Industry argues against RCRA category for captured CO2

In Aug. 28 arguments filed at a federal appeals court, three industry organizations said that the U.S. Environmental Protection Agency has improperly classified CO2 captured and stored underground as a “solid waste” under the Resource Conservation and Recovery Act (RCRA).

The appealing parties are the Carbon Sequestration Council, the Southern Company Services arm of electric utility holding company Southern Co. (NYSE: SO) and the American Petroleum Institute. They had filed lawsuits in April at the U.S. Court of Appeals for the D.C. Circuit that have since been combined into one legal proceeding.

The Carbon Sequestration Council represents companies primarily involved in the exploration and production of oil and natural gas or in the production and distribution of electricity.

These consolidated cases seek judicial review of a final regulation entitled “Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities,” which the Administrator of EPA promulgated under RCRA in January of this year.

“This case concerns the Nation’s efforts to control the emission of greenhouse gases, in particular, carbon dioxide,” said the Aug. 28 industry brief. “At issue is whether carbon dioxide emissions must be considered ‘solid waste’ under RCRA when captured, transported by pipeline, and sequestered or stored in deep geologic formations, as EPA concluded in the final rule under review. The Petitioners assert that such carbon dioxide cannot be considered ‘solid waste,’ or, in the alternative, that EPA has the discretion to determine that such carbon dioxide is not ‘solid waste.’”

The industry groups noted that carbon capture and storage is currently being undertaken on a small scale for enhanced oil recovery using mostly natural sources of CO2. But with EPA now proposing regulations for new and existing power plants, including coal plants, the enhanced oil recovery market for CO2 may grow rapidly.

One EPA analysis projects that carbon capture and storage (CCS) could account for 10% of carbon dioxide emission reductions in the year 2050.

“Petitioners here challenge EPA’s underlying determination that carbon dioxide as a gas or as a supercritical fluid is a ‘solid waste’ under RCRA, but do not contest the conditional exclusion from regulation as a ‘hazardous waste’ or the terms under which a carbon dioxide stream would qualify for that exclusion,” said the Aug. 28 brief. “Hence, if Petitioners prevail on their solid waste claim, the conditional exclusion for carbon dioxide as hazardous waste would be meaningless because the exclusion only applies if the carbon dioxide in question would otherwise be subjectto RCRA regulation. If Petitioners do not prevail, however, then EPA’s conditional exclusion of certain carbon dioxide from regulation as hazardous waste would remain in place.

“To be subject to RCRA regulation, a material must be a ‘solid waste.’ The RCRA definition of ‘solid waste’ is highly specific and enumerates certain physical forms: solid, liquid, semisolid, and contained gaseous material. The definition does not mention supercritical fluids (such as the carbon dioxide streams at issue in this case), which EPA acknowledges. Applying traditional tools of statutory construction, it is clear that Congress intended to cover the enumerated forms of material, and no others. A review of the legislative history confirms that Congress deliberately specified the physical forms it intended RCRA to cover and provides no hint that Congress intended to authorize EPA to expand the list. Thus, EPA’s assertion of RCRA authority over supercritical fluids – materials not enumerated in the definition of ‘solid waste’ – conflicts with the clear intent of Congress.”

A legal contact for this case is: Robert Van Voorhees, BRYAN CAVE LLP, 1155 F Street, NW Suite 700, Washington, DC 20004, (202) 508-6000, who is the counsel for the Carbon Sequestration Council and Southern Company Services.

Under the current case schedule, EPA’s opening brief is due on Nov. 6, and the industry groups can file a reply brief on Dec. 18.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.