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The Insider

EPA Dealing With Broad Toxics Agenda Across Several Agency Programs

EPA is developing new standards to address a range of industrial chemicals and other substances across several of its major regulatory authorities, including its revised powers under the Toxic Substances Control Act (TSCA), potential first-time use of its Safe Drinking Water Act (SDWA) authority to set a maximum contaminant level (MCL) and frequently used powers under the Clean Air Act to address air toxics.

But many of the measures are controversial and the agency will almost certainly face litigation if it finalizes proposals that environmentalists and others believe are not adequately protective.

Many observers are closely watching EPA's use of its revised authority under the 2016 TSCA, which requires the agency to stand up a new program. Earlier this week, the agency released a final significant new use rule governing renewed uses of asbestos, a substance that was a key driver for lawmakers to overhaul the statute.

EPA Broadens Asbestos SNUR But Still Faces Criticism Over Lack Of Ban

EPA has expanded the number of renewed asbestos uses for which manufacturers would have to seek agency approval though its final significant new use rule (SNUR), issued under the revised Toxic Substances Control Act (TSCA), still falls short of calls from some states and environmentalists for even broader restrictions or a total ban.

The asbestos rule was only the latest in a series of TSCA measures the agency has recently released.

EPA Seeks To Ease TSCA Chemical Reporting Burdens After Talks Fail
EPA is proposing a series of changes for its 2020 rule governing chemical use and other data industry must submit under the revised Toxic Substances Control Act (TSCA), measures that include provisions aimed at reducing businesses' reporting burdens which industry groups had failed to win when a negotiated rulemaking on the issue collapsed in 2017.

And agency officials also recently floated a plan under TSCA for strengthening its rules seeking to protect those exposed to lead paint dust as required by a court order.

Facing Court Deadline, White House Weighing EPA’s Lead Dust Hazard Rule
EPA has forwarded for White House review a draft final rule strengthening its 2001 lead paint dust hazard standards, a measure a federal appellate court has required the agency to issue after environmentalists and some states successfully sued to force the action.

But it's not just the TSCA program that is pumping out new rules. EPA's drinking water program recently floated a proposed drinking water public health goal for the rocket fuel ingredient perchlorate. If the agency eventually decides to set an enforceable standard known as a maximum contaminant level, it would mark the first time the agency has taken such a step since Congress amended SDWA in 1996.

EPA Sends Proposed Perchlorate Goal To OMB Ahead Of Court Deadline
EPA has formally floated its proposed health-based drinking water goal on the rocket fuel ingredient perchlorate to the White House Office of Management and Budget (OMB) for review, part of an effort to meet a court-ordered April 30 deadline for what could drive one of the first regulatory standards since Congress amended the drinking water law in 1996.

Top agency officials also recently promised that the agency would propose by this summer a new lead and copper rule (LCR) to encourage replacement of utility-owned lead service lines though utility officials are skeptical the agency will meet its deadline given the range of other items the drinking water office is seeking to address.

Despite Agency Pledges, Utilities Press EPA For Timeline On LCR Proposal
Municipal drinking water utilities are pressing EPA water chief David Ross on the agency's timeline for proposing revisions to the lead and copper rule (LCR), which agency officials have said is expected this summer, suggesting a cautiousness after the agency has repeatedly missed previous internal deadlines.

Among the items with which the drinking water office is grappling is the agency's high-profile effort to address per- and polyfluoroalkyl substances (PFAS), the widely used class of chemicals that is contaminating drinking water and groundwater across the country.

But the agency's commitment to complete some of those policies is getting harder. As first reported by Inside EPA, the Defense Department's acting chief told Sen. Jeanne Shaheen (D-NH) recently that the department was standing firm in its fight with EPA over recommended cleanup standards for PFAS in groundwater, likely further delaying EPA's long-promised guidance.

Resisting EPA, DOD Chief Defends Eased PFAS Groundwater Cleanup Level
Acting Defense Secretary Patrick Shanahan is strongly defending his department's stance that the acceptable risk level for remediating groundwater contaminated with per- and polyfluoroalkyl substances (PFAS) should be much weaker than the 70 parts-per-trillion (ppt) level that EPA favors, raising doubts that officials will be able to quickly issue a long-promised policy.

EPA's air office is also facing significant controversy as it works to scale back its long-running air toxics program. Most prominent is the agency's pending plan to drop its Obama-era finding that mercury standards for power plants are “appropriate and necessary,” a proposal that is already sparking heated legal debates.

Former EPA Air Chief Sees Standing Bar For Lawsuits Over MATS Rollback
Former Bush EPA air chief Jeffrey Holmstead is warning environmentalists and Democratic states that they lack legal standing to challenge the agency’s effort to scrap the “appropriate and necessary” cost-benefit finding underpinning the Obama-era utility air toxics rule, because they cannot show any injury from undoing the finding.

Also controversial in the air toxics program is the administration's pending review of whether it should continue to use conservative risk values recommended by its Integrated Risk Information System program for ethylene oxide.

Environmentalists Hint At Suit If EPA Drops IRIS EtO Value From Air Rules
Environmentalists are warning EPA that any attempt to drop use of its conservative Integrated Risk Information System (IRIS) risk values for ethylene oxide (EtO) when crafting air toxics rules would result in unlawful regulations not based on the “best available science,” signaling a likely legal challenge should the agency proceed with the approach.

These rulemakings highlight the controversy surrounding Trump EPA efforts to address toxic chemicals across its media programs and signal the continued close attention these rulemakings will receive.