EPA Science Advisors Support Current SO2 NAAQS

EPA’s Clean Air Scientific Advisory Committee (CASAC) has now completed its review of the agency’s draft Policy Assessment (PA) for the SO2 NAAQS, and supports the EPA staff recommendation that the current scientific literature does not support revision of the current primary (health based) SO2 NAAQS.

In a draft letter recently released, CASAC notes that “key uncertainties” have emerged since the prior SO2 review, particularly with regard to “at-risk” subgroups such as children who are: obese; of African-American ethnicity; severely asthmatic; and/or live in high density areas near sources of exposure. The Committee believes that while many uncertainties remain in quantifying the sizes of the risks for these groups, they should nonetheless be considered in ensuring that the standard provides an adequate margin of safety. CASAC also recommends that efforts should be made to gather the data necessary to ensure that protection of these groups can be considered with less uncertainty in future reviews of the standard.

According to the draft letter, the Committee believes it possible that the current 75 ppb level may not provide an adequate margin of safety in these groups. However, because there is considerable uncertainty in quantifying the sizes of these higher risk subpopulations and the effect of SO2 on them, the Committee did not recommend reconsideration of the level at this time. CASAC strongly recommends that future assessments better quantify the numbers of individuals expected to be affected at the current (or proposed alternative) standard in these groups so that a more informed judgment about the margin of safety in high risk subgroups can be made. In particular, the Committee suggests that EPA express the size of the at-risk population both in percentage form (which is currently done) and also with numerical estimates, providing the number of people expected to be at risk, given the margin of safety.

The Committee recommended a few changes in the draft PA and stated that with those changes it need not review another draft. We expect that CASAC will finalize its draft letter soon and that EPA will then move to finalize the PA and propose to retain the current standard. We doubt that the current Administration will seize on the “margin of safety” points in the CASAC letter to propose a revised standard (as some prior administrations might have done). However, those issues are likely to be a primary focus of the next review of the SO2 standard.

Apart from SO2, this letter is significant because it is the first official CASAC action under the newly appointed Chair, Anthony Cox, and the other new members appointed by this Administration. It therefore appears that the reported “backlog” of NAAQS reviews caused by CASAC appointment delays will now begin to break.

EPA Releases Draft Guidance on TSCA CBI Disclosures and Requests Comments

On March 13, 2018, EPA released three draft guidance documents for public comment clarifying the circumstances under which EPA may disclose TSCA confidential business information (CBI) with an expanded set of people. Comments will be accepted until April 16, 2018.

Amendments to the Toxic Substances Control Act (TSCA) expanded the categories of people who may now access information claimed as CBI under TSCA. Information that a business claims as CBI under TSCA is protected from disclosure until the business withdraws the CBI claim, until the CBI claim expires, until EPA determines that the claim is not entitled to confidential treatment, or as authorized under TSCA and EPA regulations.

The draft guidance documents are:

D.C. Circuit Revises Its Decision on the Definition of Solid Waste

On March 6, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit or Court) issued an unsigned per curiam opinion revising its July 2017 decision, which struck down portions of the U.S. Environmental Protection Agency’s (EPA) 2015 Definition of Solid Waste (DSW) Rule. American Petroleum Institute v. EPA, D.C. Cir. App., No. 09-1038. This revision followed the Court’s invitation in its July 2017 decision to have parties provide additional briefing. Both industry and EPA took advantage of the invitation and filed petitions for rehearing.

The Court modified its July 2017 opinion in three ways: (1) severing and affirming EPA’s removal of the spent petroleum catalyst bar from the vacated portions of the Verified Recycler Exclusion; (2) vacating the 2015 Rule’s mandatory Factor 4 of the legitimate recycling determination in its entirety; and (3) reinstating the 2008 Rule version of Factor 4 of the legitimate recycling determination. This blog post focuses on the legitimate recycling determination.

EPA has established a legitimate recycling determination for what constitutes legitimate recycling of hazardous materials and described activities it considers to be illegitimate or sham recycling. 40 C.F.R. §260.43. The legitimate recycling determination consists of four factors:

  1. Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process.
  2. The recycling process must produce a valuable product or intermediate.
  3. The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control.
  4. The product of the recycling process must be comparable to a legitimate product or intermediate.

Based on the Court’s 2017 decision, Factors 1, 2, and 3 were upheld as mandatory factors that must be met by a recycler in order for the recycling process to be considered legitimate recycling. However, the Court vacated Factor 4 only as it applied to sham recycling as defined in 40 C.F.R. § 261.2(g). Thus, after its 2017 decision, Factor 4 still applied to those specific exclusions in which Factor 4 was specifically included, for example, the generator-controlled exclusion.

In its amended 2018 opinion, the Court vacated Factor 4 under all circumstances, even those written into specific exclusions. Now, the 2008 version of Factor 4 is reinstated, which requires only that the factor be “considered” and is not mandatory. Therefore, recyclers of hazardous materials must now meet Factors 1, 2, and 3 of the legitimate recycling determination, and must only consider Factor 4.

EPA Proposes to Add Aerosols to the Universal Waste Regulations

On March 16, 2018, the Environmental Protection Agency (EPA or the Agency) proposed adding hazardous waste aerosol cans to the universal waste program under the federal Resource Conservation and Recovery Act (RCRA) regulations. Comments are due by April 16, 2018. Aerosol cans are widely used for dispensing a broad range of products including paints, solvents, pesticides, food and personal care products, and many others.

Any person who generates a solid waste must determine whether the solid waste qualifies as hazardous waste. The waste may be hazardous either because it is listed as a hazardous waste or because it exhibits one or more of the characteristics of hazardous waste. Aerosol cans are frequently hazardous due to the ignitability characteristic, and in some cases may also contain listed or exhibit other hazardous waste characteristics.

The universal waste rules establish a streamlined hazardous waste management system for widely generated hazardous wastes as a way to encourage environmentally sound collection and proper management of the wastes within the system. Hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste lamps are already included on the federal list of universal wastes. The universal waste regulations are a set of alternative hazardous waste management standards that operate in lieu of regulation under RCRA Subtitle C.

The streamlined universal waste regulations are expected to ease regulatory burdens on retail stores and others that discard hazardous waste aerosol cans, promote the collection and recycling of these cans, and encourage the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors.

A copy of the proposed rule can be found here.

New NSR Guidance Considers Emissions Decreases

EPA recently issued new Guidance for determining whether a proposed new or modified source of air pollutants would cause a significant increase in emissions, requiring a major source permit. See Memorandum from Administrator Pruitt to Regional Administrators re: Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program (March 13,2018).

To date, EPA has employed a two-step process for evaluating projected emissions for major source status. Under step 1, the agency determines whether the project by itself – including emission controls – would cause a significant increase in emissions. Under step 2, the agency then looks at other “contemporaneous” projects at the facility – defined as those constructed within the past two years – to determine whether all of the projects combined would result in a “significant net increase” in emissions from the entire facility. If so the facility will require a major source permit.

With a few brief exceptions, the agency throughout its history has not allowed consideration of emissions decreases in step 1. The emissions baseline for the new project is set at zero, and offsets for emissions decreases are not considered until step 2. The practical effect has been to require all major sources to model both steps, even though the modeling in step 1 might show a decrease at that point, precluding the need to move to step 2 (e.g., the project includes new emission controls and also involves shutting down other emissions sources within the plant to produce an emissions decrease).

The new Guidance, effective immediately, revises EPA’s approach to allow consideration of net emissions decreases in step 1. The agency now believes that the prior approach had the practical effect of preventing some projects from proceeding and significantly delaying others, even though those projects would not have resulted in a significant emissions increase. The agency also recognizes that the increased efficiency of new production technologies can result in emission reductions even while expanding production. In such situations, the complexities associated with modeling multi-year contemporaneous netting under Step 2 at a large facility have dissuaded some meritorious projects. The new interpretation is designed to correct this, and the agency believes it is consistent with the relevant language of the Clean Air Act and current NSR regulations.