(This post is an adaptation of an article published in the November 2017 newsletter of the Air Quality Committee, a committee of the American Bar Association’s Section of Environment, Energy, and Resources. A PDF of the article is available here.)

By Kurt Blase

EPA Administrator Pruitt has announced a new “Back-to-Basics Agenda” to “refocus” EPA on its mission and return power to the states. This is likely to affect EPA’s review of state plans for attainment of the ozone standard and other national ambient air quality standards (NAAQS).

 Background Concentrations

Many states, particularly in the West, have predicted nonattainment of the 2015 ozone standard as a result of ozone background concentrations not susceptible to localized controls. They argue that in such cases, employment of additional local control measures would provide negligible public health benefits, but would impose substantial costs. They also point to evidence that the resulting economic dislocation causes significant public health problems.

This is one area where EPA arguably has broad discretion to defer to the states.  Clean Air Act (CAA) Section 107 provides that “Each state shall have the primary responsibility for ensuring air quality within the entire geographic area comprising such State . . .”  EPA may construe Section 107 to give states wide latitude to address background issues. And the federal courts may defer.  For example, the Supreme Court has noted that “the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan.” Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 470 (2001)(quoting Union Electric Co. v. EPA, 427 U.S. at 266).

Foreign Emissions

CAA Section 179B allows EPA to approve state plans that do not require actual attainment in areas that would be in attainment “but for” emissions emanating from outside the US.  In the ozone implementation rule proposed by the Obama Administration, EPA requested comment on whether this relief is limited to emissions from Canada and Mexico.  However, the statute imposes no such requirement and, as EPA noted, contributions to U.S. ozone concentrations can be made by international sources not located in bordering countries.

EPA’s proposal also sought comment on a requirement that all “reasonably available control measures” (RACM) must be employed to qualify for relief from foreign emissions. Again, however, the statute does not require that, and it provides EPA with flexibility to approve state plans that do not require actual attainment or impose ineffective controls in cases involving international emissions.

Intrastate Controls

The ozone implementation proposal would require intrastate sources outside of a nonattainment area to employ RACM. Once again, however, nothing in the nonattainment provisions of the Act requires that. If a state determines that a source outside the recommended boundary may contribute, it can require any necessary controls pursuant to other provisions of the Act.

While these issues are a focus of the current ozone debate, they are not limited to the ozone NAAQS and apply to the other standards as well. With respect to NAAQS attainment plans and designations, “back to basics” is real: the statute gives EPA ample flexibility to defer to state choices provided a rational basis consistent with statutory requirements is employed.

The California Department of Toxic Substances Control (DTSC) is seeking public comment on its proposal to list Paint and Varnish Strippers Containing Methylene Chloride as a Priority Product.  The comment period opened on November 17, 2017.  It will close January 18, 2018.   The proposed regulation is available on the agency’s website.  If the regulation is adopted, manufacturers will be required to conduct an Alternatives Analysis to identify and evaluate safer options.

DTSC proposes to list Paint or Varnish Strippers Containing Methylene Chloride as a Priority Product in regulation because workers and consumers could be exposed to methylene chloride during normal use of paint or varnish strippers.  Inhalation and dermal exposure to methylene chloride is associated with adverse health effects, including cancer of the brain, liver, and biliary tract, and central nervous system depression, intoxication and unconsciousness. Numerous deaths have been reported in workers and consumers who were exposed to methylene chloride during use of paint or varnish strippers.

Once a Priority Product has been adopted in regulation, responsible entities who manufacture the product must notify DTSC. Following the initial notification, a responsible entity may choose to remove the chemical of concern (COC) from the Priority Product; stop selling or distributing the Priority Product in California; or perform an Alternatives Analysis (AA) to determine how best to limit adverse public health and environmental impacts posed by the COC in the product. The Preliminary Alternatives Analysis Report for this Priority Product shall be submitted within 180 days after the effective date of this regulation.

If a responsible entity chooses to follow the AA process (rather than removing the COC from the product or the product from commerce in California), then DTSC may impose regulatory responses, based on alternative selected by that responsible entity, which are designed to prevent or significantly reduce the potential for adverse impacts to public health and the environment.  DTSC reports that it intends to maximize the use of alternatives of least concern and give preference to those that provide the greatest level of inherent protection.  Information about the requirements for AAs can be found on DTSC’s website.

On October 31, EPA released a one-page directive and a more detailed memorandum governing the independence of its various scientific advisory committees. The basic principles announced by the agency are as follows:

1. Strengthen Member Independence: No member of an EPA advisory committee can be a current recipient of an EPA grant or otherwise in a position that would reap direct benefit from such a grant. This does not apply to state, tribal or local government agencies that receive EPA grants.
2. Increase State, Tribal and Local Government Participation: Committee balance should include participation from state, tribal and local governments, consistent with the committee’s purpose and function.
3. Enhance Geographic Diversity: Committees should be balanced with members from different states and EPA regions, with an emphasis on members from historically underrepresented areas.
4. Promote Fresh Perspectives: Committee membership should be rotated regularly.

As discussed in the EPA memorandum, much of this is driven by the longstanding requirement in the Federal Advisory Committee Act that advisory committees must be “fairly balanced” as to scientific points of view. Enforcement of this requirement has often been difficult in the past, as judicial remedies have largely been ineffective.

As also discussed in the memorandum, the composition of some advisory committees, such as the Clean Air Scientific Advisory Committee (CASAC), is dictated by statute. In most cases, however, the statutory requirements (for CASAC, a state regulator, a public health expert, an industry scientist, etc.) leave ample room for application of these principles within the statutory confines.

The EPA materials do not address whether members of current committees can be replaced before their terms expire. Another question is whether the principles apply only to committee members or also to “consultants” who are not official committee members. For example, the current CASAC PM review panel has 27 members, only six of whom are official CASAC members.

With respect to most current committees, it seems unlikely that these principles will be used to displace current members. However, to the extent that a current member advances a position believed to be scientifically unsound, opponents will be free to argue that the advice should be discounted if inconsistent with these principles. Further, the membership of many key committees will be up for renewal prior to the 2020 election. For example, EPA is currently seeking members for the new TSCA scientific review committee, and the current CASAC PM panel expires in 2018, well before EPA is expected to complete the current PM standard review.