Paving the Way for Clean Coal: The EPA's Conditional Exclusion of Carbon Capture and Storage Facilities From Hazardous Waste Regulation Under RCRA

Carbon capture and storage (“CCS”) is an emerging climate change mitigation strategy involving the permanent underground storage of carbon dioxide captured from emission sources like power plants. The Environmental Protection Agency recently finalized a rule (the “Conditional Exclusion”) that excludes CCS operations from all hazardous waste regulations under the Resource, Conservation, and Recovery Act. Instead of these regulations, capture facilities and geologic sequestration wells must comply with similarly comprehensive and more specifically tailored requirements developed under the Safe Drinking Water Act, which should provide adequate protection of both humans and the environment. The Conditional Exclusion provides necessary regulatory certainty for the industries that might use CCS in the future and eliminates one of the many financial impediments to its implementation. However, while the Conditional Exclusion is a prudent and effective way to encourage CCS, widespread deployment is unlikely in the coming decades absent more comprehensive federal action and vast improvements rendering capture technologies more economically feasible.