Environmental Protection Agency Finalizes Rule Excluding CO2 Streams From Hazardous Waste Management

U.S. EPA finalized its rule conditionally excluded CO2 streams (which would otherwise be considered hazardous) associated with geologic sequestration (GS) from the Resource Conservation and Recovery Act (RCRA) definition of hazardous waste on December 17, 2013.  The pre-publication notice is available at http://www.epa.gov/wastes/nonhaz/industrial/geo-sequester/prepub-co2-sequestration.pdf.   (The rule was initially proposed on August 8, 2011.  See, 76 FR 48073 (Aug. 8, 2011).)  This rule applies to the CO2 streams being injecting into Underground Injection Control Class VI wells.  This rule conditionally exempts these CO2 streams from regulation as a hazardous waste under RCRA Subtitle C hazardous waste regulations.  In order to receive the conditional exemption from hazardous waste regulation, the revised 40 C.F.R. Parts 261.4(h)(1)-(4) requires that: transportation of the CO2 stream to be in compliance with U.S. Department of Transportation requirements, injection of the CO2 stream to be in compliance with requirements for Class VI UIC wells, no hazardous wastes shall be mixed with the CO2 stream, and any generator, well owner, or operator of a CO2 stream claiming the exclusion must sign and maintain a certification statement.

U.S. EPA determined that “the management of these CO2 streams, when meeting certain conditions, does not present a substantial risk to human health or the environment, and therefore additional regulation pursuant to RCRA’s hazardous waste regulations is unnecessary.”  The agency “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.”

Laura Goldfarb helps clients resolve their environmental policy, regulation, and enforcement problems. Prior to joining Steptoe & Johnson, Ms. Goldfarb was Assistant Counsel at the West Virginia Department of Environmental Protection, where she represented the agency in a variety of matters relating to the state's environmental programs, and drafted regulatory and statutory environmental provisions for the State of West Virginia.
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