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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 5-2018 NEWS & ANALYSIS 48 ELR 10427 under the federal Resource Conservation and Recovery Act (RCRA)119 and cleanup obligations under the Com- prehensive Environmental Response, Compensation, and Liability Act (CERCLA).120 To qualify for these conditional exemptions, the opera- tor must satisfy numerous regulatory requirements for the disposal of the CO2 via an injection well. If it does so, the operator could then manage the sequestered CO2 as only a special waste under Subtitle D of RCRA prior to injection into the well and not comply with the full panoply of regu- latory requirements for hazardous waste treatment, storage, or disposal facilities.121 If an operator wished to dispose of the CO2 by geologically sequestering it in a Class VI well, the operator would need to use a facility permitted under the Safe Drinking Water Act’s (SDWA’s)122 regulatory standards for underground injection wells, and that per- mit would require a demonstration that CO2 placed into a sequestration well would geologically sequester the gas on a long-term basis.123 It is unclear whether an operator could readily satisfy this standard for geologic formations that receive significantly larger volumes of CO2 from NET operations.124 Notably, the SDWA Underground Injection Control (UIC) framework for protecting groundwater drinking supplies would not apply to wells that dedicate the CO2 to productive reuse in secondary oil recovery or other uses.125 In addition to its ultimate disposal or disposition, the captured CO2 may require interim storage or manage- ment prior to injection or disposal offsite. An operator can choose from multiple technologies to manage captured CO2 on an interim basis, potentially including cryogenic liquefaction, massive tank storage of compressed CO2, or temporary underground storage in constructed or native 119. 42 U.S.C. §§6901-6992k. 120. 42 U.S.C. §§9601-9675. 121. 40 C.F.R. §261.4(h) (conditional exclusion for CO2 streams injected for geologic sequestration); 79 Fed. Reg. 350 (Jan. 3, 2014) (preamble and ex- planatory overview of final rule). 122. 42 U.S.C. §§300f to 300j-26. 123. In anticipation of the need to dispose of substantial amounts of CO2 emis- sions from energy production and other industrial activities that would use CCS systems, EPA created a new class of injection wells to geologically se- quester CO2. These new Class VI wells under the Underground Injection Control program of the SDWA require individual permits with extensive characterization of the site’s geologic conditions to confirm that sequestered CO2 would not migrate or affect potential drinking water sources. 40 C.F.R. §144.6(f ); 75 Fed. Reg. 77230, 77246 (Dec. 10, 2010). 124. While the United States possesses an estimated capacity to geologically se- quester CO2 that exceeds 3,500 Gt CO2, the actual usable capacity will depend on site-specific technical and economic considerations. 75 Fed. Reg. at 77234 (citing U.S. Department of Energy assessments). 125. Injection wells that use CO2 for enhanced recovery of petroleum and natu- ral gas fall under regulatory requirements for Class II wells. EPA emphasized that the Class VI well requirements for geologic sequestration wells (as well as the conditional exemption of such CO2 from the definition of hazardous waste under RCRA) would not apply to such enhanced recovery wells. 79 Fed. Reg. 350, 355 (Jan. 3, 2014): 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. . . . [S]hould CO2 be used for its intended purpose as it is injected into UIC Class II wells for the purpose of [enhanced oil recovery or enhanced gas recovery], it is EPA’s expectation that such an injection process would not generally be a waste manage- ment activity. geologic formations.126 All of these storage methods will require their own environmental and safety permitting, and they may also entail the generation and management of their own waste streams, emissions, and byproducts. Management and storage of the captured CO2 would also pose risks. For example, high-pressure CO2 vessels might threaten an explosion or catastrophic release if improperly managed, and cryogenic CO2 releases could theoretically create pockets of dangerous CO2 concentra- tions in depressed landscapes or contained areas. While these perils might occur on a larger scale, they do not dif- fer in nature from the risks posed by industrial manage- ment of CO2 or other industrial gases in contemporary chemical production processes. The danger of slow leaks or releases, of course, could undermine the effectiveness of the NET process if the captured CO2 simply escaped back into the atmosphere. Finally, the U.S. legal requirements for storage of CO2 in tanks or other containment vessels may dramatically differ between CO2 destined for disposal or permanent sequestration and CO2 intended for use as an industrial product. Under routine circumstances, federal and state environmental laws and regulations impose different obli- gations on tanks that store commercial chemical products and tanks that store wastewaters or solid wastes. For exam- ple, federal regulations requiring site operators to comply with process safety management requirements under the Occupational Safety and Health Act127 and the federal CAA require operators to assess and manage their tank systems to minimize the risks of catastrophic releases or explosions.128 By contrast, a tank dedicated to the storage of hazardous waste needs to satisfy different federal regula- tory requirements under RCRA and analogous state laws and regulations. Under those rules, any “solid waste”— which can include containerized gases such as CO2 kept in tanks or storage vessels—is considered “hazardous waste” if it either displays a hazardous characteristic or is listed by EPA as a hazardous waste. While it remains uncertain whether supercritical CO2 would (or could) display a hazardous characteristic such as corrosivity, containerized CO that displays a hazardous 2 characteristic (or that is mixed with other hazardous waste streams) would likely need to be stored in a tank or stor- age vessel that satisfied RCRA hazardous waste standards if the containerized CO2 were subsequently discarded as a RCRA “solid waste” (and did not meet the requirements for the conditional exemption). If that same CO were 2 stored in a tank for ultimate use as a commercial chemical product or feedstock, it might not need to satisfy RCRA requirements unless the proposed use constituted a form of 126. Such storage is common for the temporary retention or management of natural gas, volatile liquids, and other compressed gases in salt dome forma- tions or other geologic structures. 127. 29 U.S.C. §§651 et seq. 128. See, e.g., 42 U.S.C. §7612(r); 40 C.F.R. pt. 68 (2017) (Risk Management Plan program and regulatory requirements under the federal CAA).PDF Image | NET Legal Pathways
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