EPA PLANS TO FINALIZE CO2 EXEMPTION UNDER RCRA EARLY NEXT YEAR

Tamar Hallerman
GHG Monitor
10/26/12

The Environmental Protection Agency is on track to publish a final rule early next year that would exclude geologically sequestered CO2 from its definition of hazardous waste, the agency said. If finalized as initially proposed, the rulemaking would conditionally exclude supercritical CO2 streams injected into Class VI Underground Injection Control (UIC) wells for geologic sequestration from EPA’s definition of hazardous waste under the Resource Conservation and Recovery Act (RCRA), which regulates solid and hazardous wastes. EPA said that CO2 injected into permitted Class VI wells would otherwise be considered a waste, as it fits the definition under RCRA.

When it initially proposed the exemption in August 2011, the agency said that if injected into properly sited geologic storage wells, CO2 would not need to comply with EPA’s hazardous waste laws. “Based on review of existing regulatory programs, EPA’s proposal concludes that the management of CO2 streams under the proposed conditions does not present a substantial risk to people’s health or the environment, provides regulatory certainty to industries considering the use of CCS technologies and encourages the deployment of CCS technologies in a safe and environmentally protective manner,” the agency said in its announcement of the exclusion. EPA said the exclusion would only apply to CO2 streams injected into permitted Class VI wells and not for enhanced oil or gas recovery projects, permitted by EPA under Class II. It said that even with the exclusion, storage site operators must continue to comply with other Safe Drinking Water Act regulations for siting, construction, testing, monitoring and site closure.

EPA Says Exemption Will Remove Deployment Barriers

EPA has said that the exclusion would remove a key regulatory barrier for CCS. “EPA concluded that the management of CO2 streams under the proposed conditions does not present a substantial risk to human health or the environment, and will encourage the deployment of carbon capture and storage technologies in a safe and environmentally protective manner while also ensuring protection of Underground Sources of Drinking Water,” EPA previously said.

Many CCS stakeholders have spoken out in favor of the exclusion. The Illinois State Geological Survey’s Rob Finley, who heads up the Department of Energy’s Midwest Geological Sequestration Consortium that is injecting CO2 into the Mount Simon formation near Decatur, Ill., told GHG Monitor this week that it “makes no sense” to classify captured CO2 as a hazardous waste under RCRA. “We should let carbon storage demonstrations play out under Class VI UIC permitting to best understand carbon storage technology and not add another layer of permitting effort at this time as we try and understand every aspect of subsurface sequestration,” he said, adding that permitting CO2 under RCRA could be a “significant detriment’ to projects.

Following the announcement of the proposed rulemaking last summer, Robert Gee, a former DOE Assistant Secretary for Fossil Energy who now works as an industry consultant, called the proposed rule a “positive first step forward” for CO2 storage projects. “If CO2 was regulated as a hazardous waste, it could have been a showstopper. Not just as a paperwork issue, but with compliance costs,” he told GHG Monitor at the time. “It probably would have foreclosed CO2 underground storage as an economically viable option.”

Even if the rulemaking is finalized early next year, the exemption will not affect many CO2 storage projects given that no Class VI permits have been given out to date. The injection class was finalized only in late 2010, and so far only FutureGen 2.0 and Archer Daniels Midland’s industrial CCS project at Decatur, Ill., have started pursuing that class of permits. Many other projects have aimed to opt for Class II permits, reserved for projects with enhanced oil recovery components, given that the site characterization and monitoring requirements are considered less onerous for project developers.

Some Environmental Groups Think Exclusion is Premature

While many in the industry have stepped out in support of the exclusion, some key environmental groups—even those that have been generally supportive of CCS such as the Natural Resources Defense Council and the Environmental Defense Fund—have argued that the exemption is premature. In written comments to the agency last fall, both groups said that EPA has not provided enough evidence as to why it should conditionally exclude CO2 streams from its definition of hazardous waste. They said the exclusion is not “warranted or appropriate” and that additional analysis is needed to look into whether CO2 streams are hazardous before any determinations should be made. “We urge caution against using regulatory easements and exemptions in order to facilitate the deployment of CCS technologies,” the groups said. “Unlike economic incentives that encourage deployment, regulatory relief approaches carry a real danger of adverse environmental consequences. Environmental statutes such as [RCRA] offer important safeguards and exemptions should not be granted except in very specific situations.”