Jun 112018

Sidley Environmental Trends

Environmental Trends Contributors
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Topics discussed this week include:

  • EPA proposes to reject Delaware and Maryland 126(b) petitions
  • EPA declares intention to propose listing fluorochemicals as hazardous substances and to evaluate setting maximum contaminant levels
  • EPA proposes to keep existing sulfur oxide primary-health NAAQS
  • EPA solicits comment on regulatory cost/benefit decision-making process
  • EPA sued over alleged delays in implementing federal pesticide rules

EPA proposes to reject Delaware and Maryland 126(b) petitions. From July to November 2016, Delaware and Maryland respectively (and together) filed Clean Air Act (CAA) 126(b) petitions to the Environmental Protection Agency (EPA) alleging that upwind states such as Pennsylvania, West Virginia, Indiana, Kentucky and Ohio were significantly contributing to their nonattainment of eight-hour ozone national ambient air quality standards (NAAQS). On June 8, EPA published its notice of proposed action denying each of these 126(b) petitions. Section 126(b) petitions relate to the CAA’s “good neighbor” provision, which requires states to factor in their potential contributions to downwind state nonattainment of NAAQS when developing and submitting state implementation plans (SIP). Section 126(b) petitions allow individual states to ask that EPA set emissions limits for specific sources of air pollution significantly contributing to the nonattainment. Most recently, New York filed a 126(b) petition with EPA alleging that nine downwind states significantly contribute to its nonattainment of the 2008 and 2015 ozone NAAQS. The deadline for EPA to act on the petition has been extended through early November. EPA has already finalized its denial of a similar 126(b) petition made by Connecticut in 2016. EPA is accepting comments on its proposed denial of Delaware and Maryland’s 126(b) petitions through July 23. The agency also proposes to hold a public hearing on the matter.

EPA declares intention to propose listing fluorochemicals as hazardous substances and to evaluate setting maximum contaminant levels. At a May 22 national summit, EPA Administrator Scott Pruitt announced his intention to initiate the process to propose to list the fluorochemicals perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) hazardous substances for the purposes of some federal environmental statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (or, Superfund). The Administrator also announced that the agency will initiate steps for evaluating whether to set a maximum contaminant level for PFOS/PFOA under the Safe Drinking Water Act. Additionally, Administrator Pruitt indicated that the agency intends to develop national groundwater cleanup recommendations for the chemicals to assist with Superfund remediation, as well as toxicity values for two other types of per- and polyfluoroalkyl substances (PFAs) — GenX and PFBS. Previously, EPA had issued a health advisory for PFOS/PFOA at 70 parts per trillion. PFOS/PFOA appear in numerous industrial and consumer products like carpet and firefighting foams.

EPA proposes to keep existing sulfur oxide primary-health NAAQS. In a June 8 Federal Register publication, the EPA proposed to retain the existing primary health-based NAAQS for sulfur oxides, a group of compounds that include sulfur dioxide (SO2). These NAAQS, set in 2010, are 75 parts per billion of daily maximum SO2 concentrations averaged over three years. This proposal comes at a time when the agency is already facing legal challenges to its decision concerning ozone NAAQS. EPA is accepting comments on this proposal until July 23.

EPA solicits comment on regulatory cost/benefit decision-making process. EPA has announced it is issuing an advance notice of proposed rulemaking (ANPRM) soliciting comment on whether and how EPA should promulgate regulations that provide a consistent and transparent interpretation of how it should weigh costs and benefits in making regulatory decisions. EPA is also soliciting comment on whether and how these regulations, if promulgated, could prescribe specific analytic approaches to quantifying the costs and benefits of EPA regulations.

A prepublication copy of the ANPRM is available here. It does not propose any new regulations and will be open for public comment for 30 days after it is published in the Federal Register.

EPA sued over alleged delays in implementing federal pesticide rules. On May 30, farmworker groups sued the EPA, claiming that the agency has failed to publish national training materials that provide guidance to agricultural field workers on how to best protect themselves against harmful exposure to pesticides. The lawsuit alleges that EPA’s responsibility to develop and publish these materials was triggered by the federal Agricultural Worker Protection Standard, which the agency revised in 2015.

Environmental Trends Contributors

sidleyenergy@sidley.com

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