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U.S. EPA Proposes Conditional Exclusion of Carbon Dioxide from Hazardous Waste Regulations


Based on recommendations made by President Obama’s Interagency Task Force on Carbon Capture and Storage, the U.S. EPA has proposed to exclude carbon dioxide streams captured at coal-fired power plants and other large industrial operations from regulation as hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). According to a pre-publication version of the proposed rule, the U.S. EPA has concluded that the management of carbon dioxide streams does not present a substantial risk to human health or the environment so long as certain conditions are met including injection of carbon dioxide into wells regulated under the Safe Drinking Water Act for the purpose of geologic sequestration. The U.S. EPA believes that the proposed exclusion will reduce the uncertainty associated with defining and managing carbon dioxide streams under RCRA and will encourage the use of geologic sequestration technologies as a component of climate change mitigation.

Under the proposed rule, the U.S. EPA would exclude from RCRA’s definition of hazardous waste carbon dioxide streams when the following conditions are satisfied:

  1. Transportation of the carbon dioxide stream in compliance with applicable Department of Transportation requirements;
  2. Injection of the carbon dioxide stream in compliance with applicable requirements for Class VI Underground Injection Control (“UIC”) wells, including applicable requirements in 40 CFR Parts 144 and 146;
  3. No other hazardous wastes are mixed with or otherwise co-injected with the carbon dioxide stream; and
  4. Any generator of a carbon dioxide stream, and any Class VI UIC well owner or operator, who claims that a carbon dioxide stream is excluded from RCRA regulation must have an authorized representative sign a certification indicating the exclusion is being claimed for the carbon dioxide stream and that all conditions of the exclusion are satisfied. This certification must be kept on the site of the subject injection well for no less than three years, must be made available within 72 hours of a written request to produce the certification and must be renewed every year.
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