EPA faces more litigation on legacy asbestos
The Asbestos Disease Awareness Organization delivered on an earlier notice of intent to sue by filing an official complaint against the U.S. Environmental Protection Agency over its ongoing risk evaluation of asbestos.
ADAO, a leading nonprofit aimed at preventing asbestos exposure, was joined by five other organizations and several public health experts in asking the court to set a deadline for the EPA to complete its work.
Exposure to asbestos, a naturally occurring mineral once used ubiquitously in construction, can cause a number of serious health issues, including mesothelioma cancer.
The lawsuit contends that the EPA has failed to adequately evaluate asbestos as required by the amended Toxic Substances Control Act.
One of the biggest threats to the general public is asbestos in older homes and commercial buildings – legacy asbestos – found most everywhere. Legacy asbestos was added to the Toxic Substances Control Act in 2019 after a U.S. Circuit Court of Appeals ruled the EPA must include it, an order sparked by another lawsuit from ADAO and others.
PFAS exemptions eliminated by EPA
The EPA, through the Office of Pollution Prevention and Toxics, recently issued a statement that will have significant impacts on any company seeking ways to have PFAS enter the market through low volume exemptions (LVEs) under the Toxic Substances Control Act (TSCA), according to the National Law Review.
These PFAS exemptions eliminated by the EPA may also have retroactive impacts, as the EPA is seeking to have companies that previously obtained PFAS LVEs voluntarily withdraw them. While on its surface the policy shift may seem insignificant, when considering the change in the context of the EPA considerably stepping up efforts to regulate PFAS, the news is yet another policy change that companies with any connection to or use of PFAS must pay attention to.
Given the complexity of PFAS chemistry, potential health effects, and their longevity and persistence in the environment, an LVE submission for a PFAS is unlikely to be eligible for this kind of exemption under the regulations. While EPA will consider each LVE application individually, the agency generally expects that pending and new LVE submissions for PFAS would be denied. Doing this will allow the agency additional time to conduct a more thorough review through the pre-manufacture notice review process and, as appropriate, put measures in place to mitigate the potential risk of these chemicals as the agency determines whether to allow them to enter commerce.
The National Law review predicts that in 2021, PFAS drinking water rules will be finalized at the federal level. Other regulations are likely during the Biden administration’s tenure, including air emissions, effluent, and disposal requirements. The elimination of PFAS exemptions from the LVEs is yet another step by the EPA towards a much more aggressive regulatory approach to PFAS than anything that we have seen before.
EPA moves to cut a group of powerful greenhouse gases
The Environmental Protection Agency is cracking down on a powerful class of greenhouse gases that are used in refrigerators, air conditioners and building insulation. The agency recently announced a new regulation that would dramatically decrease production and use of hydrofluorocarbons, or HFCs, over the next 15 years.
When they get into the atmosphere, hydrofluorocarbons are extremely good at trapping heat — much better than carbon dioxide. Some HFCs can linger in the atmosphere for 250 years or more. Total U.S. emissions of fluorinated gases, of which HFCs are a subset, have been increasing steadily in the last three decades because of ever-increasing demand for refrigeration and air conditioning.
The EPA’s new regulation would slash HFC production, import and use, beginning in 2022. The agency said its goal is to reduce HFC production and import by 85% over the next 15 years. The pandemic relief bill passed by Congress late in 2020 includes a section that requires such cuts to hydrofluorocarbons and directs the EPA to help industries that use HFCs transition to cleaner substitutes.
The EPA estimates that its new regulation would cut the equivalent of 4.7 billion metric tons of carbon dioxide from the atmosphere by 2036, which is about the same amount of carbon dioxide that U.S.
EPA announces expanded chemical reporting requirements
The EPA has announced its latest environmental justice initiative aimed at expanding Toxic Release Inventory (TRI) reporting requirements to include additional types of chemicals and facilities.
Environmental Justice is intended to ensure fair treatment and involvement of people regardless of race, color, origin or income in environmental regulation and enforcement. The TRI is a publicly available database that includes information on toxic chemical releases and waste management activities. The EPA announced its proposal to expand the list of chemicals covered by TRI reporting requirements, as well as public access to the database, in order to “advance Environmental Justice, improve transparency, and increase access to environmental information.”
There are four key components of the EPA’s announcement:
- Natural Gas Processing Facilities– The EPA is finalizing a proposed rulemaking that would include natural gas processing facilities on the list of industry sectors covered under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).
- Polyfluoroalkyl Substances (PFAS)– The EPA will continue to add new PFAS chemicals (also known as “forever chemicals”) to the TRI reporting requirements. The EPA’s authority to add PFAS chemicals to the TRI comes from the 2020 National Defense Authorization Act, which added certain PFAS to the TRI automatically.
- Ethylene Oxide (EtO)– EtO is used to make industrial chemicals and sterilize medical devices. Contract sterilization facilities that utilize EtO have not historically been required to report EtO releases. Now, they will be required to do so because “[m]any of these facilities are located near areas with Environmental Justice Concerns.”
- Toxic Substances Control Act (TSCA) Workplans– The EPA plans to propose adding to the TRI the chemicals included in the TSCA Workplan and other substances designated as high-priority substances under the TSCA.
There is growing public interest in environmental justice matters. In addition to the expanded TRI reporting requirements, the EPA has committed to enhancing its online search tools in an effort to make TRI information more accessible to the public. The EPA’s announcement may result in new and increased public interest in certain facilities and chemicals that previously did not have to be reported to the TRI.