On December 4, 2017, the EPA announced a “a cross-agency effort to address per and polyfluoroalkyl substances (PFAS).”  The press release notes that the PFAS effort will include perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), as well as GenX, a substance developed as a replacement for the older chemicals.

The Agency pledged to:

• Identify a set of near-term actions to help support local communities;
• Enhance coordination with states, tribes and federal partners to provide communities with critical information and tools to address PFAS;
• Increase ongoing research efforts to identify new methods for measuring PFAS and filling data gaps; and
• Expand proactive communications efforts regarding PFAS and their health effects.

However, the Agency did not promise to take regulatory action.

The EPA issued Significant New Use Rules (SNURs) for PFOS-related substances in 2002.   It also issued a SNUR for the use of perfluorinated chemicals in carpets and carpet aftercare products in 2013.  In addition, the Agency partnered with manufacturers in the US and globally to reduce or eliminate use of PFASs.  U.S. companies voluntarily phased out producing the chemicals between 2000 and 2002.  Foreign companies achieved a 95 percent reduction in PFOA and PFOA-related chemicals in the emissions from their facilities and in their products.

The EPA has also published drinking water health advisories for PFOA and PFOS.

More information about the Agency’s efforts regarding these substances can be found here.

(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.