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Abstract

The looming threats of climate change dominate global politics, national and economic security, science, and environmental policy. As such, global, national, regional, local, federal, and state strategies are being developed to slow and mitigate the devastating effects of a warming climate. One such strategy that is slowly being used on a global and national scale is geologic sequestration, where carbon dioxide (CO2) is captured, compressed to a supercritical state, and injected underground for permanent removal from the atmosphere. At the same time, the Resource Conservation and Recovery Act (RCRA) regulates the transport, storage, and disposal of solid and hazardous waste, in which certain supercritical CO2 streams are included. The United States Environmental Protection Agency (EPA) has exempted CO2 streams from hazardous waste regulations (RCRA Subtitle C) as long as the streams are injected into Class VI underground injection control (UIC) wells under specified procedures and conditions. However, EPA kept supercritical CO2 streams within the definition of solid waste, thereby retaining some RCRA liability. There is an inevitable conflict between the policy goals of reducing greenhouse gas emissions and responsibly managing waste disposal, and this is particularly illustrated through EPA’s conditional exemption and Class VI UIC well regulations. Adding to the conflict, there are some legal challenges to EPA’s position that CO2 streams may be considered a solid waste. Part II of this paper defines “solid waste.” Part III explains the conditional exemption of CO2 streams from hazardous waste regulation. Part IV describes the UIC program and examines how this illustrates the RCRA-climate mitigation clash. Part V explores the legal challenges to EPA’s conditional exemption and comments briefly on their merits.

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