TC was ``* * * designed to assess the threat waste 
would have in a municipal landfill disposal scenario, a scenario that * 
* * is inherently inapplicable to uncontained supercritical 
CO2.'' Many commenters also expressed concern over the 
uncertainty in determining how the RCRA hazardous waste regulations, 
including the hazardous waste identification issues described here, 
apply to CO2 streams being sequestered in UIC Class VI 
wells.
    In light of these comments, EPA reiterates that no hazardous waste 
listings apply specifically to CO2 streams; therefore, a 
CO2 stream could only be defined as a hazardous waste if it 
exhibits a hazardous waste characteristic as defined in 40 CFR part 
261, subpart C.\20\ Regarding the feasibility of testing CO2 
streams, EPA acknowledges the commenter's concern, but also notes that 
the hazardous waste regulations allow generators to apply their 
knowledge--in lieu of testing--of the hazard characteristic of a waste, 
in light of the materials or processes used, to determine whether that 
waste is a characteristic hazardous waste under RCRA.\21\ 40 CFR 
262.11(c)(2). EPA also notes that methods exist for sampling and 
analyzing gaseous emissions in order to identify and quantify hazardous 
constituents that may be present.\22\ Regarding whether a TCLP leach 
test can be applied to a supercritical CO2 stream, EPA notes 
that the TC regulation, and the TCLP test method, allow for measurement 
of total constituent concentrations in a waste, in lieu of running the 
leach test, and under certain circumstances even require it (such as 
where wastes are liquids that contain less than 0.5% solids).\23\ 
However, EPA acknowledges the commenters' underlying concerns related 
to RCRA characterization, and requests comment on this issue.
---------------------------------------------------------------------------

    \20\ It is also possible that a CO2 stream could 
become a hazardous waste if it is mixed with a listed hazardous 
waste, or, mixed with a characteristic hazardous waste and the 
resultant mixture exhibits a characteristic of hazardous waste. This 
is commonly referred to as the ``mixture rule.'' See 40 CFR 261.3. 
We note that today's proposed exemption includes the condition that 
prohibits the mixing of CO2 streams with hazardous waste.
    \21\ Any persons claiming that a waste is non-hazardous, based 
on knowledge in lieu of testing, should be prepared to substantiate 
this claim.
    \22\ E.g., EPA notes that existing analytical test methods, such 
as SW-846 Methods 0060, 0010, and 0031, are available to quantify 
the levels of various hazardous constituents in gaseous streams, 
although sampling a supercritical CO2 stream may require 
particular sampling protocols.
    \23\ See SW-846, Method 1311, Section 2.1.
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E. CO2 Stream Characterization

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

[[Page 48079]]

definition of hazardous waste CO2 streams captured, 
transported (or otherwise delivered to) and injected into permitted UIC 
Class VI wells for purposes of GS. At this time, EPA has little 
information to conclude that CO2 streams would qualify as 
RCRA hazardous wastes, which would make them subject to EPA's 
comprehensive RCRA hazardous waste management regulations. Today's 
proposal is intended to provide clarity for deployment of CCS under 
conditions that EPA believes would not present a substantial risk to 
human health and the environment. However, EPA acknowledges that at 
this time, it does not have full knowledge of the range of possible 
CO2 stream compositions. Today's proposed conditional 
exclusion is based upon EPA's existing knowledge of the composition of 
CO2 streams, and its analysis that compliance with the 
existing standards and regulations designed to prevent any exposure of 
CO2 (and any associated impurities) would render additional 
regulation under RCRA subtitle C unnecessary.
    Nevertheless, EPA is proceeding with this proposal, and notes that 
the UIC Class VI regulations include requirements that the owner or 
operator of the injection well provide an analysis of the physical and 
chemical characteristics of the CO2 stream, both during 
permit application and periodically during operation (See 40 CFR 
146.82, 146.90 and 146.91). The permit-issuing authority is also 
authorized under EPA's UIC permit regulations to add any additional 
conditions to the permit, as necessary, to assure compliance with 
applicable SDWA requirements (40 CFR 146.52(b)). Under this authority, 
the UIC Program Director (EPA or a State permitting authority) may add 
specific testing or chemical/waste limitations to the permit to prevent 
endangerment of USDWs, or to assure that unauthorized wastes are not 
injected with the CO2 stream.
    EPA has reviewed estimates of CO2 stream composition 
that were calculated using information, such as the composition of flue 
gas from the burning of fossil fuels and other likely sources, existing 
flue gas emission control technologies (e.g., electrostatic 
precipitators and scrubbers), and data from applied capture 
technology.\24\ These estimates indicate that captured CO2 
could contain (based upon the information used in developing those 
estimates) low concentrations of hazardous constituents (e.g., 
estimated concentrations expressed in parts per million by volume, or 
ppmv, are: 0.0022-0.0097 arsenic, 0.0462-0.4623 barium, 0.0002-0.0085 
cadmium, 0.0016-0.0171 chromium, 0.0022-0.0028 mercury, 0.0011-0.0045 
lead, and 0.0074-0.0244 selenium). EPA notes that these contaminants 
derived from the combustion flue gas are relevant to the TC regulation 
in Sec.  261.24.\25\ These estimates also indicate that the types of 
impurities and their concentrations would likely vary by facility, coal 
composition, plant operating conditions, and pollutant removal and 
carbon capture technologies.
---------------------------------------------------------------------------

    \24\ Apps, J.A., A Review of Hazardous Chemical Species 
Associate with CO2 Capture from Coal-Fired Power Plants 
and Their Potential Fate in CO2 Geologic Storage, 
Lawrence Berkeley National Laboratory, March 2006.
    \25\ Ibid, Table 13b. EPA notes that the presence of hazardous 
constituents or contaminants does not automatically mean that a 
CO2 stream is a hazardous waste.
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    EPA solicited comment in the July 25, 2008 proposed UIC Class VI 
rule on the presence of impurities in CO2 streams, but did 
not receive any analytical data on the composition of captured 
CO2 streams in response. As various CCS pilot projects \26\ 
move forward and continue to generate information, EPA expects the 
amount of available analytical data on captured CO2 to 
increase. In addition, EPA expects that data will become available 
under the recently promulgated UIC Class VI regulations. As discussed 
above, the final UIC Class VI regulations require that prior to 
issuance of a permit, the owner or operator of the well must submit to 
the Director \27\ proposed operating data for the proposed GS site, 
including an analysis of the chemical and physical properties of the 
CO2 stream (40 CFR 146.82(a)(7)(iv)). The UIC rule also 
requires that, throughout the operational life of the Class VI well, 
the injected CO2 stream be analyzed by owners or operators 
with sufficient frequency to yield data representative of its physical 
and chemical characteristics (40 CFR 146.90(a)). Owners or operators 
must also submit semi-annual reports that include any changes to the 
physical, chemical, and other relevant characteristics of the 
CO2 stream from the proposed operating data (40 CFR 
146.91(a)(1)). While guidance is still being developed regarding these 
requirements, at a minimum, the physical characteristics of the 
CO2 stream will include temperature and pressure, while the 
chemical characteristics will include pH, carbon dioxide purity (as a 
percent), as well as concentrations of non-CO2 constituents 
(either in ppmv or in percent). These non-CO2 constituents 
may include, but are not limited to, sulfur dioxide (SO2), 
hydrogen sulfide (H2S), nitrous oxides (NOX), 
carbon monoxide (CO), methane (CH4), other hydrocarbons, 
water vapor (H2O), as well as certain contaminants, that are 
also defined as hazardous contaminants in 40 CFR 261.24, such as 
arsenic, mercury, and selenium. EPA expects that these data will 
provide an indication of any impurities that may be present, their 
concentrations, and whether such impurities might alter the corrosivity 
or other properties of the CO2 stream after injection.
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    \26\ See Exhibits 1 and 2 in EPA's analysis of the potential 
costs and benefits associated with this action, entitled Assessment 
of the Potential Costs, Benefits, and Other Impacts of the 
Conditional Exclusion from the RCRA Definition of Hazardous Waste 
for CO2 Streams Managed in UIC Class VI Wells for the Purposes of 
Geologic Sequestration, as Proposed. A copy of this document is 
available in the docket established for this action.
    \27\ As used here in the context of the UIC program, `Director' 
means the person responsible for permitting, implementation, and 
compliance of the UIC program. For UIC programs administered by EPA, 
the Director is the EPA Regional Administrator or his/her authorized 
representative; for UIC programs in Primacy States, the Director is 
the person responsible for permitting, implementation, and 
compliance of the State, Territorial, or Tribal UIC program. 40 CFR 
144.3.
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    EPA today requests analytical data on the physical and chemical 
characteristics of captured CO2, including the 
concentrations of hazardous contaminants, CO2 content, 
information on the type of CO2 capture process used, and how 
the samples were collected and analyzed. This data will allow EPA to 
gain a better understanding of the nature and characteristics of 
captured CO2 streams.

IV. Detailed Discussion of This Proposed Rule

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

[[Page 48080]]

A. Authority for Conditional Exclusion From RCRA Subtitle C 
Requirements

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

B. CO2 Streams Managed Prior to Underground Injection

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

[[Page 48081]]

storage (i.e., accumulation) of hazardous wastes, in units, such as 
tanks or containers, at the site of generation. These requirements 
include technical requirements for the tanks or containers, and time 
limits on hazardous waste storage, if the waste is to be sent off-site 
to a treatment, storage or disposal facility.\28\ These requirements 
also include recordkeeping and reporting, and certain pre-transport 
requirements, such as packaging, labeling, and preparing a hazardous 
waste manifest to accompany the waste. Generators must also notify EPA 
of their hazardous waste management activity, and obtain an EPA 
identification (ID) number. Likewise, hazardous waste transporters 
(e.g., persons transporting waste, including over the highway or by 
rail) have certain requirements in 40 CFR part 263, to ensure that the 
hazardous wastes are properly transported to a hazardous waste 
treatment, storage, or disposal facility. These transporter 
requirements include notifying EPA and obtaining an EPA ID number, 
recordkeeping, and compliance with the hazardous waste manifest. EPA 
notes that under the RCRA subtitle C regulations, a hazardous waste 
manifest is not required for hazardous wastes sent off-site via 
pipeline.\29\
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    \28\ The generator regulations in 40 CFR part 262 provide for 
limited, temporary on-site hazardous waste storage (accumulation) 
without a RCRA permit or being subject to the interim status 
standards, provided certain conditions are met (see Sec.  262.34). 
While generators are not required to send hazardous waste off-site 
for disposal, they often do so because they do not wish to engage in 
RCRA-permitted hazardous waste activity on-site.
    \29\ This is because use of the hazardous waste manifest is 
triggered by the transport of hazardous waste (see discussion in 
Section IV.B.2. in this preamble, including Footnote 41).
---------------------------------------------------------------------------

    For CO2 streams that are captured, compressed, and 
transported to a UIC Class VI well, EPA believes that the full set of 
subtitle C generator and transporter requirements are not necessary, 
because they do not provide any additional protection over existing 
regulatory requirements. Regarding the generator requirements, EPA 
believes that the process of capturing and compressing CO2 
prior to delivery to a UIC Class VI facility via a pipeline, as the 
Agency understands it, will not involve storage at the generator 
facility (i.e., at the CO2 source), but rather will occur in 
a continuous fashion (capture process [rarr] compression/dehydration 
[rarr] pipeline insertion). Once in the pipeline, EPA believes the 
applicable DOT requirements (which apply to supercritical 
CO2 streams regardless of whether or not these materials 
meet the definition of hazardous waste) will ensure that CO2 
streams are managed in a manner that addresses the potential risks to 
human health and the environment that these materials may pose, prior 
to arrival at a Class VI injection well facility.
1. CO2 Streams Generated at Capture Sites
    While certain technologies for removing (capturing) CO2 
have been in use commercially for over 60 years (e.g., natural gas 
processing, production of food-grade CO2), research has been 
underway to develop more cost-effective technologies to capture 
CO2 for purposes of CCS. Regardless of the capture 
technology that is ultimately implemented, information currently 
available to EPA indicates that once the CO2 stream is 
captured at the source (e.g., coal-fired power plant), it will be 
dehydrated (to meet pipeline specifications preventing corrosion) and 
compressed (to match designated pipeline pressures) in preparation for 
transport, primarily via CO2 pipeline.30 31
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    \30\ DOE/NETL's Carbon Capture R&D Program for Existing Coal-
Fired Power Plants, DOE/NETL-2009-1356, February 2009.
    \31\ Figueroa, Jose D. et al., 2008. Advances in CO2 
capture technology--the U.S. Department of Energy's Carbon 
Sequestration Program, International Journal of Greenhouse Gas 
Control 2, 2008 (9-20).
---------------------------------------------------------------------------

    However, evaluating in more detail how CO2 streams will 
be managed at the CO2 source prior to GS in a UIC Class VI 
facility, and what regulations or other standards might apply to these 
activities in lieu of the RCRA generator standards, has proven somewhat 
difficult based on a review of the literature. This is either because 
many of the newer capture technologies are still in the developmental 
stages, or because the more established capture technologies used in 
commercial CO2 capture have not yet been scaled up to large 
facilities, such as coal-fired power plants. Nonetheless, EPA attempted 
to assess how captured CO2 streams would be managed in the 
context of the RCRA generator requirements identified above (e.g., EPA 
notification, standards for tanks or containers, time limits for on-
site storage, recordkeeping and reporting, packaging, labeling, 
manifesting, etc.).
    First, it is unclear from existing information sources whether 
captured CO2 has been or will be stored at the generator 
site prior to insertion into a pipeline, so EPA examined the 
feasibility of storing captured CO2 streams at the source, 
since storage is a hazardous waste management activity of concern at 
RCRA generator sites generally.\32\ EPA looked at estimates of 
CO2 capture rates both in the CCS projects currently 
underway, as well as future scenarios where CO2 capture is 
deployed at full scale. A review of commercially-available 
CO2 capture facilities in 2009 identified 17 facilities, 
with CO2 capture rates ranging from 50,000 metric tons/year 
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.
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    \32\ The 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.
    \33\ CCS Task Force Study, August, 2010, Appendix A.
    \34\ Carbon Dioxide Capture and Storage. Intergovernmental Panel 
on Climate Change (IPCC), 2005, p. 61.
---------------------------------------------------------------------------

    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,

[[Page 48082]]

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\
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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.
    \36\ EPA 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.
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    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 
Sec.  98.3(g) and Sec.  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 off-site 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 on-site, 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 non-
pipeline, 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.
---------------------------------------------------------------------------

    \37\ CRS Report for Congress. Carbon Dioxide (CO2) 
Pipelines for Carbon Sequestration: Emerging Policy Issues. Paul W. 
Parfomak and Peter Folger. January 17, 2008.
    \38\ CRS Report for Congress. Regulation of Carbon Dioxide 
(CO2) Sequestration Pipelines: Jurisdictional Issues. 
Adam Vann and Paul W. Parfomak. April 15, 2008.
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    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.
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    \39\ The pipeline transportation of carbon dioxide and hazardous 
liquids are both regulated under the same regulatory framework. 
``Hazardous liquids,'' for purposes of 49 CFR part 195, are defined 
by DOT as petroleum, petroleum products, and anhydrous ammonia, and 
are not the subject of this proposed rule. 49 CFR 195.2.
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    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 Sec.  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

[[Page 48083]]

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.
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    \40\ HCAs include populated areas, and other areas particularly 
vulnerable to pipeline releases, such as drinking water resources or 
certain ecologically-sensitive areas. 49 CFR 195.450.
---------------------------------------------------------------------------

    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\
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    \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.
    \42\ Memorandum to Docket EPA-HQ-RCRA-2010-0695, Personal 
Communication with Vince Holohan, PHMSA, U.S. DOT.
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    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 non-
DOT 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.
---------------------------------------------------------------------------

    \43\ Apps, J.A., A Review of Hazardous Chemical Species 
Associate with CO2 Capture from Coal-Fired Power Plants 
and Their Potential Fate in CO2 Geologic Storage, 
Lawrence Berkeley National Laboratory, March 2006.

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[[Page 48084]]

    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 Sec.  
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\
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    \44\ For 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).
---------------------------------------------------------------------------

    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:
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    \45\ EPA 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.
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    [cir] 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.
    [cir] 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

[[Page 48085]]

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.
    [cir] 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.
    [cir] 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.
    [cir] 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.
    [cir] 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.
    [cir] 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

[[Page 48086]]

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 conditionally-excluded 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 Sec.  
270.11(a)(1)(i), or, plant managers for facilities over a certain size 
as defined in Sec.  270.11(a)(1)(ii); by a general partner or 
proprietor (for general partnerships or sole proprietorships, 
respectively) as specified in Sec.  270.11(a)(2); or, for public 
agencies, the chief executive officer, or certain other senior officers 
of that agency, as defined in Sec.  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

[[Page 48087]]

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.
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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.
    \47\ Under 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.
---------------------------------------------------------------------------

    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.
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    \48\ The 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.
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    EPA notes that it is requesting comment on whether persons engaged 
in the movement of conditionally-excluded CO2 streams, 
including transporters, as well as pipeline owners or operators, should 
certify that they meet the conditions of today's proposed conditional 
exclusion. 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

[[Page 48088]]

managed) a hazardous waste. Moreover, imminent and substantial 
endangerment provisions under Sec.  7003 of RCRA will continue to apply 
to conditionally-excluded CO2 streams as a safeguard in the 
unlikely event of a release which could pose a health or environmental 
threat. This is true even if the CO2 stream does not 
otherwise meet the regulatory definition of hazardous waste.\49\
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    \49\ EPA also notes that existing obligations to address 
corrective action at RCRA treatment, storage, and disposal 
facilities would not be affected by this proposed rule. In addition, 
today's proposed conditional exemption would not preclude RCRA 
corrective action requirements from applying to a Class VI UIC 
facility if the facility were to engage in the management of 
hazardous waste that would require a RCRA permit (e.g., if the 
conditions of today's proposed exemption were not met and the 
previously exempt CO2 streams were no longer exempt; or, 
if other hazardous wastes were treated, stored, or disposed of at 
the facility).
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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 Sec.  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 non-hazardous 
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

[[Page 48089]]

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.
---------------------------------------------------------------------------

    \50\ EPA 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.
---------------------------------------------------------------------------

    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 
characteristically-hazardous CO2 streams are being 
transported through that state.\52\
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    \51\ Some 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).
    \52\ As 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.
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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\
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    \53\ This 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \54\ EPA 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.
---------------------------------------------------------------------------

    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

[[Page 48090]]

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.
---------------------------------------------------------------------------

    \56\ We 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \57\ The 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.
---------------------------------------------------------------------------

    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.
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    \58\ Under 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.
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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\
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    \59\ See Section III of this preamble for a discussion of other 
recent EPA rules related to this strategy.
---------------------------------------------------------------------------

    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

[[Page 48091]]

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.
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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).
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    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.

[[Page 48092]]

    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:

Sec.  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:

Sec.  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.

[[Page 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
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