California Proposes Restrictions on the Use of Paint and Varnish Strippers Containing Methylene Chloride

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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.

EPA Enforces RICE Rule at Sand and Gravel Operation

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A Massachusetts sand and gravel company, Kimball Sand, has agreed in a settlement with EPA to conduct opacity testing at one of its operations and to replace three stationary engines with newer, cleaner engines. The company also paid a penalty of $120,000 for violations of the applicable new source performance standard (opacity) and the air toxics rules for stationary reciprocating internal combustion engines (RICE).

Kimball Sand operates rock crushing equipment including stone crushers, screeners, conveyer belts, as well as its engines at their facility. The equipment is subject to federal Clean Air Act (CAA)’s New Source Performance Standards for Nonmetallic Mineral Processing Plants, and the engines are subject to the CAA National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines.

Industry sources believe this may be the first RICE enforcement settlement at a sand and gravel operation.

EPA to Hold Public Meeting on Identifying Potential Candidates for Prioritization for Risk Evaluation

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EPA is holding two meetings in December to discuss ongoing implementation activities under the Frank R. Lautenberg Chemical Safety Act, which amended Toxic Substances Control Act (TSCA). On December 11, 2017 EPA is holding the second public meeting on possible approaches for identifying potential candidate chemicals for EPA’s prioritization process under TSCA. The meeting will be held December 11, 2017, 8:30 a.m. to 5:00 p.m. at the Ronald Reagan Building and International Trade Center, Horizon Ballroom, 1300 Pennsylvania Avenue, N.W., Washington, DC 20004.

As amended, TSCA required that EPA establish processes for prioritizing and evaluating risks from existing chemicals. EPA will describe and take comment on a number of possible approaches that could guide the Agency in the identification of potential candidate chemicals for prioritization.

EPA will accept questions from the public in advance of the meeting, and will respond to these questions at the meeting as time allows. To register to attend, submit questions, and learn more follow this link.

EPA to Hold Public Meeting on New Chemicals Review program

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EPA is holding two meetings in December to discuss ongoing implementation activities under the Frank R. Lautenberg Chemical Safety Act, which amended Toxic Substances Control Act (TSCA). On December 6, 2017, EPA is holding the first public meeting on new chemicals. The first meeting is to update and engage with the public on the Agency’s progress in implementing changes to the New Chemicals Review Program as a result of the 2016 amendments to TSCA, including discussion of EPA’s New Chemicals Decision-Making Framework.

The meeting will be held December 6, 2017, 9:00 a.m. to 5:00 p.m. at the Ronald Reagan Building and International Trade Center, Horizon Ballroom, 1300 Pennsylvania Avenue, N.W., Washington, DC 20004. EPA will describe its review process for new chemicals under the amended statute, and interested parties will have the opportunity to provide input on their experiences with the New Chemicals Review Program since the statute was amended and to ask questions.

EPA will accept questions from the public in advance of the meeting, and will respond to these questions at the meeting as time allows. To register to attend, submit questions, and learn more follow this link.

EPA Releases Policy Regarding Independence of its Scientific Advisory Committees

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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.

EPA Announces Settlement with Macy’s over Hazardous Waste Violations

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On October 25, 2017, EPA Region 6 announced a settlement with Macy’s Retail Holdings, Inc. (Macy’s) over violations of hazardous waste regulations, the Resource Conservation and Recovery Act (RCRA). In addition to correcting violations, Macy’s will also develop a program with the capacity to train 400 retailers in Oklahoma and Texas, and conduct third-party audits at 11 of its largest facilities within Texas, Oklahoma, Louisiana and New Mexico, among other required actions. The company will also pay a $375,000 civil penalty within 30 days of the effective date of the settlement, and must comply with all other requirements within one year.

EPA found Macy’s had violated RCRA for several periods during 2012-2015. During these times, each Macy’s store identified in the settlement generated thousands of pounds of hazardous waste to qualify as a small-quantity generator, but failed to notify EPA and state authorities. Macy’s also failed to meet the conditions for small-quantity generator status and did not complete appropriate manifests. Overall, Macy’s generated more than 269,168 pounds of hazardous waste from 2012-2015 for the 44 locations identified in the settlement.

As part of the settlement, Macy’s will develop a program to train an estimated 400 retailers in Oklahoma and Texas on how to comply with hazardous waste requirements. Live training events held in Oklahoma and Texas and will also be recorded to create a webinar version that can be shared to Macy’s locations nationwide. After completing the 11 third-party audits, Macy’s will share results with all of its other facilities (more than 620 locations outside EPA Region 6) with instructions to review the issues and address noncompliance. Macy’s will also promote the training webinars and recorded sessions to appropriate personnel nationwide.

EPA Administrator Pruitt Establishes Policy Regarding “Regulation Through Litigation”

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On October 16, 2017 EPA Administrator Scott Pruitt said in a directive and accompanying memorandum that he is ending a “sue-and-settle” practice that has resulted in closed-door agreements committing the agency to “regulation through litigation.”

Under the policy, the EPA will:

  1. Publish any notices of intent to sue the Agency within 15 days of receiving the notice;
  2. Publish any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
  3. Reach out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
  4. Publish a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
  5. Expressly forbid the practice of entering into any consent decrees that exceed the authority of the courts;
  6. Exclude attorney’s fees and litigation costs when settling with those suing the Agency;
  7. Provide sufficient time to issue or modify proposed and final rules, take and consider public comment; and
  8. Publish any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.

This policy may lead to increased and longer litigation, with the courts exercising direct control of the outcome. For example, the court might set the schedule for publication of an overdue rule instead of the litigants. It may also lead to more influence for third party intervenors who generally are shut out of the consent order negotiations by the Department of Justice (DOJ).

One thing to keep in mind moving forward, however, is that while the DOJ does consult with the EPA on litigation strategy, technically the DOJ has the authority to settle cases. So, if DOJ wants to settle a case, it is unclear if and how Administrator Pruitt’s policy will deter DOJ’s decision-making process.

Separately, Attorney General Jeff Sessions has barred DOJ attorneys from negotiating settlements that result in payments from industry to third-party organizations, such as Supplemental Environmental Projects paid to environmental organizations.

Retailers Face Hazardous Waste Disposal Challenges in the Wake of Hurricane Harvey

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In the wake of natural disasters, like Hurricane Harvey, many are quick to assess and analyze the effects of flooding and damage to Superfund toxic waste sites and from hazardous waste spills– understandably so. Many other sites, such as retail stores, were damaged by the extensive flooding caused by the hurricane.  Now many retailers and local businesses face challenges in disposing of their hazardous waste.  While Texas did provide some relief from some environmental rules to aide recovery efforts, federal hazardous waste disposal rules still apply.

Stores that were damaged by floodwaters or lost power for an extended period of time may have to dispose of numerous hazardous waste products, including household cleaners, pesticides, and certain beauty products. Similarly, medications and refrigerated pharmaceuticals—like insulin—may no longer be usable and must be properly disposed as hazardous waste.

EPA has not announced that it is relaxing waste management regulations because of the situation in Houston.  Therefore, the requirements for disposal of hazardous waste according to the Resource Conservation and Recovery Act (RCRA) are still in effect.  This means that if unuseable products qualify as hazardous waste, retailers can’t just throw out these materials in the trash. The store’s size and the volume of hazardous waste it handles will determine its status as a “generator” under RCRA.  Depending on the store’s status as a generator, certain containment, recordkeeping, and disposal requirements and restrictions apply. In some cases, that means cleanup efforts for contaminated retail sites may take a long time, and cost retailers a lot of money in hazardous waste disposal fees.

Some retailers are required to have emergency preparedness plans and provisions depending on their hazardous waste generator size.  It is prudent for those plans to address possible flooding as a result of naturals disasters, such as hurricanes.  For those retailers who are not required to conduct emergency preparedness planning under RCRA, it is imperative to do so as sound business practice.

Seventh Circuit Adopts Carcinogen Exposure Test

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The Federal Court of Appeals for the Seventh Circuit recently joined the 6th and 9th Circuits in holding that a plaintiff seeking recovery for harm from carcinogen exposure must demonstrate that the exposure was a “substantial contributing factor” to the injury. The opinion notes that cancer causation “is dosage dependent—that is, the risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure. To determine whether any exposure constitutes a substantial contributing factor, therefore, one would have to understand the timing and amount of exposure.” The court rejected arguments that de minimis exposures are compensable, holding that the “any exposure” theory “ignored fundamental principles of toxicology that illnesses like cancer are dose dependent.” The court also rejected a cumulative exposure theory, under which “every minute of exposure adds to the cumulative exposure and thus becomes a substantial contributing factor,” finding that such an approach is “merely more of the same.”

While these are toxic tort cases, the opinions may be relevant to regulatory consideration of similar issues. For example, EPA must consider exposure in regulating new and existing products under the 2016 TSCA Amendments. Exposure also must be considered in making the “substantial risk” determination under TSCA Section 8(e). These opinions suggest that the courts will take a hard look at exposure data in these and other similar regulatory contexts. The case is Krik v. Exxon Mobile Corp., 7th Cir. No. 15-3112 (decided August 31, 2017).

EPA Defends “Exceptional Events” Rule

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In pleadings recently filed with the Federal Court of Appeals for the D.C. Circuit, EPA has defended the “Exceptional Events” rule issued by the Obama Administration last October. The rule is designed to excuse exceedances of national ambient air quality standards (NAAQS) where they are caused by natural events such as wildfires or dust storms. It is particularly important in western states where such events occur frequently.

EPA revised the rule in response to state and industry complaints that the prior rule was overly cumbersome and unevenly applied. Various environmental groups challenged the new rule in the D.C. Circuit, arguing that it excuses some events that are caused at least in part by human activity, such as windblown dust from construction or mining activities. EPA counters that Congress did not define “natural event” in the relevant statute, and that the agency opted for a middle ground that covers events in which human activity plays little or no direct causal role. The agency also notes that the rule only allows the exclusion where” reasonable emission controls” have been adopted.

The exceptional events rule is likely to play a critical role in evaluating NAAQS exceedances caused by the recent hurricanes and western wildfires. Under EPA’s current interpretation, it cannot excuse violations of permit or SIP provisions, but it can be used to ensure that future SIP or permit provisions are not based on extreme conditions. Historically, the primary tool for excusing SIP or permit violations caused by natural disasters has been provisions that excuse violations caused by startup, shutdown or malfunction (SSM) conditions. But those protections have been eroded as a result of recent court decisions and related Obama Administration policies that the Trump Administration is now trying to revise. Much of the regulatory response to the recent disasters in the air quality arena will be shaped by the fate of the exceptional events and SSM rules, which will in turn be shaped by the occurrence of the disasters and the likelihood that we will continue to experience them.