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Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities

Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities

Conditional exclusion of the USEPA for carbon dioxide streams captured and injected into Class VI wells for geological sequestration

40 CFR 261.4(h) makes it easier to reduce our carbon footprint

A Final Rule published in the Federal Register informs the regulated community that the USEPA will revise its regulations of the Hazardous Waste Management System under the Resource Conservation and Recovery Act (RCRA) to add a conditional exclusion from the definition of hazardous waste for carbon dioxide (CO2) streams that are hazardous.

Proposed Rule Published:  August 8, 2011

Final Rule Published:  January 3, 2014

Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO2) Pages 350 – 364 [FR DOC # 2013-31246] PDF | Text | More

Effective Date:  March 4, 2014

A hazardous carbon dioxide (CO2) stream must meet the requirements of 40 CFR 261.4(h) in order to be eligible for the conditional exclusion from the definition of hazardous waste.  The requirements of 40 CFR 261.4(h) include:

  • Waste must meet the definition of a carbon dioxide (CO2) stream as defined at 40 CFR 260.10.
  • The CO2 stream must be captured from an emission source.
  • The CO2 stream must be injected into Underground Injection Control (UIC) Class VI wells for purposes of geologic sequestration (GS).
  • Additional requirements/restrictions explained in more detail below for:
    • Transportation
    • Injection
    • No mixing with hazardous waste.
    • Certification statement from generator and Class VI Underground Injection Control Well owner.

First, let’s start with the new definition of a carbon dioxide stream from 40 CFR 260.10:

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.

This definition is intended to work in concert with the definition of “carbon dioxide stream” in the UIC Class VI regulations at 40 CFR 146.81(d).

Note that the definition includes more than just the captured CO2:

  • “…plus incidental associated substances…”, which is intended to refer to those substances that are captured together with the CO2.

and…

  • “…and any substances added to the stream…”, which the USEPA is confident will be done under the authority of the UIC Class VI well owner’s permit and thus ensure protection of underground sources of drinking water.  Though, as we’ll see later, the exclusion specifically forbids the mixing of any hazardous waste with the carbon dioxide stream.

Despite the use of the singular for “…emission source (e.g., power plant)…” the USEPA does not intend to limit the conditional exclusion to CO2 streams from a single source, but will allow its use for CO2 streams generated from two or more sources provided the conditions of the exclusion are met by both CO2 streams.

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With the new definition of carbon dioxide stream established, 40 CFR 261.4(h) documents the requirements for the use of the conditional exclusion for a hazardous carbon dioxide stream that is captured and transported off-site (if off-site transportation is necessary) for the purpose of injection into a underground injection well which itself is subject to the regulations for Class VI Underground Injection Control wells and its operating permit.  The requirements of 40 CFR 261.4(h) are:

  • The transportation of the carbon dioxide stream must be in compliance with the US Department of Transportation pipeline safety regulations of 49 CFR parts 190-199, as applicable.  The reference to transportation in this portion of the exclusion should not trouble a generator of a CO2 stream that injects it on-site.  Also, the reference to transportation in the generator’s certification statement (more on that later) should not give pause to a generator of a CO2 stream if the waste is not transported off-site for disposal.  In the conditional exclusion “…as applicable.”  is the USEPA’s way of saying that this condition does not apply if off-site transportation is not undertaken.  Of course, the other conditions of the exclusion must be met.
  • The injection of the CO2 stream must be in compliance with the applicable regulations for Class VI Underground Injection Control wells (40 CFR 144 & 146).
  • No hazardous waste may be mixed with, or co-injected with, the CO2 stream.  This conditional exclusion is limited to a specific, and very unique waste:  carbon dioxide streams that are hazardous waste (or are assumed by the generator to be a hazardous waste).  Any other type of hazardous waste injection must occur in UIC Class I wells and not the UIC Class VI wells specified by this exclusion.
  • Both the generator of the CO2 stream and the Class VI UIC well owner must have an authorized representative (defined at 40 CFR 260.10) sign a certification statement worded precisely as indicated at 40 CFR 261.4(h)(4)(i) for the generator and §261.4(h)(4)(ii) for the well owner.  This signed certification statement must meet the following requirements:
    • Kept on-site.
    • Maintained for at least three (3) years.
    • Must be made available within seventy-two (72) hours of a written request from the USEPA or your state.
    • Certification must be renewed annually every year the exclusion is claimed.
    • The signed certification must be readily accessible on the facility’s publicly-available web site as a public notification with the title of “Carbon Dioxide Stream Certification”.  If you don’t have a web site, you don’t have to create one for the sole purpose of this regulation.  But, c’mon man, get a web site.
A hazardous CO2 stream must meet all of these conditions to be eligible for the use of this conditional exclusion.  A violation of any of these conditions at any point in the management of the CO2 stream will result in it being subject to all of the regulations as a RCRA Subtitle C hazardous waste from the point of generation.

Proceed with caution if your captured CO2 stream will be transported through two or more states before its final disposal.  This conditional exclusion is promulgated pursuant to non-HSWA (that’s the Hazardous and Solid Waste Amendments of 1984) and is less stringent than existing Federal and State regulations.  Therefore, states with an authorized hazardous waste program are not required to adopt this conditional exclusion, though USEPA, “strongly encourages them to do so…”  The challenge posed by interstate transportation of the CO2 stream is that this exclusion must be authorized in the state the waste is generated, any state through which it passes, and the state of the Class VI UIC well.  Otherwise a state may require the management of the CO2 stream as a hazardous waste.  The only way to be sure of compliance is for a generator of a CO2 stream to check with each state through which the waste will pass and the state of its final disposal in a UIC well.

40 CFR 261.4(h) is a newly added conditional exclusion from the definition of hazardous waste for CO2 streams captured for geologic sequestraion

The CO2 stream from a utility (NAICS 22) may be eligible for this conditional exclusion

Who is affected by this conditional exclusion?

Affected persons include generators, transporters, and owners or operators of treatment, storage, and disposal facilities engaged in the management of hazardous carbon dioxide streams destined for geologic sequestration activities that would otherwise be regulated as a hazardous waste under the RCRA regulations.  It includes:

  • Operators of carbon dioxide injection wells used for geologic sequestration.
  • Oil and gas extraction facilities (NAICS 211111).
  • Utilities (NAICS 22).
  • Transportation (NAICS 48-49).
  • Manufacturing (NAICS 31-33).

Affected?  Curious?  Yawn?  Whatever your response, it is important to realize that the regulations of the USEPA (and your State) are always changing.  Attend my training to learn what you need to know to maintain compliance with RCRA regulations as a generator of hazardous waste.  Or, contact me for a free consultation.

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