[Federal Register Volume 79, Number 2 (Friday, January 3, 2014)]
[Rules and Regulations]
[Pages 350-364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31246]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 260 and 261
[EPA-HQ-RCRA-2010-0695; FRL-9904-84-OSWER]
RIN 2050-AG60
Hazardous Waste Management System: Conditional Exclusion for
Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency)
is revising 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
Underground Injection Control (UIC) Class VI 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, when meeting certain conditions, does not
present a
[[Page 351]]
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: This final rule is effective on March 4, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-RCRA-2010-0695. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, such as Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically at www.regulations.gov or in hard copy at the OSWER
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 OSWER Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: Melissa Kaps, Office of Resource
Conservation and Recovery (5304P), Environmental Protection Agency,
1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number:
703-308-6787; fax number: 703-308-0514; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
A. Does this action apply to me?
This final rule applies 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.
Preamble Outline
I. Statutory Authority
II. Abbreviations, Acronyms, and Definitions
A. Abbreviations and Acronyms
B. Definitions Used in This Preamble
III. Proposed Rule
A. Summary of Proposed Rule
B. Authority for Conditional Exclusion From RCRA Subtitle C
Requirements
IV. Changes to the Proposed Rule
V. Summary of Comments and Responses to Major Comments
A. Definition of Solid Waste
B. Definition of Hazardous Waste
C. Justification for Conditional Exclusion
D. Certification Statement
E. On-Site Pipelines
F. Definition of Carbon Dioxide Stream
G. Adaptive Approach
VI. State Authorization
A. Applicability of the Rule in Authorized States
B. Effect on State Authorization
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 Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Statutory Authority
These regulations are promulgated 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/EGR Enhanced Oil or 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. Proposed Rule
A. Summary of Proposed Rule
On August 8, 2011, EPA published a proposed rule that would
conditionally exclude from the definition of hazardous waste certain
carbon dioxide (CO2) streams that are to be injected into
Underground Injection Control (UIC) Class VI wells for purposes of
geologic sequestration (GS). 76 FR 48073. The proposed rule was based
upon EPA's determination that the management of these CO2
streams in accordance with the proposed conditions would provide no
reduced protection to human health
[[Page 352]]
and the environment, and, therefore, additional regulation pursuant to
the Resource Conservation and Recovery Act's (RCRA) hazardous waste
regulations would be unnecessary.
Specifically, EPA proposed to amend 40 CFR 261.4 by adding an
exclusion from the definition of hazardous waste for CO2
streams that would otherwise be regulated as hazardous waste under RCRA
subtitle C that met all of the following conditions: (1) Transportation
of the CO2 stream must be in compliance with applicable
Department of Transportation (DOT) requirements; (2) injection of the
CO2 stream must be in compliance with the applicable
requirements for UIC Class VI wells; (3) no other hazardous wastes may
be mixed with, or otherwise co-injected with, the CO2
stream; and (4) generators and UIC Class VI well owners or operators
claiming the exclusion must sign a certification statement that the
conditions of the exclusion were met. The proposed rule also would have
required retention of the signed certification on-site for no less than
three years, and required the certification be made available within 72
hours of request by the Regional Administrator (or state Director, if
located in an authorized state).
EPA proposed this rule because the Agency expected that this
amendment to the RCRA hazardous waste rules would substantially reduce
the uncertainty associated with defining and managing these
CO2 streams under RCRA subtitle C and also would facilitate
the deployment of GS by providing additional regulatory certainty.
Several other Agency activities are related to carbon capture and
storage (CCS), including an EPA final rule that created a new class of
injection wells (Class VI) for GS of CO2 under the Safe
Drinking Water Act (SDWA) UIC Program. December 10, 2010 (75 FR 77230).
During the development of that UIC Class VI final rule, EPA was made
aware that the participants in the CCS industry were asking for
clarification on how the RCRA hazardous waste requirements apply to
CO2 streams that are geologically sequestered.
In addition, in February 2010, President Obama created the
Interagency Task Force on Carbon Capture and Storage to develop a
comprehensive and coordinated federal strategy to speed the commercial
development and deployment of clean coal technologies. The task force
consisted of 14 executive departments and federal agencies, and it was
co-chaired by EPA and the U.S. Department of Energy. On August 12,
2010, the task force delivered a series of recommendations to the
President on overcoming the barriers to the widespread, cost-effective
deployment of CCS within 10 years. One of those recommendations was
that EPA address RCRA applicability to CO2 that is captured
from an emission source for purposes of sequestration.\1\
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\1\ Report of the Interagency Task Force on Carbon Capture and
Storage, August 2010, p. 12.
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GS is the process of injecting 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
permanently. GS is a key component of CCS, which is a set of climate
change mitigation technologies. 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 as a supercritical fluid \2\) to an on-site or off-site
location, where it is then injected underground for purposes of
sequestration.\3\ Additional background information on the GS of
CO2 streams can be found in the August 8, 2011 proposed
rule, as well as in the UIC Class VI final rule and record for that
rule published on December 10, 2010 (75 FR 77230).
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\2\ Ibid., p. 61.
\3\ Carbon Dioxide Capture and Storage. Intergovenrmental Panel
on Climate Change (IPCC), 2005, p. 3.
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In developing the August 8, 2011 proposed rule, EPA looked at how
CO2 is captured, transported, and injected in CCS
activities. For CO2 capture, transport, and injection, EPA
reviewed and compared regulations and requirements from other statutes
and programs (e.g., DOT, SDWA) which might apply to each of these
activities if the CO2 stream is also regulated as hazardous
waste. The Agency considered how these existing regulations and
requirements control releases of hazardous constituents that might be
present in the CO2 streams.
First, regarding the generator requirements, EPA reviewed the
subtitle C regulatory requirements applicable to RCRA generators,
including requirements for tanks and containers and recordkeeping and
reporting, among others. EPA also reviewed the available information on
CO2 capture processes and estimates of CO2
capture rates. EPA concluded that, because of the large volumes of
CO2 projected to be captured, on-site storage of
CO2 in pressure vessels was unlikely. Rather, EPA stated its
expectation that the process of capturing and compressing
CO2 prior to delivery to a UIC Class VI facility, which
would likely occur via a pipeline 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). Because there would not be any
substantive \4\ RCRA subtitle C generator requirements applicable to
such a continuous delivery scenario, the regulation of the movement of
captured CO2 streams from the point of capture to either an
on-site UIC Class VI well or to an off-site DOT-regulated pipeline,
would not be significantly different under the presence or absence of
the conditional exclusion. EPA also stated its view that other programs
provided equivalent notice and reporting requirements to the RCRA
requirements. Thus, EPA concluded that additional regulation pursuant
to RCRA subtitle C would not provide additional protections over
existing regulatory requirements for generators of CO2
streams.
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\4\ ``Substantive'' was used to describe requirements directly
related to storage, transportation, treatment, or disposal and not
notification or biennial reporting.
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Second, with respect to transportation, EPA examined existing
requirements for pipeline and non-pipeline transportation. In the
preamble to the proposed rule, EPA specifically discussed the DOT's
Pipeline and Hazardous Materials Safety Administration (PHMSA)
requirements in 49 CFR Part 195, which apply to pipeline facilities
used for transporting hazardous liquids or supercritical
CO2. EPA's review indicated that DOT's regulations addressed
risks posed by pipelines in a way that is consistent with RCRA's goal
of preventing releases in order to protect human health and the
environment. EPA concluded that 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. Therefore, EPA concluded that RCRA offers no additional
protection, and did not propose any specific conditions beyond that of
compliance with applicable DOT regulations. EPA assessed the DOT
hazardous materials regulations applicable to non-pipeline
transportation and reached similar conclusions. EPA also addressed
issues surrounding on-site pipelines that may not be regulated by DOT
pipelines and
[[Page 353]]
the lack of a manifest under the proposed conditional exclusion. See 76
FR 48083, August 8, 2011.
Third, EPA discussed the UIC Class VI injection well requirements,
which are specifically designed to ensure that the CO2 (and
any incidental associated substances derived from the source materials
and the capture process) will be isolated within the injection zone.
EPA concluded that the elimination of exposure routes through these
requirements, which are implemented through a SDWA UIC permit, will
ensure protection of human health and the environment such that RCRA
subtitle C regulation would be duplicative and unnecessary.
In addition, to further ensure protection of human health and the
environment, EPA proposed to limit the scope of the exclusion by
including a condition that no other hazardous waste can be mixed with,
or otherwise co-injected with, the CO2 streams. Thus, if
hazardous waste is mixed with the CO2 stream, that stream
would not be eligible for the conditional exclusion under the proposed
rule. Rather, 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.
B. Authority for Conditional Exclusion From RCRA Subtitle C
Requirements
As explained in the proposed rule, RCRA provides EPA with authority
to issue conditional exclusions from the hazardous waste regulations.
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). The final rule 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 under
RCRA. 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 under
RCRA 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
[[Page 354]]
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 finalizing 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).
IV. Changes to the Proposed Rule
EPA is finalizing the conditional exclusion largely as proposed on
August 8, 2011, with some revisions. The following is a summary of the
changes to the proposed rule.
EPA slightly modified the regulatory language for the condition
that the CO2 stream be transported in compliance with
applicable DOT requirements (see Sec. 261.4(h)(1) in today's final
rule), by adding reference to state pipeline regulations that may be
applicable (in lieu of the DOT regulations) in certain situations.
Several commenters had noted that in cases where CO2
pipelines start and stop within the same state (i.e., intrastate
pipelines), these pipelines would be regulated by the state rather than
by DOT. EPA consulted with DOT and confirmed that with respect to the
DOT regulations in 49 CFR part 195 (which apply to pipeline facilities
used in the transportation of hazardous liquids or supercritical
CO2), while some states have adopted regulations that apply
to the transportation of supercritical CO2 and are certified
by DOT to directly regulate these intrastate pipelines, many states do
not have such a certification, and DOT remains the direct regulator of
both interstate and intrastate pipelines in those states. EPA notes
that state pipeline regulations are required to be at least as
stringent as the federal DOT requirements; therefore, compliance with
either the applicable DOT regulations or the applicable certified state
regulations has the same effect under the proposed conditional
exclusion. Because the proposed condition at Sec. 261.4(h)(1) only
referred to compliance with applicable DOT regulations, EPA decided to
modify the wording of the condition to add language that also refers to
compliance with ``pipeline safety regulations adopted and administered
by a state authority pursuant to a certification under 49 U.S.C. Sec.
60105'' to reflect situations where a pipeline facility must comply
with state, rather than federal, regulation. Again, EPA is making this
change in order to more accurately describe how pipeline facilities are
already regulated under applicable pipeline regulations (be they State
or Federal). EPA also made a conforming change to the related
certification language so as to mirror the revised condition in Sec.
261.4(h)(1).
The proposed exclusion required generators and UIC Class VI well
owners or operators who claim the conditional exclusion to sign a
certification statement that the conditions of the exclusion were met.
EPA had proposed specific language for the certification statement. In
today's final rule, the certification statement has been revised so
that there are now two separate certification statements--one for
CO2 stream generators and another for UIC Class VI well
owners or operators. This change was in response to commenters who were
concerned about persons certifying to circumstances outside of their
control. Under the final rule, the certification statement that the
generator would sign is specific to the activities within the
generator's control; likewise, the certification statement that the UIC
Class VI well owner or operator would sign is specific to the
activities within the owner or operator's control.
These revisions do not change how the conditional exclusion is
implemented under today's final rule. A CO2 stream must meet
all the conditions to qualify for and maintain the exclusion from the
hazardous waste regulations, and a violation of a condition at any
point in the management of a CO2 stream (that is otherwise
hazardous) would result in that CO2 stream being subject to
all applicable subtitle C regulatory requirements, from the point of
generation.
Furthermore, the final rule now requires that the signed
certification statement must be readily accessible on the facility's
publicly-available Web site, if such Web site exists, to serve as a
public notification, in addition to being kept on-site for no less than
three years. For further discussion on the changes to the certification
statement, see section V.D. of this preamble.
V. Summary of Comments and Responses to Major Comments
In response to the proposed rule, EPA received 29 distinct
comments. The commenters represented a variety of organizations,
including electric utilities, energy companies, the oil and gas
industry, environmental groups, two states, and the public.
Nearly all commenters supported EPA's decision to clarify the
regulatory scheme applicable to CO2 management for CCS. Many
commenters generally supported EPA's proposed conditional exclusion.
Other commenters stated that a conditional exclusion is not necessary
because the CO2 streams are not subject to RCRA regulation,
but suggested certain changes be made should EPA proceed with a
conditional exclusion. Below is a detailed discussion of the major
comments received, as well as EPA's response to those comments. EPA
also notes that a more comprehensive response to comment document was
prepared and placed in the docket associated with today's final rule.
A. Definition of Solid Waste
In the proposed rule, EPA stated that a supercritical
CO2 stream injected into a permitted UIC Class VI well for
purposes of GS is a RCRA solid waste, because it is a ``discarded
material'' within the plain meaning of the term in RCRA Sec. 1004(27).
That is, a supercritical CO2 stream is a solid waste when it
is to be discarded through abandonment by disposing of the material in
a UIC Class VI well (see 40 CFR 261.2(a)(2)(i) and (b)(1)). While some
commenters agreed that EPA correctly identified supercritical
CO2 injected into a Class VI well for GS as a solid waste, a
number of commenters disagreed, stating that supercritical
CO2 streams that are to be injected into a UIC Class VI well
are not a solid waste, and therefore cannot be a hazardous waste. These
commenters generally supported excluding supercritical CO2
streams from RCRA regulation, but stated that these streams were
already excluded. Commenters presented several reasons for this.
Some commenters argued that CO2 is not a contained gas
and, therefore, does not meet the RCRA statutory definition of solid
waste. Some commenters also noted that CO2 is a commodity
that has commercial/beneficial uses, including use in enhanced oil or
gas recovery (EOR/EGR) and manufacturing operations and, therefore,
argued that it should not be classified as a waste. In fact, one
commenter noted that storage (as in Carbon Capture and Storage) implies
possible future use. Still other
[[Page 355]]
commenters cited dictionary definitions of the terms used in EPA
regulations, concluding that CO2 sent to Class VI facilities
is not discarded, abandoned, or recycled.
EPA disagrees that CO2 streams sent to UIC Class VI
wells for purposes of GS are not solid waste. As was stated in the
preamble to the proposed rule, GS is an option to reduce CO2
emissions to the atmosphere by injecting the CO2 streams
into deep subsurface geologic formations, with the express purpose of
isolating the CO2 so that it does not return to the
atmosphere. August 8, 2011 (76 FR at 48075). Therefore, EPA views these
CO2 streams as ``discarded material'' within the plain
meaning of the term in RCRA Sec. 1004(27). The fact that the
sequestration of CO2 streams into deep geologic formations
is at times labeled as ``long-term containment'' or ``long-term
storage'' does not change this view.
In addition, several commenters pointed out that with the exception
of demonstration and related projects, most if not all of the
CO2 that is geologically injected today is used for EOR/EGR,
and in that application, it is purchased and transacted as a valuable
commodity. EPA acknowledges that the underground injection of
CO2 has largely been (and continues to be) for the purpose
of EOR/EGR, and does not disagree that CO2 can and does have
a variety of commercial and manufacturing uses,\5\ but this does not
affect the regulatory status of CO2 streams when they are to
be injected into UIC Class VI wells for the purpose of GS. As EPA noted
in the preamble to the proposed rule, this conditional exclusion is not
intended to affect the regulatory status of CO2 streams that
are injected into wells other than UIC Class VI wells. EPA reiterates
that these issues are beyond the scope of this final rule, and EPA did
not develop information for inclusion in the proposal on well classes
other than UIC Class VI wells. However, in the interest of public
transparency and in light of the several public comments on this issue,
EPA does note that (based on the limited information provided in the
public comments) should CO2 be used for its intended purpose
as it is injected into UIC Class II wells for the purpose of EOR/EGR,
it is EPA's expectation that such an injection process would not
generally be a waste management activity. EPA would encourage persons
to consult with the appropriate regulatory authority to address any
fact-specific questions they may have regarding the status of
CO2 in situations that are beyond the scope of this final
rule.
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\5\ For example, urea yield boosting, enhanced oil recovery,
food processing and packaging, beverage carbonation, wine making.
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As stated above, some commenters said that these CO2
streams are not ``contained gases'' and therefore are not solid wastes
under the RCRA statutory definition of solid waste.\6\ More
specifically, these commenters argued that these carbon dioxide streams
are ``uncontained gases'' and as such were statutorily excluded from
RCRA by Congress, while others said that Congress ``never envisioned
regulation'' of a gas such as CO2 under RCRA. As EPA noted
in the proposed rule, the CO2 streams are delivered by
pipeline and injected into UIC Class VI wells for GS in a supercritical
state, which EPA stated at proposal was ``. . . rather unique in that
it has properties intermediate between a liquid and a gas.'' 76 FR at
48078. The scientific term used to describe or define this
supercritical state (i.e., when a substance is at or above its critical
temperature and critical pressure) is as a ``supercritical fluid.''
7 8 The RCRA statutory definition of solid waste
specifically refers to ``other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from
community activities . . .'' While EPA has indeed interpreted the
meaning of specific terms listed, including ``contained gaseous
material,'' the RCRA definition of solid waste encompasses ``other
discarded material'' and does not speak to materials such as
supercritical fluids. Like the listed ``solid, liquid, semisolid, or
contained gaseous material'' specifically referenced, CO2
streams sequestered for purposes of GS are ``other discarded material''
from industrial and commercial operations and, therefore, are of a
similar kind to the other types of wastes specifically referenced by
the definition. They are, therefore, RCRA statutory solid wastes.
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\6\ ``The term ``solid waste'' means 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 resulting
from industrial, commercial, mining, and agricultural operations,
and from community activities, but does not include solid or
dissolved material in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial discharges which
are point sources subject to permits under section 402 of the
Federal Water Pollution Control Act, as amended (86 Stat. 880), or
source, special nuclear, or byproduct material as defined by the
Atomic Energy Act of 1954, as amended (68 Stat. 923).'' [emphasis
added]. RCRA Sec. 1004(27).
\7\ See, for example, the definition of supercritical fluid in
Kirk-Othmer Concise Encylopedia of Chemical Technology, 5th edition.
\8\ Carbon dioxide becomes a supercritical fluid at a
temperature of approximately 31.3 degrees C, and a pressure of 1,070
pounds per square inch (psi).
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B. Definition of Hazardous Waste
Under EPA's existing RCRA subtitle C regulations, generators are
required to determine whether a solid waste exhibits a RCRA
characteristic by testing the waste or applying their knowledge of the
hazard characteristic of a waste, in light of the materials or
processes used. In the proposed rule, EPA discussed the applicability
of the RCRA hazardous waste regulations to supercritical CO2
streams. 76 FR at 48077-78. Specifically, EPA stated that because there
are no hazardous waste listings that apply to the supercritical
CO2 streams being considered here, a CO2 stream
could only be defined as a hazardous waste if it exhibits one or more
of the hazardous waste characteristics as defined in 40 CFR part 261,
subpart C. EPA also discussed issues specifically related to applying
the Toxicity Characteristic (TC) to supercritical CO2
streams and requested comment on the RCRA characterization issue.
Some commenters responded and said that even if these supercritical
CO2 streams were RCRA solid wastes, it should not be assumed
that they are a hazardous waste, and that the very consideration of a
conditional exclusion unnecessarily suggests that these streams could
be hazardous. Many commenters argued that EPA has not demonstrated that
the supercritical CO2 streams would exhibit any of the RCRA
characteristics, and asserted that the supercritical CO2
streams would not exhibit any of the RCRA hazardous waste
characteristics, or that the RCRA characteristic regulations do not
otherwise apply to supercritical CO2 streams. With respect
to the TC specifically, commenters said that there is no record
evidence that sequestered CO2 streams are managed in
municipal solid waste landfills (the waste management scenario EPA
originally considered when establishing the TC) and in fact the
conditional exclusion is premised on the material being managed only in
a UIC Class VI well. Therefore, these commenters argued there is no
basis for applying the TC to sequestered CO2 streams.
EPA appreciates these commenters' concerns regarding the
application of the hazardous waste regulations to supercritical
CO2 streams being sequestered. EPA believes these concerns
exist as a result of the unique circumstances associated with
addressing the applicability of RCRA to CCS at such an early stage in
the
[[Page 356]]
development of CCS. However, it is important to note that EPA did not
set out in this rulemaking to conclude that those supercritical
CO2 streams that are solid wastes would, as a class, exhibit
a RCRA characteristic. Indeed, EPA indicated in the proposed rule that
it could not unequivocally conclude that supercritical CO2
streams will never exhibit any RCRA hazardous waste characteristic and
commenters provided no information to the contrary. Alternatively, EPA
acknowledges that some RCRA hazardous characteristics are unlikely to
apply to a waste composed of >90% CO2, such as ignitability
(i.e., RCRA Waste Code D001). Thus, in light of the early state of data
development in this area, EPA intends to bring additional clarity to
the regulatory regime through this rule, by establishing a conditional
exclusion from the definition of hazardous waste that would apply in
the event a generator determines that its CO2 streams
exhibit a RCRA hazardous characteristic.
EPA notes that it is not required to affirmatively demonstrate, as
part of this rulemaking, that a particular CO2 stream, or a
portion of all CO2 streams, necessarily qualifies as RCRA
hazardous waste. Rather, under the conditional exclusion concept, EPA
considers whether RCRA subtitle C regulation is necessary to protect
human health and the environment. As explained in today's rule, after
consideration of public comment, EPA has reached the conclusion that
management of CO2 streams under existing standards,
including the UIC requirements for Class VI wells, as well as DOT
standards, will protect human health and the environment from potential
risks associated with CO2 streams (including associated
constituents that might be present). This conclusion is based on EPA's
analysis of those other regulatory programs directly. EPA's analysis
and conclusions are independent of, and thus unaffected by, the
question of whether a stream is classified as a hazardous waste under
EPA's RCRA regulations.
Finally, EPA notes that the conditional exclusion has a limited
effect on the regulated community directly and the exclusion imposes no
affirmative obligations upon them. Generators of non-hazardous waste
CO2 streams are not subject to the RCRA subtitle C
regulations, and they are not obligated to make use of this conditional
exclusion (although they still may choose to do so in situations where,
for example, the generator may be uncertain regarding the hazardous
waste status of the CO2 stream). Moreover, because use of
the conditional exclusion is voluntary, even those generators who
characterize their streams as RCRA hazardous waste may continue to
manage their streams as RCRA hazardous wastes from the point of
generation. The only effect is upon those persons who choose to comply
with the terms of the conditional exclusion.
C. Justification for Conditional Exclusion
In the proposed rule, EPA discussed at length the protections
provided by the UIC Class VI well program and EPA's conclusion that
regulation under RCRA would not provide additional protections to human
health and the environment for CO2 streams injected for
purposes of GS. See 76 FR 48083-86. Two commenters claimed that EPA's
conclusions in this respect were not adequately supported. The
commenters stated that, by including a condition prohibiting the mixing
or co-injection of hazardous waste into the CO2 stream, EPA
was implying that UIC Class I hazardous waste wells are more
appropriate for hazardous wastes and therefore offer greater safeguards
than UIC Class VI wells for hazardous CO2 streams. These
commenters also stated that EPA should offer an analysis on a point-by-
point basis showing that the requirements for UIC Class VI wells are at
least as protective as UIC Class I hazardous waste wells. Finally, the
commenters said that EPA should not conditionally exclude
CO2 streams from subtitle C regulation without a better
understanding of their composition, their potentially hazardous
characteristics in all plausible environments, and without identifying
allowable contaminants and setting limits for their concentration in
these streams.
EPA does not agree that the hazardous waste mixing prohibition
implies that UIC Class VI wells offer lesser safeguards than UIC Class
I hazardous waste wells, for CO2 streams that are the
subject of this conditional exclusion. This conditional exclusion is
limited to a specific, unique waste--CO2 streams that are
hazardous waste themselves (i.e., that exhibit a characteristic of
hazardous waste due to the presence of impurities)--therefore, EPA
needed to make clear that any other type of hazardous waste injection
must continue to occur in UIC Class I hazardous waste wells.
EPA also disagrees that it needs to compare the UIC Class I
hazardous waste and Class VI requirements point-by-point in order to
demonstrate that the requirements for UIC Class VI wells are at least
as protective as UIC Class I hazardous waste wells for CO2
streams. As discussed in Section III.B in this preamble, determining
whether a conditional exclusion is appropriate includes consideration
of whether a waste may not present a hazard because it is already
subject to adequate regulation. In determining whether existing
regulation is adequate, EPA does not necessarily need to show that each
existing requirement has a corresponding analogue in the RCRA subtitle
C regulations. The UIC Class VI requirements are designed to ensure
that the CO2 streams (which may include low concentrations
of hazardous constituents) remain isolated in the injection zone and
confined by confining zones in an appropriate, well-characterized
geologic setting that is continuously monitored to ensure that the
CO2 streams remain in the injection zone. EPA views the
elimination of exposure routes through these requirements as
determinative in its evaluation of whether the RCRA subtitle C
regulatory requirements for hazardous waste disposal provide any
substantial, additional protection for CO2 streams which
exhibit a characteristic of hazardous waste and are disposed in UIC
Class VI wells. Moreover, in some instances, a point-by-point
comparison may not even be appropriate. For example, the UIC Class VI
requirements are designed for the unique characteristics of
CO2, including its large volume and its buoyancy relative to
other fluids in the subsurface, unlike the typical fluids injected into
UIC Class I hazardous waste wells. Finally, EPA also notes that the
commenters, despite their general criticism that EPA did not undertake
a particular enough analysis of the respective regulatory regimes, did
not actually reject EPA's ultimate conclusion that the UIC Class VI
requirements are sufficiently protective, nor did they provide any
evidence of gaps in protection or other deficiencies in the analysis
that only a more particularized analysis would reveal.
Regarding the comment that EPA did not evaluate the ``potentially
hazardous characteristics'' of CO2 streams ``in all
plausible environments,'' EPA notes that the commenters did not
identify the plausible environments to which they were referring. EPA's
response is that the scope of its evaluation of the adequacy of
existing regulatory requirements (and therefore the scope of the
conditional exclusion) is limited to the management of supercritical
CO2 streams from capture at a CO2 source to
injection into a UIC Class VI well.
EPA agrees with the commenter that obtaining more data on the
composition
[[Page 357]]
of CO2 streams that will be injected into UIC Class VI wells
is important, but disagrees that the conditional exclusion should not
be promulgated unless EPA identifies specific contaminants that may be
injected and at what concentrations. As explained above, EPA has
concluded that the injection of CO2 streams, including
incidental associated substances derived from the source materials and
the capture process,\9\ can be performed in a protective manner at a
permitted UIC Class VI well. This is the case regardless of the precise
contaminants, and their concentrations, because the UIC Class VI
permitting requirements will take into account the physical and
chemical characteristics of the CO2 streams before any
injection may occur, as part of establishing the appropriate conditions
for the successful confinement of CO2 in a manner that is
protective of USDWs. EPA therefore has not altered its conclusion that
the conditional exclusion is appropriate, and sees no need to delay
further action on the conditional exemption to gather additional data.
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\9\ EPA reiterates that CO2 streams by definition may
contain ``incidental associated substances derived from the source
materials and the capture process.''
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Nevertheless, EPA emphasizes that the UIC Class VI regulations
themselves require that the chemical composition and physical
characteristics of the CO2 streams be known as part of the
initial permitting process, as well as during operation of the well, in
order to ensure that these CO2 streams can be injected in a
manner that is protective of human health and the environment. EPA
expects that this will provide a full understanding of the properties
of the CO2 streams being injected, including specific
contaminants and their concentrations. As discussed in more detail
below in Section V.G. of this preamble EPA intends to monitor any data
on the chemical composition and physical characteristics of the
CO2 streams being injected by the UIC Class VI permitting
program, and to use that information to determine whether changes to
the conditional exclusion may be appropriate.
D. Certification Statement
One of the conditions for the proposed exclusion was that
generators and UIC Class VI well owners or operators who claim the
exclusion must sign a certification statement that all of the
conditions of the exclusion were met. EPA had proposed specific
language for a certification statement, where the same language would
be used for the generator and the UIC Class VI well owner or operator.
EPA requested comment on the certification statement and, particularly,
on whether it would appropriately ensure compliance with the
conditional exclusion.
While the commenters did not generally have concerns with signing a
certification statement, some commenters were concerned that the
certification as proposed would require signatories to attest to
certain activities that were outside of their control. For example,
several commenters thought it inappropriate for the CO2
generator to have to certify to the injection well's owner or
operator's compliance with the UIC Class VI rules. EPA agrees, and, in
today's final rule, the certification statement has been revised so
that there are now two separate certification statements worded
slightly differently--one for generators and another for UIC Class VI
well owners or operators claiming this exclusion. As revised, the
generator certification statement reads as set forth in 40 CFR
261.4(h)(4)(i), and the UIC Class VI well owner or operator
certification reads as set forth in 40 CFR 261.4(h)(4)(ii).
EPA is making these revisions to better reflect actions over which
each party has control. EPA emphasizes that these revisions do not
change how the conditional exclusion is implemented--that a
CO2 stream that is hazardous must meet all the conditions in
Sec. 261.4(h)(1)-(4) to qualify for and maintain the exclusion from
the hazardous waste regulations. Thus, as discussed in the proposed
rule, a violation of a condition at any point in the management of a
CO2 stream (that is otherwise hazardous) would result in
that CO2 stream being subject to all applicable subtitle C
regulatory requirements from the point of generation. See 76 FR at
48087.
One additional note regarding situations where both the capture and
the injection of CO2 streams is occurring at the same site,
such that the CO2 streams are not being sent off-site either
in a pipeline or via transportation such as by truck. EPA clarifies
that Sec. 261.4(h)(1) requires compliance with DOT (and state
analogue) requirements only as these requirements independently apply
(i.e., ``as applicable''). Thus, EPA would not consider this condition
to have been violated merely because no pipeline or other
transportation were used. Similarly, EPA does not intend for a
generator in this situation to be prevented from signing the
certification statement as drafted, because of the references to
applicable DOT and state regulations.
As proposed, the certification statements would only be required of
generators and UIC Class VI well owners or operators. EPA had requested
comment on whether or not transporters or pipeline owners and operators
also should sign a certification statement. One commenter stated that
this certification would help ensure that pipeline owners and operators
or other transporters do not purposefully mix hazardous wastes into the
CO2 stream. Several other commenters, however, asserted that
this certification was unnecessary because transport through pipelines
or by other means must meet applicable transport requirements for all
materials moved, and therefore, certification that they meet these
requirements only for a specific material (i.e., CO2 to be
sequestered) provides no additional protection and is unnecessary.
EPA agrees with those commenters who said that a certification by
the transporter is not necessary. If EPA were to require such a
certification, consistent with the approach described above, it would
be limited to the conditions within the control of pipeline owners and
operators or other transporters, which is compliance with applicable
DOT requirements and to not mix hazardous waste into the CO2
streams. Regarding compliance with DOT requirements, EPA agrees that if
persons transporting supercritical CO2 must comply with the
applicable transportation requirements for all supercritical
CO2 being moved, it seems unnecessary to require that they
certify compliance with DOT for a specific material (i.e.,
supercritical CO2 streams to be sequestered). In addition,
EPA does not have information, nor did commenters provide any new
information, indicating that CO2 pipeline owners and
operators or other transporters would mix hazardous waste into
CO2 streams being delivered to UIC Class VI facilities.
One commenter pointed out that it is unlikely that these
CO2 streams will be transported other than by pipelines
(except where small quantities are involved in some experimental wells,
which are likely to be food grade CO2 according to this
commenter). As EPA discussed at proposal, PHMSA requires that pipeline
owners and operators ensure that supercritical CO2 streams
be chemically compatible with the pipeline and any commodities in the
pipeline and will not corrode the pipeline and pipeline system. 76 FR
at 48087. EPA expects that pipeline owners and operators engaged in
delivering supercritical CO2 have strong disincentives to
mix any hazardous
[[Page 358]]
waste into their pipeline system, both in order to honor their
contractual arrangement with customers, and also to maintain their
equipment. For these reasons, EPA does not see the need for a
transporter certification, and is not changing its proposed approach
and transporters and pipeline owners and operators will not be required
to sign a certification statement as a condition of the exclusion.
However, EPA will continue to monitor compliance issues going forward
and may revisit this condition as appropriate as part of its adaptive
approach (discussed in Section V.G. in this preamble).
Finally, EPA proposed that the signed certification statement must
be kept on-site for no less than three years and be made available upon
request within 72 hours of a written request from either EPA or the
state. In the proposed rule, EPA discussed how the certification plays
an important role in ensuring that the conditions in the exclusion are
met and its desire to safeguard the efforts of facilities to comply
with the rule by designing a regulatory scheme both enforceable and
structured to ensure compliance. EPA specifically requested comment on
whether any new monitoring, recordkeeping, or reporting requirements
were necessary to ensure compliance with the proposed conditional
exclusion.
EPA received a few diverse comments on this provision. One
commenter stated that requiring the certification to be kept on-site is
not sufficient, citing the fact that the RCRA Enhanced Public
Participation Rule would not apply.\10\ Instead, this commenter
suggested that EPA require the certification to be submitted to the UIC
Program Director and be made publicly available on the regulator's Web
site. Another commenter stated that requiring production within 72
hours was too short and that the certification requirement should
reflect ``modern electronic filing systems where a paper copy may not
be held in a file drawer. Making an electronic document available and
submitting it electronically should both be allowed.''
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\10\ The commenter is referring to regulations promulgated on
December 11, 1995, that improve the process for permitting RCRA
hazardous waste treatment, storage, or disposal facilities by
providing earlier opportunities for public involvement in the
process and expanding public access to information throughout the
permitting process and the operational lives of facilities. 60 FR
63417.
---------------------------------------------------------------------------
In the final rule, EPA has kept the original proposed on-site
retention time of no less than three years for the signed certification
statement, but has added a provision for the statement to be posted
prominently on the signatory's corporate Web site, if such Web site
exists. As EPA made clear in the proposed rule, one of its key concerns
with the certification statement was to ensure compliance with the
terms of the conditional exclusion. Posting the signed certification
statements on-line will promote compliance and accountability by
providing efficient access by regulatory authorities and interested
members of the public (consistent with the intent of the RCRA Enhanced
Public Participation Rule cited by one commenter) to the exclusion
certifications and the identities of the responsible officials.
Moreover, EPA expects that posting the certifications on-line will
simplify the reporting obligation for the regulated community because
accessible internet posting obviates the need for a regulatory agency
to request a hard copy.
EPA notes that it is not requiring the creation of any new
corporate or other Web site. Entities without a Web site thus would not
be required to post their certifications on-line. EPA expects, however,
that most, if not all, affected entities already operate external Web
sites to communicate to the public and, therefore, the posting
requirement will be useful to regulators, the public, and the regulated
community. The public disclosure of information is an increasingly
common and important regulatory tool.\11\ In 2010, the Office of
Management and Budget (OMB) issued guidance with principles to assist
agencies in using information disclosure to achieve regulatory
objectives,\12\ and EPA believes that regulatory information disclosure
can cost-effectively improve compliance and accountability.
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\11\ Cass R. Sunstein, Informational Regulation and
Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613,
613 (1999).
\12\ Memorandum for the Heads of Executive Departments and
Agencies--Disclosure and Simplification as Regulatory Tools (Cass R.
Sunstein, OMB; June 18, 2010). http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclosure_principles.pdf
---------------------------------------------------------------------------
Finally, in today's final rule EPA is not requiring that the signed
certification statement be submitted to the UIC Program Director as
suggested by one commenter. EPA does not believe that an additional
submission requirement will be necessary because the signed
certification statement will in most circumstances be directly
accessible on the injection facility's Web site. EPA also notes that as
part of the process of obtaining a UIC Class VI permit, owners and
operators who plan to claim the conditional exclusion may choose to
submit the certification to the UIC Program Director to provide the
necessary clarity on the status of the CO2 streams under
RCRA.\13\
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\13\ The UIC Program Director may also request certain
information prior to the issuance of a permit for the construction
of a new Class VI well (or the conversion of an existing Class I,
Class II, or Class V well to a Class VI well). 40 CFR 146.82(a)(21).
Additionally, an owner or operator may choose to submit a signed
certification statement in conjunction with other Class VI permit
application information on the chemical and physical characteristics
of the CO2 stream required under 40 CFR 146.82(a)(7), to
inform Class VI permit decisions.
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E. On-Site Pipelines
In the proposed rule, EPA stated that some pipelines used to
transport CO2 might not be subject to the DOT requirements
and requested information on how these pipelines are currently
regulated, including any design and operating standards that apply to
such pipelines. EPA also assumed that, in the typical case, captured
CO2 will not be stored at the generator facility but would
be transferred in a continuous manner either to an on-site or off-site
UIC Class VI well. While EPA did not propose to apply RCRA subtitle C
requirements to these pipelines as a condition of the proposed
exclusion, it did request comment on the appropriateness of applying
the RCRA subtitle C standards to these non-DOT regulated pipelines.
Several commenters responded and said that EPA should not apply the
subtitle C requirements to non-DOT regulated pipelines as a condition
of this rule. These commenters referenced the Pressure Piping standards
set by the American Society of Mechanical Engineers (ASME) \14\ and
noted that non-DOT regulated CO2 pipelines on-site are
designed, constructed and maintained in accordance with these
standards.
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\14\ The B31 Code for pressure piping, developed by American
Society of Mechanical Engineers (ASME) covers Power Piping, Fuel Gas
Piping, Process Piping, Pipeline Transportation Systems for Liquid
Hydrocarbons and Other Liquids, Refrigeration Piping and Heat
Transfer Components and Building Services Piping.
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According to ASME, such standards promote safety, reliability,
productivity, and efficiency in industries that rely on engineering
components or equipment. While EPA acknowledges that ASME standards are
not by themselves regulatory requirements,\15\ these standards (e.g.,
ASME B31) are designed to ensure that the piping and associated
[[Page 359]]
equipment meet certain quality and safety criteria. In addition, that
these ASME B31 standards have been incorporated by reference in various
federal and state regulatory programs illustrates the high degree of
confidence and acceptance placed on these standards. Ultimately, EPA
did not find a compelling reason to require RCRA subtitle C standards
to on-site piping associated with supercritical CO2 streams.
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\15\ According to ASME, standards are considered voluntary and
serve as guidelines. ASME publishes its standards, accredits users
of standards to ensure that they are capable of manufacturing
products that meet those standards, and provides stamps that
accredited manufacturers place on their products, indicating that a
product was manufactured according to a standard.
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F. Definition of Carbon Dioxide Stream
EPA proposed adding a definition for the term carbon dioxide stream
to the hazardous waste regulations in 40 CFR 260.10. EPA is finalizing
that definition without change: Carbon dioxide 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.'' EPA explained
that the proposed definition was intended to work in concert with the
definition of ``carbon dioxide stream'' in the UIC Class VI regulations
at 40 CFR 146.81(d). EPA also requested comment on the types and
characteristics of substances that are added to CO2 streams
to enable or improve the injection process.
Most commenters agreed with the proposed definition. One commenter
stated the definition as written is critical to ensure that the
conditional exclusion is practicable, as any captured CO2
stream will contain some substances from the source materials and the
capture process. One commenter asked EPA to confirm that ``incidental
associated substances'' means other substances captured together with
the CO2 from a gas stream and that the numerical values
provided in the proposed rule preamble (as estimates of possible
hazardous constituent concentrations in CO2 streams) were
not intended to establish any numerical threshold of ``incidental
associated substances.'' EPA confirms that ``incidental associated
substances derived from the source materials and the capture process''
is intended to refer to those substances that are captured together
with the CO2. EPA also confirms that it did not intend that
the numerical concentrations of hazardous constituents described in the
proposal's discussion of RCRA characterization issues\16\ define what
constitutes ``incidental associated substances'' in the proposed rule
or in today's final conditional exclusion.
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\16\ See 76 FR at 48079.
---------------------------------------------------------------------------
One commenter requested that EPA revise the term ``emission
source'' to make it plural (``sources'') in order to recognize that
CO2 streams can come from more than one source, otherwise
the definition ``. . . could be interpreted as requiring the
CO2 stream to come from a single source to qualify for the
exemption.'' EPA never intended to limit the conditional exclusion to
CO2 streams from a single source but rather believes the
existing language also would include CO2 streams generated
from two or more independently-produced CO2 streams,
provided that the conditions of the exclusion are met for all streams
for which it is being claimed. Thus, we are not making this change.
This same commenter also requested that EPA delete the term
``incidental'' from the proposed definition, arguing that if a
substance qualifies as an ``associated substance derived from the
source materials and the capture process,'' then it should be eligible
for the exclusion regardless of the quantity in which it exists in the
stream. The commenter stated that the word ``incidental'' connotes a
volume limitation, and its use in the definition suggests that if such
``associated substances'' are present at sufficient volume, then they
will no longer qualify as being ``incidental,'' resulting in
elimination of the exclusion.
EPA disagrees with the suggestion that ``incidental'' be deleted.
In order to provide the regulatory clarity sought through this rule, it
is critical that there be a consistent definition of carbon dioxide
stream in both today's final rule and the UIC Class VI final rule. This
consistent definition is important because the applicability of the UIC
Class VI requirements and the applicability of the conditional
exclusion are linked in instances where the exclusion is being claimed.
EPA is concerned that employing different definitions will result in
confusion as to which streams are subject to both rules. In any event,
EPA finds it unlikely that the applicability of the conditional
exclusion will turn on how `incidental' is interpreted; that is, in any
instance where it has been determined that a ``carbon dioxide stream''
(as defined in either rule) can be safely and legally injected into a
UIC Class VI well, the conditional exclusion is applicable, provided
the other specified conditions are met.
EPA also requested comment on the types and characteristics of
substances that are added to CO2 streams to enable or
improve the injection process. One commenter stated that, at their GS
injection site, they do not add any substances to improve the
injectivity of the CO2 stream. Another commenter said that
it may be necessary to add substances to the CO2 streams to
improve injectivity, including substances to reduce viscosity, inhibit
reactions with brine or formation rocks, or otherwise improve
permeability. While this commenter did not provide information on what
these substances might include, EPA emphasizes that any addition of
substances to CO2 streams to enable or improve the injection
process would be occurring as part of the UIC Class VI permitted
activity (subject to that program's oversight) and thus ultimately
implemented in a manner to prevent the endangerment of Underground
Sources of Drinking Water.
G. Adaptive Approach
EPA did not receive any significant comments on the adaptive
approach, and no commenters disagreed with this approach; however, we
believe it is important to reiterate what was presented in the preamble
to the proposed rule, which was that after the conditional exclusion is
promulgated any new information would be reviewed and used to inform
whether changes should be made to the conditional exclusion, which
could require additional rulemaking. August 8, 2011 (76 FR at 48088).
This approach is consistent with the approach EPA described for
considering changes to the UIC Class VI final rule, in order to
incorporate new research, data, and information about GS and associated
technologies. See December 10, 2010 Federal Register (75 FR at 77240-
41, 77243, and 77257).
One example of where EPA has acknowledged it plans to consider new
information that may have relevance to the overall protectiveness and/
or implementation of this conditional exclusion is related to the
composition of CO2 streams. As described in Section V.C. of
this preamble, one commenter cited EPA's lack of information on the
nature of CO2 streams as a concern, and EPA has stated that
it intends to look at data generated on the chemical and physical
characteristics of the CO2 streams that are to be injected
into UIC Class VI wells, to inform its consideration of whether changes
should be made to the conditional exclusion.
Another commenter expressed concern that the conditional exclusion
may actually create uncertainty, rather than reduce it, and that any
exclusion ``. . . needs to address carbon dioxide
[[Page 360]]
streams for the full range of scenarios under which the uses of
captured anthropogenic carbon dioxide streams are likely to occur.''
This commenter stated that EPA should not assume that the producer of
CO2 streams will always send their CO2 streams
through a dedicated pipeline to a single UIC Class VI well for geologic
sequestration, and requested that EPA explain how the conditional
exclusion would be implemented under a variety of hypothetical
situations, involving CO2 streams from anthropogenic and
natural sources that may be co-mingled in the same CO2
pipeline, for delivery either to one or more UIC Class II wells (for
EOR), UIC Class VI wells (for GS), or to both types of wells.
EPA appreciates the commenter's request, and notes that currently
there is a lack of sufficient information to inform the agency on how
to best address the ``full range of scenarios'' presented by the
commenter because many of such scenarios are still under development.
EPA notes that the purpose of developing this final rule was to provide
for the option of a conditional hazardous waste exclusion that could be
used, where necessary,\17\ to provide clarity as to the applicability
of RCRA subtitle C, and in particular with respect to removing barriers
to initiating near-term CCS projects.\18\
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\17\ EPA also notes that this conditional exclusion is
voluntary, and regulated parties are not obligated to make use of
this conditional exclusion. For example, generators of non-hazardous
waste CO2 streams are not subject to the RCRA subtitle C
regulations, and they are not obligated to make use of this
conditional exclusion.
\18\ See Executive Summary, Report of the Interagency Task Force
on Carbon Capture and Storage, August 2010.
---------------------------------------------------------------------------
These examples illustrate why EPA is committed to an adaptive
approach on CCS generally, so that the Agency may identify and address
additional information and respond, including via rulemaking, should
that be necessary. EPA emphasizes that the adaptive approach is not
limited to the examples cited above, and where additional information
may increase protectiveness, streamline implementation, or otherwise
inform the requirements for GS injection of CO2, EPA may
need to evaluate whether changes are necessary. Thus, the Agency
commits to reviewing, in a manner similar to the adaptive approach
planned for the UIC Class VI rule, new research, data, and information
related to today's conditional exclusion.
VI. 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
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 promulgated pursuant to non-
HSWA authority, and would eliminate the hazardous waste requirements
for those CO2 streams that would otherwise meet the RCRA
definition of hazardous waste, when these streams are managed in
accordance with certain conditions. Therefore, this exclusion is less
stringent than the federal program, and states are not required to
adopt this provision.\19\ 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.
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\19\ 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, the conditional exclusion 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).
---------------------------------------------------------------------------
EPA notes that 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 (where
applicable) \20\ if characteristically-hazardous CO2 streams
are being transported through that state. EPA recommends in situations
where the conditional exclusion is being asserted, involving one or
more states that have not yet adopted this rule, that persons engaged
in the transaction consult with these states to ensure no additional
requirements apply.
---------------------------------------------------------------------------
\20\ As discussed in the proposed rule (see 76 FR at 48083), 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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[[Page 361]]
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 12866 (58 FR 51735, October 4, 1993), this
action 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 a revised analysis of the potential cost
impacts associated with the final rule. This revised analysis is
presented in the following support document: Assessment of the
Potential Costs, Benefits, and Other Impacts--Hazardous Waste
Management System: Conditional Exclusion for Carbon Dioxide
(CO2) Streams in Geologic Sequestration Activities: Final
Rule (Assessment document). A copy of this document is available in the
docket for today's action. The findings from this analysis are briefly
summarized below.
Entities that may be directly affected by the final rule include
CO2 generators and sequestration facilities that have UIC
Class VI wells. These entities are likely to experience net cost
savings as a result of the rule. Entities transporting the
CO2 stream that would otherwise be hazardous under subtitle
C of RCRA must continue to meet the baseline DOT requirements and are
expected to experience no increased costs, or cost savings. Increased
costs associated with the review of selected CO2 exclusion
certification statements are expected for EPA and state governments.
Our revised analysis for the final rule incorporates modified
estimates regarding the high-end number of potentially affected
facilities and the percent of CO2 streams that may be RCRA
hazardous.\21\ Market dynamics affecting the capture, compression, and
sequestration of CO2 streams have changed since the Agency
prepared the Assessment document for the proposed action. The total
number of CO2 capture facilities potentially affected by the
final rule remains uncertain. However, based upon current market
conditions and the existing regulatory framework (i.e., lack of Federal
legislation), it appears unlikely that there would be any significant
expansion in CCS management for CO2 over the next several
years. As a result, we have made a downward revision to our high-end
estimate of the number of facilities potentially affected by the final
rule. The preamble to the proposed rule discussed the Agency's high
level of uncertainty regarding the percent of CO2 streams
that may be characterized as RCRA subtitle C hazardous waste. Available
information at the time indicated that it was possible that some
CO2 streams might meet the definition of hazardous waste,
but the Agency considered this information to be insufficient to make a
justifiable point estimate or reasonable range. Reflecting this
uncertainty, we applied a broad range of 10 percent to 90 percent for
CO2 streams that may be RCRA hazardous waste. The proposed
rule requested that commenters provide characterization data relevant
to whether CO2 streams meet the definition of RCRA hazardous
waste and indicated that the Agency would continue to research and
assess this issue. In response to our request, EPA received no new
information or data that would indicate what percentage of captured
CO2 streams would be defined as a RCRA hazardous waste.
Therefore, there remains a degree of uncertainty as to what percentage
of CO2 streams might be defined as a RCRA hazardous waste.
However, within this uncertainty, EPA has considered all available
information and now believes that the high-end estimate of 90 percent
is likely to be a significant overestimate. Therefore, in an effort to
present a more realistic and conservative estimate of cost savings, we
are dropping the high-end 90 percent hazardous waste scenario for our
final rule Assessment.
---------------------------------------------------------------------------
\21\ For a complete discussion of these changes see:
``Assessment of the Potential Costs, Benefits, and Other Impacts--
Hazardous Waste Management System: Conditional Exclusion for Carbon
Dioxide (CO2) Streams in Geologic Sequestration
Activities: Final Rule.''
---------------------------------------------------------------------------
Based on these considerations, the final rule is estimated to
result in undiscounted total net cost savings ranging from $4.96
million/year to $7.23 million/year. Applying a 3 percent discount rate,
total net savings were found to range from $4.68 million/year to $6.83
million/year. Application of a 7 percent discount rate resulted in
total net savings ranging from $4.24 million/year to $6.19 million/
year. These figures represent more than an eighty percent reduction
from estimates presented for the proposal. Similar to the proposal,
impacts to sequestration facilities that have UIC Class VI wells
represented less than one half of one percent of the total annualized
net cost savings, in all cases examined. The revised estimates for EPA
and state government annualized costs associated with the review of
selected CO2 exclusion certification statements are
negligible (i.e., < $1,000/year).
These cost savings are expected to occur without any discernible
increase in negative impacts to human health and the environment, as
discussed above.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has preapproved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0207. The EPA ICR number is
2421.04.
This final rule is an important part of the Agency's efforts to
establish a regulatory framework for GS. The certifications included in
the rule (as well as the requirement for posting such certification on
the signatories corporate Web site, if such Web site exists) are
required for entities wishing to take advantage of the flexibility
provided by the conditional exclusion. The certification statements
would be used 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 final rule
requires that the certification be renewed every year, and be posted on
the signatories corporate Web site, if such Web site exists, that the
generator or UIC Class VI well owner/operator claims the RCRA
conditional exclusion, in order to ensure that the certification
remains current. EPA estimates the total annual burden to respondents
(i.e., the private sector and state governments) under the new
paperwork requirements to be 38 hours and $3,765. There are no capital
costs. The annual public reporting and recordkeeping burden for this
collection of information is estimated to average 4.8 hours per
respondent. EPA estimates there to be 7 private entity respondents and
1 state government respondent that will respond once per year. In
addition, EPA estimates an annual burden savings
[[Page 362]]
under the existing paperwork requirements of 103 hours and $8,497. This
results in a net annual savings of 65 hours and $4,733. The bottom-line
burden savings to respondents over three years is estimated to be 195
hours and $14,199. 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. In addition, EPA is
amending the table in 40 CFR part 9 of currently approved OMB control
numbers for various regulations to list the regulatory citations for
the information requirements contained in this final rule.
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
the size standards of the Small Business Administration (SBA), 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 \22\; (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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\22\ 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).
---------------------------------------------------------------------------
After considering the economic impacts of today's final 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 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 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 rule. This rule is
projected to reduce the burden on regulated entities by conditionally
excluding, from the RCRA subtitle C hazardous waste management
requirements, hazardous CO2 streams that are captured,
transported, and injected into UIC Class VI wells and meet certain
other conditions. We, therefore, have concluded that today's rule will
relieve regulatory burden for all affected small entities.
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 exclusion is less stringent than the
current RCRA federal program, and states are not required to adopt it.
Thus, the action imposes no enforceable duties on State, local or
tribal governments. Moreover, private sector regulated entities are not
required to use the conditional exclusion, and may continue to manage
their hazardous CO2 streams in accordance with the full RCRA
hazardous waste regulations. Therefore, this action is not subject to
the requirements of sections 202 or 205 of the UMRA. This action 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.
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. This rule will not impose any
requirements on States, or any other level of government. As explained
above, today's final rule conditionally excludes CO2 streams
that would otherwise be RCRA 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. However, States would not be required to adopt this rule. Thus,
Executive Order 13132 does not apply to this action.
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 final rule. Furthermore, we
have identified no existing CO2 pipelines that cross tribal
lands. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks 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 present a disproportionate
risk to children.
H. Executive Order 13211: Actions Concerning Regulations 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 otherwise would be
RCRA 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.\23\
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\23\ As noted earlier in the preamble, where CO2
streams are beneficially used for EOR/EGR in other than UIC Class VI
wells--even where some sequestration may occur in the process of
recovering oil or gas--these activities are beyond the scope of this
final rule.
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[[Page 363]]
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 action does not involve technical standards. Therefore, EPA
did not consider 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 final 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 would otherwise be RCRA hazardous
from the definition of hazardous waste, where such streams are captured
from emission sources and injected into UIC Class VI wells and meet
other specified conditions. Existing regulations governing the
generation, transportation, and injection of CO2 streams in
UIC Class VI wells are expected to protect human health and the
environment, making additional regulation under RCRA subtitle C
unnecessary. (See Section V.C. in this preamble for further
discussion.)
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective March 4, 2014.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 260
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 261
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
Dated: December 17, 2013.
Gina McCarthy,
Administrator.
For the reasons set out in the preamble, Parts 9, 260 and 261 of
title 40, Chapter I of the Code of Federal Regulations are amended as
follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
0
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
0
2. In Sec. 9.1, add the following section in numerical order under the
undesignated center heading ``Identification and Listing of Hazardous
Waste'' to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
40 CFR citation OMB control No.
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Identification and Listing of Hazardous Waste
------------------------------------------------------------------------
* * * * * * *
261.4(h)(4)............................... 2050-0207
* * * * * * *
------------------------------------------------------------------------
* * * * *
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
3. The authority citation for Part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
Subpart B--Definitions
0
4. Section 260.10 is amended by adding in alphabetical order the
definition of ``Carbon dioxide stream'' to read as follows:
[[Page 364]]
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
0
5. 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
0
6. Section 261.4 is amended by adding 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:
(1) Transportation of the carbon dioxide stream must be in
compliance with U.S. Department of Transportation requirements,
including the pipeline safety laws (49 U.S.C. 60101 et seq.) and
regulations (49 CFR Parts 190-199) of the U.S. Department of
Transportation, and pipeline safety regulations adopted and
administered by a state authority pursuant to a certification under 49
U.S.C. 60105, as applicable.
(2) 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;
(3) No hazardous wastes shall be mixed with, or otherwise co-
injected with, the carbon dioxide stream; and
(4)(i) Any generator of a carbon dioxide stream, who claims that a
carbon dioxide stream is excluded under this paragraph (h), 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) has not been
mixed with hazardous wastes, and I have transported the carbon
dioxide stream in compliance with (or have contracted with a
pipeline operator or transporter to transport the carbon dioxide
stream in compliance with) Department of Transportation
requirements, including the pipeline safety laws (49 U.S.C. 60101 et
seq.) and regulations (49 CFR Parts 190-199) of the U.S. Department
of Transportation, and the pipeline safety regulations adopted and
administered by a state authority pursuant to a certification under
49 U.S.C. 60105, as applicable, for injection into a well subject to
the requirements for the Class VI Underground Injection Control
Program of the Safe Drinking Water Act.
(ii) Any Class VI Underground Injection Control well owner or operator,
who claims that a carbon dioxide stream is excluded under paragraph (h)
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) has not been
mixed with, or otherwise co-injected with, hazardous waste at the
Underground Injection Control (UIC) Class VI permitted facility, and
that injection of the carbon dioxide stream is in compliance with
the applicable requirements for UIC Class VI wells, including the
applicable requirements in 40 CFR Parts 144 and 146.
(iii) The signed certification statement must be kept on-site for no
less than three years, and must be made available within 72 hours of a
written request from the Administrator, Regional Administrator, or
state Director (if located in an authorized state), or their designee.
The signed certification statement must be renewed every year that the
exclusion is claimed, by having an authorized representative (as
defined in 40 CFR 260.10) annually prepare and sign a new copy of the
certification statement within one year of the date of the previous
statement. The signed certification statement must also be readily
accessible on the facility's publicly-available Web site (if such Web
site exists) as a public notification with the title of ``Carbon
Dioxide Stream Certification'' at the time the exclusion is claimed.
[FR Doc. 2013-31246 Filed 1-2-14; 8:45 am]
BILLING CODE 6560-50-P