S OLID W ASTE CHALLENGE TO EPA REGULATION CLASSIFYING CERTAIN CO 2 EMISSIONS AS SOLID WASTE

Transcription

1 S OLID W ASTE CHALLENGE TO EPA REGULATION CLASSIFYING CERTAIN CO 2 EMISSIONS AS SOLID WASTE INTRODUCTION Three energy groups recently urged the D.C. Circuit to vacate a new Environmental Protection Agency (EPA) final rule that classifies carbon dioxide ( CO 2 ) emissions as solid waste during the carbon capture and sequestration (CCS) process when captured, transported in pipelines, and stored by geologic sequestration in Underground Injection Control (UIC) Class VI wells. 1 The rule, entitled Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, conditionally excludes this class of CO 2 emissions from regulation under the Resource Conservation and Recovery Act (RCRA). 2 However, petitioner energy groups Carbon Sequestration Council, Southern Company Services, Inc., and the American Petroleum Institute argue that these CO 2 emissions do not qualify as solid waste and thus should not be subject to RCRA regulation. 3 The new rule classifies these streams as solid waste under the plain language of the RCRA term discarded material. 4 The D.C. Circuit has not yet interpreted this term as it pertains to the RCRA definition of solid waste. 5 BACKGROUND During CCS, gaseous CO 2 emissions are captured, compressed into a supercritical fluid state, transported as CO 2 streams in pipelines, and injected into UIC Class VI wells for purposes of long-term sequestration. 6 Because CO 2 sequestration presents an increased risk of groundwater contamination, the EPA established UIC Class VI wells in 2010 under the Safe Drinking Water Act (SDWA). 7 To minimize the risk of ground- 1 Opening Brief for Petitioners at 1, 14-16, Carbon Sequestration Council, et al. v. U.S. Envtl. Prot. Agency, et al., No (D.C. Cir. 2014), 2014 WL , at *1; see also Public Hearing for Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur, 76 Fed. Reg. 48,073, 48, (Aug. 8, 2011). 2 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. 350, (Jan. 3, 2014) (to be codified at 40 C.F.R. pts 9, 260 & 261); Resource Conservation and Recovery Act, 42 U.S.C k (2012). 3 Opening Brief for Petitioners, supra note 1, at *2. 4 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at 354; see also 42 U.S.C. 6903(27) (2012). 5 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at Public Hearing for Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur, 76 Fed. Reg. at 48, Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO 2 ) Geologic Sequestration (GS) Wells; Final Rule, 75 Fed. Reg. 77,230, 77,234 (Dec. 10, 2010) (codified at 40 C.F.R. pts. 124, 144, 145, 146, & 147). 1001

2 1002 TEXAS ENVIRONMENTAL LAW JOURNAL [VOL. 45:1 water contamination, owners of UIC Class VI wells must conduct detailed assessments of CCS sites and meet minimum monitoring standards. 8 Although the process currently operates on a small scale, the EPA anticipates that CCS will be instrumental in carbon emissions reduction and climate change mitigation. 9 Through the rule s conditional regulatory exclusion of these CO 2 emissions injected into UIC Class VI wells, the EPA intends to encourage the development and employment of CCS technologies. 10 However, failure to comply with the multiple conditions for RCRA exclusion will subject the emissions to RCRA regulation. 11 Opponents of the rule express concern that the increased regulation and potential liability under RCRA would actually discourage development of CCS practices. 12 THE PROPOSED RULE On August 8, 2011, the EPA published the proposed rule that would conditionally exclude CCS CO 2 emissions injected into UIC Class VI wells from the definition of hazardous waste, thereby excluding them from regulation under RCRA. 13 Facilities that engage in CCS using UIC Class VI wells must comply with multiple conditions to qualify for the exclusion. 14 For example, facilities must abide by the Department of Transportation s (DOT) requirements for transportation of CO 2 streams, and no other hazardous wastes may be co-injected with the CO 2 streams. 15 Further, operators of UIC Class VI wells must sign a certification statement that the conditions for the exclusion are met. 16 THE FINAL RULE With a few exceptions, the EPA promulgated the rule largely as it was originally proposed. 17 The EPA modified the regulatory language with respect to compliance with DOT requirements to include reference to state pipeline regulations that may apply in lieu of DOT regulations in certain circumstances. 18 Further, the final rule creates sepa- 8 Id. at 77, Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at Public Hearing for Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur, 76 Fed. Reg. at 48077; see also Frequent Questions: Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, U.S. ENVTL. PROT. AGENCY, dustrial/geo-sequester/faqs.htm, archived at 11 The rule previously relied on (40 C.F.R (h)) has been preempted by Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014); see also Public Hearing for Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur, 76 Fed. Reg. at Opening Brief, supra note 1, at *12 (citing comments from those opposed to the rule on the basis that CCS development and use would be hindered). 13 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at Id. at Id. 16 Id. 17 Id. at Id.

3 2015] Developments 1003 rate certification statements for CO 2 stream generators and UIC Class VI well operators. 19 However, the final rule does not change the requirement that all conditions set forth in the rule must be met to qualify for the exclusion from hazardous waste regulation under RCRA. 20 EPA S ARGUMENT After the EPA published the proposed rule, commenters argued that these CO 2 streams do not qualify as solid waste due to their physical state, and therefore should not be subject to RCRA regulation. 21 RCRA establishes a federal regulatory structure that governs the treatment and disposal of hazardous wastes, which are defined as a subset of solid waste for waste management purposes. 22 The EPA asserts that these CO 2 streams are discarded material, and therefore qualify as solid waste under the RCRA definition of solid waste. 23 RCRA defines solid waste as: any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities. 24 Specifically, CO 2 streams injected into UIC Class VI wells during CCS are discarded material within the plain meaning of RCRA because they are discarded through abandonment when injected into geological formations. 25 Further, the EPA argues that, because the purpose of this process is to isolate the emissions from the atmosphere, these emissions qualify as discarded material. 26 However, commenters also argue that the CO 2 streams do not qualify as solid waste because these emissions do not have the physical properties of a solid material. 27 The EPA explains that these CO 2 streams are supercritical fluids that have physical properties intermediate to those of gases and liquids. 28 Nevertheless, although RCRA enumerates several substances subject to its regulation, the EPA reasons that, like the listed solid, liquid, semisolid, or contained gaseous material specifically referenced, [these CO 2 streams] are other discarded material from industrial and commercial opera- 19 Id. 20 Id. 21 Id U.S.C. 6903(5) (2012); see also United Technologies Corp. v. Envtl. Prot. Agency, 821 F.2d 714, 716 (D.C. Cir. 1987). 23 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at U.S.C. 6903(27) (emphasis added). 25 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at 354; see also 40 C.F.R (a)(2)(i) and (b)(1) (definition of discarded material and solid waste abandonment criteria). 26 Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO 2 ) Streams in Geologic Sequestration Activities, 79 Fed. Reg. at Id. 28 Id.

4 1004 TEXAS ENVIRONMENTAL LAW JOURNAL [VOL. 45:1 tions and, therefore, are of a similar kind to the other types of wastes specifically referenced by the definition. 29 PETITIONERS ARGUMENT Petitioners do not contest the final rule s conditional exclusion of CO 2 streams injected into UIC Class VI wells from regulation. 30 Rather, Petitioners argue that the classification of CO 2 emissions as solid waste under the new regulation contradicts the plain language and legislative intent of RCRA, and therefore these emissions should not be subject to regulation under RCRA. 31 Specifically, Petitioners argue that these emissions do not possess the physical properties of solid materials, and that the physical form of these emissions does not fall within the statutorily enumerated examples of solid waste. 32 Supercritical fluids are not mentioned in the RCRA definition of solid waste, and Petitioners argue that the statute should not extend to cover these materials. 33 Further, Petitioners argue that CO 2 emissions do not qualify as solid waste because they are not discarded materials, but rather the emissions are captured during CCS to prevent the materials from being discarded into the atmosphere. 34 Petitioners also contend that the emissions injected into UIC Class VI wells are saved for later use. 35 Moreover, Petitioners argue that whether the materials are discarded has nothing to do with the physical state of the substances. 36 Petitioners also contend that the EPA s assertion of RCRA authority over these emissions conflicts with congressional intent. 37 They claim that Congress specifically enumerated physical materials subject to RCRA hazardous waste regulation and provided no indication that the EPA was authorized to expand the list. 38 Finally, Petitioners assert that the EPA s interpretation of RCRA is arbitrary and capricious and request that the D.C. Circuit vacate the rule due to the legislative intent and plain language of the statute. 39 The EPA s reply was filed in November 2014, and final briefs for Petitioners and Respondent are due January 22, Id. 30 Opening Brief, supra note 1, at * Id. 32 Id. at * Id. at * Id. at *46; see also Am. Mining Congress v. Envtl. Prot. Agency, 824 F.2d 1177, 1193 (D.C. Cir. 1987) (stating Congress clearly and unambiguously expressed its intent that solid waste be limited to materials that are discarded by virtue of being disposed of, abandoned, or thrown away. ). 35 Opening Brief, supra note 1, at * Id. at * Id. at * Id. at * Id. at * Docket, Carbon Sequestration Council, et al. v. Envtl. Prot. Agency, et al., No (D.C. Cir. 2014), 2014 WL

5 2015] Developments 1005 Ali Abazari is a partner with Jackson Walker L.L.P. who specializes in industrial waste management, strategic environmental planning, environmental auditing, Superfund, underground storage tanks, underground injection disposal wells, transactional issues involving the sale and acquisition of contaminated properties, water utilities, and water quality. He previously served as a regulatory specialist at URS Corporation and as an attorney in the Litigation Division of the Texas Commission on Environmental Quality. Meredith Morse is a second-year student at The University of Texas School of Law and a staff member of the TEXAS ENVIRONMENTAL LAW JOURNAL.

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