Document x53dV3qGVOq6RKZDOpMr0jMyG
Appointment
From: Sent: To:
CC: BCC:
Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] 4/8/2025 7:36:20 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Deziel, Dennis <Dennis_Deziel@americanchemistry.com> [Dennis_Deziel@americanchemistry.com] Abboud, Michael [abboud.michael@epa.gov]; Hooper, Daniel [hooper.daniel@epa.gov] DCRoomWJCN5415/OAR [DCRoomWJCN54150AR@epa.gov]
Subject: Attachments:
Location:
Confirmed: In-person OAR External Meeting with American Chemistry Council 2025 EPA External Meeting Request Form.Chem Fly-ln.April2025.pdf; 2024 EPA External Meeting Request Form American Chemistry Council.pdf; 2025 EPA External Meeting Request Form.Chem Fly-ln.April2025.pdf Microsoft Teams Meeting; DCRoomWJCN5415/OAR
Start:
4/10/2025 5:15:00 PM
End:
4/10/2025 5:45:00 PM
Show Time As: Busy
Required Attendees: Optional Attendees:
Deziel, Dennis <Dennis_Deziel@americanchemistry.com> Abboud, Michael; Hooper, Daniel
Berkey-Ames, Laura; BASF Wilson, Philip; BASF Elizardo, Kelly; Braskem Henrichson, Lucinda; CPChem Bower, Melanie; Exxon Mobil Demien, Sarai; Lyondell Bassell Assis, Isabel; Dow Litkenhaus, Colleen; Dow Parker, Kyle; ACC Deziiel, Dennis; ACC Grant, John; Lyondell Basell Robertson, Peter; ExxonMobil Terrie, Omar; Alterra Demien, Sarai; Lyondell Basell Gordon, Stephen; Chevron Phillips Smith, Alexandra; Shell Brenner, Helmut; Shell Hunter, Rory; Shell
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ED_0184 758_00000089-00001
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More info For organizers: Meeting options Reset dial-in PIN This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_018475B_ 00000089-00002
External Meeting Request Form Today's Date: 3/26/25
Requesting Organization: American Chemistry Council Title of the Meeting: ACC Fly-In: Advanced Recycling Meet & Greet Purpose: Chemical industry leaders would like to meet with Ms. Tardif to introduce themselves, welcome her to her new role, and provide background and status of advanced recycling efforts.
Background: Several chemical manufacturers and advanced recycling companies are traveling to Washington D.C. from across the country to participate in a DC fly-in. Company representatives will spend time with Congress and executive branch leaders discussing plastics, advanced recycling and other important topics. Is this meeting related to ongoing litigation: No
Earliest possible date for the meeting: 4/8/25 Last possible date for the meeting: 4/10/25
Is the meeting urgent and if so, why: No
Have you met with anyone within EPA: No EPA participants requested: Abigale Tardif External Participants (including name [last, first], affiliation/organization, and email):
Berkey-Ames, Laura, BASF; Wilson, Philip, BASF;Elizardo, Kelly, Braskem; Henrichsen, Lucinda, CPChem; Bower, Melanie, Exxon Mobil; Demien, Sarai, Lyondell Bassell, Assis, Isabel, Dow; Litkenhaus, Colleen, Dow; Thompson, Clint, Nexus Circular; Eisenberg, Ross, ACC; Parker, Kyle, ACC; Deziiel, Dennis ACC
Virtual, in-person, or hybrid meeting requested: In-Person Point of Contact for the Meeting: Dennis Deziel, Dennis_Deziel@americanchemistry.com
***Please email this form back to OAR_Invitations@epa.gov***
ED_018475B_ 00000090-00001
External Meeting Request Form
Today's Date: 2/6/25 Requesting Organization: American Chemistry Council (ACC)
Title of the Meeting: EPA - ACC HON Discussion
Purpose:
ACC requests a meeting with EPA OAR staff to discuss priority issues from our joint petition for reconsideration on the final HON rulemaking submitted Friday, January 31st. While there is pending litigation on the final rule, this meeting is not related to the litigation itself.
Background:
On Friday, January 31st, the ACC and the American Fuel & Petrochemical Manufacturers (AFPM) submitted a petition for reconsideration to EPA related to the Agency's final National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards for the Synthetic
f"'\rr,,::,ni,-. rharni,-.,::,I 1\,1,::,n, 1f,::,,-.h ,rinr, lnrl, ,c-frH ,::,nrl r-rn, ,n I Jl. 11 Dnh,rnarc- ,::,nrl Oac-inc- lnrl, ,c-frH /QO i=arl
Is this meeting related to ongoing litigation: No
[:]
Earliest possible date for the meeting: 2/6/25
Last possible date for the meeting: 2/21/25
Is the meeting urgent and if so, why: Yes
[:]
Several of the issues addressed are time-sensitive given regulatory deadlines.
Requested Time Length: 60 minute{:)
Have you met with anyone within EPA: No
EPA participants requested: Abigale Tardiff; Alex Dominguez; Aaron Szabo EPA OAQPS and OGG Staff as necessary
External Participants (including name [last, first], affiliation/organization, and email): Brendan Mascarenhas, American Chemistry Council (Brendan_Mascaren has@americanchemistry.com);
Virtual, in-person, or hybrid meeting requested: In-Person [:]
Point of Contact for the Meeting: Brendan Mascarenhas, American Chemistry Council (Brendan_Mascarenhas@americanchemistry.com ); Mara LaPorte, Eastman maralaporte@eastman.com
***Please email this form back to OAR_Invitations@epa.gov***
ED_0184 758_00000091-00001
ppointment
Smith, Matthew
[msmith@USChamber.com]
3/12/2025 6:15:05 PM
Smith, Matthew
[msmith@USChamber.com];
Dekleva, Lynn
[dekleva.lynn@epa.gov]; Energy
Team
[EnergyTeam@USChamber.com];
Varcoe, Andrew
[AVarcoe@USChamber.com]
C:
Chaitovitz, Chuck
[CChaitovitz@USChamber.com];
Knakmuhs, Heath
[hknakmuhs@USChamber.com];
cwhiteman@uschamber.com;
Morales, MacKenzie
[MMorales@USChamber.com];
Guith, Christopher
[CGuith@USChamber.com];
Byers, Dan
[DByers@USChamber.com];
Beard, Preston [PBeard@USChamber.com]; Krishna, Chris [Chris_Krishna@oxy.com]; Tyler,
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Tom [Tyler.Tom@epa.gov];
Altieri, Sonia
[Altieri.Sonia@epa.gov]; Malloy,
Ruth [malloy.ruth@epa.gov];
Parker, James
[Parker.James. L@epa.gov];
Kaiser, Sven-Erik [Kaiser.Sven-
Erik@epa.gov]; Merrifield, Trevor
[TMerrifield@USChamber.com]
Chemistry Solutions Working Group Meeting March Microsoft Teams
3/14/2025 6:00:00 PM 3/14/2025 6:45:00 PM how Time Busy
s:
Recurrence:(none)
ED_0184758_00006381-00001
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ED_018475B_ 00006381-00002
Appointment
From: Sent: To:
Subject:
Laurie Shelby [lshelby@tesla.com] 2/4/2025 6:39:23 AM Jennifer Wu [chiawu@tesla.com]; Cook, Steven [cook.steven@epa.gov]; Lindsey Jubel [lijubel@tesla.com]; John Poakeart [jpoakeart@tesla.com]; Cynthia Krieger [ckrieger@tesla.com]; Ian Langtry [ilangtry@tesla.com]; Will Roberts [wroberts@tesla.com]; Laurie Shelby [lshelby@tesla.com]
Meeting (ScheduledMeeting)/Thread Id: 19:meeting_YTJkMmQ1NzAtYTk3YiOOYzNILWE2MTktZDUOYTl3MzNjZjQ5@thread.v2/Communication Id: a02f0fe8d762-4716-b731-8af9c41fe29b/Jennifer Wu,Cook, Steven,Lindsey Jubel,John Poakeart,Cynthia Krieger,lan Langtry,Will Rob ...
Start:
2/3/2025 9:59:12 PM
End:
2/3/2025 10:17:18 PM
Show Time As: Busy
Recurrence:
Required Attendees:
(none) Jennifer Wu; Cook, Steven; Lindsey Jubel; John Poakeart; Cynthia Krieger; Ian Langtry; Will Roberts; Laurie Shelby
Start Time (UTC): 2/3/2025 9:59:12 PM End Time (UTC): 2/3/2025 10:17:18 PM Duration: 00:18:05.6214835
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ED_0184 758_00036537-00001
Appointment
From: Sent: To:
Cook, Steven [cook.steven@epa.gov] 2/7/2025 10:47:27 PM Cook, Steven [cook.steven@epa.gov]; Richard Huggins Jr. [rhuggins@eei.org]
Subject:
Meeting (ScheduledMeeting)/Thread Id: 19:meeting_M2Q3NGMxZWUtZmYwYSOOMmU5LWJIYjgtNDcyMjkxYThmNTNi@thread.v2/Communication Id: a321b2f8-363c-4a91-9ae7-cfc82ee5d683/Cook, Steven,Richard Huggins Jr.
Start:
2/7/2025 2:00:34 PM
End:
2/7/2025 2:25:19 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees:
Cook, Steven; Richard Huggins Jr.
Start Time (UTC): 2/7/2025 2:00:34 PM End Time (UTC): 2/7/2025 2:25:19 PM Duration: 00:24:45.4056061
[2/7/2025 2:00:34 PM (UTC)] cook.steven@epa.gov joined. [2/7/2025 2:00:42 PM (UTC)] cook.steven@epa.gov left. [2/7/2025 2:00:50 PM (UTC)] cook.steven@epa.gov joined. [2/7/2025 2:25:19 PM (UTC)] cook.steven@epa.gov left. [2/7/2025 2:01:08 PM (UTC)] rhuggins@eei.org joined. [2/7/2025 2:25:18 PM (UTC)] rhuggins@eei.org left.
ED_0184 758_00036546-00001
Appointment
From: Sent: To:
Cook, Steven [cook.steven@epa.gov] 3/4/2025 1:28:22 AM Richard Huggins Jr. [rhuggins@eei.org]; Ruiz, Maryanne [ruiz.maryanne@epa.gov]; Application 4062df8b-5499-49a2abe0-29ad866b2c04; DCRoomWJCW3146/OLEMAA [DCRoomWJCW31460LEMAA@epa.gov]; Alex Bond [ABond@eei.org]
Subject:
Meeting (ScheduledMeeting)/Thread Id: 19:meeting_YjZINml4MDYtMDdhYSOONzhmLWFINDUtOTRkMmYyNmNiOTgO@thread.v2/Communication Id: 4c220653-7b3e-4556-a6bd-eadcb3722d03/Richard Huggins Jr.,Ruiz, Maryanne,DCRoomWJCW3146/OLEMAA,Alex Bond
Start:
3/3/2025 4:44:50 PM
End:
3/3/2025 5:06:37 PM
Show Time As: Busy
Recurrence:
Required Attendees:
(none)
Richard Huggins Jr.; Ruiz, Maryanne; Application 4062df8b-5499-49a2-abe0-29ad866b2c04; DCRoomWJCW3146/OLEMAA; Alex Bond
Start Time (UTC): 3/3/2025 4:44:50 PM End Time (UTC): 3/3/2025 5:06:37 PM Duration: 00:21:46.4563947
[3/3/2025 4:44:58 PM (UTC)] rhuggins@eei.org joined. [3/3/2025 5:06:19 PM (UTC)] rhuggins@eei.org left. [3/3/2025 4:44:50 PM (UTC)] ruiz.maryanne@epa.gov joined. [3/3/2025 5:06:21 PM (UTC)] ruiz.maryanne@epa.gov left. [3/3/2025 4:47:23 PM (UTC)] Application 4062df8b-5499-49a2-abe0-29ad866b2c04 joined. [3/3/2025 5:06:37 PM (UTC)] Application 4062df8b-5499-49a2-abe0-29ad866b2c04 left. [3/3/2025 4:47:20 PM (UTC)] DCRoomWJCW31460LEMAA@epa.gov joined. [3/3/2025 5:06:37 PM (UTC)] DCRoomWJCW31460LEMAA@epa.gov left. [3/3/2025 4:46:02 PM (UTC)] ABond@eei.org joined. [3/3/2025 5:06:20 PM (UTC)] ABond@eei.org left.
ED_0184 758_00036624-00001
ppointment
Laurie Shelby
[lshelby@tesla.com]
2/3/2025 7:43:39 PM
Laurie Shelby
[lshelby@tesla.com];
Cook, Steven
[cook.steven@epa.gov];
Cynthia Krieger
[ckrieger@tesla.com];
John Poakeart
Lipoakeart@tesla.com];
Will Roberts
[wroberts@tesla.com];
Ian Langtry
[ilangtry@tesla.com];
Lindsey Jubel
[lijubel@tesla.com]
C:
Jennifer Wu
[chiawu@tesla.com]
ubject: Location:
Moved up 30 minutesEPA request for household hazardous waste lay down area LA Microsoft Teams Meeting
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
2/3/2025 10:00:00 PM 2/3/2025 10:30:00 PM
Microsoft Teams Need help?
Join the meeting now
Meeting IDL_EX. 6_Personal _Privacy (PP)_] Passcode:L ! .--------------'
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ED_0184 758_00036751-00001
Dial in by phone
it : Ex. 6 Personal Privacy (PP) United States, Truckee
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ED_0184 758_00036751-00002
ppointment
tbridgeford@nma.org [tbridgeford@nma.org] 3/6/2025 3:37:52 PM tbridgeford@nma.org; Cook, Steven [cook.steven@epa.gov]; OLEM 10 Materials [OLEMIOMaterials@epa.gov]; Watt, Jamey [Watt.Jamey@epa.gov]; Hockey, David [Hockey. David@epa.gov]; mcompton@miningamerica.org; Sidney Smith [ssmith@miningamerica.org]; Mahmud, Shahid [Mahmud.Shahid@epa.gov]; McHale, Caitlin [cmchale@nma.org]
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
ubject: Location:
Meeting on Good Samaritan Implementation 101 Constitution Avenue NW; Suite #500; East
how Time s:
3/13/2025 3:15:00 PM 3/13/2025 4:15:00 PM Busy
lmportance:High
-----Original Appointment----From: tbridgeford@nma.org <tbridgeford@nma.org> Sent: Thursday, March 6, 2025 10:36 AM To: tbridgeford@nma.org; OLEM 10 Materials; Watt, Jamey; Hockey, David; mcompton@miningamerica.org; Sidney Smith; Mahmud, Shahid; McHale, Caitlin Subject: Meeting on Good Samaritan Implementation When: Thursday, March 13, 2025 11:15 AM-12:15 PM (UTC-05:00) Eastern Time (US & Canada). Where: 101 Constitution Avenue NW Importance: High
I
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Good morning,
Forwarding details on the Good Sam meeting next Thursday and thanks.
ED_0184 758_00037095-00001
-----Original Appointment----From: Bridgeford, Tawny <TBridgeford@nma.org> Sent: Thursday, March 6, 2025 9:59 AM To: Bridgeford, Tawny; mcompton@miningamerica.org; Sidney Smith; Mahmud, Shahid; McHale, Caitlin Subject: Meeting on Good Samaritan Implementation When: Thursday, March 13, 2025 11:15 AM-12:15 PM (UTC-05:00) Eastern Time (US & Canada). Where: 101 Constitution Avenue NW
I
Caution: This email originated whether to open attachments or
from click
outside EPA, please on provided links.
exercise
additional
caution
when
deciding
Teams provided below. In-person, 101 Constitution Avenue, NW, Suite 500 East. Please send me in-person attendees to share with our building security.
Microsoft Teams Need help?
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National Mining Association 101 Constitution Avenue, NW Suite 500 East Washington, DC 20001 (202) 4632600
ED_0184 758_00037095-00002
Appointment
From: Sent: To:
Smith, Matthew [msmith@USChamber.com] 3/15/2025 3:38:37 AM Bryant Newell; Moeller, Perri [Perri.Moeller@Honeywell.com]; Application 9cd07db6-fab5-438c-8e3444117fac7650; Varcoe, Andrew [AVarcoe@USChamber.com]; Brubaker, Jill [Jill_Brubaker@americanchemistry.com]; Stephenson, Kendall [KStephenson@USChamber.com]; KATHERINE WALTON [kwalton@mmm.com]; Gann, Benjamin D [Benjamin_Gann@oxy.com]; Demeter, Ruth [RDemeter@USChamber.com]; Krishna, Chris [Chris_Krishna@oxy.com]; Krug_r:r:!i:!.r:.i.L.M.i~b.c!.~!.I.mkrugman@estee.com]; Bell, Atashi (She/Her/Hers) [Atashi .Bel l@Honeywell .com]; t::_~.':.'."..~~'.~~;~'.:Y_i~~j Application 207a6836-d031-4764-a9d8-c1193f455f21; Hopper, Sara [sara.e.hopper@corteva.com]; Application 9e133cac::---'i238=.4dJ..e.a.aaa,0-d8ff4ca23f4e; teamsvisitor:6d07c3621a7744ffa6992f57d5d8d763; ~ E,.,PecsonalP,;vacy(PP) :Dan Selechnik [DSelechnik@Cleaninglnstitute.org]; Jerry Couri [JCo~-rf@afpnicfrg};'.+L~:.:"..~':~.'.'.~.~'.;~'.~y-(P_"'.~j teamsvisitor:8b8b7a0fb03b4e15bef48c2b3879b04e; Drew Rak (TMNA) [drew.rak@toyota.com]; Mcrae, Deana [JJCUS] [DMcRae3@ITS.JNJ.com]; Sun, Gulan [Gulan.Sun@Motiva.Com]; kandy_beckner@oxy.com; Sheridan, Kevin [ksheridan@westlake.com]; Douglas Leigh [dleigh@acd-chem.com]; Holm, Stewart [Stewart_Holm@afandpa.org]; Elise Maheu [emaheu@mmm.com]; Rentz, Rebecca J [Rebecca_Rentz@oxy.com]; Solomon, Desiree [EMR/ENT/WDC] [desiree.solomon@emerson.com]; cwhiteman@uschamber.com; Alex Gordon [agordon@semiconductors.org]; Robert West [Robert_West@huntsman.com]; 0 Keefe, Kathleen E [kathleen.e.okeefe@chemours.com]; Nick Tindall [ntindall@AEM.org]; Joseph, Lucas [LJoseph@nma.org]; Darius Stanton [Dstanton@cleaninginstitute.org]; Yu, Lu [Lu.Yu@p66.com]; beth_carruthers@huntsman.com; Marie Gargas [MGargas@Cleaninglnstitute.org]; James Kim [JKim@Cleaninglnstitute.org]; teamsvisitor:04a4ca909532418fadbac5272330abe7; Swick, Derek D [Derek_Swick@oxy.com]; Reagan Giesenschlag [RGiesenschlag@tfi.org]; Vittoria van Blommestein [VittoriaVB@Cleaninglnstitute.org]; Tim Sheehan (RTX); Lorraine Gershman [lgershman@daikin-america.com]; Anna Romanovsky; Christian Richter; Mavian, Kari (K) [KMavian@dow.com]; Alex Tobia; Swearngan, Chip [cswearngan@westlake.com]; Leopold, Matt [MLeopold@hunton.com]; Cynthia Graham [cynthia_graham@huntsman.com]; Ostman, Christopher A [Christopher_Ostman@oxy.com]; Smith, Matthew [msmith@USChamber.com]; Beard, Preston [PBeard@USChamber.com]; Nicholas Breslin [nbreslin@acd-chem.com]; Lori Vosefski (TMNA) [lori.vosefski@toyota.com]; Maria Medina [maria.medina@entegris.com]; Davis, Ian [lan_Davis@oxy.com]; Jennifer Gibson [jgibson@acd-chem.com]; rayna.laiosa@chemours.com; Williamson, Jason [jwilliamson@westlake.com]; Dekleva, Lynn [dekleva.lynn@epa.gov]; Richard E. Engler, Ph.D. [rengler@lawbc.com]; Chaitovitz, Chuck [CChaitovitz@USChamber.com]; Moynihan, Richard [Richard_Moynihan@trg.com]; Jim Cooper [JCooper@afpm.org]; Brian Callahan [bcallahan@acd-chem.com]; 55949fc469c72a74; mark.bacchus@toyota.com; Jeff Bruening [Jeffrey_Bruening@huntsman.com]; Litkenhaus, Colleen (CJ) [CLitkenhaus@dow.com]; teamsvisitor:f840acc8c4f84512ade3909baa600ccd; Merrifield, Trevor [TMerrifield@USChamber.com]
Subject:
Meeting (ScheduledMeeting)/Thread Id: 19:meeting_N2U1N2MyMWMtNTUzNCO0ZmRhLTk4Y2EtZWM3ZDFIOTUzMjRl@thread.v2/Communication Id: a7dlb3c6-2270-448e-947f-b92e4cfa9f4e/Bryant Newell,Moeller, Perri,Varcoe, Andrew,Brubaker, Jill,Stephenson, Kendall,KATHERINE ...
Start:
3/14/2025 5:55:29 PM
End:
3/14/2025 7:19:54 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees:
Bryant Newell; Moeller, Perri; Application 9cd07db6-fab5-438c-8e34-44117fac7650; Varcoe, Andrew; Brubaker, Jill; Stephenson, Kendall; KATHERINE WALTON; Gann, Benjamin D; Demeter, Ruth; Krishna, Chris; Krugman, Michael; Bell, Atashi (She/Her/Hers); +L:'.c~~'.c'.~'.~:.'.'."'..".'!.~:2_j; Application 207a6836-d031-4764-a9d8-c1193f455f21; Hopper, Sara; Application 9e133cac-5238-4d1e-aaa0-d8ff4ca23f4e; team svi sitor: 6d07c3621a 7744ffa6992f57d5d8d763; [-~~:~~;,;~~;,-,-~~-;;;~;1-;;~j-jDan Selechnik; Jerry Couri; +[e-;.-_-.-,;;;;~-~;;,;;;~;~y11-~amsvisitor:8b8b7a0fb03b4e15bef48c2b3879b04e; Drew Rak (TMNA); Mcrae, Deana [JJCUS]; Sun, Gulan; kandy_beckner@oxy.com; Sheridan, Kevin; Douglas Leigh; Holm, Stewart; Elise Maheu; Rentz, Rebecca J; Solomon, Desiree [EMR/ENT/WDC]; cwhiteman@uschamber.com; Alex Gordon; Robert West; 0 Keefe, Kathleen E; Nick Tindall; Joseph, Lucas; Darius Stanton; Yu, Lu; beth_carruthers@huntsman.com; Marie Gargas; James Kim; teamsvisitor:04a4ca909532418fadbac5272330abe7;
ED_0184 758_00039987-00001
Swick, Derek D; Reagan Giesenschlag; Vittoria van Blommestein; Tim Sheehan (RTX); Lorraine Gershman; Anna Romanovsky; Christian Richter; Mavian, Kari (K); Alex Tobia; Swearngan, Chip; Leopold, Matt; Cynthia Graham; Ostman, Christopher A; Smith, Matthew; Beard, Preston; Nicholas Breslin; Lori Vosefski (TMNA); Maria Medina; Davis, Ian; Jennifer Gibson; rayna.laiosa@chemours.com; Williamson, Jason; Dekleva, Lynn; Richard E. Engler, Ph.D.; Chaitovitz, Chuck; Moynihan, Richard; Jim Cooper; Brian Callahan; 55949fc469c72a74; mark.bacchus@toyota.com; Jeff Bruening; Litkenhaus, Colleen (CJ); teamsvisitor:f840acc8c4f84512ade3909baa600ccd; Merrifield, Trevor
Start Time (UTC): 3/14/2025 5:55:29 PM End Time (UTC): 3/14/2025 7:19:54 PM
Duration: 01:24:25.8168099
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ED_0184 758_00039987-00003
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ED_0184 758_00039987-00004
Appointment
From: Sent: To:
CC: BCC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 4/8/2025 2:45:50 PM Gunning, Paul [Gunning.Paul@epa.gov]; Newberg, Cindy [Newberg.Cindy@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Leopold, Matt [MLeopold@hunton.com]; Hooper, Daniel [hooper.daniel@epa.gov] DCRoomWJCN5406/OARAA [DCRoomWJCN54060ARAA@epa.gov]
Subject: Attachments: Location:
Confirmed: In person OAR External Meeting with Orbia Fluor & Energy Materials (d/b/a Koura) Orbia Fluor & Energy Materials dba Koura 2024 EPA External Meeting Request Form.pdf Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/17/2025 8:00:00 PM
End:
4/17/2025 8:30:00 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees: Optional Attendees:
Gunning, Paul; Newberg, Cindy; Szabo, Aaron; Tardif, Abigale (Abbie) Leopold, Matt; Hooper, Daniel
Shawn Shorrock, Global VP of Refrigerants, Orbia Fluor and Energy Materials (Koura)
Scott Stone, President, Glencoe Strategies
Matt Leopold, Partner, Hunton Andrews Kurth
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ED_0184 758_00064517-00001
For organizers: Meeting options Reset dial-in PIN This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_0184 758_00064517-00002
External Meeting Request Form
Today's Date: 4/1 /25
Requesting Organization: Orbia Fluor & Energy Materials (d/b/a Koura)
Title of the Meeting: SNAP 27 Rulemaking for Approval of MVAC Substitutes
Purpose: Koura wishes to discuss its commercial priorities and market timing needs with regard to a SNAP 27 rulemaking and offer support to EPA in acting expeditiously to remove remaining regulatory barriers to the full market entry of several of Koura's substitute refrigerants whose approval is pending.
Background:
Koura has submitted applications for approval under the Significant New Alternatives Policy (SNAP) of several substitute refrigerants Koura intends to manufacture at its expanding Louisiana facilities for use in motor vehicle air conditioning (MVAC) servicing. Currently, only one refrigerant is approved under SNAP for MVAC servicing. Koura is eager to bring its alternatives to market to expand consumer choice and reduce servicing prices. EPA has deemed Koura's SNAP submissions complete. The next step is inclusion in the next SNAP rulemaking for final approval.
Is this meeting related to ongoing litigation: N0 Earliest possible date for the meeting: 4/21 /25
Last possible date for the meeting: 4/25/25
Is the meeting urgent and if so, why: Yes
Yes. Timing of the SNAP 27 rule is of the highest commercial significance for Koura for these substitutes, consumer choice, and service pricing.
Requested Time Length: 30 minutes
Have you met with anyone within EPA: Koura has met with SPD personnel over the past year on
EPA participants requested:
these SNAP submissions as part of the regular process.
Alexander Dominguez and Abigale Tardif
External Participants (including name [last, first], affiliation/organization, and email): Shorrock, Shawn. Koura. Shawn.Shorrock@orbia.com. Leopold, Matt. Hunton. MLeopold@hunton.com. Stone, Scott. Glencoe Strategies.scott@glencoestrategies.com
Virtual, in-person, or hybrid meeting requested: In-Person
Point of Contact for the Meeting: Scott Stone, Glencoe Strategies. 415-969-1804. scott@g lencoestrateg ies .com
***Please email this form back to OAR_Invitations@epa.gov***
ED_0184 758_00064518-00001
Appointment
From: Sent: To:
CC:
BCC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 4/7/2025 12:23:20 PM Szabo, Aaron [Szabo.Aaron@epa.gov]; Hengst, Benjamin [Hengst.Benjamin@epa.gov]; Dunham, Sarah [Dunham.Sarah@epa.gov]; mjbirsic@marathonpetroleum.com Short, Dan Z. [dzshort@marathonpetroleum.com]; Riesen, Terry J. [tjriesen@marathonpetroleum.com]; Zinsmeister, Emma [Zinsmeister.Emma@epa.gov] DCRoomWJCN5406/OARAA [DCRoomWJCN54060ARAA@epa.gov]
Subject: Attachments:
Location:
Confirmed: In person OAR External Meeting with Marathon Petroleum Marathon Petroleum Corporation 2024 EPA External Meeting Request.pdf; Marathon Petroleum Corporation 2024 EPA External Meeting Request.pdf Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/16/2025 6:30:00 PM
End:
4/16/2025 7:00:00 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees: Optional Attendees:
Szabo, Aaron; Hengst, Benjamin; Dunham, Sarah; mjbirsic@marathonpetroleum.com Short, Dan Z.; Riesen, Terry J.; Zinsmeister, Emma
Michael Birsic: Manager, Federal Government Affairs Dan Short: Manager, Fuels & Low Carbon Policy Terry Reisen: Advanced Business Development Advisor, Fuels & Low Carbon Policy Menefee, Jake, Vice President of Government Affairs and ESG
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ED_0184 758_00064 730-00001
More info For organizers: Meeting options Reset dial-in PIN This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_0 184 75B_ 00064 730-00002
Appointment
From: Sent: To:
CC: BCC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 3/6/2025 5:13:04 PM Hengst, Benjamin [Hengst.Benjamin@epa.gov]; Bunker, Byron [bunker.byron@epa.gov]; Whitfield, Peter [pwhitfield@sidley.com] Szabo, Aaron [Szabo.Aaron@epa.gov]; Hooper, Daniel [hooper.daniel@epa.gov] DCRoomWJCN5415/OAR [DCRoomWJCN54150AR@epa.gov]
Subject: Attachments: Location:
Confirmed : In-Person OAR External Meeting with Cenovus Superior Refining Co 2024 EPA External Meeting Request Form - Cenovus Superior.pdf Microsoft Teams Meeting; DCRoomWJCN5415/OAR
Start:
4/9/2025 6:00:00 PM
End:
4/9/2025 6:30:00 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees: Optional Attendees:
Hengst, Benjamin; Bunker, Byron; Whitfield, Peter Szabo, Aaron; Hooper, Daniel
Syphard, Dan, SRC Highley, Stephen, SRC Whitfield, Peter, Sidley Peter Fredman
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ED_018475B_ 00065029-00001
For organizers: Meeting options Reset dial-in PIN This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_018475B_ 00065029-00002
External Meeting Request Form
Today's Date: 2/24/25 Requesting Organization: Cenovus Superior Refining Co (SRC) Title of the Meeting: Hardship Exemption Purpose: Meet with EPA to discuss Superior's petition for hardship relief under the Renewable Fuel Standard
Background: As a result of the DC Circuit decision in Sinclair v. EPA, the standards for reviewing hardship petitions are unclear. SRC would like to discuss guidance on hardship relief criteria and the factors EPA should consider in reviewing and granting relief. Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 3/13/25 Last possible date for the meeting: 4/11 /25 Is the meeting urgent and if so, why: Yes SRC is seeking input before submitting its petitions Requested Time Length: 60 minutes Have you met with anyone within EPA: Not recently EPA participants requested: Abigale Tardif, Alex Dominguez
External Participants (including name [last, first], affiliation/organization, and email): Syphard, Dan, SRC (Dan.Syphard@cenovus.com); Highley, Stephen, SRC (stephen.higley@cenovus.com); Whitfield, Peter, Sidley (pwhitfield@sidley.com) Virtual, in-person, or hybrid meeting requested: In-Person Point of Contact for the Meeting: Peter Whitfield, pwhitfield@sidley.com, 202.669.2160
***Please email this form back to OAR_Invitations@epa.gov***
ED_018475B_ 00065030-00001
Appointment
From: Sent: To: CC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 3/10/2025 7:05:15 PM Omar Vargas <omar.vargas@gm.com> [omar.vargas@gm.com]; Szabo, Aaron [Szabo.Aaron@epa.gov] Jonathan Weinberger uonathan.weinberger@gm.com]
Subject: Attachments: Location:
Confirmed: Phone call with Omar from General Motors General Motors 2024 EPA External Meeting Request Form.pdf Microsoft Teams Meeting
Start:
3/14/2025 9:00:00 PM
End:
3/14/2025 9:15:00 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees: Optional Attendees:
Omar Vargas <omar.vargas@gm.com>; Szabo, Aaron Jonathan Weinberger
Mobile number for Omar is(________ Ex.__6 ___________ j
Microsoft Teams Need help?
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ED_0184 758_00065108-00001
This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_0184 758_00065108-00002
External Meeting Request Form
Today's Date: 2/28/25 Requesting Organization: General Motors Title of the Meeting: Intro Meeting/CAFE/GHG Purpose: To discuss and align on policy priorities for the auto industry (i.e. CAFE/GHG)
Background: GM and our CEO Mary Barra want to make sure GM is aligned with the Trump administration and be of assistance where we can.
Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 3/3/25 Last possible date for the meeting: 3/14/25 Is the meeting urgent and if so, why: Yes The fast moving nature of this administration and critical decisions before us Requested Time Length: 30 minutes Have you met with anyone within EPA: Mike Abboud EPA participants requested: Alexander Dominguez External Participants (including name [last, first], affiliation/organization, and email): Vargas, Omar, Head of GM Public Policy/GM omar.vargas@gm.com Weinberger, Jonathan, VP, Chief Policy Advisor jonathan.weinberger@gm.com Virtual, in-person, or hybrid meeting requested: Hybrid Point of Contact for the Meeting: Nicole Sessoms (nicole.sessoms@gm.com)
***Please email this form back to OAR_Invitations@epa.gov***
ED_0184 758_00065109-00001
Appointment
From: Sent: To: CC:
BCC:
Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] 2/28/2025 5:35:10 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; CramtonJ@api.org Dominguez, Alexander [dominguez.alexander@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Cephas, Christal [Cephas.Christal@epa.gov]; Jordan Christman [ChristmanJ@api.org]; Calabro, Alex T [alex.t.calabro@exxonmobil.com]; Hillis, Timothy [Timothy_Hillis@oxy.com]; Emily Hague [Hague@api.org]; Schaaff, Lesley [lschaaff@hess.com]; Avery, Kevin J [Kevin.J.Avery@conocophillips.com]; Kristin Whitman [WhitmanK@api.org]; Holly Hopkins [hopkinsh@api.org]; McGowen, Misty [Misty.McGowen@p66.com]; Hooper, Daniel [hooper.daniel@epa.gov] DCRoomWJCN5415/OAR [DCRoomWJCN54150AR@epa.gov]
Subject: Attachments: Location:
Confirmed: In-Person OAR External Meeting with API API Meeting Request.pdf Microsoft Teams Meeting; DCRoomWJCN5415/OAR
Start:
4/1/2025 2:45:00 PM
End:
4/1/2025 3:15:00 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees: Optional Attendees:
CramtonJ@api.org
Dominguez, Alexander; Szabo, Aaron; Cephas, Christal; Jordan Christman; Calabro, Alex T; Hillis, Timothy; Emily Hague; Schaaff, Lesley; Avery, Kevin J; Kristin Whitman; Holly Hopkins; McGowen, Misty; Hooper, Daniel
Michael Leahy -Chevron Lesley Schaaff, Hess Tim Hillis, Oxy Jaymie Archer, Exxon Mobil Holly Hopkins, API Emily Hague, API Jordan Christman, API John Wagner, API Kevin Avery, ConocoPhillips Alex Calabro Exxon Misty McGowen P66 Rob Smith Cheniere Kristin Whitman API
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ED_0184758_00068813-00001
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More info L-------------------------------------------
For organizers: Meeting options Reset dial-in PIN
This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_0184758_00068813-00002
Appointment
From: Sent: To: CC: BCC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 2/7/2025 2:28:47 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; MLeopold@hunton.com Zinsmeister, Emma [Zinsmeister.Emma@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] DCRoomWJCN5406/OARAA [DCRoomWJCN54060ARAA@epa.gov]
Subject: Attachments: Location:
Confirmed: In-person OAR External Meeting with Daimler Trucks Daimler Truck North America.pdf DCRoomWJCN5406/OARAA
Start:
2/7/2025 5:00:00 PM
End:
2/7/2025 6:00:00 PM
Show Time As: Busy
Required Attendees: Optional Attendees:
MLeopold@hunton.com Zinsmeister, Emma; Tardif, Abigale (Abbie)
-----Original Appointment----From: Fan, Jessie On Behalf Of Dominguez, Alexander Sent: Thursday, February 6, 2025 4:43 PM To: Dominguez, Alexander; MLeopold@hunton.com Cc: Zinsmeister, Emma Subject: Confirmed: In-person OAR External Meeting with Daimler Trucks
When: Friday, February 7, 2025 12:00 PM-1:00 PM (UTC-05:00) Eastern Time (US & Canada).
Where: DCRoomWJCN5406/OARAA
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ED_018475B_00069279-00001
1--------------------------------------------.
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For organizers: Meeting options Reset dial-in PIN
This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_018475B_ 00069279-00002
External Meeting Request Form
Today's Date: 2/6/25 Requesting Organization: Daimler Truck North America Title of the Meeting: Meet and Greet Purpose: Meet with Mr. Dominguez to introduce the company, which is one of the major diesel engine manufacturers Background:
Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 2/7/25 Last possible date for the meeting: 2/7/25 Is the meeting urgent and if so, why: No
Requested Time Length: 60 minutes Have you met with anyone within EPA: No EPA participants requested: Alex Dominguez Abbie Tardif External Participants (including name [last, first], affiliation/organization, and email): Leopold, Matt, Hunton, mleopold@hunton.com Waters, Sean, Daimler Truck North America, sean.waters@daimlertruck.com Virtual, in-person, or hybrid meeting requested: In-Person Point of Contact for the Meeting: Matt Leopold, 202-527-1371
***Please email this form back to OAR_Invitations@epa.gov***
ED_018475B_ 00069280-00001
Appointment
From: Sent: To:
Birsic, Michael J. [mjbirsic@marathonpetroleum.com] 4/7/20251:30:50 PM Dominguez, Alexander [dominguez.alexander@epa.gov]
Subject: Location:
Accepted: Confirmed: In person OAR External Meeting with Marathon Petroleum Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/16/2025 6:30:00 PM
End:
4/16/2025 7:00:00 PM
Show Time As: Busy
Recurrence: (none)
caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
ED_0184 7 5 8 _ 0 0 0 7 0 0 4 7-00001
Appointment
From: Sent: To:
Short, Dan Z. [dzshort@marathonpetroleum.com] 4/7/2025 3:24:28 PM Dominguez, Alexander [dominguez.alexander@epa.gov]
Subject: Location:
Accepted: Confirmed: In person OAR External Meeting with Marathon Petroleum Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start: End:
4/16/2025 6:30:00 PM 4/16/2025 7:00:00 PM
Recurrence: (none)
caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
ED_0184 758_00070069-00001
ppointment
Whitfield, Peter
[pwhitfield@sidley.com]
ent:
4/7/2025 6:25:53 PM
o:
Dominguez, Alexander
[dominguez.alexander@epa.gov]
ubject: Location:
Accepted: Confirmed : In-Person OAR External Meeting with Cenovus Superior Refining Co Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
4/9/2025 6:00:00 PM 4/9/2025 6:30:00 PM how Time Busy s:
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Recurrence:(none)
ED_0184 758_00070085-00001
Appointment
From: Sent: To:
CC:
Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] 3/17/2025 2:50:01 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Dominguez, Alexander [dominguez.alexander@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Bradner, Kai <Kai_Bradner@afandpa.org> [Kai_Bradner@afandpa.org] Hooper, Daniel [hooper.daniel@epa.gov]; Powell, Bonnie [Powell.Bonnie@epa.gov]
Subject: Attachments: Location:
Canceled: Confirmed: OAR Hybrid Meeting with American Forest & Paper Association American Forest & Paper Association 2025 EPA External Meeting Request Form.pdf Microsoft Teams Meeting; DCRoomWJCN5530/OARM
Start:
4/9/2025 6:45:00 PM
End:
4/9/2025 7:15:00 PM
Show Time As: Free
Importance: High
Required Attendees: Optional Attendees:
Dominguez, Alexander; Szabo, Aaron; Bradner, Kai <Kai_Bradner@afandpa.org> Hooper, Daniel; Powell, Bonnie
Jesse Levine AF&PA
Susan Kimball AF&PA
Tim Hunt
AF&PA
Julie Landry AF&PA
Paul Noe
AF&PA
Samantha Kent AF&PA
Lily Miller
AF&PA
Stewart Holm AF&PA
Kai Bradner AF&PA
Jackson Morrill AWC
Brian Kozlowski
Domtar
Jessica Stram Essity
Joseph Geiger Essity
Tracey Driessen
Essity
Traylor Champion
Georgia-Pacific LLC
Lisa Bauer-Lotto
Green Bay Packaging Inc.
Chris Kotara International Paper
Vipin Varma NCASI
Giffe Johnson NCASI
Richard Garber Packaging Corporation of America
Corey Brandt Smurfit Westrock
Tony Owens Sylvamo Corporation
Andy Johnson Graphic Packaging International, LLC
Russ Frye
Frye Law
Neil Naraine International Paper
Jacqueline Michelle Vinson
Weyerhaeuser Company
John Bird
Roseburg Forest Products Company
John Piotrowski Packaging Corporation of America
Seth Kursman Domtar
ED_0184 758_00070137-00001
Microsoft Teams Need heir?
Join the meeting now
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For organizers: Meeting options Reset dial-in PIN
This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_0184 758_00070137-00002
External Meeting Request Form
Today's Date: 3/4/25 Requesting Organization: American Forest & Paper Association Title of the Meeting: Meeting with OAR Leadership on AF&PA Air Regulatory Priorities Purpose: To discuss how to solve major Clean Air Act regulatory challenges to U.S. forest products manufacturers and U.S. manufacturing.
Background: Key air issues include: (1) PM NAAQS and air permit gridlock; (2) Pulp and Paper MACT reviews (Subparts MM and S); (3) Good Neighbor Plan; (4) biomass carbon neutrality; and (5) regulating under Loper Bright Enterprises (See AF&PA's 12/5/2024 letter to President Trump.) Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 4/9/25 Last possible date for the meeting: 4/9/25 Is the meeting urgent and if so, why: Yes Need to discuss soon most legally viable solutions. Requested Time Length: 60 minutes Have you met with anyone within EPA: Not yet in the Trump Administration. EPA participants requested: AA and Deputy AA (stationary sources) for OAR.
External Participants (including name [last, first], affiliation/organization, and email): AF&PA staff (Noe, Paul; AF&PA; Paul_Noe@afandpa.org; Hunt,Tim; AF&PA; Tim_Hunt@afandpa.org); Heidi Brock; AF&PA; Heidi_Brock@afandpa.org; plus AF&PA member Virtual, in-person, or hybrid meeting requested: Hybrid Point of Contact for the Meeting: Kai Bradner, Kai_Bradner@afandpa.org and cell (240) 725-4926.
***Please email this form back to OAR_Invitations@epa.gov***
ED_0184 758_00070138-00001
ppointment
Leopold, Matt
[MLeopold@hunton.com]
ent:
4/9/2025 2:45:08 PM
o:
Dominguez, Alexander
[dominguez.alexander@epa.gov]
ubject: Location:
Accepted: Confirmed: In person OAR External Meeting with Orbia Fluor & Energy Materials (d/b/a Koura) Microsoft Teams Meeting; DCRoomWJCN5415/OAR
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
4/17/2025 8:00:00 PM 4/17/2025 8:30:00 PM how Time Busy s:
Recurrence:(none)
ED_0184 758_00070195-00001
Appointment
From: Sent: To:
CC: BCC:
Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] 3/27/2025 3:57:25 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Dominguez, Alexander [dominguez.alexander@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Jaber, Makram B.<MJaber@mcguirewoods.com> [MJaber@mcguirewoods.com]; Birnbaum, Rona [Birnbaum.Rona@epa.gov]; Fisher, Brian [Fisher.Brian@epa.gov]; Culligan, Kevin [Culligan.Kevin@epa.gov]; Lassiter, Penny [Lassiter.Penny@epa.gov]; Cazzie, David [Cozzie.David@epa.gov]; Hutson, Nick [Hutson.Nick@epa.gov]; Kornylak, Vera S. [Kornylak.Vera@epa.gov]; Palma, Elizabeth [Palma.Elizabeth@epa.gov]; Mathias, Scott [Mathias.Scott@epa.gov]; feblake@aep.com; cbsmith0@tva.gov; Megan.Garvey@tep.com; jnlukehart@aep.com; kara.montalvo@srpnet.com; fadi.mourad@dteenergy.com; kate.ross@cmsenergy.com; cstarks@southernco.com; aflynn@mcguirewoods.com; kbahnson@mcguirewoods.com; mbrown@ovec.com; gcoriell@ovec.com Fan, Jessie [Fan.Jessie@epa.gov] DCRoomWJCN5406/OARAA [DCRoomWJCN54060ARAA@epa.gov]
Subject: Attachments:
Location:
Confirmed: Hybrid OAR External Meeting with PGen PGen -- 2024 EPA External Meeting Request -- MATS RTR and Good Neighbor Plan.pdf; PGen -- 2024 EPA External Meeting Request -- GHG Rule for EGUs and Regional Haze.pdf Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/22/2025 7:30:00 PM
End:
4/22/2025 8:00:00 PM
Show Time As: Tentative
Required Attendees:
Optional Attendees:
Dominguez, Alexander; Szabo, Aaron; Jaber, Makram B.<MJaber@mcguirewoods.com>; Birnbaum, Rona; Fisher, Brian; Culligan, Kevin; Lassiter, Penny; Cazzie, David; Hutson, Nick; Kornylak, Vera S.; Palma, Elizabeth; Mathias, Scott; feblake@aep.com; cbsmith0@tva.gov; Megan.Garvey@tep.com; jnlukehart@aep.com; kara.montalvo@srpnet.com; fadi.mourad@dteenergy.com; kate.ross@cmsenergy.com; cstarks@southernco.com; aflynn@mcguirewoods.com; kbahnson@mcguirewoods.com; mbrown@ovec.com; gcoriell@ovec.com Fan, Jessie
Ex. 6 Personal Privacy (PP)
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ED_0184 758_00070415-00001
. -------------------------------------------~
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For organizers: Meeting options Reset dial-in PIN
This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_0184758_00070415-00002
External Meeting Request Form
Today's Date: 3/17/25
Requesting Organization: Power Generators Air Coalition (PGen) Title of the Meeting: Rules Affecting the power generation industry -- MATS RTR Rule and Good Neighbor Plan Purpose:
We would like to discuss potential EPA actions and revisions relating to the following rules: (1) GHG Rule for EGUs; (2) MATS RTR; (3) Good Neighbor Plan; and (4) Regional Haze. Since this form allows a maximum of 60 minutes for each meeting, we are asking for two meetings, one for items (1) and (4) above (submitted separately), and one for items (2) and (3) (submitted herein).
Background:
PGen is an incorporated nonprofit 501 (c)(6) organization whose members are diverse electric generating companies-public power, rural electric cooperatives, and investor-owned utilities. PGen members own and operate fossil fuel-fired EGUs, among other resources, and PGen has submitted substantial comments on every major rule impacting power plants in the last few years.
Is this meeting related to ongoing litigation: No
Earliest possible date for the meeting: 3/18/25 Last possible date for the meeting: 3/31 /25
Is the meeting urgent and if so, why: No
PGen members operate power plants subject to the rules and have insight into the impact of these rules on the industry
Requested Time Length: 60 minutes
Have you met with anyone within EPA: No EPA participants requested: Aaron Szabo; Abbie Tradif; additional staff, as OAR AA deems appropriate
External Participants (including name [last, first], affiliation/organization, and email):
Makram Jaber; Allison Wood; and Aaron Flynn (McGuireWoods, LLP) Members of the Board of PGen (each PGen member has one Board representative; see pgen.org for membership)
Virtual, in-person, or hybrid meeting requested: Hybrid
Point of Contact for the Meeting: Makram Jaber
***Please email this form back to OAR_Invitations@epa.gov***
ED_0184 75B_00070416-00001
External Meeting Request Form
Today's Date: 3/17/25
Requesting Organization: Power Generators Air Coalition (PGen) Title of the Meeting: Rules Affecting the power generation industry -- GHG Rule for EGUs and Regional Haze Purpose:
We would like to discuss potential EPA actions and revisions relating to the following rules: (1) GHG Rule for EGUs; (2) MATS RTR; (3) Good Neighbor Plan; and (4) Regional Haze. Since this form allows a maximum of 60 minutes for each meeting, we are asking for two meetings, one for items (1) and (4) above, and one for items (2) and (3) (submitted separately).
Background:
PGen is an incorporated nonprofit 501 (c)(6) organization whose members are diverse electric generating companies-public power, rural electric cooperatives, and investor-owned utilities. PGen members own and operate fossil fuel-fired EGUs, among other resources, and PGen has submitted substantial comments on every major rule impacting power plants in the last few years.
Is this meeting related to ongoing litigation: No
Earliest possible date for the meeting: 3/18/25 Last possible date for the meeting: 3/31 /25
Is the meeting urgent and if so, why: No
PGen members operate power plants subject to the rules and have insight into the impact of these rules on the industry
Requested Time Length: 60 minutes
Have you met with anyone within EPA: No EPA participants requested: Aaron Szabo; Abbie Tradif; additional staff, as OAR AA deems appropriate
External Participants (including name [last, first], affiliation/organization, and email):
Makram Jaber; Allison Wood; and Aaron Flynn (McGuireWoods, LLP) Members of the Board of PGen (each PGen member has one Board representative; see pgen.org for membership)
Virtual, in-person, or hybrid meeting requested: Hybrid
Point of Contact for the Meeting: Makram Jaber
***Please email this form back to OAR_Invitations@epa.gov***
ED_018475B_00070417-00001
Appointment
From: Sent: To:
Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] 4/1/2025 8:10:04 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Dominguez, Alexander [dominguez.alexander@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Hengst, Benjamin [Hengst.Benjamin@epa.gov]; Dunham, Sarah [Dunham.Sarah@epa.gov]; Geoffrey@rngcoalition.com; sandra@rngcoalition.com; Hclay@mercuria.com; Anne Steckel <Anne@rngcoalition.com> [Anne@rngcoalition.com]
Subject: Attachments: Location:
Canceled: Confirmed: Virtual OAR External Meeting with Renewable Natural Gas Coalition Updated 2024 EPA External Meeting Request Form RNG.pdf Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/24/2025 6:30:00 PM
End:
4/24/2025 7:00:00 PM
Show Time As: Free
Recurrence: (none)
Required Attendees:
Dominguez, Alexander; Szabo, Aaron; Hengst, Benjamin; Dunham, Sarah; Geoffrey@rngcoalition.com; sandra@rngcoalition.com; Hclay@mercuria.com; Anne Steckel <Anne@rngcoalition.com>
Dietz, Geoff -RNG Coalition Franco, Sandra- RNG Coalition Clay, Harrison Hopper, Jay BP
Microsoft Teams Need help?
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For organizers: Meetin 1options Reset dial-in PIN
ED_0184758_00071156-00001
This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
ED_018475B_00071156-00002
External Meeting Request Form
Today's Date: March 26, 2025 Requesting Organization: Renewable Natural Gas Coalition Title of the Meeting: RFS Volumes for 2026 and beyond
Purpose: The RNG Coalition would like to meet with the OAR and OTAC teams to share our request and data for D3 volumes to inform the upcoming 2026 proposal.
Background: The Renewable Natural Gas Coaltion is the trade association representing 98 % of the RNG produced in North America by volume. We want to share our request and data for D3 volumes. Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: April 7 Last possible date for the meeting: April 30 Is the meeting urgent and if so, why: Yes The meeting is to inform EPA of the industry data to support a proposed increase in D3
- I_ -
Requested Time Length: 30 minutes Have you met with anyone within EPA: Ben Hengst and Dallas Burkholder EPA participants requested: Aaron Szabo, Alex Dominguez, Dallas Burkholder and Ben Hengst
External Participants (including name [last, first], affiliation/organization, and email): Dietz, Geoff -RNG Coalition- Geoffrey@rngcoalition.com Franco, Sandra- RNG Coalition Sandra@rngcoalition.com Clay, Harrison hclay@mercuria.com - Hopper, Jay BP-
i~" hnnni:>rlnlhn rnm
Virtual, in-person, or hybrid meeting requested: Virtual Point of Contact for the Meeting: Anne Steckel
anne@rngcoalition.com
***Please email this form back to OAR_Invitations@epa.gov***
ED_0184758_00071157-00001
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From: Sent: To:
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Dominguez, Alexander [dominguez.alexander@epa.gov] 4/7/2025 12:23:26 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Hengst, Benjamin [Hengst.Benjamin@epa.gov]; Dunham, Sarah [Dunham.Sarah@epa.gov]; mjbirsic@marathonpetroleum.com Short, Dan Z. [dzshort@marathonpetroleum.com]; Riesen, Terry J. [tjriesen@marathonpetroleum.com]; Zinsmeister, Emma [Zinsmeister.Emma@epa.gov] DCRoomWJCN5406/OARAA [DCRoomWJCN54060ARAA@epa.gov]
Subject: Attachments:
Location:
Confirmed: In person OAR External Meeting with Marathon Petroleum Marathon Petroleum Corporation 2024 EPA External Meeting Request.pdf; Marathon Petroleum Corporation 2024 EPA External Meeting Request.pdf Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/16/2025 6:30:00 PM
End:
4/16/2025 7:00:00 PM
Show Time As: Busy
Recurrence: (none)
Required Attendees: Optional Attendees:
Szabo, Aaron; Hengst, Benjamin; Dunham, Sarah; mjbirsic@marathonpetroleum.com Short, Dan Z.; Riesen, Terry J.; Zinsmeister, Emma
Michael Birsic: Manager, Federal Government Affairs Dan Short: Manager, Fuels & Low Carbon Policy Terry Reisen: Advanced Business Development Advisor, Fuels & Low Carbon Policy Menefee, Jake, Vice President of Government Affairs and ESG
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More info For organizers: Meeting options Reset dial-in PIN This meeting may be recorded. If the meeting is recorded, it will be announced via a banner showing "this meeting is being recorded." Participation in a recorded meeting will be deemed as consent to be recorded. Meeting recordings may be official agency records subject to appropriate policy, rules and regulations.
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From: on behalf of Sent: To:
SOKOLOWSKI, CHERYL (c.) [csokolo5@ford.com] Williams, Cynthia (.) [cwilli96@ford.com] 3/20/2025 12:49:40 PM Dunham, Sarah [Dunham.Sarah@epa.gov]
Subject: Location:
Accepted: Ford Motor Company Microsoft Teams Meeting; - IN PERSON IN SARAH DUNHAM OFFICE; DCRoomWJCS5041G/OAR-OAP
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SOKOLOWSKI, CHERYL (c.) [csokolo5@ford.com] 3/20/2025 1:03:29 PM Dunham, Sarah [Dunham.Sarah@epa.gov]
Subject: Location:
Tentative: Ford Motor Company Microsoft Teams Meeting; - IN PERSON IN SARAH DUNHAM OFFICE; DCRoomWJCS5041G/OAR-OAP
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3/25/2025 4:30:00 PM
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Peter Holran [Peter.Holran@enbridge.com] 3/27/2025 2:34:00 AM Kramer, Jessica L. [kramer.jessical@epa.gov]
Subject: Location:
Accepted: Meeting on Enbridge w/Office of Water 1201 Constitution Ave, NW Washington DC 20460
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Charles Drayton [Charles.Drayton@enbridge.com] 3/26/2025 10:16:02 PM Kramer, Jessica L. [kramer.jessical@epa.gov]
Subject: Location:
Accepted: Meeting on Enbridge w/Office of Water 1201 Constitution Ave, NW Washington DC 20460
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3/27/2025 2:30:00 PM
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Tardif, Abigale (Abbie) [/o=Exchangelabs/ou=Exchange Administrative Group (FYDI BO HF 23SPDLT)/cn=Recip ients/en =614765729c3c41c388c 1ba499f25f2ed-ebf081bf-e1] 2/27/2025 1:39:05 PM Howey, Preston (Cruz) [Preston_Howey@cruz.senate.gov]
New Time Proposed: Phone call Microsoft Teams Meeting
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ED_0184758_00119404-00001
Appointment
From: Sent: To:
CC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 4/14/2025 6:22:16 AM Dominguez, Alexander [dominguez.alexander@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Gunning, Paul [Gunning.Paul@epa.gov]; Newberg, Cindy [Newberg.Cindy@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Scott Stone <scott@glencoestrategies.com> [scott@glencoestrategies.com] Fan, Jessie [Fan.Jessie@epa.gov]; Leopold, Matt [MLeopold@hunton.com]
Subject: Location:
Confirmed: In person OAR External Meeting with Orbia Fluor & Energy Materials (d/b/a Koura) Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/17/2025 8:00:00 PM
End:
4/17/2025 8:30:00 PM
Show Time As: Free
Recurrence: (none)
Required Attendees: Optional Attendees:
Gunning, Paul; Newberg, Cindy; Szabo, Aaron; Tardif, Abigale (Abbie); Scott Stone <scott@glencoestrategies.com> Fan, Jessie; Leopold, Matt
Exchange Online re-created a meeting that was missing from your calendar.
ED_0184758_00119670-00001
ppointment
Toomey, Megan A [Megan.Toomey@talenenergy.com] 4/11/2025 3:37:39 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]
Location:
Accepted: Confirmed: In person OAR External Meeting with Talen Energy Microsoft Teams Meeting; DCRoomWJCN5415/OAR
4/24/2025 7:15:00 PM 4/24/2025 7:45:00 PM how Time Busy s:
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
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The information contained in this message is intended only for the personal and confidential use of the recipient(s) named above. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately, and delete the original message.
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Paulin, David J
[David.Paulin@talenenergy.com]
ent: 4/11/2025 4:15:18 PM
o:
Tardif, Abigale (Abbie)
[Tardif.Abigale@epa.gov]
ubject: Accepted: Confirmed: In person OAR External Meeting with Talen Energy
Location:Microsoft Teams Meeting; DCRoomWJCN5415/OAR
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4/24/2025 7:15:00 PM 4/24/2025 7:45:00 PM Busy
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ED_0184758_00119758-00001
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From: Sent: To:
Geoffrey Dietz [Geoffrey@rngcoalition.com] 4/11/2025 7:39:57 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]
Subject: Location:
Accepted: Confirmed: Virtual OAR External Meeting with Renewable Natural Gas Coalition Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/24/2025 6:30:00 PM
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caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
ED_0184758_00119777-00001
Appointment
From: Sent: To:
CC: BCC:
Dominguez, Alexander [dominguez.alexander@epa.gov] 4/8/2025 2:45:57 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Gunning, Paul [Gunning.Paul@epa.gov]; Newberg, Cindy [Newberg.Cindy@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Scott Stone <scott@glencoestrategies.com> [scott@glencoestrategies.com] Fan, Jessie [Fan.Jessie@epa.gov]; Leopold, Matt [MLeopold@hunton.com] DCRoomWJCN5406/OARAA [DCRoomWJCN54060ARAA@epa.gov]
Subject: Attachments: Location:
Confirmed: In person OAR External Meeting with Orbia Fluor & Energy Materials (d/b/a Koura) Orbia Fluor & Energy Materials dba Koura 2024 EPA External Meeting Request Form.pdf Microsoft Teams Meeting; DCRoomWJCN5406/OARAA
Start:
4/17/2025 8:00:00 PM
End:
4/17/2025 8:30:00 PM
Show Time As: Tentative
Required Attendees: Optional Attendees:
Gunning, Paul; Newberg, Cindy; Szabo, Aaron; Tardif, Abigale (Abbie); Scott Stone <scott@glencoestrategies.com> Fan, Jessie; Leopold, Matt
Shawn Shorrock, Global VP of Refrigerants, Orbia Fluor and Energy Materials (Koura)
Scott Stone, President, Glencoe Strategies
Matt Leopold, Partner, Hunton Andrews Kurth
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Abboud, Michael [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =64E DF8A538154C89B8AFB97C7347AEE E-8A26A0A2-B3] 2/26/2025 9:00:07 PM wonge@api.org Who did you email at epa oar?
Get Outlook for iOS
ED_018475O_00000014-00001
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Abboud, Michael [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =64E DF8A538154C89B8AFB97C7347AEE E-8A26A0A2-B3] 2/28/2025 7:48:38 PM Cordes, Mary [mary.cordes@chemours.com]; kramer.jessica@epa.gov Wellman, Amber D [AMBER.D.WELLMAN@chemours.com]; COOMES, TODD [todd.coomes@chemours.com] RE: Follow Up
Hey Mary, thank you for this. I'll connect you with those folks now.
From: Cordes, Mary <mary.cordes@chemours.com> Sent: Thursday, February 27, 2025 10:58 AM To: Abboud, Michael <abboud.michael@epa.gov>; kramer.jessica@epa.gov Cc: Wellman, Amber D <AMBER.D.WELLMAN@chemours.com>; COOMES, TODD <todd.coomes@chemours.com> Subject: Follow Up
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Hello Michael and Jess - thank you for speaking with us this week. We appreciate the conversation and look forward to working with you in this Administration.
Sharing a few follow-ups below from our side:
1.
The Burgoon Paper is linked here:
https://www.scicnccdircct.com/scicncc/mticlc/pii/S0273230023001708?via%3Dihub
a.
Thank you for the offer to meet with your staff. Can we look at dates the week on March 10 or March 17?
2.
Per our conversation on essential use and defense applications, I am attaching here DOD's report to Congress on
Critical PFAS Use. We have even more specific examples that we are happy to share with you.
3.
Attaching some collateral from the U.S. Chamber of Commerce's Essential Chemistry for America Campaign,
which focuses on critical use of PFAS across various industries. This report looks at the economic impact and benefits of
these chemistries.
Michael - I know we discussed a couple of follow-up contacts in the meeting. Can you just send those my way whenever you have them?
My cell is below - call or text if easier to get ahold of me that way.
Best, Mary
Mary Cordes Head of Federal Government Affairs The Chemours Company
Cell: + 1 (202) 394-4893 E-mail: ma y.cordcs@chcmours.com
Chemours,_
Chcmours.com
ED_018475O_00000018-00001
This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chcrnours.com/cn/crnail-disclaimcr
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Abboud, Michael [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =64E DF8A538154C89B8AFB97C7347AEE E-8A26A0A2-B3] 3/12/2025 4:53:52 PM darren.bakst@cei.org Close hold on these releases March 6 Releases.pdf
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ED_0 18475D_ 00000035-00001
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
EPA Launches Biggest Deregulatory Action in U.S. History EPA Administrator Announces 31 Historic Actions to Power the Great American Comeback
In the greatest and most consequential day of deregulation in American history, U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will undertake## historic actions to advance President Trump's Day One executive orders and Power the Great American Comeback. Beyond fulfilling EPA's core mission, these actions also work to deliver on President Trump's promise to unleash American energy, lower cost of living for Americans by rolling back TRILLIONS in regulatory costs and hidden "taxes", revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
UNLEASHING AMERICAN ENERGY Reconsideration of regulations on power plants (Clean Power Plan 2.0) Reconsideration of regulations throttling the oil and gas industry (0000 b/c) Reconsideration of Mercury and Air Toxics Standards that improperly targeted coal-fired power plants (MATS) Reconsideration of mandatory Greenhouse Gas Reporting Program that imposed significant costs on the American energy supply (GHG Reporting Program) Reconsideration of limitations, guidelines and standards (ELG) for the Steam Electric Power Generating Industry to ensure low-cost electricity while protecting water resources (Steam Electric ELG) Reconsideration of wastewater regulations for coal power plants to help unleash American energy (Oil and Gas ELG) Reconsideration of Bi den-Harris Administration Risk Management Program rule that made America's oil and natural gas refineries and chemical facilities less safe (Risk Management Program Rule)
LOWERING THE COST OF LIVING FOR AMERICAN FAMILIES Reconsideration of light-duty, medium-duty, and heavy-duty vehicle regulations that provided the foundation for the Biden-Harris electric vehicle mandate (Car GHG Rules) Reconsideration of the 2009 Endangerment Finding and regulations and actions that rely on that Finding (Endangerment Finding) Reconsideration of technology transition rule that forces companies to use certain technologies that increased costs on food at grocery stores and semiconductor manufacturing (Technology Transition Rule) Reconsideration of Particulate Matter National Ambient Air Quality Standards that shut down opportunities for American manufacturing and small businesses (PM 2.5 NAAQS) Reconsideration of multiple National Emission Standards for Hazardous Air Pollutants for American energy and manufacturing sectors (NESHAPs) Restructuring the Regional Haze Program that threatened the supply of affordable energy for American families (Regional Haze) Overhauling Biden-Harris Administration's "Social Cost of Carbon" Redirecting enforcement resources to EPA's core mission to relieve the economy of unnecessary bureaucratic burdens that drive up costs for American consumers (Enforcement Discretion) Terminating Bi den's Environmental Justice and DEi arms of the agency (EJ/DEI)
ED_ 0 184 7 SD_ 00000036-00001
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION ADVANCING COOPERATIVE FEDERALISM
Ending so-called "Good Neighbor Plan" which the Bi den-Harris Administration used to expand federal rules to more states and sectors beyond the program's traditional focus and led to the rejection of nearly all State Implementation Plans
Working with states and tribes to resolve massive backlog with State Implementation Plans and Tribal Implementation Plans that the Bi den-Harris Administration refused to resolve (SI Ps/TI Ps)
Reconsideration of exceptional events rulemaking to work with states to prioritize the allowance of prescribed fires within State and Tribal Implementation Plans (Exceptional Events)
Reconstituting Science Advisory Board and Clean Air Scientific Advisory Committee (SAB/CASAC)
Prioritizing coal ash program to expedite state permit reviews and update coal ash regulations (CCR Rule)
Utilizing enforcement discretion to further North Carolina's recovery from Hurricane Helene
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MESSAGING/ TOP LINE TALKING POINTS
Today is the greatest and most consequential day of deregulation in the history of the United States as the U.S. Environmental Protection Agency announced the agency will undertake more than 25 historic actions to advance President Trump's Day One executive orders and Power the Great American Comeback.
By overhauling the endangerment finding, social cost of carbon, and other massive rules we are driving a dagger straight into the heart of the climate change religion and doing our part to usher in the dawn of America's Golden Age.
These historic actions will roll back trillions in regulatory costs and hidden "taxes." As a result of these announcements, cost of living for American families will decrease.
It will be more affordable to purchase a car, heat your home, and operate a business. It will be more affordable to bring manufacturing into local communities while Americans
widely benefit from the tangible economic impacts. Under President Trump's leadership, EPA will be only focused on protecting human health
and the environment and powering the great American comeback. These actions will create American jobs, including incredible progress in bringing back
American auto jobs. The Biden and Obama era regulations being reconsidered have suffocated nearly every
single sector of the American economy. This announcement marks the death of the Green New Scam. We will unleash American energy by reconsidering the Biden-Harris Administration's Clean Power Plan 2.0, Mercury and Air Toxics Standards, Particulate Matter 2.5, and much more. We will advance cooperative federalism by working with states that were universally rejected by the Biden-Harris "Good Neighbor" plan, and resolving the massive backlog of State Implementation Plans and Tribal Implementation Plans. From the campaign trail to Day One and beyond, PresidentTrump has delivered on his promise to unleash American energy, lower the cost of living for all Americans, revitalize the American auto industry, restore the rule of law and give power back to the states to make their own decisions. These actions will create savings for American taxpayers and small businesses by eliminating costly regulations, boosting economic growth, innovation and manufacturing and advancing cooperative federalism. Every single hard-earned tax dollar under our leadership will be dedicated to providing clean air, land, and water for every American regardless of race, religion, background, and creed.
ALL ACTIONS
Endangerment Finding
Clean Power Plan 2. 0
Good Neighbor Plan
MATS
NESHAPs
ELG & Oil and Gas ELG
Coal Combustion Residual (CCR)
Regional Haze
Risk Management Program
Social Cost of Carbon
North Carolina No Action Assurance
OOOOb/c
State Implementation Plan Backlog Enforcement Discretion for Rules
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CASAC and SAB Rehiring
Exceptional Events Rule
Technology Transition Rule (AIM)
PM 2.5 NAAQS
Light-, Medium- and Heavy-DutyGHG Standards GHG Reporting Program
Environmental Justice/Diversity, Equity and Inclusion (EJIDE/)
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Overarching Press Release EPA Launches Biggest Deregulatory Action in U.S. History
Administrator Zeldin Announces 31 Historic Actions to Power the Great American Comeback [Insert Video of announcement w/ link]
WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will undertake 31 historic actions in the greatest and most consequential day of deregulation in U.S. history, to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the most momentous day in the history of the EPA. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower cost of living for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. "Today is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S. and more," said EPA Administrator Zeldin. ''Alongside President Trump, we are living up to our promises to unleash American energy, lower costs for Americans, revitalize the American auto industry, and work hand-in-hand with our state partners to advance our shared mission," said EPA Administrator Zeldin. These historic actions will roll back trillions in regulatory costs and hidden "taxes" on U.S. families. As a result of these announcements, the cost of living for American families will decrease. It will be more affordable to purchase a care, heat homes, and operate a business. It will be more affordable to bring manufacturing into local communities while individuals widely benefit from the tangible economic impacts. These actions will create American jobs, including incredible progress to bring back American auto jobs. The Biden and Obama era regulations being reconsidered has suffocated nearly every single sector of the American economy. Today, EPA Administrator Zeldin announced the following actions: INSERT LIST HERE FROM ONE PAGER ###
ED_01847SD_00000036-00006
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Trump EPA Kicks Off Formal Reconsideration of Endangerment FindingwithAgency Partners
WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will be kicking off a formal reconsideration of the 2009 Endangerment Finding in collaboration with the Office of Management and Budget (0MB) and other relevant agencies. EPA also intends to reconsider all of its prior regulations and actions that rely on the Endangerment Finding.
''After 16 years, EPA will formally reconsider the Endangerment Finding," said Administrator Zeldin. "The Trump Administration will not sacrifice national prosperity, energy security, and the freedom of our people for an agenda that throttles our industries, our mobility, and our consumer choice while benefiting adversaries overseas. We will follow the science, the law, and common sense wherever it leads, and we will do so while advancing our commitment towards helping to deliver cleaner, healthier, and safer air, land, and water."
VOUGHT QUOTE
BURGUM QUOTE
WRIGHT QUOTE
LUTNICK QUOTE
DUFFY QUOTE
In President Trump's Day One Executive Order, "Unleashing American Energy," he gave the EPA Administrator a 30-day deadline to submit recommendations on the legality and continuing applicability of the 2009 Endangerment Finding. After submitting these recommendations, EPA can now announce its intent to reconsider the 2009 Endangerment Finding.
When EPA made the Endangerment Finding in 2009, the agency did not consider any aspect of the regulations that would flow from it. EPA's view then was that the Finding itself did not impose any costs, and that EPA could not consider future costs when making the Finding. EPA has subsequently relied on the Endangerment Finding as part of its justification for seven vehicle regulations with an aggregate cost of more than one trillion dollars, according to figures in EPA's own regulatory impact analyses. The Endangerment Finding has also played a significant role in EPA's justification of regulations of other sources beyond cars and trucks.
Congress tasked EPA under Section 202 of the Clean Air Act with regulating new motor vehicles when the Administrator determines that emissions of an air pollutant endanger public health and welfare. But the Endangerment Findingwent about this task in what appears to be a flawed and unorthodox way. Contrary to popular belief, the Endangerment Finding did not directly find that carbon dioxide emissions from U.S. cars endanger public welfare. Instead, the Finding looks at a combination of emissions of six different gases-and cars don't even omit all six. It then creatively added multiple leaps, arguing that the combined six gases contribute some mysterious amount above zero to climate change and that climate change creates some mysterious amount of endangerment above zero to public health. These mental leaps were the only way the Obama-
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Biden Administration could come to its preferred conclusion, even if it did not stick to the letter of the Clean Air Act.
The Endangerment Finding acknowledges and identifies significant uncertainties in the science and assumptions used to justify the decision. In the 16 years since EPA issued the Endangerment Finding, the world has seen major developments in innovative technologies, science, economics, and mitigation. EPA has never before asked for public comment on the implications these developments have had on the Endangerment Finding, but now it will as part of the reconsideration process it intends to undertake. Additionally, major Supreme Court decisions in the intervening years, including Loper Bright Enterprises v. Raimondo, West Virginia v. EPA, Michigan v. EPA, and Utility Air Regulatory Group v. EPA, have provided new guidance on how the agency should interpret statutes to discern Congressional intent and ensure that its regulations follow the law. If Congress wants EPA to regulate these emissions, then Congress should pass legislation requiring EPA to do so.
As part of this reconsideration process, EPA will leverage the expertise of the White House Office of Science and Technology Policy, National Oceanic and Atmospheric Administration, and other relevant agencies.
It is in the best interest of the American people for EPA to ensure that any finding and regulations are based on the strongest scientific and legal foundation. The reconsideration of the Endangerment Finding and EPA's regulations that have relied on it furthers this interest. The agency cannot prejudge the outcome of this reconsideration or of any future rulemaking. EPA will follow the Administrative Procedure Act and Clean Air Act, as applicable, in a transparent way for the betterment of the American people and the fulfillment of the rule of law.
This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. The overhaul of the Endangerment Finding along with other massive rules represents the death of the Green New Scam and drives a dagger straight into the heart of the climate change religion. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
Click here for more information on the Endangerment Finding [insert hyperlink].
###
ED_01847SD_00000036-00008
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Reconsideration of Biden's CPP 2.0: unleash American electricity Trump EPA Announces Reconsideration of Biden-Harris Rule, "Clean Power Plan 2.0", That Prioritized Shutting Down Power Plants While Raising Costs on American Families WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will reconsider the Biden-Harris Administration's regulations on power plants, commonly known as "Clean Power Plan 2.0." The first Clean Power Plan was struck down by the Supreme Court in 2022. Many have voiced concerns that the last administration's replacement for that rule is similarly overreaching and an attempt to shut down affordable and reliable electricity generation in the United States, raising prices for American families, and increasing the country's reliance on foreign forms of energy. "President Trump promised to kill the Clean Power Plan in his first term, and we continue to build on that progress now. In reconsidering the Biden-Harris rule that ran afoul ofSupreme Court case law, we are seeking to ensure that the agency follows the rule of law while providing all Americans with access to reliable and affordable energy," said EPA Administrator Zeldin. The U.S. Supreme Court struck down the 2015 Clean Power Plan in West Virginia v. EPA, holding that the major questions doctrine barred EPA from misusing the Clean Air Act to manipulate Americans' energy choices and shift the balance of the nation's electrical fuel mix. The Biden Administration issued its own rule in 2024 which many critics say is just another attempt to achieve the unlawful fuel-shifting goals of the Clean Power Plan. This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power .the Great American Comeback. Combined, these announcements represent the greatestand most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is. committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION Reconsideration of 0000 b/c: regulations throttling the oil and gas industry Trump EPA Announces 0000 b/c Reconsideration of Biden-Harris Rules Strangling American Energy Producers WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency is reconsidering Bi den-Harris regulations for the oil and gas industry under Section 111 of the Clean Air Act and Subpart W of the Greenhouse Gas Reporting Program. "Oil and gas standards promulgated by EPA must be rooted in the rule of law, not be used as a weapon to shut down development and manufacturing in the United States. EPA is reconsidering these regulations to ensure they do not prevent America from unleashing energy dominance and continuing our trajectory as a leader in clean energy and emissions reductions. We produce energy better and cleaner than so many other countries around the world, and yet Americans are punished at the end of the day by ideologically driven regulations," said EPA Administrator Zeldin. This announcement is informed by major recent Supreme Court precedent providing significant guidance to federal agencies as to how they should interpret and implement governing statutes to ensure EPA is following the law of the land. This was announced i.n conjunction with a number of historic actions (LINK TO OVERALL PRESS
RELEASE) to advance President Trump's Day One executive orders and power the Great American
Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the. history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Reconsideration of PM NAAQS: shut down manufacturing and opportunities for small businesses Trump EPA Announces Path Forward on National Air Quality Standards for Particulate Matter (PM2.5) to Aid Manufacturing, Small Businesses EPA to release guidance on air quality standards implementation flexibility, permitting direction WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency is revisiting the Biden PM2.5 National Ambient Air Quality Standards (NAAQS), which has raised serious concerns from states across the country and served as a major obstacle to permitting. ''All Americans deserve to breathe clean air while pursuing the American dream. Under President Trump, we will ensure air quality standards for particulate matter are protective of human health and the environment while we unleash the Golden Age ofAmerican prosperity," said EPA Administrator Zeldin. EPA is also announcing that it will soon release guidance to increase flexibility on NAAQS implementation, reforms to New Source Review, and direction on permitting obligations. This suite of actions advances cooperative federalism and begins to undo red tape holding back American exceptionalism. The U.S. has some of the lowest fine particulate matter levels in the world. Between 2000 and 2023, average PM2.5 concentrations in the U.S. fell by 37 percent and average PM10 concentrations similarly fell by 36 percent. This was announced In conjunction with a number of historic actions (LINKTO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback.Combined, these announcements represent the greatest and mostconsequential day of deregulation in the history of the United States. While accomplishing EPA's core mission .of protecting the environment, the agency ls committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law,. and give power back to. states to make their own decisions. ###
ED_018475D_00000036-00011
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Good Neighbor Plan: work with 19 states who had their air quality plans rejected by Biden-Harris Trump EPA Announces Plan to Work with States on SIPs to Improve Air Quality and Reconsider "Good Neighbor Plan" WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency is tackling the troubled "Good Neighbor Plan." EPA announced its commitment to advance cooperative federalism and work with states on State Implementation Plans (SIPs) that were nearly universally rejected by the Biden-Harris Administration. "States are our best partner to advance EPA's core mission ofprotecting human health and the environment. The Trump Administration is a responsive and willing partner in this effort to tackle the so-called 'Good Neighbor Plan' to advance cooperative federalism and improve air quality across the country," said EPA Administrator Zeldin. On March 15, 2023, EPA finalized its "Good Neighbor Plan" rule for 23 states to address interstate transport of air pollution which impacts National Ambient Air Quality Standards (NAAQS). In doing so, the Bi den-Harris Administration expanded the federal rules to more states and sectors beyond this program's traditional focus on power plants and subsequently rejected 19 SIPS and partially rejected 2 SIPs. This heavy-handed, one-size-fits-all, federal mandate was emblematic of a larger regulatory onslaught that guided agency action and rules. In June 2024, the U.S. Supreme Court stayed the rule, finding that it was likely unreasonable and irrational in key respects. This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00012
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Reconsideration of MATS: extend a lifeline to coal-fired power plants Trump EPA to Reconsider Biden-Harris MATS Regulation That Targeted Coal-Fired Power Plants to be Shut Down WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will reconsider the Mercury and Air Toxics Standards (MATS) from the Bi den-Harris Administration that drew a lawsuit from 23 states. The Trump Administration is considering a 2-year compliance exemption via Section 112(i)(4) of the Clean Air Act for affected power plants while EPA goes through the rulemaking process. "EPA needs to pursue commonsense regulation to Power the Great American Comeback, not continue down the last administration's path of destruction and destitution. At EPA, we are committed to protecting human health and the environment; we are opposed to shutting down clean, affordable and reliable energy for American families," said EPA Administrator Zeldin. The current MATS rule has caused significant regulatory uncertainty, especially for coal plants in Florida, Illinois, Kentucky, Mississippi, Missouri, Montana, North Carolina, North Dakota, Pennsylvania, Texas, West Virginia, and Wyoming. Cost estimates for this rule total over $790 million over the next decade starting in 2028, with at least $92 million per year for the power sector. These costs are large, especially given the success the industry has already achieved in reducing emissions of mercury and other hazardous air pollutants. This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00013
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Reconsider Light, Medium, and Heavy-Duty Regulations: end Biden's EV mandate EPA Announces Action to Implement POTUS's Termination of Biden-Harris Electric Vehicle Mandate WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will reconsider the Model Year 2027 and Later Light-Duty and Medium-Duty Vehicles regulation and Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles. In addition to imposing $893.8 billion in regulatory and compliance costs, these rules provided the foundation for the Biden-Harris electric vehicle mandate that takes away Americans' ability to choose a safe and affordable car for their family and increases the cost of living on all products that trucks deliver. "The American auto industry has been hamstrung by the crushing regulatory regime of the last administration. As we reconsider nearly one trillion dollars of regulatory costs, we will abide by the rule of law to protect consumer choice and the environment," said EPA Administrator Zeldin. Additionally, EPA is reevaluating the other parts of the Biden EPA's problematic "Clean Trucks Plan." This includes the 2022 Heavy-Duty Nitrous Oxide (NOx) rule, that results in significant costs that will make the products our trucks deliver, like food and other household goods, more expensive. "Protecting and Bringing Back American Auto Jobs" is Pillar 5 of Administrator Zeldin's Powering the Great American Comeback initiative. President Trump and Administrator Zeldin are fulfilling their promise to bring back American auto jobs and invest in domestic manufacturing to revitalize a quintessential American industry. This was announced In conjunction with a number of historic actions (LINKTO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback.Combined, these announcements represent the greatest and mostconsequential day of deregulation in the history of the United States. While accomplishing EPA's core mission .of protecting the environment, the agency ls committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law,. and give power back to. states to make their own decisions. ###
ED_018475D_00000036-00014
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION Reconsider parts of EPA's rules implementing the AIM Act to lower the cost of living for American families (particularly important for the food and grocery store industry) Trump EPA Takes Action to Lower Costs for American Families at the Grocery Store by Reconsidering Burdensome Technology Transition Rule WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency is reconsidering the technology transition rule that forces companies to use particular technologies for refrigerant systems that raise the cost of food at the grocery store. "From the campaign trail to Day One and beyond, President Trump has delivered on his promise to unleash American energy and lower the cost of Living for Americans. EPA 's regulations are a large part of this equation. In reconsidering technology rules related to refrigeration systems, we can prioritize protecting the environment with a commonsense approach," said EPA Administrator Zeldin. In addition to grocery stores, this rule has also harmed semiconductor manufacturing, which is key to making America the Al capital of the world - one of the five pillars in Administrator Zeldin's "Powering the Great American Comeback" initiative. This was announced i.n conjunction with a number of historic actions (LINK TO OVERALL PRESS
RELEASE) to advance President Trump's Day One executive orders and power the Great American
Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the. history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00015
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
NESHAPs Trump EPA Announces Reconsideration of Air Rules Regulating American Energy, Manufacturing, Chemical Sectors (NESHAPs) WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency will reconsider multiple National Emission Standards for Hazardous Air Pollutants (NESHAPs) affecting a broad range of American industrial sectors. In doing so, EPA is ensuring appropriate protections for human health and the environment based on the best record possible. The Trump Administration is considering a 2-year compliance exemption via Section 112(i)(4) of the Clean Air Act for affected facilities while EPA goes through the rulemaking process. "EPA is moving forward with the reconsideration of a number of air rules that cover nearly every sector of the American economy. During this review, we will ensure the appropriate protections for human health and the environment based on the best record possible. Breathing clean air, living on clean land, and drinking clean water are all shared goals while we also do our part to usher in a Golden Age ofAmerican success," said EPA Administrator Zeldin. Specifically, EPA is initially reconsidering NESHAPs for integrated iron and steel manufacturing, rubber tire manufacturing, synthetic organic chemical manufacturing industry, commercial sterilizers for medical devices and spices, lime manufacturing, coke ovens, copper smelting, and taconite ore processing. EPA intends to evaluate other NESHAPs and New Source Performance Standards to determine whether they should be reconsidered. Thiswas announced in conjunction with a number of historic actions .(LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protectingthe environment, the agency is committedtofulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00016
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Exceptional Events
Administrator Zeldin Takes Action to Decrease Risk of Future Catastrophic Wildfires ("Exceptional Events")
WASHINGTON - Today, U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin took
action to decrease the risk of future catastrophic wildfires. Specifically, he directed EPA staff to
revisit the Obama-Bi den Administration's Exceptional Events rulemaking and prioritize the
allowance of prescribed fires within State and Tribal Implementation Plans (SIPs/TIPs). This
announcement comes in the wake of
'"'2''~"L'-''!:>the agency's largest wildfire
hazardous material removal effort in its history responding to fires in Los Angeles County.
"The Trump Administration is tackling our emergency response duties head on and taking action to reduce the likelihood of these devastating disasters in the future," said EPA Administrator Zeldin. "EPA plays an important role in ensuring the best forest management practices while protecting human health and the environment. Revisiting this rulemaking will ensure that EPA doesn't get in the way of making preventative efforts like prescribed burns easier to protect communities."
Prescribed fires are necessary to protect communities from catastrophic wildfires like the ones that caused untold damage to residents and businesses in Los Angeles. When EPA reviews SIPs and TIPs, EPA will work to ensure states and other entities that work within those states can use prescribed fires to properly manage their forests, without being unfairly penalized when it comes to assessing their air quality.
Administrator Zeldin also directed the EPA Office of Air and Radiation to convene meetings with state and tribal air agencies and state, local, and federal forest managers to evaluate ways to ease unnecessary burdens that prevent prescribed fires. These unnecessary burdens are related to, but not limited to, Exceptional Events, Regional Haze, Interstate Transport, and International Transport.
This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and mostconsequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protectingthe environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION Regional Haze Administrator Zeldin Begins Restructuring Regional Haze Program WASHINGTON - U.S. Environmental Protection Agency (EPA) is reconsidering its implementation of the Clean Air Act's Regional Haze Program. The way EPA has historically implemented this program has imposed significant costs on power plants and other sectors, calling into question the supply of affordable energy for American families. EPA intends to review its regulations implementing the Regional Haze Program to ensure that it fulfills Congressional intent, is based on current scientific information, and reflects recent improvements in air quality. "The United States has made significant gains in improving visibility in national parks and other wildlife areas. The Regional Haze Program was never intended to be the justification for shutting down every power plant and industrial sector in the country. It's time to restore sanity and purpose to the program," said EPA Administrator Zeldin. This was announced in conjunction with a number of historic actions {LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders. and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States.. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs forAmericans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00018
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Resolving the SIP backlog to provide environmental protections sooner Administrator Zeldin Takes Action to Prioritize Cooperative Federalism, Improve Air Quality Faster Trump EPA to clear massive backlog of State Implementation Plans from Biden-Harris Administration as soon as possible WASHINGTON - The U.S. Environmental Protection Agency (EPA) announced its commitment to work with States and Tribes to resolve the massive backlog of State Implementation Plans (SIPs) and Tribal Implementation Plans (TIPs) that the Biden-Harris Administration refused to resolve. When the Biden Administration left, there were 685 unresolved SIPs with 322 considered overdue. The Trump EPA's goal is to clear this backlog as soon as possible. "The Biden Administration's focus on ideological pursuits instead of the agency's core mission and statutory duties resulted in a delay of air quality improvement. With more than 140 million Americans living in nonattainment areas around the country, cooperative federalism and clearing out the State Implementation Plan backlog will make significant strides to improving the air we breathe," said EPA Administrator Zeldin. Many states have raised concerns related to being punished for emissions outside the control of their state as well as the air quality monitors not being located in most logical locations. EPA will also work with, not against, states and assist them to ensure that air quality is protected while growing the economy-including development and expansion of semiconductor manufacturing and artificial intelligence. Thiswas announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing E:PA's core mission of protectingthe environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00019
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Enforcement Discretion Administrator Zeldin Directs Enforcement Resources to Align with Executive Orders and EPA's Core Mission WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced updated enforcement discretion to allow the agency to better focus on its core mission and Powering the Great American Comeback. Specifically, he announced that EPA will immediately revise National Enforcement and Compliance Initiatives to ensure that enforcement does not discriminate based on race and socioeconomic status (as it has under environmental justice initiatives) or shut down energy production and that it focuses on the most pressing health and safety issues. This focus on EPA's established mission will also provide predictability as EPA considers changes to regulations, thereby lowering costs for Americans and relieving the economy of potentially unnecessary bureaucratic burdens. "The Biden-Harris Administration paired burdensome, legally questionable regulations with unpredictable but punitive enforcement aimed at shutting down American energy and manufacturing and promoting so-called 'environmental justice.' By re-aligning enforcement with the law instead of activist goals, we can help deliver economic prosperity and energy security while ensuring compliance with sound regulations," said EPA Administrator Zeldin. The "Ensuring Lawful Governance" Executive Order directs agencies to "preserve their limited enforcement resources by generally de-prioritizing actions to enforce regulations that are based on anything other than the best reading of a statute and de-prioritizing actions to enforce regulations that go beyond the powers vested in the Federal Government by the Constitution." EPA's realignment of enforcement also furthers this effort. This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protectingthe environment, the agency is committed to fulfilling PresidentTrump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions: ###
ED_018475D_00000036-00020
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Reconsideration of Greenhouse Gas Reporting Program Trump EPA Announces Reconsideration of Burdensome Greenhouse Gas Reporting Program WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency is reconsidering the mandatory Greenhouse Gas Reporting Program (GHGRP). Unlike every other mandatory information collection by EPA under the Clean Air Act, the GHGRP is not directly related to a potential regulation nor developed with that intention. The program requires over 8,000 facilities and suppliers in the United States to calculate and submit their emissions reporting annually. It costs hundreds of millions of dollars that could be better used to improve and upgrade environmental controls or other items at these facilities to have a noticeable impact on the improvement of the environment. "The Greenhouse Gas Reporting Program is another example of a bureaucratic government program that does not improve air quality. Instead, it costs American businesses and manufacturing millions of dollars, hurting small businesses and the ability to achieve the American Dream," said EPA Administrator Zeldin. This was.announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance. President Trump's Day One executive orders and Power the Great American Comeback. Combined., these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower.costs for Americans, revitalize.the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_ 0 184 7 SD_ 00000036-00021
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
SAB EPA to Accept Nominations for Science Boards WASHINGTON - Today, U.S. Enviornmental Protection Agency (EPA) Administrator Lee Zeldin announced that a notice will be published in the Federal Register seeking nominations for the Science Advisory Board (SAB) and Clean Air Scientific Advisory Committee (CASAC). Nominations will be accepted for 30 days following publication of the Federal Register notice. "Reconstituting the Science Advisory Board and Clean Air Scientific Advisory Committee are critical to ensuring that the agency receives scientific advice consistent with its legal obligations to advance our core mission of protecting human health and the environment," said EPA Administrator Zeldin. "I look forward to receiving nominations to build an independent group of advisors to aid the agency's rulemaking." In January, EPA announced its decision to reset these federal advisory committees to reverse the politicization of SAB and CASAC under the Biden-Harris Administration. In 1978, Congress directed EPA to establish an SAB to provide independent scientific advice to the Administrator on science that underlies agency rulemaking. Following the nomination period, members will be carefully selected for their scientific expertise. Nominations can be submitted on each board's respective website. To learn more about SAB and submit a nomination, visit: To learn more about CASAC and submit a nomination, visit: This was announced in conjunction with a number of historic actions (LINKTO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States, While accomplishing EPA's core mission of protectingthe environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize .the American auto industry, restore the rule of law, and give power back to states to make their own decisions: ###
ED_018475D_00000036-00022
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Social cost of carbon EPA Announces Action to Address Costly Obama, Biden "Climate" Measurements (Social Cost of Carbon) WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced today that the agency is revisiting the Biden-Harris Administration's "social cost of carbon" which contributes to significant regulatory costs. "The Biden-Harris Administration's so-called 'social cost of carbon' measurement was used to advance their climate agenda in a way that imposed major costs. To Power the Great American Comeback, we are fully committed to removing regulations holding back the U.S.," said EPA Administrator Zeldin. The "Unleashing American Energy" Executive Order directs EPA to "issue guidance to address these harmful and detrimental inadequacies, including consideration of eliminating the 'social cost of carbon' calculation from any Federal permitting or regulatory decision" within 60 days. The Executive Order states, "[t]he calculation of the 'social cost of carbon' is marked by logical deficiencies, a poor basis in empirical science, politicization, and the absence of a foundation in legislation. Its abuse arbitrarily slows regulatory decisions and, by rendering the United States economy internationally uncompetitive, encourages a greater human impact on the environment by affording less efficient foreign energy producers a greater share of the global energy and natural resource market." This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE). to advance President Trump's Day One executive orders and Power the G.reat American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's c.ore mission of protecting the environment, the agency is committed. to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
ED_018475D_00000036-00023
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EJ OFFICE EPA Terminates Biden's Environmental Justice, DEi Arms of 0Agency WASHINGTON - Today, the U.S. Environmental Protection Agency (EPA) announced it will terminate the Biden-Harris Administration's Environmental Justice and Diversity, Equity, and Inclusion arms of the agency. These organizational improvements, in line with Presidential Executive Orders, ensure the EPA is best positioned to meet its core mission of protecting human health and the environment, and Powering the Great American Comeback. Following President Trump's Executive Order "Ending Radical and Wasteful Government DEi Programs and Preferencing," EPA placed 171 employees in Diversity, Equity, and Inclusion and Environmental Justice on administrative leave. "President Trump was elected with a mandate from the American people. Part of this mandate includes the elimination of forced discrimination programs," said Administrator Zeldin. "Under the Trump Administration, EPA is affirming our commitment to serve every American with equal dignity and respect." "Some believe that so-called environmental justice is warranted to assist communities that have been left behind and this idea sounds goods and receives strong bipartisan support. But in reality, environmental justice has been used to fund left-wing activists instead for spending those dollars to directly remediate environmental issues for those communities," added Administrator Zeldin. This was announced in conjunction with a number of historic actions {LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Powe.r the.Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation .in the history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower co.sts for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own.decisions. ###
ED_018475D_00000036-00024
INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION NCNAA Trump EPA Announces Use of Enforcement Discretion to Further North Carolina's Recovery from Hurricane Helene WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced that the agency is granting an extension of the no action assurance that North Carolina requested to allow use of large air curtain incinerators to clear debris without requiring Title V permits. This will allow more efficient burning of debris with lower emissions than would occur through open burning or the use of smaller incinerators not subject to permitting requirements. "Granting North Carolina's request not only cuts through bureaucratic red tape and assists in disaster recovery but also makes the air cleaner, and is a particularly appropriate use of enforcement discretion. We are committed to facilitating emergency response efforts that get Americans back on their feet quickly and safely while advancing cooperative federalism," said EPA Administrator Zeldin. This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One.executive orders and Powerthe Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States.. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
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ED_018475D_00000036-00025
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ELG (oil and gas)
EPA Will Revise Wastewater Regulations for Oil and Gas Extraction to Help Unleash American Energy (ELGs: Oil and Gas)
WASHINGTON - Today, the U.S. Environmental Protection Agency (EPA) announced that it will modernize outdated regulations on wastewater discharges for oil and gas extraction facilities to lower energy costs while supporting environmentally sustainable water reuse. This action advances the goals of President Trump's Unteast1ingAmericanEneI~..ExE2cuU\leQrder.
The agency's review will evaluate modern technologies and management strategies to provide regulatory flexibility for oil and gas wastewater - also known as produced water- to be treated for beneficial reuse, including for Artificial Intelligence and data center cooling, rangeland irrigation, fire control, power generation, and ecological needs.
"EPA is playing a central role delivering on President Trump's energy agenda," said EPA Administrator Lee Zeldin. "EPA will revise wastewater regulations from the 1970s that do not reflect modern capability to treat and reuse water for good. As a result, we will lower production costs for oil and gas extraction to boost American energy while increasing water supplies and protecting water quality."
Under current regulations, discharge of treated wastewater is only allowed for agricultural and wildlife water uses in the western United States. EPA will consider expanding the geographic scope where treated wastewater can be used and discharged in the United States. In addition to prioritizing cost savings, EPA's rulemaking to revise the regulations will consider expanding opportunities for using treated wastewater, such as extraction of lithium and other critical minerals. EPA will also explore additional flexibilities to discharge treated wastewater from centralized wastewater treatment facilities that manage wastewater produced in the extraction of oil and gas.
The Clean Water Act requires EPA to revise industry-wide wastewater treatment limits, called effluent limitations guidelines, to keep pace with innovations in pollution control technology. Technologies to treat produced water to a quality for safe discharge and reuse have become more effective and affordable.
This was announced in conjunction with a number of historic actions (LINKTO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protectingthe environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, Lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
Background: Effluent limitations guidelines and standards (ELGs) are national industry-specific wastewater regulations based on the performance of demonstrated wastewater treatment technologies (often called "technology-based limits"). They are intended to represent the greatest pollutant reductions that are economically achievable for an entire industry.
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION Today's announcement focuses on Subpart E of the current Oil and Gas Extraction Effluent Guidelines regulations at Title 40 Part 435 of the Code of Federal Regulations. EPA promulgated the Subpart E regulations in 1979. Many changes have occurred in the oil and gas extraction industry since then. Learn more about the current ###
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
ELG (steam electric)
EPA Announces It Will Reconsider 2024 Water Pollution Limits for Coal Power Plants to Help Unleash American Energy (ELG: Steam Electric)
WASHINGTON - Today, the U.S. Environmental Protection Agency (EPA) announced that it will revise costly wastewater regulations for coal burning power plants issued in 2024. This action advances the goals of President Trump's Unlens~1ing ArnericQO_Energy Executive Order by ensuring the country has reliable, affordable electricity while protecting our nation's water resources under the Clean Water Act.
"President Trump's direction is clear, and EPA is committed to delivering on the vision ofAmerican energy dominance," said EPA Administrator Lee Zeldin. "By reviewing the Biden-era rule establishing discharge limits for coal-fired power plants under the Clean Water Act, we will ensure that all Americans can rely on low-cost electricity while also protecting our nation's water resources."
The effluent limitations guidelines and standards (ELGs) for the Steam Electric Power Generating industry apply to power plants that generate electricity through the creation of steam. The 2024 regulations established stringent discharge standards for four wastewaters generated at these facilities: flue gas desulfurization wastewater, bottom ash transport water, combustion residual leachate, and legacywastewater.
EPA will reconsider these standards, including technology-based ELGs it promulgated for leachate under the 2024 Supplemental Steam Electric ELGs, which are projected to cost the industry hundreds of millions of dollars that could be passed on to consumers. As part of this effort, the agency will consider how it might provide immediate relief from some of the existing leachate requirements. In a series of related actions, the agency will also provide clarifying updates to other leachate requirements from the same rule to prevent unintended misapplication of the existing rule. Additionally, the agency will reevaluate existing information on the availability and cost of membrane technology.
The 2024 rule is currently being challenged in the Eighth Circuit Court of Appeals. EPA has received two petitions for reconsideration from the Edison Electric Institute and Utility Water Act Group, trade associations representing electric utilities.
This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling PresidentTrump.'s promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
Learn more about the Steam Electric ELG re ulations.
Background:
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION ELGs are national industry-specific wastewater regulations based on the performance of demonstrated wastewater treatment technologies (often called "technology-based limits"). They are intended to represent the greatest pollutant reductions that are economically achievable for an entire industry. Steam electric plants use fossil fuels (such as coal, oil, and natural gas) or nuclear reactions to heat water in boilers, which generates steam. The steam is used to drive turbines connected to electric generators. The plants generate wastewater in the form of chemical pollutants and thermal pollution from their water treatment, power cycle, ash handling and air pollution control systems, as well as from coal piles, yard and floor drainage, and other miscellaneous wastes. ###
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
CCR EPA Announces Swift Actions on Coal Ash Program (Coal Combustion Residuals) WASHINGTON - The U.S. Environmental Protection Agency (EPA) announced that it is prioritizing a number of timely actions on coal ash, including state permit program reviews and updates to the coal ash regulations. "Under President Trump's leadership, EPA will advance cooperative federalism to allow states to lead the charge on local issues, with federal support. This is just one of many examples where this agency can and will work with our state partners to deliver for the American people." said EPA Administrator Lee Zeldin. Consistent with Administrator Zeldin's Powering the Great American Comeback initiative, prioritizing state permit programs for coal ash advances pillars on Clean Air, Land, and Water for every American as well as Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership. EPA will work with state partners to place implementation of the coal ash regulations more fully into state hands. This will empower those with local expertise to oversee more effective coal ash disposal operations. The agency will work with several states on preparing their regulations and applications. EPA encourages state agencies to pursue oversight of coal ash management within their borders. The agency is committed to working with state partners as they establish coal ash programs tailored to their unique circumstances that are also protective of human health and the environment. To exemplify the agency's commitment, EPA will propose a determination on the North Dakota permit program within the next 60 days. EPA is also reviewing the Legacy-Coal Combustion Residuals Management Units Rule. A key part of that review is evaluating whether to grant short- and long-term relief such as extending compliance deadlines. The agency aims to complete rule changes within a year. This was announced in conjunction with a number of historic actions (LINK TO OVERALL PRESS RELEASE) to advance President Trump's Day one executive orders and Powerthe Great American Comeback. Combined, these announcements represent the greatestand most consequential day of deregulation in the history of the lJnited States. While accomplishing EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions.
###
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INTERNAL- DRAFT - DELIBERATIVE- NOT FOR DISTRIBUTION
Risk Management Plan EPA Announces Reconsideration of the Risk Management Plan to Boost Safety, Competitiveness of American Businesses WASHINGTON - U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency is reconsidering the 2024 Risk Management Plan (RMP) rule. This rule has raised significant concerns relating to national security and the value of the prescriptive requirements within the rule. As a result, the 2024 RMP rule makes America's oil and natural gas refineries and chemical facilities less safe and less competitive. "The Biden EPA's costly Risk Management Plan rule ignored recommendations from national security experts on how their rule makes chemical and other sensitive facilities in America more vulnerable to attack," said EPA Administrator Zeldin. Accident prevention was and continues to be a priority for EPA in the Trump Administration. In 2019, the agency implemented rules that promoted coordination between chemical facilities and emergency responders, cut red tape and regulatory burdens, and addressed security risks associated with prior amendments to the rule. Bid en's costly rules negated this progress. EPA is committed to delivering common sense policy decisions that safeguard human health and the environment and bolster economic growth. Thiswas announced in .conjunction with a number of. historic actions {LINK TO. OVERALL PRESS RELEASE) to advanc.e President Trump's Day One executive orders and Power the Great American Comeback. Combined, these announcements represent the greatest and most consequential day of deregulation in the history of the United States. While accomplishing: EPA's core mission of protecting the environment, the agency is committed to fulfilling President Trump's promise to unleash American energy, lower costs for Americans, revitalize the American auto industry, restore the rule of law, and give power back to states to make their own decisions. ###
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Message
From:
Sent: To: Subject: Attachments:
Abboud, Michael [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =64E DF8A538154C89B8AFB97C7347AEE E-8A26A0A2-B3] 3/12/2025 4:59:34 PM Daren Bakst [Daren.Bakst@cei.org] RE: My Email March 6 Releases.pdf
Apologize Daren, I put a second R in your first name! Please keep these release close hold until this afternoon.
From: Daren Bakst <Daren.Bakst@cei.org> Sent: Wednesday, March 12, 2025 12:55 PM To: Abboud, Michael <abboud.michael@epa.gov> Subject: My Email
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Michael,
Thanks for reaching out! I just wanted to make sure you have my email address since I have not received an email yet.
Best,
Daren
Daren Bakst Director, Center for Energy and Environment and Senior Fellow Competitive Enterprise Institute Mobile: (202) 423-3149 Direct: (202) 331-2761 Email: daren.bakst@cei.org Twitter: @darenbakst
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Message
From:
Sent: To: CC:
Subject:
Abboud, Michael [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =64E DF8A538154C89B8AFB97C7347AEE E-8A26A0A2-B3] 3/13/2025 2:03:16 PM Chaitovitz, Chuck [CChaitovitz@USChamber.com]; Lauman, Lauren [Lauman.Lauren@epa.gov] Morales, MacKenzie [MMorales@USChamber.com]; Letourneau, Matt [MLetourneau@USChamber.com]; cwhiteman@uschamber.com RE: our statement
Thank you for this Chuck, appreciate the statement being inclusive of everything we did yesterday! Hopefully it wasn't too much!
From: Chaitovitz, Chuck <CChaitovitz@USChamber.com> Sent: Wednesday, March 12, 2025 7:11 PM To: Lauman, Lauren <Lauman.Lauren@epa.gov> Cc: Morales, MacKenzie <MMorales@USChamber.com>; Letourneau, Matt <MLetourneau@USChamber.com>;
cwhiteman@uschamber.com; Abboud, Michael <abboud.michael@epa.gov>
Subject: our statement
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Dear Lauren: Hope all is well. As promised here is our statement on today's announcements including WOTUS: https ://www.uschambcr.com/environmcnt/u-s-chambcM,1atcmcnt-on-cpas-cfforts-to-rcbal ancc-rcgu Iati ons Please let me know how else I can assist. Thanks again, Chuck
Chuck Chaitovitz Vice President, Environmental Affairs and Sustainability U.S. Chamber of Commerce 202-463-5316 (Phone) 202-680-8578 (Cell) cchaitovitz@uschamber.com http://www.uschamber.com For The Pursuit
U.S. Chambero! Commerce
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MacGregor, Josh [Josh.MacGregor@heritage.org] 2/11/2025 9:33:33 PM Abboud, Michael [abboud.michael@epa.gov] ubject:Heritage Report on Social Cost of Carbon
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Michael-
I'm writing to share a new Heritage report on the Social Cost of Carbon that may be helpful and relevant to President Trump's Executive Order "Unleashing American Energy". The order, as I am sure you are aware, directs the EPA to review the Social Cost of Carbon for harmful and detrimental inadequacies.
The Heritage Center on Data Analytics reviewed the EPA Greenhouse Gas Impact Value Estimator (GIVE) model for the Social Cost of Carbon and found the model was extremely sensitive to manipulation and found the GIVE model fails sensitivity testing.
Could you please recommend to me who from the Administrator's team is the best to share this with?
The full report can be found on our website: https://www.heritage.org/climate/report/calculating-the-social-costcarbon-the-give-model-epa-model-not-ready-prime-time
Thank you and please let me know ifwe can be helpful! Josh
Josh MacGregor Government Relations Director The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6032 heritage.org
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Leahy, Michael [MLeahy@chevron.com] 2/26/2025 6:48:38 PM Abboud, Michael [abboud.michael@epa.gov]
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Great chatting briefly, Michael. It was great seeing you at the WV Class VI Primacy event! Thank you again for the invitation and the great work you all are already executing. Sorry I caught you headed into a meeting. My cell is 202.403.4450 if you have a moment to chat.
I am reaching out as I regret I do not have the right POC for submitting a meeting request with Administrator Zeldin on behalf of Chevron's President for America, Bruce Niemeyer. He and the Administrator met briefly at a dinner President Trump attended during inauguration, and Bruce would welcome the chance to meet with Administrator Zeldin during his trip to Washington DC next week.
Separately, I also wanted to see if you, Administrator Zeldin, or any other EPA officials would be attending the major CERAWeek energy conference in Houston in two weeks. If so, we would love to see you all there as well.
Thanks again and I hope all is well!
All the best, Michael
Michael B. Leahy Manager, Federal & International Government Affairs
Chevron 600 13th Street NW, Suite 600 Washington, DC 20005-3027 Mobile +1202403 4450
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Emily Wong [WongE@api.org] 2/26/2025 9:07:58 PM Abboud, Michael [abboud.michael@epa.gov] ubject:RE: Who did you email at epa oar?
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Yep, will do.
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, February 26, 2025 4:04 PM To: Emily Wong <WongE@api.org> Subject: RE: Who did you email at epa oar?
<:laution: Sto1. loo~ Glli:nl{. illlis email is from an outsicle sou11t:e. Rlease use tie P:llisl llleEct l>utton itl sus1icious.
Can you send that to Tardif.Abigale@epa.gov and dominguez.alexander@epa.gov
From: Emily Wong <WongE@api.org> Sent: Wednesday, February 26, 2025 4:02 PM To: Abboud, Michael <abboud.michael@epa.gov> Subject: RE: Who did you email at epa oar?
I
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I sent it to the OAR Invitations email address that we've used in the past. I got an acknowledgement email today, but they said I should expect a response in 3-5 business days.
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, February 26, 2025 4:00 PM To: Emily Wong <WongE@api.org> Subject: Who did you email at epa oar?
fsaution: Sto1. loo~ illniinl'. illlis email is f:rom an outssile so:t11te. ielease :ttse tie l\!inisl ;l!le~ 1:tttton H s11s1i1Zious.
Get Outlook for iOS
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Beard, Preston [PBeard@USChamber.com] 3/3/2025 4:25:06 PM Abboud, Michael [abboud.michael@epa.gov] ubject:Fw: Invitation to Speak at US Chamber's Chemistry Solutions Working Group
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Preston Beard Director of Policy, Global Energy Institute
202-280-9585 I PBcard@uschamber.com IGlobal Energy Institute IU.S. Chamber of Commerce
From: Beard, Preston <PBeard@USChamber.com> Sent: Wednesday, February 5, 2025 1:31 PM To: dekleva.lynn@epa.gov <dekleva.lynn@epa.gov> Cc: Smith, Matthew <msmith@USChamber.com> Subject: Invitation to Speak at US Chamber's Chemistry Solutions Working Group
Dear Lynn,
Congratulations on your new position! I hope this message finds you well.
I am writing to extend an invitation for you to speak at the US Chamber's Chemistry Solutions Working Group. This group is an informal, off-the-record gathering that meets virtually to discuss key issues and priorities related to chemical policy.
We would be honored if you could join us at your convenience for a brief, 30-minute session. This would be a wonderful opportunity for you to introduce yourself and share the EPA's priorities for 2025. Additionally, we are keen to understand how our group can be more vocal and effective in advocating for the entire supply chain as it pertains to chemical policy.
Your insights and expertise would be greatly valued by our members, and we believe this discussion could foster a productive dialogue between the EPA and industry stakeholders.
Please let us know your availability, and we will be happy to coordinate a time that works best for you.
Thank you for considering our invitation. We look forward to the possibility of your participation.
Best regards,
Preston Beard
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Preston Beard Director of Policy, Global Energy Institute 202-280-9585 I PBeard(d;uschamber.com I Global Energy Institute ILJ.S. Chamber of Commerce
ED_018475O_00000161-00002
Message
From: Sent: To: CC:
Subject:
Beck, Nancy [beck.nancy@epa.gov] 3/6/2025 8:34:15 PM Steve Ruppel [Steve@millerstrategies.com] Kevin Kolevar [kmkolevar@dow.com]; Jeff Miller [jeff@millerstrategies.com]; Abboud, Michael [abboud.michael@epa.gov]; Vaneese Cope [vlcope@dow.com]; Altieri, Sonia [Altieri.Sonia@epa.gov] RE: Connecting Dow with EPA
Hi Steve, I'm looping in Sonia who can assist with scheduling a meeting with Kevin and I.
Best, Nancy
Nancy B. Beck, PhD, DABT Principal Deputy Assistant Administrator EPA Office of Chemical Safety and Pollution Prevention (w) 202-564-7031
From: Steve Ruppel <Steve@millerstrategies.com> Sent: Thursday, March 6, 2025 2:05 PM To: Beck, Nancy <beck.nancy@epa.gov> Cc: Kevin Kolevar <kmkolevar@dow.com>; Jeff Miller <jeff@millerstrategies.com>; Abboud, Michael <abboud.michael@epa.gov>; Vaneese Cope <vlcope@dow.com> Subject: Connecting Dow with EPA
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Nancy,
I hope you're doing well.
We have been working with Michael Abboud as well as have submitted the necessary paperwork in hopes of securing a meeting with Jim Fitterling, CEO of Dow, and Administrator Zeldin between March 25-27. As part of the preparation, Michael suggested setting up time for you to connect with Dow ahead of that meeting.
To facilitate this, I've included Kevin Kolevar from Dow on this email. He will be the best point of contact to coordinate
I i the pre-meeting conversation. You can reach him directly at Ex. 6 Personal Privacy(PP) i-------------------
Please let me know how you'd like to proceed, and if there's anything else I can do to assist.
Best, Steve Ruppel
Steve Ruppel
Associate Principal 443.604.9317
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MILLER - STRATEGIES
Disclaimer
The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.
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Courtney Briggs [courtneyb@fb.org] 3/10/2025 8:27:37 PM Abboud, Michael [abboud.michael@epa.gov]
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Hey Michael,
I would start with these below. Let me know if you need more. See you later this week.
courtncyb(a~ Jb.org cchaitovitz duschambcr.com cmchalc(ci;nma.org vlad.dorjcts((i,nrcca.coop rgi cscnsch Iag({l;tfi. org ccoyncru1"nssga.org rhcl land(a:,gcsaa.org claff(dapLorg mmittclholzcr((i:nahb.org formicam(ri:nppc .org nclam(a:asphaltpavcmcnt.or ~ me] inda.tomai no(a;agc .org t:!".iggs(ri:nar. rcaltor 1( a1T((1:a {a.grg 1j .karncy(a,nasda.org cbranosky(ci;nahb.org pshanna(a,artba.or ~
Courtney Briggs Senior Director, Government Affairs American Farm Bureau Federation (202)406-3667 (Office) (202) 577-7294 (Cell) CouttneyB(d;fb.org
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essage
Aaron Ringel [ARingel@afpm.org] 3/10/2025 7:27:24 PM Brown, Ashley [Brown.Ashley@epa.gov] Abboud, Michael [abboud.michael@epa.gov]; Lisa Dichoso [LDichoso@afpm.org]; Hannah Sztorc [HSztorc@afpm.org] FW: AFPM meeting request for Administrator Zeldin ttachments:AFPM Meeting Request Letter to Administraor Zeldin.pdf; EPA Meeting Request Form - AFPM.pdf
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Hi Ashley,
Travis Cone passed along your email as the best person to reach out to about scheduling a meeting with the Administrator. We took the liberty of filling out the attached meeting request form and I am also including a letter from our CEO to Administrator Zeldin as well. I've looped in Lisa Dichoso, Executive Assistant to our CEO Chet Thompson on this note in case there are scheduling questions.
Please let me know if you need any additional information!
Best, Aaron
Aaron Ringel Vice President Government Relations
American Fuel & Petrochemical Manufacturers 11100 M Street NW Suite 900 North Washinqton, DC 20006 202.457.04/l0 office 202.1144.5fi3'I direct 703. 732.0171 mobile
ARingel@a pm.org
CONFIDENTIALITY NOTICE: This electronic messaqe contains information from the American Fuel & Petrochemical Manufacturers that may be confidential or privileged. The information is intended solely for the use of the individual(s) or entity(ies) named above. If you are not the intended recipient, be aware that any disclosure, copyinq, distribution, or use of the contents of this messaqe is prohibited. If you have received this e-mail in error, please notify us immediately by telephone at (20:n 457-0480 or by reply e-mail and permanently delete this e-mail, any attachments, and c1II copies thereof.
ED_018475D_ 00000224-00001
From: Aaron Ringel Sent: Monday, February 3, 2025 11:35 AM To: zeldinscheduling@epa.gov Cc: Sofia Tran <STran@afpm.org>; abboud.michael@epa.gov Subject: AFPM meeting request for Administrator Zeldin Please find attached a meeting request letter to EPA Administrator Zeldin on behalf of American Fuel & Petrochemical Manufacturers Association CEO Chet Thompson. Understanding the Administrator's busy schedule, we stand ready to work with your staff to set up a time at your earliest convenience. I'm looping in Chet's Executive Assistant Sofia Tran as well. Please feel free to reach out with any questions. Best, Aaron
Aaron Ringel Vice President Government Relations American Fuel & Petrochemical Manufacturers 11100 M Street NW Suite 900 North Washinqton, DC 20006 202.457.04/l0 office 202.1144.5fi3'I direct 703. 732.0171 mobile ARingel@a pm.org CONFIDENTIALITY NOTICE: This electronic message contains information from the American Fuel & Petrochemical Manufacturers that may be confidential or privileged. The information is intended solely for the use of the individual(s) or entity(ies) named above. If you are not the intended recipient, be aware that any disclosure, copyinq, distribution, or use of the contents of this messaqe is prohibited. If you have received this e-mail in error, please notify us immediately by telephone at (20:n 457-0480 or by reply e-mail and permanently delete this e-mail, any attachments, and c1II copies thereof.
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Administrator Zeldin Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, D.C. 20460
February 3, 2025
American Fuel & Petrochemical Manufacturers
1800 M Street, NW Suite 900 North Washington, DC 200:36
202.457.0480 office afprn.org
Administrator Zeldin,
Congratulations on your recent confirmation as Administrator of the Environmental Protection Agency (EPA). On behalf of the American Fuel & Petrochemical Manufacturers (AFPM), we are confident that your leadership will bring a fresh perspective to the agency, help strengthen its role in addressing the complex environmental challenges we face, and provide the necessary innovation to bring pragmatic solutions to the table. We would welcome a chance to meet with you to discuss in more detail AFPM's priorities.
AFPM is the leading trade association representing the U.S. fuel refining industry, which supplies gasoline, diesel, jet fuel, sustainable aviation fuel, and renewable diesel around the country and the world; the petrochemical industry, which manufactures the essential building blocks for modem life; and the midstream energy industry, which makes it possible to transport energy feedstocks and products where they need to go. Our companies support nearly 3 million high-quality U.S. jobs and have facilities in more than 30 states.
I hope that your schedule permits you to accept our invitation to meet. Please feel free to contact Aaron Ringel (aringcl(Zi>,afpm.org) on our staff if you have any questions.
We look forward to hearing from you.
Sincerely,
Chet Thompson President and CEO American Fuel & Petrochemical Manufacturers
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EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
Meeting Logistics Requesting individual/organization:
(Please identify the person(s) (name and affiliation) requesting the meeting, including any background information on the affiliated organization(s).) Note ifthis is an EPA hosted or co-hosted event.
Chet Thompson, President and CEO of American Fuel and Petrochemical Manufacturers (AFPM) httos://www.afom.om:/ Name, Email, Phone, Title
Contact information:
Title of the meeting:
Describe the proposed meeting topic/ agenda, provide available briefing materials: Describe the action sought from the meeting and/or identify desired outcome(s):
Proposed meeting date and time (if date is flexible please indicate the range):
Aaron Ringel, VP Government Relations (AFPM) ARingel@afpm.org 703-732-0171 The topic for discussion should be listed in the title ofthe meeting.
Introductory Meeting with Chet Thompson, President and CEO of AFPM. Introductory meeting to AFPM, its members, discussing energy markets, and priorities for the Administration (attached priorities document).
No direct ask.
Tuesday, March 18: 1:00 - 1:30 p.m. 1:30 - 2:00 p.m. 2:00 - 2:30 p.m.
Requested length of time:
Provide suggested amount oftime needed. 30 minutes
Please explain any time sensitivity that N/a impacts the date of the meeting, such as court-ordered or statutory deadline:
Proposed meeting location:
If the Administrator is unable to meet, is a surrogate desired? If yes, who specifically?
Virtual? EPA building? Other location (city, state)?
EPA Building No
1 of3
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EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
Are you planning to issue a press-
No
statement on this meeting?
Will you be requesting photography from No the meeting?
Meeting Participants
(-Name, organizational affiliation, email address. Please use the in the table
Expected meeting participants:
-Name, organizational affiliation Chet Thompson, President and CEO (AFPM)
Email with ";" at the end Cthom2son@af2m.org;
Geoff Moody, SVP Government gmoody(a),af];1m.org; Relations & Policy (AFPM)
Aaron Ringel, VP Government Relations (AFPM)
ARingel@af2m.org;
Are any expected meeting participants federally registered lobbyists or lobbying organizations? (If yes, please identify.)
Are any expected meeting participants a partisan political candidate, a representative of a political party or a registered political action committee (PAC)? (If yes, please identify.)
Chet Thompson, President and CEO (AFPM) Geoff Moody, SVP Government Relations & Policy (AFPM) Aaron Ringel, VP Government Relations (AFPM)
No.
No. Do any expected meeting participants seek or currently have any business interests with the Agency such as permits, contracts, litigation, grants, etc.? (If yes, please identify.)
Background for the Meeting
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EPA ADMINISTRATOR MEETING INFORMATION FORM
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Martinez, Macarena (Cruz) [Macarena_Martinez@cruz.senate.gov] 2/1/2025 2:08:00 AM Abboud, Michael [abboud.michael@epa.gov] ubject:Re: Quote for new Trump EPA appointee in Texas
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Hi Michael!
Good to hear from you. Let me see what I can do. I will be in touch.
Best,
Macarena Martinez Communications Director Sen. Ted Cruz (R-Texas) C: 713-858-7013
From: "Abboud, Michael" <abboud.michael@epa.gov> Date: Friday, January 31, 2025 at 3:11 PM To: Macarena Martinez <Macarena_Martinez@cruz.senate.gov> Subject: Quote for new Trump EPA appointee in Texas
Hey Macarena, hope you've been well. I don't think I've seen you since Speaker McCarthy did his event in Houston back in 2022. Congratulations on the new position with Senator Cruz. I'm reaching out because EPA is appointing a new Regional Administrator for Region 6 which includes Texas, as well as New Mexico, Oklahoma, Arkansas, and Louisiana. I included some of his biography below. We are seeing if Senator Cruz would be willing to provide a quote of support for Scott in his new position. We are planning on releasing a press release later next week. Give me a call if you have any more questions, and I hope we can continue working together in this new term!
Scott Mason Bio: W. Scott Mason IV is the 14th regional administrator of the U.S. Environmental Protection Agency's South Central Region. This is Mason's second appointment to EPA, having served as the Director of the EPA's American Indian Environmental Office during President Trump's first administration. He and his staff were charged with the protection of human health and the environment in Indian country, which includes all 574 federally recognized tribes and Alaska Native Villages. Additionally, he was a member of The White House Council on Native American Affairs, where he served as co-chair of the Council's Committee on Infrastructure.
Most recently, Mason was the Deputy Secretary of Energy of Oklahoma. He has over 20 years of experience serving at the local, state and federal levels of government in various capacities, including serving as a vice president and the executive director of federal programs at The University of Oklahoma (OU) and on the staff of Oklahoma Governor Mary Fallin. He has also been a district field representative in the United States House of Representatives and was the youngest public school board member in Oklahoma.
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Mason is a proud Citizen of the Cherokee Nation and a 5th generation Oklahoman, from Cordell. He earned his Bachelor's and Master's Degrees from The University of Oklahoma. DRAFT Quote: "I support President Trump in his appointment of Scott Mason to be the EPA Region 6 Administrator. He has been a leader in protecting the environment while ensuring continued economic growth and advancement for all Texans. The Trump Administration has committed to reforming government bureaucracy and removing the red tape that has cost American businesses billions in unnecessary penalties and fees. I will work with Administrator Zeldin and Regional Administrator Mason to ensure EPA will work in coordination with industry rather than against as we do our part to Make America Great Again."
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From: Furchtgott-Roth, Diana [Diana. FurchtgottRoth@heritage.org] 3/12/2025 5:29:39 PM Abboud, Michael [abboud.michael@epa.gov]
ubject:Re: Releases for today.
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Thanks.
Diana Furchtgott-Roth Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy 202-754-2315 \.202-608-1520 The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 heritage.org
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, March 12, 2025 1:17:26 PM To: Furchtgott-Roth, Diana <Diana.Furchtgott-Roth@heritage.org> Subject: Releases for today.
Attached.
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Daren Bakst [Daren.Bakst@cei.org] 3/12/2025 8:27:23 PM Abboud, Michael [abboud.michael@epa.gov] ubject:FW: Follow Up on Major EPA Developments
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Michael,
You should have received the emails I sent to Cooler Heads but just making sure you saw the latest. See below.
Please feel free to use my statement for a quote if that would be helpful.
Thanks!
Daren Bakst Director, Center for Energy and Environment and Senior Fellow Competitive Enterprise Institute Mobile: (202) 423-3149 Direct: (202) 331-2761 Email: daren.bakst@cei.org Twitter: @darenbakst
From: Daren Bakst <Daren.Bakst@cei.org> Sent: Wednesday, March 12, 2025 4:22 PM To: Daren Bakst <Daren.Bakst@cei.org> Subject: Follow Up on Major EPA Developments
A follow-up on the big developments at the EPA:
- Here is a tweet promoting the great stuff today at the EPA (retweets are appreciated)
- Here is CEI's statement on today's big day at the EPA:
CEI's Director of the Center for Energy and Environment and Senior Fellow Daren Bakst applauds this major development:
"The Biden EPA ignored the will of Congress, infringed on individual freedom, trampled on property rights, and tried to force the country to use unreliable sources of electricity, such as wind and solar.
"This isn't environmental protection, it is economic and social control. And it needs to end.
"Today, EPA Administrator Lee Zeldin announced a comprehensive deregulator a ?,~!.1..9_'! to undo numerous Biden-era rules, from the de facto EV mandate to the Clean Power Plan 2.0. He also announced that the EPA will be reconsidering the 2009 endangerment finding, which is the basis for the agency's greenhouse gas regulations.
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"Americans want and deserve a clean environment. What they don't deserve is the EPA imposing regulations without regard for costs and tradeoffs, such as the effect its regulations have on driving up costs, hurting reliable energy, limiting mobility, killing offjobs and industries, and disproportionately hurting the poor. "To properly reform the EPA, in addition to the incredible work of the Trump administration, it will also require Congress to do its part because many of the problems are caused by flaws in the environmental statutes, such as the Clean Air Act and Clean Water Act.
"I commend Zeldin for his leadership and urge Congress to work with CEI and anyone else who wants to make much needed reforms to the EPA. Environmental protection doesn't have to mean economic and societal sabotage. By=='--=-"'=====---'='----'----"' we can have an EPA that appreciates this fact and is truly working for the American people." Best, Daren Daren Bakst Director, Center for Energy and Environment and Senior Fellow Competitive Enterprise Institute Mobile: (202) 423-3149 Direct: (202) 331-2761 Email: daren.bakst@cei.org Twitter: @darenbakst
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Message
From: Sent: To:
CC: Subject:
Vaseliou, Molly [Vaseliou.Molly@epa.gov] 3/12/2025 9:14:34 PM Will Layden [wlayden@awc.org]; Abboud, Michael [abboud.michael@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Morrill, Jackson umorrill@awc.org]; Tim Hunt [thunt@awc.org] RE: [RELEASE] AWC Applauds EPA's Decision to Reconsider PM NAAQS Rule
Thanks for sharing!
From: Will Layden <wlayden@awc.org> Sent: Wednesday, March 12, 2025 5:10 PM To: Vaseliou, Molly <Vaseliou.Molly@epa.gov>; Abboud, Michael <abboud.michael@epa.gov>; Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Cc: Morrill, Jackson <jmorrill@awc.org>; Tim Hunt <thunt@awc.org> Subject: FW: [RELEASE] AWC Applauds EPA's Decision to Reconsider PM NAAQS Rule
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Molly and Team Zeldin -
Forwarding our press release on today's PM NAAQS announcement. We really appreciate y'alls efforts here, please don't hesitate to reach out if we can be a resource as you begin the reconsideration process.
Best,
Will
From: Madison Stephens <mstephens@awc.org> Sent: Wednesday, March 12, 2025 4:28 PM To: AWC All Staff <AWCAIIStaff@awc.org> Subject: [RELEASE] AWC Applauds EPA's Decision to Reconsider PM NAAQS Rule
March 12, 2025
MEDIA CONTACT Madison Stephens Manager, Communications & Outreach 202-463-2704, =======
AWC Applauds EPA's Decision to Reconsider PM NAAQS Rule
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The::.....:::....:==:...:......::...::....=::.=.._=-==== (AWC) President and CEO Jackson Morrill responded to the Environmental Protection Agency's (EPA) announcement of a reconsideration of the 2024 National Ambient Air Quality Standards (NMQS) for particulate matter (PM2.5) and the recent National Emission Standards for Hazardous Air Pollutants (NESHAP): "The American Wood Council is pleased the EPA has decided to revisit the 2024 PM NMQS that has created permitting gridlock across the country and harmed American manufacturing. The 9 g/m3 standard lowered the limit to near background levels while doing nothing to address the largest sources of particulate matter, such as wildfire smoke. In effect, our industry's ability to modernize mills to reduce emissions and improve air quality is severely limited by the current rule due to a lack of permit headroom. "The U.S. wood products industry is committed to protecting human health and maintaining safe air quality and welcomes the EPA moving to modernize the NMQS implementation and permitting process using sound science and realistic modeling inputs. "AWC looks forward to continuing to work with the EPA on a more streamlined permitting process that protects people and allows American manufacturing and rural economies to thrive. "Finally, we are pleased the EPA is reconsidering several recently finalized NESHAPs. While the EPA is still working on the NESHAP for the wood product industry, we hope the EPA can finalize it quickly using the significant flexibility under the Clean Air Act to meet the obligations of the law without imposing additional, unnecessarily burdensome requirements."
#t#t-
The American Wood Council (AWC) represents 87 percent of the structural wood products industry and the almost 465,000 men and women working family-wage jobs in mills across the country. From dimension lumber to engineered wood products, we champion the development of data, technology, and standards to ensure the best use of wood products and recognition of their unique sustainability and carbon-reduction benefits. We are leaders in providing education to the design, code and fire official communities who view AWC as a trusted and credible resource.
====I"'"''-'-====
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Cordes, Mary [mary.cordes@chemours.com] 3/13/2025 2:35:22 AM Abboud, Michael [abboud.michael@epa.gov] ubject:Re: [EXT] Re: CERAWeek?
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Sounds great. Also, my cell is L~x~-~-~-:'~~n~_I_P_r_i~-~cy_iP_PLJ if easier to call or text.
Gerardo is speaking on how chemistry will address power demand for Al and data centers tomorrow at 3:30 pm in the agora, if anyone wants to listen in!
Mary Cordes Government Affairs The Chemours Company 202-394-4893 (cell)
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, March 12, 2025 8:03:38 PM To: Cordes, Mary <mary.cordes@chemours.com> Subject: Re: [EXT] Re: CERAWeek?
External email. Confirm links and attachments before opening.
Lemme run it by my team on the ground and see what we can do.
Get Outlook for iOS
From: Cordes, Mary <mary.cordes@chemours.com> Sent: Wednesday, March 12, 2025 8:57:14 PM To: Abboud, Michael <abboud.michael@epa.gov> Subject: Re: [EXT] Re: CERAWeek?
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And talk about crazy day - great work and really great to see the Agency work to address these rules! Congratulations on your role in all of that!
Mary Cordes Government Affairs The Chemours Company 202-394-4893 (cell)
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, March 12, 2025 7:51:53 PM
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To: Cordes, Mary <mary.cordes@chemours.com> Subject: [EXT] Re: CERAWeek?
External email. Confirm links and attachments before opening.
Hey sorry, we had a crazy day. I am not in Houston this week. As of now we are tracking for the administrator to be there Friday. How long will you and your president be there?
Get Outlook for iOS
From: Cordes, Mary <mary.cordes@chemours.com> Sent: Wednesday, March 12, 2025 4:54:07 PM To: Abboud, Michael <abboud.michael@epa.gov> Subject: CERAWeek?
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Hi Mike -
Are you in Houston for CERAWeek? If so, our President is here, and I would really appreciate the chance to introduce you to him. Looking forward to connecting!
Thank you, Mary
Mary Cordes Federal Government Affairs The Chemours Company
Cell: + 1 (202) 394-4893 E-mail: mary.cordcs@~chcmours.com
Chemours,_
Chcmours.com
This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https ://www.chemours.com/en/email-disclaimer This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or
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an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chemours.com/en/email-disclaimer This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chemours.com/en/email-disclaimer
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Cordes, Mary [mary.cordes@chemours.com] 3/13/2025 8:29:38 PM Abboud, Michael [abboud.michael@epa.gov] Karakitsos, Dimitrios J (WAS X75132) [dimitri.karakitsos@hklaw.com] ubject:RE: [EXT] Re: CERAWeek?
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Hi Michael,
Gerardo is speaking on a panel at CERAWeek now and is heading back to HQ later today. Gerardo is in DC often - can we try to set something up for him to meet yall then?
Thanks, Mary
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, March 12, 2025 9:04 PM To: Cordes, Mary <mary.cordes@chemours.com> Subject: Re: [EXT] Re: CERAWeek?
External email. Confirm links and attachments before opening.
Lemme run it by my team on the ground and see what we can do.
Get Outlook for iOS
From: Cordes, Mary <mary.cordes@chemours.com> Sent: Wednesday, March 12, 2025 8:57:14 PM To: Abboud, Michael <abboud.michael@epa.gov> Subject: Re: [EXT] Re: CERAWeek?
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And talk about crazy day - great work and really great to see the Agency work to address these rules! Congratulations on your role in all of that!
Mary Cordes Government Affairs The Chemours Company 202-394-4893 (cell)
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From: Abboud, Michael <abboud.michael@epa.gov> Sent: Wednesday, March 12, 2025 7:51:53 PM To: Cordes, Mary <mary.cordes@chemours.com> Subject: [EXT] Re: CERAWeek?
External email. Confirm links and attachments before opening.
Hey sorry, we had a crazy day. I am not in Houston this week. As of now we are tracking for the administrator to be there Friday. How long will you and your president be there?
Get Outlook for iOS
From: Cordes, Mary <mary.cordes@chemours.com> Sent: Wednesday, March 12, 2025 4:54:07 PM To: Abboud, Michael <abboud.michael@epa.gov> Subject: CERAWeek?
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Hi Mike -
Are you in Houston for CERAWeek? If so, our President is here, and I would really appreciate the chance to introduce you to him. Looking forward to connecting!
Thank you, Mary
Mary Cordes Federal Government Affairs The Chemours Company
Cell: + 1 (202) 394-4893 E-mail: mary.cordcs(f_i;chcmours.com
C
Chcmours.com
mours..
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notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chemours.com/en/email-disclaimer This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chemours.com/en/email-disclaimer
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essage
Chaitovitz, Chuck [CChaitovitz@USChamber.com] 3/13/2025 3:08:39 PM Abboud, Michael [abboud.michael@epa.gov]; Lauman, Lauren [Lauman.Lauren@epa.gov] Morales, MacKenzie [MMorales@USChamber.com]; Letourneau, Matt [MLetourneau@USChamber.com]; cwhiteman@uschamber.com ubject:RE: our statement
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No worries Michael. Many thanks.
From: Abboud, Michael <abboud.michael@epa.gov> Sent: Thursday, March 13, 2025 10:03 AM To: Chaitovitz, Chuck <CChaitovitz@USChamber.com>; Lauman, Lauren <Lauman.Lauren@epa.gov> Cc: Morales, MacKenzie <MMorales@USChamber.com>; Letourneau, Matt <MLetourneau@USChamber.com>; Whiteman, Chad <cwhiteman@uschamber.com> Subject: RE: our statement
. This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Thank you for this Chuck, appreciate the statement being inclusive of everything we did yesterday! Hopefully it wasn't too much!
From: Chaitovitz, Chuck <CChaitovitz USChamber.com> Sent: Wednesday, March 12, 2025 7:11 PM To: Lauman, Lauren <Lauman.Lauren@~.129_,_ggy_> Cc: Morales, MacKenzie <MMorales USChamber.com>; Letourneau, Matt <MLetourneau cwhiteman uschamber.com Abboud, Michael <abboud.rnichael@_~QE...,gQY.> Subject: our statement
USChamber.com>;
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Dear Lauren: Hope all is well. As promised here is our statement on today's announcements including WOTUS: htt s://www.uschambcr.com/environment/u-s-chamber-statement-on-e as-efforts-to-rebalance-re 1 ulations
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Please let me know how else I can assist. Thanks again, Chuck Chuck Chaitovitz Vice President, Environmental Affairs and Sustainability U.S. Chamber of Commerce 202-463-5316 (Phone) 202-680-8578 (Cell) ccha itovitz@uscha m be r.com http://www.uschamber.com For The Pursuit
U.S., Chamber of Gornmerce
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Luke Bolar [bolar@clearpath.org] 2/14/2025 9:04:06 PM Brown, Ashley [Brown.Ashley@epa.gov] Abboud, Michael [abboud.michael@epa.gov] Re: On Behalf of Administrator Zeldin ttachments:lntroduction to ClearPath 2025, EPA.pdf
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Hello Ashley and Michael, If you need any briefing materials for our Tuesday morning meeting - here's a short slide deck introducing ClearPath and a few policy areas we focus on that have EPA jurisdiction. Thank you, Luke
On Thu, Feb 13, 2025 at 3:59 PM Luke Bolar <bolar@clearpath.org> wrote: Thanks, Ashley. That works great for us. We'll see you on Tuesday.
On Thu, Feb 13, 2025 at 3:57 PM Brown, Ashley <Brown.Ashley@epa.gov> wrote: Hi Luke,
I just wanted to note that this meeting will have a hard stop at 10:45am. I hope you have a great weekend!
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Brown, Ashley Sent: Friday, February 7, 2025 12:19 PM To: Luke Bolar <bolar@clearpath.org> Cc: Abboud, Michael <abboud.michael@epa.gov> Subject: RE: On Behalf of Administrator Zeldin
Luke,
Thank you so much for confirming Tuesday Feb 18 at 10: 15am ET. Could you please share a cell for a person of contact for the group? The best place for visitors to arrive at the U.S. EPA via cab, uber, or on foot is at the Federal Triangle Station Metro Stop entrance on 12th Street in between Constitution and Pennsylvania Ave. Once arrived, please use the South Entrance near the metro stop escalators. A photo ID will be required to enter the building. I have also attached a PDF with helpful instructions.
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Ashley
From: Luke Bolar <bolar@clearpath.org> Sent: Friday, February 7, 2025 12:02 PM To: Brown, Ashley <Brown.Ashley@epa.gov> Cc: Abboud, Michael <abboud.michael@epa.gov> Subject: Re: On Behalf of Administrator Zeldin
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Thank you, Ashley, That works great. If it's ok, it will be myself and three colleagues: Jeremy Harrell, CEO, ClearPath Luke Bolar, Chief External Affairs Officer, ClearPath Lisa Epifani, Head of Policy, ClearPath Hillary O'Brien, Senior Program Director for Carbon Management and Science, ClearPath Let us know ifthere are any details for arrival and check-in at EPA, but we're looking forward to it. Luke
Luke Bolar Chief External Affairs Officer 202-355-3677 bolar@clearpath.org
On Fri, Feb 7, 2025 at 11 :29 AM Brown, Ashley <Brown.Ashley@epa.gov> wrote:
Hi Luke, Would Tuesday Feb 18 at 10: 15am ET work for you for an in-person meeting?
Ashley
From: Luke Bolar <bolar@clearpath.org> Sent: Friday, February 7, 2025 11:27 AM To: Brown, Ashley <Brown.Ashley@epa.gov>
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Cc: Abboud, Michael <abboud.michael@epa.gov> Subject: Re: On Behalf of Administrator Zeldin
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Hi Ashley, The week of Feb. 17 works well. The only time that won't work is 9:30 am - 1:30 pm on Wednesday, Feb. 19 as our CEO is testifying at Senate EPW on permitting reform that morning. Otherwise we are flexible. Thank you, Luke Bolar
Luke Bolar Chief External Affairs Officer 202-355-3677 bolar@clearpath.org
On Fri, Feb 7, 2025 at 11: 18 AM Brown, Ashley <Brown.Ashley@epa.gov> wrote: Hi Luke, Thank you for the response. Unfortunately, Thursday and Friday next week will not work. What about the week of Feb 17th?
Ashley
From: Luke Bolar <bolar@clearpath.org> Sent: Friday, February 7, 2025 10:45 AM To: Brown, Ashley <Brown.Ashley@epa.gov> Cc: Abboud, Michael <abboud.michael@epa.gov> Subject: Re: On Behalf of Administrator Zeldin
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Hello Ashley, Thank you for reaching out. We would be honored to meet with Administrator Zeldin next week. Our full team will be at an off-site meeting from Monday - Thursday morning, would it be possible to schedule for Thursday afternoon or anytime on Friday? Thank you,
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Luke Bolar Luke Bolar Chief External Affairs Officer 202-355-3677 bolar@clearpath.org
On Fri, Feb 7, 2025 at 10:06 AM Brown, Ashley <Brown.Ashley@epa.gov> wrote: Hello Luke, Administrator Zeldin would like to set up an in person introductory meeting with you. Would you be able to meet next week? Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
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ClearPath Senior Team
The ClearPath's 40 person team has over 70 combined years of Hill experience and a substantial policy team with expertise from the executive branch, trade associations, NGOs, and industry.
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Government Affairs
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technologies America has to offer.
Build Coalitions
Build the right coalitions with industry, NGOs and
academia stakeholders in order to support solutions.
Define Educate & Audience dvocate
Know the
Educate
influencers in
Capitol Hill and
the public and Administration leaders
private sectors
and policymakers
who will be key about the technology
voices to support and and policy solutions.
pass
Advocate for
the policies.
pragmatic results.
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Policy Highlights
Carbon Management
Class VI: o Streamline the approval of individual permits and primacy applications
o Provide regulatory clarity on the eligibility of new carbon storage pathways
o Leverage the technical support of DOE and its National Laboratories
Support efficient permitting processes for the build out of carbon pipelines
Protect and expand the 45Q Carbon Capture tax incentives
Support DOE efforts to extend existing R&D categorical exclusion to include demonstration activities
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Policy Highlights
Permitting Reform
Durable permit reform solutions will need to balance speed with safety Ways to expedite permitting include: Increasing transparency Leveraging regulatory tools like:
o Categorical Exclusion o General Permits o Permit by Rule
1111 Used by EPA and over 20 states 1111 Shifts system from process focus to
compliance driven Streamlining judicial review
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Jonathan Weinberger uonathan.weinberger@gm.com] 2/3/2025 9:55:31 PM Abboud, Michael [abboud.michael@epa.gov] ubject:Fw: Scheduling Request: Mary
Barra (GM) I Administrator
Zeldin
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Thank you!
From: Zaina Shaath <zaina.shaath@gm.com> Sent: Monday, February 3, 2025 3:48 PM To: ZeldinScheduling@EPA.gov <ZeldinScheduling@EPA.gov> Cc: Abboud.michael@epa.gov <Abboud.michael@epa.gov>; Stephanie Johnson (She/her/hers) <stephanie.johnson@gm.com>; Omar Vargas <omar.vargas@gm.com>; Jonathan Weinberger <jonathan.weinberger@gm.com>
Subject: Scheduling Request: Mary Barra (GM) I Administrator Zeldin
Good afternoon,
I'm writing to request a meeting with EPA Administrator Lee Zeldin and Mary Barra, Chair and CEO of General Motors.
Purpose: The purpose of the call, in addition to a general and congratulatory introduction, is to discuss partnership and collaboration on the auto regulatory agenda, including aligning emissions with consumer preferences.
We will do our best to align schedules with the Administrator. For now, sharing some scheduling windows to begin the conversation:
Wednesday, February 5
9:30 - 10:00 am
5:15 p.m.
Thursday, February 6
8:00 -8:45 am
My contact information is below - please let me know if I can be helpful. Zaina
Zaina Shaath Direclor. Policy Operalions and Pro1ocol
<ilobal Public Policy
zaina.shaath@gm.com T 202.20(),4<)53
ED_018475O_00000370-00001
Nothing in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. Confidentiality Note: This message is intended only for the person or entity to which it is addressed. It may contain confidential and/or privileged material. Any review, transmission, dissemination or other use, or taking of any action in reliance upon this message by persons or entities other than the intended recipient is prohibited and may be unlawful. If you received this message in error, please contact the sender and delete it from your computer.
ED_018475O_00000370-00002
Dillyn Carpenter [carpenter@clearpath.org] 3/12/2025 8:05:03 PM Abboud, Michael [abboud.michael@epa.gov] ubject:You're Invited! ClearPath Reception - April 2nd
Hi Michael,
Celebrate the 119th Congress with ClearPath at our new office!
We hope to see you there!
llill
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Please contact Dillyn Carpenter (carpenter@ClearPath.org) with any questions.
*This event is by invitation only and is designed to comply with House and Senate Ethics rules.
ED_018475O_00000375-00002
Dillyn Carpenter [carpenter@clearpath.org] 3/18/2025 1:53:01 PM Abboud, Michael [abboud.michael@epa.gov] ubject:Confirmation: ClearPath New Faces New Spaces Reception - April 2nd
Michael, Thank you for confirming! We look forward to seeing you on Wednesday April 2nd from 5:00 - 7:30 pm at ClearPath's new office (300 New Jersey
Ave NW). If you have any questions, please feel free to contact Dillyn Carpenter
(carpenter@clearpath.org). Add to Calendar
ED_018475D_ 00000385-00001
ED_0 18475D_ 00000385-00002
Golinsky Baseman, Jennifer Libaseman@aga.org] 3/18/2025 3:47:02 PM Abboud, Michael [abboud.michael@epa.gov] ubject:FW: [EXTERNAL] AGA Meeting Request with EPA Staff
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Michael -
I wanted to make you aware that AGA has a staff-level meeting with OAR on April 1. Details are below. Hopefully that will be a sufficient prerequisite for us to schedule a meeting between Karen Harbert and Administrator Zeldin. If not, please let me know what further steps AGA should take.
Thanks!
Jen
Jennifer Golinsky Baseman I Senior Counsel, Environment
American Gas Association 400 N. Capitol St., NW I Washington, DC I 20001 P: 202-824-7340 I jbaseman@aga.org
The American Gas Association represents more than 200 local energy companies committed to the safe and reliable delivery of clean natural gas to more than 74 million customers throughout the nation.
From: Gardarsdottir-Middleton, Thora <GardarsdottirMiddleton.Thora@epa.gov> Sent: Monday, March 17, 2025 12:53 PM To: Golinsky Baseman, Jennifer <jbaseman@aga.org> Cc: Powers, Garrett <Powers.Garrett@epa.gov> Subject: RE: [EXTERNAL] AGA Meeting Request with EPA Staff
I You don't often get email from ardarsdottinniddlcton.lhora a c a. !2:\:'- Learn wh this is important
Hi Jen,
Thanks for your quick response. Due to the current limited availability of the OAR Senior Leadership Team, they are unable to meet. However, key career staff from OAP are available to meet on April 1 from 2:00 - 2:45pm.
Please arrive at the William Jefferson Clinton South lobby and be aware that all visitors:
need to have an acceptable form of photo identification, such as a driver's license, to enter;
may be asked to go through a metal detector; and
must be signed in and escorted by an EPA employee.
You may give me a call at 202-525-8039 when you and your colleagues arrive, and I will escort you to the conference room for the meeting.
For more information on visiting EPA's Headquarters please visit: https://www.cpa. ~ov/aboutcpa/visiting-cpahcadguartcrs or feel free to reach out to me with any questions or concerns.
ED_018475O_00000392-00001
Thank you,
Thora Middleton Special Assistant U.S. Environmental Protection Agency Office of Air and Radiation - Office of Atmospheric Protection GardarsdottirMiddlcton. Thora(a~cpa.gov o: (202) 564-8996 m: (202) 525-8039
From: Golinsky Baseman, Jennifer <jbaseman~ E_g_~,_Q_r_g> Sent: Friday, March 14, 2025 1:48 PM To: Gardarsdottir-Middleton, Thora <GardarsdottirMiddleton.Thora@_~E-=.K9_Y.> Cc: Powers, Garrett <Powers.Garrett(@~Q_~_g_q_~> Subject: RE: [EXTERNAL] AGA Meeting Request with EPA Staff
I
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Thora -
Thank you for the quick response to AGA's meeting request. April 1 from 1:30 PM to 3:30 PM still works for us and we are flexible in that window. We defer to whatever time frame works best for the EPA staff we will be meeting with.
Meeting attendees from AGA will be:
Matthew Agen - Chief Regulatory Counsel, Energy (ma~n@aE.9.or_g)
Jennifer Golinsky Baseman - Senior Counsel, Environment (jbaseman@~~_,_g_r_g)
Ashley Duckman - Managing Director, Policy & Strategy (aduckman@a&i-=.QS_g)
Allison Ealey Cunningham - Senior Director, Governmental Affairs & Public Policy (acunningharn@a_g_a.ocg)
If possible, it would be great to include EPA political staff in the meeting, but either way we are looking forward to meeting with OAP career staff on April 1 to discuss AGA's policy priorities.
Best regards,
Jen
Jennifer Golinsky Baseman I Senior Counsel, Environment
American Gas Association 400 N. Capitol St., NW I Washington, DC I 20001 P: 202-824-7340 I jbaseman@aga.org
The American Gas Association represents more than 200 local energy companies committed to the safe and reliable delivery of clean natural gas to more than 74 million customers throughout the nation.
From: Gardarsdottir-Middleton, Thora <GardarsdottirMiddleton.Thora@~E-=.K9_Y.> Sent: Friday, March 14, 2025 11:21 AM To: Golinsky Baseman, Jennifer <jbaseman@c:i_g_~:9_r_g> Cc: Powers, Garrett <Powers.Garrett@eQ_~_g_q_~> Subject: [EXTERNAL] AGA Meeting Request with EPA Staff
I You don't often get email from ardarsdottirmiddleton.thora we a. ov. Learn why this is important
Dear Jennifer Golinsky Baseman:
ED_0184 750_00000392-00002
Thank you for submitting your meeting request to OAR_Invitations on March 11. Key career staff from the Office of Atmospheric Protection (OAP) of will be able to meet with you regarding the following issues: ENERGY STAR, GHG Reporting Program (specifically Subpart W), and the GHG Inventory. We can offer an in-person 45-minute meeting on Tuesday, April 1 between 1:30 and 3:30pm at EPA's Headquarters building. Please let me know if this time still works for you and your organization. If it does, please confirm who from AGA will attend and provide the time frame that works best. Thank you, Thora Middleton Special Assistant U.S. Environmental Protection Agency Office of Air and Radiation - Office of Atmospheric Protection o: (202) 564-8996 m: (202) 525-8039
ED_0184 750_00000392-00003
Dillyn Carpenter [carpenter@clearpath.org] 4/1/2025 7:02:15 PM Abboud, Michael [abboud.michael@epa.gov] ubject:See you tomorrow at ClearPath's Spring Reception!
Hi Michael,
ClearPath is looking forward to celebrating the 119th Congress with you at our new office!
Please contact Dillyn Carpenter (carpenter@ClearPath.org) with any questions.
ED_018475O_00000497-00001
*This event is by invitation only and is designed to comply with House and Senate Ethics rules.
Add to Calendar
ED_018475O_00000497-00002
Luke Bolar [bolar@clearpath.org] 2/6/2025 10:45:12 PM Abboud, Michael [abboud.michael@epa.gov] Zack Roday [zack@ascent.media] ubject:Re: Second time - Mike<> Luke
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Mike - I'm at LEx 6 Personal Privacy_(PP) !_ I'm free this evening and most of tomorrow.
On Thu, Feb 6, 2025 at 4:31 PM Abboud, Michael <abboud.michael@epa.gov> wrote: Thank you Zack, Luke what is your phone number? I want to give you a call about something coming up.
Get Outlook for iOS
From: Zack Roday <zack@ascent.media> Sent: Thursday, February 6, 2025 1:24:19 PM To: Abboud, Michael <abboud.michael@epa.gov>; Luke Bolar <bolar@clearpath.org> Subject: Second time - Mike<> Luke
I
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Mike - I botched your email on the first attempt. Now I'm connecting you with Luke Bolar! Luke leads external affairs and comms for the conservative clean energy group, ClearPath. He's the best.
Luke - Mike is great. He's at EPA with Administrator Zeldin as a Senior Advisor for the Public Engagement and Enviro Education Office.
Happy connecting fellas.
ZackRoday Partner 203.640.9208 @ZackRoday
1-"--
ED_018475O_00000654-00001
essage
From:
Gordon, Daisy L.
[Daisy.Gordon@duke-
energy.com]
2/7/2025 1:10:27 PM
Abboud, Michael
[abboud.michael@epa.gov]
ubject:
duke fact sheet
ttachments :duke-energy-fast-facts. pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Daisy Gordon
Director, Federal Government Affairs
Duke Energy Corporation
C: 413-537-8698 I g_ajs
.com
ED_018475O_00000662-00001
DUKE ENERGY.
Fast Facts
April 1, 2024
BUILDING ASMARTER ENERGYFUTURE
Duke Energy (NYSE: DUK), a Fortune 150 company headquartered in Charlotte, N.C., is one of America's largest energy holding companies.
The company's electric utilities serve 8.4 million customers in North Carolina, South Carolina, Florida, Indiana, Ohio and Kentucky, and collectively own approximately 54,800 megawatts of energy capacity. Its natural gas utilities serve 1.7 million customers in North Carolina, South Carolina, Tennessee, Ohio and Kentucky.
Duke Energy is executing an ambitious clean energy transition to achieve its goals of net-zero methane emissions from its natural gas business by 2030 and net-zero carbon emissions from electricity generation by 2050. The company is investing in major electric grid upgrades and cleaner generation, including expanded energy storage, renewables, natural gas and nuclear.
More information Duke-energy.com, Duke Energy News Center, illumination.
Follow Duke Energy ll JI ml t,q)
Electric and Gas Utilities Service Areas
Market Cap Operating Revenue Assets Employees
$73 billion $29 billion $176.9 billion 27,000
Duke Energy's Electric Utilities and Infrastructure unit operates primarily through the regulated utilities of Duke Energy Carolinas, Duke Energy Progress, Duke Energy Florida, Duke Energy Indiana and Duke Energy Ohio.
States Service Area Electric Generation Capacity (owned) Electric Transmission Power Lines Electric Distribution Power Lines Total Electric Retail Customers
North Carolina South Carolina Ohio/Kentucky Indiana Florida
NC, SC, FL, IN, OH, KY 90,000 square miles 54,800 megawatts
--------------
31,400 miles 282,900 miles 8.4 million 3.7 million 835,500 910,000 900,000 2 million
Duke Energy's Gas Utilities and Infrastructure unit distributes natural gas primarily through the regulated utilities of Piedmont Natural Gas and Duke Energy Ohio.
Total Natural Gas Customers North Carolina South Carolina Tennessee Ohio/Kentucky
Natural Gas Pipelines Natural Gas Service Lines
1.7 million 807,620 164,140 201,850 560,000 35,700 miles 28,800 miles
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DUKE ENERGYe
Duke Energy Carolinas
Duke Energy Carolinas, a subsidiary of Duke Energy, owns 20,700 megawatts of energy capacity, supplying electricity to 2.9 million residential, commercial and industrial customers across a 24,000-square-mile service area in North Carolina and South Carolina.
Duke Energy Progress
Duke Energy Progress, a subsidiary of Duke Energy, owns 13,800 megawatts of energy capacity, supplying electricity to 1.7 million residential, commercial and industrial customers across a 28,000-square-mile service area in North Carolina and South Carolina.
Duke Energy Florida
Duke Energy Florida, a subsidiary of Duke Energy, owns 12,300 megawatts of energy capacity, supplying electricity to 2 million residential, commercial and industrial customers across a 13,000-square-mile service area in Florida.
Duke Energy Indiana
Duke Energy Indiana, a subsidiary of Duke Energy, provides about 6,800 megawatts of owned electric capacity to approximately 900,000 customers in a 23,000-square-mile service area, making it Indiana's largest electric supplier.
Duke Energy Ohio/Kentucky
Duke Energy Ohio/Kentucky, a subsidiary of Duke Energy, provides electric service to 910,000 residential, commercial and industrial customers in a 3,000-square-mile service area, and natural gas service to 560,000 customers in a 2,650-square-mile service area, in Ohio and Kentucky.
Duke Energy Foundation
The Duke Energy Foundation provides more than $30 million annually in philanthropic support to meet the needs of communities where Duke Energy customers live and work. The Foundation is funded by Duke Energy shareholders.
Piedmont Natural Gas
Piedmont Natural Gas, a subsidiary of Duke Energy, distributes natural gas to more than 1.2 million residential, commercial, industrial and power generation customers in North Carolina, South Carolina and Tennessee. Piedmont Natural Gas earned the No. 1 spot in customer satisfaction with residential natural gas service in the South among large utilities, according to the J.D. Power 2023 U.S. Gas Utility Residential Customer Satisfaction Study. More information: piedmontng.com.
Follow Piedmont Natural Gas: X, Facebook.
1t2024 DLke E~ergy Corporation 181209-G 8/24
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Cordes, Mary [mary.cordes@chemours.com] 3/27/2025 5:44:14 PM Abboud, Michael [abboud.michael@epa.gov] COOMES, TODD [todd.coomes@chemours.com] RE: [EXT] RE: Follow Up ttachments:Chemours - Washington Works CWA Documents.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Michael,
Attaching the context we discussed earlier here. It's a lot, so please feel free to call with any questions.
Thanks, Mary 202-394-4893
From: Cordes, Mary Sent: Tuesday, March 25, 2025 10:56 AM To: Abboud, Michael <abboud.michael@epa.gov> Cc: COOMES, TODD <todd.coomes@chemours.com> Subject: RE: [EXT] RE: Follow Up
How about 1PM?
From: Abboud, Michael <abboud.rnichael@eQE_,&Q_y_> Sent: Tuesday, March 25, 2025 10:24 AM To: Cordes, Mary <mary.cordes@chernours.com> Cc: COOMES, TODD <todd.coornes@chemours.com> Subject: [EXT] RE: Follow Up
External email. Confirm links and attachments before opening.
Apologies for the delay. Can you chat today?
From: Cordes, Mary <ma .cordes@chemours.com> Sent: Wednesday, March 19, 2025 3:29 PM To: Abboud, Michael <abboud.rnichael@e_Q~:R.Q:'!'.> Cc: COOMES, TODD <todd.coornes chemours.com> Subject: Follow Up
I
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Hey Michael,
ED_018475O_00000670-00001
Hope you're well. Attaching here a letter we shared with Region 3 a few weeks ago, as a follow up to the conversation we had in February.
Do you have time to chat briefly on this topic? I'm around this afternoon and tomorrow.
Thank you, Mary
Mary Cordes Federal Government Affairs The Chemours Company
Cell: + 1 (202) 394-4893 E-mail: ma y.cordcs@chcmours.com
C
Chcmours.com
mours..
This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chcmours.com/cn/cmail-disclaimcr This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https ://www.chemours.com/en/email-disclaimer
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Index of Enclosed Documents RE: Washington Works CWA Compliance The enclosed combined PDF contains the following documents. For convenience, each document is separately bookmarked within this PDF. 1. Administrative Order on Consent (April 24, 2023) 2. Executive Summary ofAlternatives Analysis and Implementation Plan (August 24, 2023) 3. Letter from EPA to Chemours (December 23, 2024) 4. Letter from Chemours to EPA (January 22, 2025) 5. Letter from Chemours to EPA (March 4, 2025) 6. Letter from EPA to Chemours (March 24, 2025) 7. West Virginia Rivers Coalition's Preliminary-Injunction Memorandum of Law (February 2,2025) 8. Chemours' Response in Opposition to Plaintiff's Motion for a Preliminary Injunction (March 11, 2025) 9. Declaration of James Hollingsworth in Support of Chemours' Response in Opposition (March 11, 2025) 10. West Virginia Rivers Coalition's Reply Brief in Support of its Motion for a Preliminary Injunction (March 18, 2025)
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Administrative Order on Consent April 24, 2023
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Docket No. CWA-03-2023-0025DN FILED: April 26, 2023 10:33 AM
Regional Hearing Clerk, U.S. EPA Region Ill
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III
FOUR PENN CENTER-1600 JOHN F. KENNEDY BLVD. PHILADELPHIA, PENNSYLVANIA 19103-2852
In the Matter of:
The Chemours Company FC, LLC 1007 Market Street Wilmington, DE 19801 Respondent
Facility located at: Washington Works 8480 DuPont Road Washington, WV 26181
ADMINISTRATIVE ORDER ON CONSENT Proceeding Under Section 309(a) of the Clean Water Act, 33 U.S.C. 1319(a)
EPA Docket No. CWA-03-2023-0025DN
I.
STATUTORY AND REGULATORY BACKGROUND
1. The United States Environmental Protection Agency, Region III ("EPA") makes the following findings of fact and conclusions oflaw below and thus issues this Administrative Compliance Order on Consent ("Order") pursuant to the authority vested in the Administrator of EPA under Section 309(a) of the Clean Water Act ("CWA" or "Act"), 33 U.S.C. 1319(a). The Administrator delegated this authority to the Regional Administrator of EPA Region III, who further delegated it to the Director, Enforcement & Compliance Assurance Division, Region III.
2. EPA has jurisdiction over the above-captioned matter.
3. Respondent, The Chemours Company FC, LLC ("Chemours"), has agreed to the issuance of this Consent Order.
4. Section 309(a) of the Act, 33 U.S.C. 1319(a), provides, inter alia, that whenever on the basis of any information available, the Administrator finds that any person is in violation of Section 301 of the Act, 33 U.S.C. 1311, or any permit condition or limitation implementing certain CWA sections in a permit issued under Section 402 of the Act, 33 U.S.C. 1342, the Administrator shall issue an order requiring such person to comply with such section or requirement.
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In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
5. "Discharge of a pollutant" means "[a]ny addition of any 'pollutant' or combination of pollutants to 'waters of the United States' from any 'point source'." 40 C.F.R. 122.2. See also Section 502(12) of the Act, 33 U.S.C. 1362(12).
6. Section 301(a) of the Act, 33 U.S.C. 13 ll(a), prohibits the discharge of any pollutant from a point source into waters of the United States except in compliance with, inter alia, a permit issued pursuant to the National Pollutant Discharge Elimination System (''NPDES") program under Section 402 of the Act, 33 U.S.C. 1342.
7. Section 402(a) of the Act, 33 U.S.C. 1342(a), provides that the Administrator of EPA may issue permits under the NPDES program for the discharge of pollutants from point sources to waters of the United States, to ensure compliance with the requirements of the CWA. The discharges are subject to specific terms and conditions, as prescribed in the permit. See also Section 301 of the Act, 33 U.S .C. 1311.
8. Section 402(p) of the Act, 33 U.S.C. 1342(p), and 40 C.F.R. Sections 122.21 and 122.26 provide for the regulation of stormwater discharges pursuant to NPDES permitting requirements under Section 402(a) of the Act, 33 U.S.C. 1342(a).
9. "Stormwater" is defined as "stormwater runoff, snow melt runoff and surface runoff and drainage." 40 C.F.R. 122.26(b)(13).
10. An NPDES permit is required for discharges of stormwater associated with industrial activity. Section 402(p) of the Act, 33 U.S.C. 1342(p); 40 C.F.R. 122.26(a); 40 C.F.R. 122.21.
11. Facilities under Standard Industrial Classification 2869 (Industrial Organic Chemicals) are engaged in "industrial activity." 40 C.F.R. 122.26(b)(14)(xi).
12. EPA approved West Virginia to administer the NPDES program in the State on May 10, 1982.
13. Pursuant to the authority of the Act, the NPDES program approval, and the West Virginia Water Pollution Control Law, West Virginia issued West Virginia National Pollutant Discharge Elimination System ("WV NPDES") Permit No. WV0001279 to Chemours (an operating subsidiary of The Chemours Company), on July 30, 2018, with an effective date of September 1, 2018, and an expiration date of July 29, 2023 ("2018 Permit").
14. The 2018 Permit authorizes terms for the discharge of stormwater and industrial wastewater at the Chemours Washington Works facility ("Facility") for certain specified pollutants in accordance with the provisions of the 2018 Permit. The 2018 Permit requires the permittee to comply with all conditions in the Permit.
15. The 2018 Permit classified the Facility under Standard Industrial Classification ("SIC") Code 2869 ("Industrial Organic Chemicals"), and NAICS Code 32519 ("Other Basic
2
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In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
Organic Chemical Manufacturing").
16. EPA has consulted with the West Virginia Department of Environmental Protection ("WVDEP") regarding this Order. Subsequent to the Effective Date of this Order, EPA will provide a copy of this fully executed Order to the appropriate WVDEP official.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
17. At all times relevant to this Order, Chemours was the owner and operator of the Washington Works Site located at 8480 DuPont Road, Parkersburg, West Virginia 26181 ("Facility"). DuPont de Nemours, Inc. ("DuPont") and Kuraray Co. Ltd. ("Kuraray") are tenants on the property.
18. Chemours is a limited liability company and a "person" within the meaning of Section 502(5) of the Act, 33 U.S.C. 1362(5).
19. Section 502(6) of the Act, 33 U.S.C. 1362(6), defines the term "pollutant" to include, inter alia: solid waste, sewage, garbage, chemical wastes, biological materials, radioactive materials, and industrial waste discharged into water. Parameters cited in this Order -including per- and polyfluoroalkyl substances ("PFAS") such as ammonium perfl.uorooctanoate (and related compound perfl.uorooctanoic acid ("PFOA")) and HFPO Dimer Acid (also known as HFPO-DA and C3 Dimer Acid/Salt) are "pollutants" within the meaning of Section 502(6) of the Act, 33 U.S.C. 1362(6).
20. Section 502(14) of the Act, 33 U.S.C. 1362(14), defines the term "point source" to mean "any discernible, confined and discrete conveyance[...]." Outlets at the Facility are discernible, confined and discrete conveyances and are, therefore, "point sources" within the meaning of Section 502(14) of the Act, 33 U.S.C. 1362(14).
21. The Facility is located along the southeastern bank of the Ohio River and has Outlets that discharge directly to either the Ohio River, Page Run or Coal Hollow. Both Page Run and Coal Hollow are hydrologically connected tributaries of the Ohio River. The Ohio River, Page Run and Coal Hollow are, therefore, "navigable waters" as that term is defined in Section 502(7) of the Act, 33 U.S.C. 1362(7).
22. Chemours operates multiple separate manufacturing units at the Facility that produce a variety of organic chemical products. Chemours' manufacturing operations at the Facility include fluoropolymer production. HFPO Dimer Acid is a processing aid used in the manufacture of fluoropolymers at the Facility. PFOA was used in the past as a processing aid at the Facility. In addition, Chemours accepts wastewater at the Facility from its onsite tenants DuPont and Kuraray into Chemours' primary biological treatment system. Chemours also operates non-biological/physical treatment systems via Outlet 002. Wastewater received from onsite tenants is permitted under the 2018 Permit.
23. The 2018 Permit authorizes discharges of industrial wastewater (cooling water, process
3
ED_018475O_00000671-00005
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
water, groundwater, filter backwash wastewater, stormwater runoff, steam condensate, boiler blowdown, pump seal water, or a combination thereof) under specified conditions and limitations. The 2018 Permit authorizes discharges of specific wastewaters under specified conditions at the following Outlets at the Facility (see Exhibits 1 and 2 for Outlet maps and drainage areas):
a. A combination of non-contact cooling water, stormwater, groundwater, and filter backwash wastewater via Outlet 001.
b. A combination of process wastewater, non-contact cooling water, steam condensate, boiler blowdown and stormwater via Outlet 002.
c. A combination of non-contact cooling water, stormwater, and steam condensate wastewater via Outlet 003.
d. A combination of process wastewater, non-contact cooling water, steam condensate, sanitary wastewater, cooling tower blowdown, and stormwater via Outlet 005.
e. A combination of non-contact cooling water, stormwater, and steam condensate wastewater via Outlet 006.
f. A combination of non-contact cooling water and stormwater via Outlet 007.
g. The direct discharge of pump seal water via Outlet O13 and Outlet 028 into Page Run, a tributary of the Ohio River.
h. The direct discharge of untreated stormwater via Outlets 016, 019, 026, 030-034, and 036.
1. The direct discharge of untreated stormwater via Outlet 011 into Coal Hollow, a tributary to the Ohio River, and via Outlets 022, 023, and 025 into Page Run, a tributary of the Ohio River.
24. In August 2018, prior to the September 1, 2018 effective date of the 2018 Permit, Chemours discharged PFAS, including 6:2 Fluorotelomer Sulfonate, Perfluoro-2methoxyacetic Acid, Perfluorobutane Sulfonic Acid, Perfluorobutanoic Acid, Perfluorodecanoic Acid, Perfluorododecanoic Acid, Perfluoroheptanoic Acid, Perfluorohexadecanoic Acid, Perfluorohexane Sulfonic Acid, Perfluorohexanoic Acid, Perfluorononanoic Acid, Perfluorooctadecanoic Acid, Perfluorooctane Sulfonic Acid, Perfluoropentane sulfonic Acid, Perfluoropentanoic Acid, Perfluorotetradecanoic Acid, Perfluorotridecanoic Acid, Perfluoroundecanoic Acid, from Outlet 002 or Outlet 005 in concentrations up to 870 parts per trillion (ppt).
25. In November 2018, after the September 1, 2018 effective date of the 2018 Permit, Chemours discharged PFAS, including 6:2 Fluorotelomer Sulfonate, 8:2 Fluorotelomer
4
ED_018475O_00000671-00006
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
Sulfonate, Perfluorobutanoic Acid, and Perfluoropentanoic Acid, from Outlet 001, Outlet 002, or Outlet 005 in concentrations up to 360 ppt.
26. At all times relevant to this Order, Chemours has also regularly discharged HFPO Dimer Acid to the Ohio River from Outlet 002 and Outlet 005 at the Facility.
27. On November 27-29, 2018, an EPA compliance inspection team inspected the Facility for compliance with its NPDES permit and the CWA ("Inspection").
28. The 2018 Permit provided for interim limits on PFOA and HFPO Dimer Acid discharges from certain outlets effective immediately, with more stringent final limits on PFOA and HFPO Dimer Acid discharges that took effect on January 1, 2022.
29. Based on observations made at the November 27-29, 2018 Inspection, Chemours' various information request letter responses, and information exchanged by the parties over the last several years, EPA has identified a number of violations of the 2018 Permit and Section 301 of the Clean Water Act, 33 U.S.C. 1311, including the following.
Countl NPDES Discharge Exceedances of PFOA and HFPO Dimer Acid
30. The allegations in the preceding paragraphs are incorporated by reference.
31. Part A of the 2018 Permit includes discharge limitations for certain industrial discharges, stormwater discharges, and a combination thereof from permitted outlets.
32. According to the discharge monitoring reports ("DMRs") submitted by Respondent to WVDEP during the period of September 30, 2018 through March 31, 2023, Respondent had the following NPDES Exceedances:
Table 1: NPDES Exceedances of PFOA and HFPO-DA
Monitoring Period Date
9/30/2018 1/31/2019 1/31/2019 6/30/2019 6/30/2019 7/31/2019 7/31/2019 10/31/2020 10/31/2020 10/31/2020
Outlet
005 002 002 005 005 005 005 002 002 005
Parameter Description PFOA HFPO Dimer Acid HFPO Dimer Acid HFPO Dimer Acid HFPO Dimer Acid HFPO Dimer Acid HFPO Dimer Acid HFPO Dimer Acid HFPO Dimer Acid PFOA
Limit Type
DAILY MX DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX
DMR Value
2.3 120 38.1
57 19.33
45 18.89
33 9.51
3.3
DMR Value Unit g/1 g/1 g/1 g/1 g/1 g/1 g/1 g/1 g/1 g/1
Limit Value
2 32
9 43 15 43 15 32
9 2
Limit Value Unit g/1 g/1 g/1 g/1 g/1 g/1 g/1 g/1 g/1 g/1
% Exceedance
15 275 323
33 29
5 26
3 6 65
5
ED_018475O_00000671-00007
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
1/31/2021 2/28/2021 4/30/2021 2/28/2022 2/28/2022 2/28/2022 2/28/2022 2/28/2022 2/28/2022 3/31/2022 3/31/2022 3/31/2022 3/31/2022 4/30/2022 4/30/2022 4/30/2022 5/31/2022 5/31/2022 5/31/2022 6/30/2022 6/30/2022 6/30/2022 7/31/2022 7/31/2022 7/31/2022 7/31/2022 7/31/2022 7/31/2022 7/31/2022 7/31/2022 8/31/2022 8/31/2022 9/30/2022 9/30/2022 10/31/2022 10/31/2022 10/31/2022 10/31/2022 11/30/2022 12/31/2022 12/31/2022 12/31/2022
002 HFPO Dimer Acid 002 HFPO Dimer Acid 002 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 002 HFPO Dimer Acid 002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 002 HFPO Dimer Acid 002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 001 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 002 PFOA 002 PFOA 002 HFPO Dimer Acid 002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 002 HFPO Dimer Acid 002 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 002 PFOA 002 PFOA 005 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 002 HFPO Dimer Acid
MO AVG MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX DAILY MX MO AVG DAILY MX DAILY MX DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX MO AVG DAILY MX DAILY MX MO AVG MO AVG DAILY MX DAILY MX MO AVG MO AVG DAILY MX DAILY MX MO AVG DAILY MX DAILY MX MO AVG MO AVG
6
11.26 g/1 10.3 g/1 52 g/1 3.3 g/1 3.3 g/1 1.55 g/1 5.5 g/1 1.8 g/1 1.8 g/1 2.26 g/1 7.9 g/1 1 g/1 1 g/1 4.1 g/1 2.9 g/1 2.9 g/1 7.1 g/1 1.7 g/1 1.7 g/1 4.5 g/1 1.6 g/1 1.6 g/1
10.25 g/1 18 g/1
10.6 g/1 28 g/1
10.6 g/1 28 g/1 3 g/1 3 g/1 1.3 g/1 1.3 g/1 74 g/1
15.4 g/1 1.63 g/1
2.8 g/1 11.5 g/1 3.1 g/1 2.48 g/1
13 g/1 13 g/1 2.1 g/1
9 g/1 9 g/1 32 g/1 1.4 g/1 2 g/1 1.4 g/1 2.3 g/1 0.14 g/1 0.204 g/1 1.4 g/1 2.3 g/1 0.14 g/1 0.204 g/1 2.3 g/1 0.14 g/1 0.204 g/1 2 g/1 0.204 g/1 0.14 g/1 2.3 g/1 0.14 g/1 0.204 g/1 1.4 g/1 2 g/1 2 g/1 3.3 g/1 1.4 g/1 2.3 g/1 0.204 g/1 0.14 g/1 0.14 g/1 0.204 g/1 2.3 g/1 1.4 g/1 1.4 g/1 2 g/1 3.3 g/1 2 g/1 2.3 g/1 2 g/1 1.4 g/1 1.4 g/1
25 14 63 136 65 11 139 1185 782 61 243 614 390 78 1971 1322 255 733 1114 96 1043 684 632 800 430 748 657 1117 1371 2043 829 537 3117 1000 16 40 248 55
8 550 829
50
ED_018475O_00000671-00008
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
12/31/2022 12/31/2022 12/31/2022
1/31/2023 1/31/2023 1/31/2023 1/31/2023 1/31/2023 1/31/2023 2/28/2023 2/28/2023 2/28/2023 2/28/2023 3/31/2023 3/31/2023 3/31/2023 3/31/2023
002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 002 HFPO Dimer Acid 002 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid 001 HFPO Dimer Acid 001 HFPO Dimer Acid 006 HFPO Dimer Acid 006 HFPO Dimer Acid
DAILY MX MO AVG DAILY MX
DAILYMX MOAVG MOAVG DAILYMX DAILYMX MOAVG DAILYMX MOAVG DAILYMX MOAVG DAILYMX MOAVG DAILYMX MOAVG
5.77 g/1 2.17 g/1 2.17 g/1 5.94 g/1 5.94 g/1 2.92 g/1 3.94 g/1 1.28 g/1 1.28 g/1 10.4 g/1 10.4 g/1 1.81 g/1 1.81 g/1 6.35 g/1 6.35 g/1 2.87 g/1 2.87 g/1
2.3 g/1 0.14 g/1 0.204 g/1
2 g/1 1.4 g/1 1.4 g/1 2.3 g/1 0.204 g/1 0.14 g/1
2 g/1 1.4 g/1 0.204 g/1 0.14 g/1
2 g/1 1.4 g/1 0.204 g/1 0.14 g/1
151 1450 964
197 324 109
71 527 814 420 643 787 1193 217 354 1307 1950
33. The discharge exceedances in Table 1 reported by Respondent are violations of the 2018 Permit and Sections 301 and 402 of the Act, 33 U.S.C. 1311 and 1342.
Count2 Failure to Properly Operate and Maintain all Facilities and Systems
34. The allegations in the preceding paragraphs are incorporated herein by reference.
35. Appendix A.II. I of the 2018 Permit requires that "the permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit."
36. At the Inspection, the team observed a partially uncovered grate leading directly to Outlet 002 that was located near a staging area for waste containing HFPO Dimer Acid. There was evidence of staining on the ground near the grate. The grate and piping were not plugged, allowing for some of the waste to end up in Outlet 002.
37. At the Inspection, the team observed an inlet covered by a grate outside of Building 514 which houses the Polymer Processing Aid Abatement Process Line 1 Treatment process. The grate was partially covered by a rubber mat. The inlet was located near an area used to stage filter press waste containing HFPO Dimer Acid from Line 1. The Facility representatives indicated that the filter press waste is typically fully saturated with liquid and also contains a significant amount of standing liquid. Additionally, the Inspection team observed evidence of staining on the ground near the roll-off bin and the garage door,
7
ED_018475O_00000671-00009
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
indicating that material may have been historically spilled in this area. The Inspection team also observed that the liner inside the roll-off bin appeared to have rips and tears. The Facility representatives indicated that the inlet leads directly to Outlet 002 and is normally covered with the rubber mat to prevent any splashes or spills from the roll-off bin that occur when the roll-off bin is moved from entering the grate. The uncovered comer of the grate at the time of the Inspection was the comer closest to the filter press waste. Facility representatives indicated that the grate was periodically vacuumed out to remove solids.
38. The Inspection team observed staining on the ground in the storage yard near where the facility stores roll-off bins holding filter press waste containing HFPO Dimer Acid, indicating a potential historic spill of material from the roll-off bins. Additionally, Chemours had previously conducted soil sampling in this area and concluded "both PFOA and HFPO-DA were detected in soil, mainly in the samples located adjacent to the southern edge of the East Truck Pad [where the roll-off bins are stored], indicating that a release has occurred."
39. The Inspection team observed that the Facility was storing roll-off bins holding filter press waste containing HFPO Dimer Acid from the polymer processing aid ("PPA") Abatement Process in an unpaved, gravel-lined storage yard located on the eastern side of the Facility property. The Inspection team observed that these bins were all covered but stored on a slope. There was evidence of ground staining in the area surrounding the roll-off bins. In addition, there was standing water behind the roll-off bins in the direction that the bins were angled (i.e., downslope). The Inspection team observed that the liner of the roll-off bin being actively filled at the filter press had rips and was pulling away from the sides of the bin. There was also liquid accumulated in the bin such that it pooled in certain areas.
40. Stormwater from the area where the roll-off bins were located in the storage yard is discharged, untreated, through Outlet O11, as shown on the Stormwater Outlet and Drainage Map in Appendix E of the Inspection report. Outlet O11 has the highest levels of HFPO Dimer Acid reported for all outlets in the Facility's September 2018 through March 2020 DMRs. The Facility's 2018 Permit does not have numeric limits for HFPO Dimer Acid discharges from Outlet O11 but requires Chemours to sample this Outlet quarterly for HFPO Dimer Acid.
41. The observations stated in this Count 2 indicate a failure to properly operate and maintain Facility systems installed or used for compliance with the Permit.
42. Respondent's failure to properly operate and maintain all Facility systems installed or used for compliance with the Permit is a violation of the 2018 Permit and Sections 301 and 402 of the Act, 33 U.S.C. 1311 and 1342.
III. ORDER
AND NOW, pursuant to section 309(a) of the Act, 33 U.S.C. 1319(a), having taken into account the seriousness of the violations, Respondent is hereby ORDERED to take the following
8
ED_018475O_00000671-00010
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
steps:
43. Subject to and in compliance with this Order, the Respondent shall take all actions necessary to comply with the Clean Water Act, including, but not limited to, complying with all requirements of the 2018 Permit (or subsequent NPDES permits or NPDES permit modifications, including permit compliance schedules, issued by WVDEP).
44. Respondent shall implement the Sampling Plan, attached hereto as Exhibit 3, to characterize the nature of the stormwater runoff and effluent wastewater leaving the Facility by conducting specified PFAS sampling to identify and quantify PFAS discharges at each permitted Outlet. The Sampling Plan provides for the characterization of PFAS in both stormwater and wastewater, including but not limited to PFAS that are already listed in the 2018 Permit, and includes: 1. Monitoring at all outlets using draft EPA Methods 1621 (for absorbable organic fluorine) and 163 3; 11. Total oxidizable precursor assay; and 111. Non-targeted PFAS analysis.
45. All sampling results shall be submitted to EPA and WVDEP. Following review of the sampling results submitted pursuant to this Section, EPA, in consultation with WVDEP, may seek, pursuant to this Order, additional actions to characterize or monitor the discharge of PFAS from the Facility.
46. Within 120 days of the Effective Date of this Order, Respondent shall submit an Alternatives Analysis and Implementation Plan for the treatment of HFPO Dimer Acid and PFOA to ensure that such discharges meet numeric effluent limits at each of Outlets 001, 002, 005, and 006. The time for submission of the Plan may be extended by agreement of the Parties, including in the event that there are not sufficient wet weather conditions during such time to allow for necessary sampling. The analysis for each Outlet shall include: 1. A characterization of the discharges at each Outlet, including the quality and quantity of process water and stormwater. 11. A discussion of available alternatives, including a cost analysis, to achieve compliance with the 2018 Permit (or subsequent NPDES permits or NPDES permit modifications issued by WVDEP) at such Outlet. The alternatives to be considered shall include use of additional technologies capable of meeting existing effluent limits (which shall include, but not be limited to, ion exchange, granular activated carbon, reverse osmosis, and any additional current technologies capable of treating PFAS); and may also include use of enhanced facility management practices that would prevent or minimize the amount of PFOA or HFPO Dimer Acid that can reach and be discharged from such Outlet. 111. Selection of the recommended alternative, a justification and any supporting documentation, and implementation/construction schedule. 1v. A draft sampling plan to evaluate the removal efficiency of PFAS for the selected treatment technology.
9
ED_018475O_00000671-00011
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
47. Upon review and approval by EPA of Respondent's Alternatives Analysis and Implementation Plan, Respondent will implement the Plan according to the approved schedule.
48. Within 30 days of the Effective Date of this Order, Respondent shall submit electronically for EPA's review and comment: a. Respondent's existing Standard Operating Procedures (SOPs) relating to the management of wastewater for the Local Landfill granular activated carbon "GAC" System, W9 Line 1 GAC System, Dryer Belt Wash Water GAC System, PPA Recovery System, Permeate GAC System, and Ranney Well GAC System, describing proper operation and maintenance of the Facility, including maintenance schedules, source control measures, ongoing good housekeeping practices, and frequency of inspections; and b. Respondent's revised Storm Water Pollution Prevention Plan ("SWPPP"), which Respondent submitted as part of its NPDES Permit renewal application on February 24, 2023. Upon review and comment by EPA in consultation with WVDEP, Respondent shall update its SWPPP to address EPA's comments, and shall implement the updated SWPPP within 30 days.
49. At all times material hereto, Respondent shall ensure compliance with the recordkeeping requirements in the SWPPP and the 2018 Permit.
IV. PROCEDURES FOR SUBMISSIONS
50. Respondent shall include with all documents required to be submitted by this Order and any Request for Termination a certification signed by a responsible officer, as defined in 40 CFR 122.22(d), that reads as follows: I certify under penalty oflaw that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry ofthe person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best ofmy knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submittingfalse information, including the possibility offine and imprisonmentfor knowing violations. Signed _ _ _ _ _ _ _ _ __ Title
51. Any submission or communication relating to this Order shall be submitted via electronic transmission to:
ED_018475O_00000671-00012
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
Chad Harsh (3ED32) Enforcement and Compliance Assurance Division U.S. EPA, Region III Philadelphia, PA 19103 harsh.chad@epa. ov
and
Pamela J. Lazos Senior Assistant Regional Counsel (3RC40) U.S. EPA, Region III Philadelphia, PA 19103 lazos.pamela@epa.gov and R3 ORC mailbox(cvepa.gov [attn: Pamela J. Lazos, Dkt. No. CWA-03-2022-0076DN]
52. For each submission required pursuant to this Order, EPA will review the submission and provide comments. IfEPA comments on a submission, Respondent agrees to respond in writing within 30 calendar days, unless EPA agrees in writing to a longer period.
53. Respondent may assert a business confidentiality claim covering part or all of the information which this Order requires it to submit to EPA, but only to the extent and only in the manner described in Part 2 Subpart B of Title 40 of the C.F.R. The EPA will disclose information submitted under a confidentiality claim only as provided in Part 2 Subpart B of Title 40 of the C.F.R. Information which is effluent data or a standard or limitation is not eligible for confidential treatment pursuant to 40 C.F.R. 2.302(e). If Respondent does not assert a confidentiality claim, EPA may make the submitted information available to the public without further notice to Respondent. Respondent may not withhold information relevant to this Order from EPA on the grounds that it is confidential business information.
V. GENERAL PROVISIONS
54. The intent of this Order is to address the violations described herein. EPA reserves the right to commence action against any person, including Chemours, in response to any condition which EPA determines may present an imminent and substantial endangerment to the public health, public welfare, or the environment. Chemours reserves its rights and defenses with respect to any such action.
55. EPA reserves any existing rights and remedies available to it under the CWA, 33 U.S.C. 1251, et seq., the regulations promulgated thereunder, and any other federal laws or regulations for which EPA has jurisdiction, including, without limitation, the right to seek, pursuant to applicable enforcement authority, additional actions to characterize, monitor, or control the discharge of PFAS from the outlets at the Facility. Further, EPA reserves any rights and remedies available to it under the CWA, the regulations promulgated thereunder,
11
ED_018475O_00000671-00013
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
and any other federal laws or regulations for which EPA has jurisdiction, to enforce the provisions of this Order, following its Effective Date (as defined below).
56. This Order does not constitute a waiver or modification of the terms or conditions of the Respondent's NPDES Permit. Compliance with the terms and conditions of this Order does not relieve Respondent of its obligations to comply with any applicable federal, state, or local law, regulation or permit. The terms of this Order, including any attached appendices, may be modified only by a subsequent written agreement signed by Respondent and EPA.
57. Respondent waives any and all remedies, claims for relief and otherwise available rights to judicial or administrative review that Respondent may have with respect to any issue of fact or law set forth in this Order, including any right ofjudicial review pursuant to Chapter 7 of the Administrative Procedure Act, 5 U.S.C. 701-706. Notwithstanding the foregoing, Respondent does not admit any finding of fact herein.
58. EPA reserves all existing inspection authority otherwise available to EPA pursuant to Section 308 of the CWA, 33 U.S.C. 1318, or pursuant to any other statute or law.
59. The undersigned representative of Respondent certifies that he or she is fully authorized by the party represented to enter into the terms and conditions of this Order and to execute and legally bind the party.
60. For the purpose of this proceeding only, Respondent admits each jurisdictional allegation set forth in this Order. Respondent agrees not to contest the jurisdiction of EPA with respect to the execution or enforcement of this Order.
61. For purposes of this proceeding only, Respondent hereby expressly waives its right to contest the allegations set forth in this Order except as expressly provided herein, including but not limited to Paragraph 60 regarding admission to jurisdictional allegations, and this waiver is not intended to be, nor should it be interpreted to be, an admission of fact or waiver of defenses in any proceeding brought by a third party against Respondent or any other action or proceeding brought by EPA or the United States.
62. In any subsequent administrative or judicial proceeding initiated by the EPA or the United States for injunctive relief, civil penalties, or other relief relating to the Washington Works Facility, Chemours will not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claim splitting, or other defenses based upon any contention that the claims raised by the EPA or the United States in the subsequent proceeding were or should have been brought in the instant matter.
63. Respondent shall bear its own costs and attorney's fees in connection with this Order.
64. By signing this Order, Respondent acknowledges that this Order will be available to the public and represents that, to the best of Respondent's knowledge and belief, this Order does not contain any confidential business information or personally identifiable
12
ED_018475O_00000671-00014
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
information from Respondent.
65. Respondent certifies that any information or representation it has supplied or made to EPA concerning this matter was, at the time of submission true, accurate, and complete and that there has been no material change regarding the truthfulness, accuracy or completeness of such information or representation. EPA shall have the right to institute further actions to recover appropriate relief if EPA obtains evidence that any information provided and/or representations made by Respondent to the EPA regarding matters relevant to this Order, including information about respondent's ability to pay a penalty, are false or, in any material respect, inaccurate. This right shall be in addition to all other rights and causes of action that EPA may have, civil or criminal, under law or equity in such event. Respondent and its officers, directors and agents are aware that the submission of false or misleading information to the United States government may subject a person to separate civil and/or criminal liability.
66. This Order shall apply to and be binding upon the Respondent and the officers, directors, employees, contractors, successors, agents and assigns of Respondent.
67. If Respondent becomes aware, or reasonably should have become aware, of any event that causes or may cause a delay in Respondent's compliance with any of the deadlines set forth in this Order, Respondent shall notify EPA in writing within ten (10) calendar days after Respondent's knowledge of such delay or potential for delay, describing in detail the specific cause or causes of the delay and the measures taken to minimize the delay. If the anticipated length of the delay, the measures to be taken to minimize the delay, and the timetable for the implementation of such measures are known, Respondent's notice shall contain such information. If such information is not then known, Respondent's notice shall include a schedule of the date(s) by which Respondent expects to have such information and be able to provide it to EPA. Such notification shall be deemed submitted after notification is electronically transmitted and EPA has acknowledged receipt of the electronic transmission. Upon receipt of such notification, EPA will determine whether to extend the time for compliance with the deadline and provide Respondent with a response, in writing. IfEPA agrees that the delay was unavoidable, EPA will provide a revised compliance date. Such an extension shall not alter the schedule for performance or completion of any other tasks required by this Order unless these tasks are unavoidably affected by the delay. Respondent shall implement all reasonable measures to avoid or minimize any such delay. Failure to notify EPA within the time period set forth shall constitute a waiver of any claim that circumstances beyond Respondent's control have prevented compliance with this Order. Notification, by itself, shall not excuse delay.
68. For purposes of the identification requirement in Section 162(f)(2)(A)(ii) of the Internal Revenue Code, 26 U.S.C. 162(f)(2)(A)(ii), and 26 C.F.R. 162-21(b)(2), performance of Section III of this Order is restitution, remediation, or required to come into compliance with the law.
VI. TERMINATION AND SATISFACTION
69. After the completion of all items in Section III, above, Respondent shall submit to EPA a
13
ED_018475O_00000671-00015
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
Request for Termination of this Order. 70. EPA reserves the right to unilaterally terminate this Order in its unreviewable discretion. 71. EPA shall provide Respondent with written notification of termination of this Order.
VII. EFFECTIVE DATE 72. This Order is effective upon Respondent's receipt of a fully executed document.
14
ED_018475O_00000671-00016
In the Matter of The Chemours Company FC, LLC EPA Docket No. CWA-03-2023-0025DN
SO ORDERED: Karen Melvin Director, Enforcement & Compliance Assurance Division U.S. EPA Region III (signed and dated electronically)
15
ED_018475O_00000671-00017
In the Matter ofThe Chemours Company FC, LLC EPA Docket No. CrVA-03-2023-0025DN
-+--~~~---o---rf; 1/f,/4c;!_3
imot1yL. B
/,,.--
ice President of Operations
The Chemours Company FC, LLC --(signed and dated electronically)
16
ED_018475O_00000671-00018
Exhibit 1
Map and Drainage Areas of Outlets 001-007
17 ED_018475O_00000671-00019
-00
ED_018475O_00000671-00020
Exhibit 2
Map and Drainage Areas of Outlets 011-036
19 ED_018475O_00000671-00021
0 N
ED_018475O_00000671-00022
Executive Summary of Alternatives Analysis and Implementation Plan August 24, 2023
ED_018475O_00000671-00023
Ge syntec
consultants
engineers I scientists I innovators
Alternatives Analysis & Implementation Plan for Outfalls 001, 002, 005 and 006
Chemours Washington Works
Prepared for
The Chemou.rs Company, FC LLC
8480 Dupont Rd Washington, WV, 26181
Prepared by Geosyntec Consultants, Inc. 10200 Forest Green Blvd., Suite 112 Louisville, Kentucky, 40223 and AECOM 248 Chapman Road, Suite 101 Newark, Delaware 19702 Project Numbers TR1088 and 60707746 August 24, 2023
ED_018475O_00000671-00024
Geosyntec
Geosyntec Consultants, Inc., (Geosyntec) and AECOM Technical Services, Inc., (AECOM) have prepared this Alternatives Analysis and Implementation Plan (AA&IP) for The Chemours Company, FC, LLC (Chemours) Washington Works facility in Washington, West Virginia (WV; the Site). This AA&IP has been prepared pursuant to paragraph 46 of the Administrative Order on Consent (AOC; EPA Docket No. CWA-03-2023-0025DN) between Chemours and the United States Environmental Protection Agency (EPA) Region III.
This AA&IP describes proposed actions, for EPA to review and approve, that Chemours will perform at the Site to support discharges from Outlets 001, 002, 005 and 006 (the outlets; shown in Figure ES-1) meeting the Site's 2018 West Virginia National Pollutant Discharge Elimination System (NPDES) permit (No. WV0001279) numeric effluent limits for hexafluoropropylene oxide dimer acid (HFPO-DA) and perfluorooctanoic acid (PFOA).
Available data for HFPO-DA and PFOA at the four outlets, which are Site discharge points that serve as NPDES compliance monitoring locations, were utilized for development of the AA&IP. Furthermore, between April 2022 and June 2023, Chemours collected additional characterization data for HFPO-DA and PFOA to support this analysis. In total, between the four outlets, 356 additional samples were collected (and analyzed HFPO-DA and PFOA), which included between 30 samples (Outlet 006) and 134 samples (Outlet 002). Results from collected samples were classified into dry and wet weather categories. This sampling included:
Combined stormwater and dry weather flows from collection systems draining to Outlets 001, 002, 005, and 006 during eight dry weather and nine wet weather sampling events, at three to eight locations within each outlet collection system;
Stormwater-only flows from the Outlet 002 collection system during three wet weather sampling events, at six sample locations; and
Dry weather (process) flows from collection systems draining to Outlets 002 and 005 during five sampling events, at six process flow sampling locations for each outlet.
This AA&IP is focused on identifying controllable water flows that may cause exceedances 2018 NPDES permit effluent limits at the outlets. Alternative implementation scenarios were developed and evaluated, based on their ability to meet permit effluent limits at the outlets and feasibility of implementation. Preferred alternatives were then selected for each outlet.
Table ES-1 below summarizes the types/sources flow to each outlet, conclusions based on analysis of available data, and the selected alternatives to support meeting permit limits. Flows captured a certain outlet may potentially be combined with other flows for treatment, and the treated water may potentially be discharged at a different outlet (or infiltrated) depending upon the outcome of the final approval and design. The preferred alternative for each outlet that is selected for implementation is expected to result in consistently meeting the 2018 NPDES permit limits for HFPO-DA and PFOA following completion of implementation. This is based on a combination of quantitative analyses performed for development of this AA&IP, as documented herein, and
Washington \Vorks AA&IP
ES-1
August 2023
ED_018475O_00000671-00025
Geosyntec
conservative assumptions such as using maximum and 95th percentile concentration values in the assessment. Additionally, non-quantified planned and in-progress actions at the Site are expected to contribute further to water quality improvement in discharges from the outlets over time. Example actions include modifications to the facility's Stormwater Pollution Prevention Plan (SWPPP) and installation of a tertiary granular activated carbon (GAC) air abatement system in the polytetrafluoroethylene (PTFE) and perfluoroalkoxy alkane (PFA) areas.
Washington \Vorks AA&IP
ES-2
August 2023
ED_018475O_00000671-00026
DC/A'ISAG= faR=A TO OJTLET 001
I
7-
0
500
~
I
SCALE IN FEET
D'<A r,AGC AR'::A TO OJTLET 003
FACILITY MAP WASHINGTON WORKS
im
.00...0.. Figure ES-1: Site Outlets and Combined Stormwater and Dry Weather Flow Collection System
.I>,.
-J
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i0
0 0 0 0 0)
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I
0
0
\Vashington Works AA&IP
0
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ES-3
-J
FIGURE
August 2023
Table ES-1: Summary of Findings and Selected Alternatives at Outlets 0(11, 002, 005, and 006
Outlet 001
Average Flow
(MGD)
0.33
Outlet Flow Description
Predominately stormwater (with minor dry weather flows)
Observations Based on Available Data
- Stormwater contributes the majority of flow and loading to the outlet.
- Recent exceedances of permit limits have occurred. - To address exceedances of permit limits, stormwater
mitigation is recommended.
Alternative Proposed for Implementation
Estimated
Average
Description
Annual Mass
Load Reduction1
Utilize the Site's existing onsite
groundwater capture system and
add treatment for groundwater
extracted from the East and West
Field wells. Continue onsite
groundwater capture to prevent off-site migration (or exfiltration to surface waters). Capture and
98% HFPO-DA 99%PFOA
infiltrate outlet flows
(predominately stormwater) and
extract and treat groundvvater flows 2. Surge flows3 are
discharged via Outlet 001.
- Concentrations at the outlet are significantly higher
in wet weather compared to dry weather.
- Recent exceedances of permit limits have occurred,
more often in wet weather compared to dry weather.
Predominately - Although a minor flow contribution, stmmwater is a Capture and treat combined
dry weather
significant source of loading to the outlet.
stormwater and dry weather
002
8.7 flows (with
- Network legs to locations 002-03 and 002-12
flows from network legs 002-03 79% HFPO-DA
mmor
contribute significant loading to the outlet, most
and 002-122. Surge flows3 are
62%PFOA
m
stormwater
notably in wet weather, but also during dry weather. discharged via Outlet 002.
contributions) - Stmmwater-only concentrations vary spatially
i.0.....
throughout the drainage area.
00 .I>,.
- To address exceedances of permit limits, mitigation
-J
0,
of some stmmwater and some dry weather flows is
i0
recommended.
0
0
0
0
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I
0
0
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0
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ES-4
August 2023
00
Alternative Proposed for Implementation
Outlet
Average Flow
(MGD)
Outlet Flow Description
Observations Based on Available Data
Description
Estimated Average Annual Mass
Load Reduction1
- Concentrations ofHFPO-DA and PFOA at the outlet
Predominately are similar in wet weather and dry weather.
dry weather
- The four recent exceedances since November 2021 have occuned, more often in dry weather.
Divert and treat dry weather
flows (with
(process) flows from the PTFE
43 - 63%
005
47
mmor
- Several process flows were found to contribute
FP Knock-Out Pot, Building 22 (HFPO-DA)4
loading to the outlet.
stormwater
- To address exceedances of permit limits, mitigation Sump, and Granular Line 1 Sump
contributions) of certain dry weather (process) flows is
recommended.
Utilize the Site's existing onsite
groundwater capture system and
add treatment for groundwater
extracted from the East and West
Field wells. Continue onsite
To Outlet 006:
Predominately - Recent exceedances of permit limits have occuned. groundwater capture to prevent 100% reduction
stormwater
- Stormwater contributes the majmity of flow and
off-site migration (or exfiltration
006 0.21 (with minor dry - Tlooadaidndgretosstheexcoeuetdleatn. ces of pennit limits, stormwater tionfsilutrrfaateceowutaletetrfsl)o.wCsapture and Forflroewdisretocted
weather flows) mitigation is recommended.
(predominately stormwater) and Outlet 005:
extract and treat groundwater
96%HFPO-DA
tlows2. Surge flows3 are
97%PFOA
discharged via Outlet 005, such
that discharges to Page Run via
im
.0.....
Notes for Table ES-1:
Outlet 006 are eliminated.
i00
.-I>J,. - MGD = million gallons per day 0, - Dry weather flows occur independent of stormwater and can include process wastewater, manufacturing contact water streams, non-contact cooling water (NCCW), steam
0
condensate, cooling tower blowdown, and boiler blowdown.
0
0
0
0
0)
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I
co0
0
\Vashington Works AA&IP
0
I\)
ES-5
August 2023
Geosyntec e>
consultants
1 Based on daily estimates ofloading at the outlet dming the 32-year POR modeled in the hydrologic model. The average of the high loading estimate (based on the 95th percentile concentrations at the outlet and maximum concentrations at other sample internal locations within the outlet network) and average loading estimate (based on average concentrations at the outlet and other internal sample locations), both before and after treatment or infiltration, was used in this calculation. Further optimization analysis during the design phase, including hydrologic model calibration, incorporation of additional data, and modeling of additional sizing criteria (i.e., design storms). may dete1mine that slightly different sizing c1iteria and mass loading removal also result in meeting permit limits. Estimates may be underestimates, as benefits of treating groundwater from East and West Field Wells are not incorporated into this analysis.
2 As planning and design progresses, refinements will be made to the combination of withdrawal/diversion locations from the outlet networks, and at which sizing c1iteria (i.e.. design storm), could result in most efficiently achieving functionally equivalent mass loading removal and ability to meet permit limits.
3 For the purposes of the AA&IP, surge flows are high flows during larger st01ms (larger than the design storm) that exceed infiltration (i.e.. dry well) capacity or treatment system design and/or equalization storage flowrates and are therefore discharged untreated.
4 Insufficient data cmrently available to estimate mass loading reduction for PFOA.
im
.0.....
00 .I>,.
-J
0,
i0
0 0 0 0
0)
.-..J...
I
0
0
\Vashington Works AA&IP
0
(,.)
0
ES-6
August 2023
For Outlets 001 and 006, where infiltration of outlet flows (which are predominantly stormwater) is proposed for implementation, flows will be infiltrated to groundwater via dry wells, then be captured by the groundwater extraction systems and treated prior to use in Site processes. The result will both prevent these captured stormwater loads from reaching the outlets and provide additional dry weather treatment of these groundwater flows. Overall, this infiltration and groundwater treatment alternative is estimated to reduce HFPO-DA loads by approximately 23 lb/year, in comparison to 7 lb/year for the alternative to treat only stormwater from Outlets 001 and 006. This is a tripling the expected mass reduction with benefits also seen at Outlets 002 and 005 which would discharge this treated groundwater after use at the Site. Additionally, reuse of the treated groundwater would offset other Site water needs, and the proposed treatment system(s) would likely have improved operability due to the stable flow and water characteristics.
Groundwater modeling has shown that the Site groundwater extraction network (consisting of the West Well Field, Gallery Well, Ranney Well and East Well Field) hydraulically contains groundwater onsite, preventing exfiltration to nearby surface waters, such as the Ohio River). Extraction of groundwater at sufficient rates to maintain hydraulic containment will be continued. Volumes proposed for infiltration are small compared to groundwater volumes extracted (135 million gallons infiltrated from both Outlets 001 and 006 versus 2,300 million gallons per year extracted), and modeling has indicated that groundwater containment will be maintained, accounting for infiltrated water volumes from Outlets 001 and 006.
Four available treatment technologies were evaluated, including granular activated carbon (GAC), ion exchange (IX), regenerable ion exchange (Regen-IX), and reverse osmosis (RO). RO and IX were not advanced, due to challenges with disposing of or treating the significant amounts of concentrated liquid wastes from RO treatment and the improbability that IX would outperform GAC without incorporating onsite regeneration capabilities. GAC and Regen-IX were both advanced for future treatability testing. The sorptive treatment mechanisms of GAC and IX are routinely used in treatment a variety of contaminant matrices, and both have proven ability to consistently reduce concentrations of PFOA and HFPO-DA in similar water streams. An adsorptive treatment mechanism (e.g., GAC, Regen-IX) will be selected for implementation after treatability testing during the future pre-design phase.
The selected alternatives for the four outlets will be implemented expeditiously. First, Chemours
intends to implement short-term measures
to completion of the schedule outlined below that
are anticipated to result in water quality benefits. These include treating process flows from the
Building 22 sump, subject to regulatory approval as appropriate (which is part of the selected
alternative for Outlet 005, as described in this AA&IP). Additionally, Chemours will continue to
implement improved source control/good housekeeping measures that are outlined in the Site's
SWPPP, which has been recently updated.
The full implementation ofthe proposed plan will follow the necessary steps outlined below, which are anticipated to require approximately 31 months in total following EPA approval of this AA&IP. The exact duration is uncertain due to the early stages of alternative design and permitting, resulting in a range in the estimated time to completion, and subject to factors such as permit
Washington \Vorks AA&IP
ES-7
August 2023
ED_018475O_00000671-00031
approvals, supply chain availabilities and other factors. Elements for each Outlet will be advanced, and certain components of the project may be completed and operational (e.g., stormwater infiltration to limit discharges to Outlets 00 l and 006) before the full 31 months have elapsed.
The implementation plan consists of the following
Design: estimated duration 14 months
Potentially includes treatability studies using Site-specific water samples, treatment technology selection, additional water quality and flowrate characterization to support design, treatment siting and flow optimization, dry well placement and design assessment, and hydrologic model calibration, hydrologic and hydraulic analysis, progressing mechanical, civil, and electrical design elements, conducting surveys, determining materials and specifications for the treatment technologies, developing construction documents, and assessing the relevant codes and required permits.
Bidding and Contracting: estimated duration 5 months
Includes preparing the requests for proposals, evaluating bids, selecting vendors, and awarding contracts.
Permitting: estimated duration 9 months (coincident with detailed design, bidding and contracting)
May include land disturbance permits, NPDES permits or permit modifications, building permits, electrical inspection permits, well permits, underground injection control permits, amongst other permits.
Construction: estimated duration 10 months
Involves Site and conveyance system preparation and treatment system installation and assembly, including considerations for civil, electrical, and mechanical construction, timing with Site operation shutdowns.
Commissioning: estimated duration 2 months
Commissioning, functional checkout, and startup processes in a phased approach.
After system construction and commissioning, performance monitoring sampling will be conducted to evaluate the removal efficiency of HPFO-DA and PFOA for the selected treatment technology as provided in the AOC. Performance monitoring will include measurements of flow and water quality at treatment system(s) influent and effluent locations. Additionally, pursuant to the Site NPDES permit, Chemours will continue to evaluate flows and concentrations of HFPO-DA and PFOA at Outlets 001, 002, 005, and 006.
Washington \Vorks AA&IP
ES-8
August 2023
ED_018475O_00000671-00032
Letter from EPA to Chemours December 23, 2024
ED_018475O_00000671-00033
3
SENT VIA ELECTRONIC MAIL
James W. Hollingsworth, Plant Manager The Chemours Company, Washington Works 8480 DuPont Road PO Box 1217 Washington, WV 26181
Re: The Chemours Company FC, LLC, Administrative Order on Consent EPA Docket No. CWA-03-2023-0025DN
Dear Mr. Hollingsworth,
The Environmental Protection Agency, Region 3 ("EPA"), in consultation with the West Virginia Department of Environmental Protection ("WVDEP"), is providing this response to the Alternatives Analysis and Implementation Plan ("AA&IP" or "Plan") submitted by the Chemours Company FC, LLC ("Chemours") dated August 24, 2023. The Plan was required to be submitted per Paragraph 46 of the Administrative Order on Consent filed on April 26, 2023 ("Order"), EPA Docket No. CWA-03-2023-0025DN (the "Order"), pursuant to Section 309{a) of the Clean Water Act, 33 U.S.C. 1319{a).
Paragraph 52 of the Order states that the EPA will review each submission required pursuant to the Order and provide comments. Upon receipt of comments from the EPA on a submission, Chemours has agreed to respond in writing within 30 calendar days, unless the EPA agrees in writing to a longer period.
After discussions with Chemours and review of the AA&IP for Outlets 001, 002, 005 and 006, additional documents, historical information, and publications, the EPA provides the following comments on Chemours' submission.
Groundwater Infiltration Concerns
The EPA, in consultation with WVDEP, does not accept shallow underground injection as a viable treatment option for Outlets 001 and 006.
Based on recent discussions about treatment alternatives included in the Plan, the EPA understands that Chemours is no longer considering this option. In any event, underground injection presents several problems making it unapprovable.
ED_0184750_00000671-00034
Re: The Chemours Company FC, LLC, Administrative Order on Consent EPA Docket No. CWA-03-2023-0025DN
First, underground injection of waters containing PFOA or HFPO-DA would risk exceeding the maximum contaminant levels for PFOA and HFPO-DA in groundwater and would be impermissible under state laws protecting groundwater quality. See W. Va. Code 22-12-4(b). Therefore, Chemours would not be able to obtain approval for an underground injection control permit. Second, existing groundwater hydrology data is insufficient for an accurate assessment of groundwater flow on and off the Washington Works site. Third, existing groundwater hydrology data is also insufficient to assess the proposed treatment's ability to contain and treat PFOA and HFPO-DA. Furthermore, there are significant concerns regarding the degree to which groundwater is confined onsite and would remain confined after injection occurs.
Outlet 001
Chemours Preferred Alternative: Alternative 4, capture and infiltrate Outlet 001 flows and treat extracted groundwater from the East and West Field wells.
Alternative 4 is rejected. The EPA's Comments: As described above, infiltration of PFAS-contaminated water to groundwater is not a viable option. Alternative 3, capture and treat Outlet 001 flows, should be advanced. This alternative was identified as capable of meeting effluent limits and is implementable. Chemours should develop and provide to the EPA for approval: technology evaluation and selection, specific design plans, and a project-specific implementation plan to complete the project.
Outlet 002
Chemours Preferred Alternative: Alternative 2c, treating outfall leg 002-03 and 002-12.
Alternative 2c is conditionally accepted. The EPA's Comments: Alternative 2c is projected to meet permit effluent limits. Chemours should develop and provide to the EPA for approval: technology evaluation and selection, specific design plans, and a project-specific implementation plan to complete the project.
Additionally, treating additional drainage legs will provide additional reduction of PFAS discharges with a limited increase in cost. Chemours should consider treating additional drainage legs and may include such plans in Alternative 2c for the EPA's approval.
Outlet 005
Chemours Preferred Alternative: Alternative ld, treatment of combined flows from the PTFE FP Knock-Out Pot, Building 22 Sump, and Granular Line 1 Sump.
Alternative ld is conditionally accepted.
2
ED_018475O_00000671-00035
Re: The Chemours Company FC, LLC, Administrative Order on Consent EPA Docket No. CWA-03-2023-0025DN
The EPA's Comments: Chemours should develop and provide to the EPA for approval: technology evaluation and selection, specific design plans, and a project-specific implementation plan to complete the project.
Outlet 006
Chemours Preferred Alternative: Alternative 2, capture and infiltrate Outlet 006 flows up to wet weather sizing criteria, discharge surge flows (i.e., untreated) to Outlet 005 to eliminate Outlet 006 discharges to Page Run, manage groundwater to prevent offsite migration, and treat extracted groundwater from the East and West Field wells.
Alternative 2 is rejected. The EPA's Comments: As described above, infiltration of PFAS-contaminated water to groundwater is not a viable option. A new alternative or a revised Alternative 1 should be proposed. Any new or revised alternative must meet effluent limits at Outlet 006. Moving the discharge to a different outlet is not a viable option because Chemours' existing administratively extended NPDES permit cannot be modified. Chemours should develop and provide to the EPA for approval: a revised or new alternative, technology evaluation and selection, specific design plans, and a project-specific implementation plan to complete the project.
The EPA is committed to ensuring that the Washington Works facility implements a long-term, comprehensive plan that focuses on PFAS removal from the facility's discharges. To avoid continual revisions of the Plan, the EPA deliberated and developed this response in coordination with WVDEP.
Please submit your written response within 30 calendar days to Erin DeSandro at desandro.erin@epa.gov. If you would like to discuss this response or any new alternative, please contact Ms. DeSandro at 215-814-2125 or by email.
Sincerely,
Jessica Duffy, Section Chief NPDES Section 2, Water Branch Enforcement and Compliance Assurance Division U.S. Environmental Protection Agency, Region 3
cc: Todd Coomes, Chemours, Washington Works (todd.coomes@chemours.com) Erik W. Sims, Chemours, Washington Works (erik.sims@chemours.com) Erin DeSandro, EPA Region 3 (desandro.erin@epa.gov) Brad Wright, WVDEP (brad.m.wright@wv.gov)
3
ED_018475O_00000671-00036
Letter from Chemours to EPA January 22, 2025
ED_018475O_00000671-00037
The Chemours Company 304-863-4000 8480 DuPont Road PO Box 1217 Washington, WV 26181
January 22, 2025
Jessica Duffy, Section Chief NPDES Section 2, Water Branch Enforcement and Compliance Assurance Division U.S. Enviromnental Protection Agency, Region 3 1600 John F. Kennedy Boulevard Philadelphia, PA l90 I3
Erin DeSandro Enforcement and Compliance Assurance Division U.S. Environmental Protection Agency, Region 3 1600 Jolm F. Kennedy Boulevard Philadelphia, PA 19013
Re: The Chemours Company FC, LLC, Administrative Order on Consent EPA Docket No. CWA-03-2023-0025DN
Dear Ms. Duffy and Ms. DeSandro,
This is in response to Ms. Duffy's December 23, 2024 letter concerning the Alternatives Analysis and Implementation Plan submitted by Chemours pursuant to the above-referenced Administrative Order on Consent relating to the Chemours Washington Works facility in West Virginia.
By way of background, Chemours entered into the Administrative Order on Consent ("AOC") on April 26, 2023, to address ongoing compliance issues under i.ts existing NPDES permit (West Virginia National Pollutant Discharge Elimination System Permit No. WV000l 279), issued by the West Virginia Department of Enviromnental Protection ("WVDEP;') in 2018. The AOC required, among other things, that Chemours submit an Alternatives Analysis and Implementation Plan (the "Plan") within 120 days of the AOC. Chemours explored alternatives for the further treatment of HFPO Dimer Acid and PFOA to ensme that discharges those substances meet numeric effluent limits at each of Outlets 001, 002, 005 and 006. Chemours submitted the required response within 120 days on August 24, 2023, While EPA has provided some informal feedback on Chemours suggested alternatives, it did not provide any formal or complete comments until December 23, 2024, 16 months following the submission of our response.
In the interim, Chemours has now submitted its revised application for a renewal of its NPDES permit. That revised application was submitted on December 20, 2024 and is now pending with WVDEP. The revised application that was recently submitted relates to a permit renewal
ED_018475O_00000671-00038
application that was submitted to WVDEP on February 24, 2023, in advance of the expiration of the permit That revised permit renewal application contains a detailed proposal concerning the requirements that should be contained in the renewed permit and how Chemours proposes to meet those requirements. In particular, the application sets forth Chemours' proposed approach for technology-based effluent limits (TBELs) and water quality-based effluent limits (WQBELs) for the facility, Chemours refers EPA to that submittal and incorporates it by reference. See Attachment 25 ("Summary of Proposed Permit Approach for HFPO-DA and PFOA") and Attachment 25C ("Treatment of Process Waste\vaters: Factors for Technology-Based Effluent Limits"). Attachment 25C describes the addition or modification of five wastewater treatment systems at the facility for the reduction of HFPO Dimer Acid and PFOA discharges and summarizes the proposed changes. Section 7, and in particular Table 10,. sets forth the proposed schedule for these modifications.
We note that the principal concern raised in your December 23, 2024 response to the initial Plan is with respect to Chernours' prior proposal to utilize shallow underground injection as a treatment option for Outlets 001 and 006. As you will note in your review ofthe recently submitted revised permit renewal application (and, by incorporation, the revised Plan), Chemours no longer proposes to utilize groundwater infiltration. We believe that all the other treatment technologies proposed in the revised permit renewal application and revised Plan are consistent with the comments contained in your letter, which conditionally approved the other proposed teclmologies.
Your letter states that "To avoid continual revisions of the Plan, the EPA deliberated and developed this response in coordination with WVDEP." We appreciate that coordination and agree that it will be essential in finalizing an appropriate path fon:vard to address the water discharge issues at Washington Works in a coordinated manner. In that regard, we assume that your letter was prepared and transmitted before you had a chance to review the details of the recently submitted revised permit renewal application. Now that that revised appl.ication has been submitted and incorporated as om revised Plan, we propose a joint meeting among Chemours, EPA and WVDEP to discuss a path forward for finalizing the Plan and the review and issuance of the renewal permit, which are closely intertwined.
Please let me know if you have any questions on this submission. We appreciate the Agency's efforts to finalize a Plan that will allow Chemours to further reduce its PFAS discharges at Washington Works.
Sincerely,
V1
James W. Hollingsworth Plant Manager, Washington Works The Chemours Company James.W.Hollin sworth ii)Chemours.com (304) 863-4083 (Office)
2
ED_018475O_00000671-00039
Cc: Brad Wright, WVDEP (brad.in. wright@,11-~y_.gov) Chad Harsh, Enforcement and Compliance Assurance Division U.S. EPA, Region III, (harsh.chad@epa.gov) Promy Tabassum, U.S.EPA(Tabassum.Promy@epa.gov) Enclosures: Attachrnent 25, including Attachments 25A through 25K, of Chemours' Revised Permit
Renewal Application.
3
ED_018475O_00000671-00040
Letter from Chemours to EPA March 4, 2025
ED_018475O_00000671-00041
Chemours
The Chemours Company Washington Works 8480 DuPont Road POBox1217 Washington, WV 26181
March 4, 2025
BY EMAIL
Jessica Duffy, Section Chief NPDES Section 2, Water Branch Enforcement and Compliance Assurance Division U.S. Environmental Protection Agency, Region 3 1600 John F. Kennedy Boulevard Philadelphia, PA 19013 duffy.j essica@epa.gov
Erin DeSandro Enforcement and Compliance Assurance Division U.S. Environmental Protection Agency, Region 3 1600 John F. Kennedy Boulevard Philadelphia, PA 19013 DcSandro.crin(~cpa.gov
BenBahk Director, Water Enforcement Division Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency Washington, D.C. 20004 Bahk:.benj amin@epa.gov
Re: The Chemours Company FC, LLC, Administrative Order on Consent EPA Docket No. CWA-03-2023-0025DN
Dear Ms. Duffy, Ms. DeSandro, and Mr. Bahk,
This is a follow up to Chemours' January 22, 2025 letter in which the company provided, as EPA requested in Ms. Duffy's December 23, 2024 letter, a revised Alternatives Analysis and Implementation Plan (the "Plan") pursuant to the above-referenced Administrative Order on Consent ("AOC") relating to the Chemours Washington Works facility in West Virginia. Chemours' Plan is incorporated into the revised NPDES permit application that was submitted to West Virginia Department of Environmental Protection ("WVDEP") on the same date. We ask that you promptly approve our submission under the AOC so that Chemours, WVDEP and EPA can move forward expeditiously with reviewing the NPDES application and implementing the projects identified in the Plan and thereby address the remaining compliance issues with its existing NPDES permit (West Virginia
US 253875621v8
ED_018475O_00000671-00042
National Pollutant Discharge Elimination System Permit No. WV0001279), issued by the WVDEP in 2018.
Chemours's efforts to resolve its ongoing compliance issues began before even the first violation arose. Indeed, Chemours first flagged for WVDEP and EPA in 2021 that it would have difficulty complying during rain events with the stricter limits for PFOA and HFPO-DA at a number of outfalls due to be become effective in 2022 under the permit. As you know, Chemours entered into the AOC with EPA on April 26, 2023, for the specific purpose of addressing ongoing compliance issues. The AOC required, among other things1, that Chemours submit an Alternatives Analysis and Implementation Plan within 120 days of the AOC. Chemours submitted the required response within 120 days on August 24, 2023. While EPA provided some informal feedback on Chemours' Plan, it did not provide any formal or complete comments until December 23, 2024, 16 months following the submission of Chemours' response. At that time, EPA conditionally accepted portions of the Plan, rejected others, and asked that Chemours respond to EPA's comments on the Plan within 30 days. Chemours responded within 30 days, on January 22, 2025, and provided an updated Plan that does not rely on the approaches that EPA had rejected.
We have had no response from EPA on the Plan. Chemours believes that implementation of the Plan would resolve the ongoing compliance issues related to the current permit. Moreover, as EPA has suggested, Chemours has assessed ways in which it can expedite the implementation of the proposed projects. Chemours is prepared, subject to any necessary agreement from WVDEP, to commence such work prior to the issuance of a renewed permit, with the goal of completion within two years, before the three year period provided in the revised NPDES application. This time period assumes near-term approval as some of the work is seasonal dependent.
As you are aware, the compliance issues that were the basis of the AOC have resulted in a citizens suit action in the United States District Court for the Southern District of West Virginia, in which the plaintiff, the West Virginia Rivers Coalition is now asking the Court for a preliminary injunction. In its motion, the WVRC makes clear that it has resulted from delays in the AOC process. It states that "Chemours timely submitted its proposed plan, but a year later EPA still had not approved it and PFAS violations were continuing" so it "notified Chemours, WVDEP, and EPA in April 2024 that it intended to file a citizen suit." Further inaction by EPA led to the filing of the complaint in December 2024 and the motion for preliminary injunction last week. This is all disappointing to Chemours as avoiding litigation over these compliance issues was the very reason Chemours in good faith entered into the AOC.
1The AOC also required Chemours to implement an EPA-approved Sampling Plan, attached to the AOC, to conduct additional analysis to further understand the presence of PFAS in stormwater and effluent discharged from the facility. That sampling and analysis program has been substantially completed.
2
US 25387562lv8
ED_018475O_00000671-00043
Chemours requests that EPA promptly approve the Plan so that Chemours can begin to implement it.
Thank you for your attention to this important matter.
Sincerely,
/s/ James W. Hollingsworth James W. Hollingsworth Plant Manager, Washington Works The Chemours Company Jamcs.W.Hollin sworth mChcmours.com (304) 863-4083 (Office)
Cc: Brad Wright, WVDEP (brad.m.wright@wv.gov) Chad Harsh, Enforcement and Compliance Assurance Division U.S. EPA, Region III, (harsh.chad(a;cpa.gov) Promy Tabassum, U.S. EPA (Tabassum.Promy@cpa.gov) Todd Coomes, Chemours Joel Gross, Arnold & Porter Allison Rumsey, Arnold & Porter
US 253875621v8
3 ED_018475O_00000671-00044
Letter from EPA to Chemours March 24, 2025
ED_018475O_00000671-00045
VIA ELECTRONIC MAil
PHILADELPH
3
PA 19103
James W. Hollingsworth, Plant Manager The Chemours Company, Washington Works 8480 DuPont Road PO Box 1217 Washington, West Virginia 26181
Re: The Chemours Company FC, llC, Administrative Order on Consent EPA Docket No. CWA-03-2023-0025DN
Dear Mr. Hollingsworth,
By letter, dated March 4, 2025, Chemours asked the EPA to promptly approve the Revised Alternatives Analysis and Implementation Plan ("AAIP") it submitted on January 22, 2025. Chemours stated that the revised AAIP incorporates its revised NPDES permit application submitted to the West Virginia Department of Environmental Protection ("WVDEP"). As we have discussed, Chemours' compliance with the Administrative Order on Consent ("AOC") and with effluent limits in its current NPDES permit must be addressed independent of the permit renewal process. Submission of a permit application does not meet the requirements of Chemours' obligations under the AOC, and therefore, the Revised AAIP submitted by Chemours is disapproved. Pursuant to Paragraph 52 of the AOC, Chemours must respond within 30 days of this disapproval.
Please contact Erin DeSandro at =-==c...:..::::..:.__:::__:-=-..:-'-'-""._;:;;,,,"'-==..::.. or (215) 814-2125 if you have any questions concerning this letter.
Sincerely,
JESSICA DUFFY
Digitally signed by JESSICA DUFFY Date; 2025.03.24 07:49:56 -04'00'
Jessica Duffy, Section Chief
NPDES Section 2, Water Branch
Enforcement and Compliance Assurance Division
U.S. Environmental Protection Agency, Region 3
ED_018475O_00000671-00046
cc: Todd Coomes, Chemours, Washington Works (todd.coomes@chemours.com) Erik W. Sims, Chemours, Washington Works (erik.sims@chemours.com) Allison Rumsey, Counsel for Chemours (Allison.Rumsey@arnoldporter.com) Erin DeSandro, EPA Region 3 (desandro.erin@epa.gov) Pro my Tabassum, EPA Region 3 (tabassum.promy@epa.gov) Brad Wright, WVDEP (brad.m.wright@wv.gov)
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West Virginia Rivers Coalition's PreliminaryInjunction Memorandum of Law February 2, 2025
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
v.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant.
PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR A PRELIMINARY INJUNCTION
DEREK TEANEY AMANDA DEMMERLE
APPALACHIAN MOUNTAIN ADVOCATES, INC.
P.O. Box 507 Lewisburg, WV 24901 Telephone: (304) 646-1182 Email: dteaney@appalmad.org
ademmerle@appalmad.org
JAMES M. HECKER
PUBLIC JUSTICE
1620 L Street NW, Suite 630 Washington, DC 20036 Telephone: (202) 797-8600 Email: jhecker@publicjustice.net
Counsel for Plaintiff
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Table of Contents INTRODUCTION ........................................................................................................................................... 1
STATUTORY BACIZGROUND ................................................................................................................... 3
STATEMENT OF FACTS .............................................................................................................................. 3
ARGUMENT ..................................................................................................................................................... 8
I.
Plaintiffs Have Standing to Sue .......................................................................................................... 8
A. Plaintiffs Member Has Suffered an Actual or Threatened Injury in Fact..................... 8
B. Plaintiffs Member's Injuries Are "Fairly Traceable" to Defendant's Conduct ............ 9
C. Plaintiffs Member's Injuries Are Redressable by a Favorable Ruling from This Court ................................................................................................................................ 9
D. Plaintiff Has Representational Standing to Sue on Behalf of Its Member .................. 10
II. This Court Has Subject Matter Jurisdiction Over Chemours's Permit Violations ................... 10
III. This Court Should Enjoin Chemours's Ongoing Violations of the Clean Water Act............. 11
A. Plaintiff Is Likely to Succeed on the Merits ...................................................................... 11
B. Plaintiff and the Environment Are Likely to Suffer Irreparable Harm If a Preliminary Injunction Is Not Granted ............................................................................. 13
C. The Balance of Equities Favors Plaintiff .......................................................................... 16
D. A Preliminary Injunction Is in the Public Interest........................................................... 18
IV. Only a Nominal Bond Should Be Required ................................................................................... 19
CONCLUSION ............................................................................................................................................... 20
11
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INTRODUCTION Defendant The Chemours Company FC, LLC ("Chemours") discharges wastewater containing per- and polyfluoroalkyl substances ("PFAS"), including hexafluoropropylene oxide dimer acid ("HFPO-DA," sometimes called "GenX"1) from its Washington Works Plant in Washington, West Virginia, into the Ohio River, a source of drinking water for millions of people. PFAS, like HFPO-DA, are called "forever chemicals" because of their prolonged persistence in the environment. Ctr. for Env't Health v. Regan, 103 F.4th 1027, 1031 (4th Cir. 2024); see also 89 Fed. Reg. 32532, 32557 (Apr. 26, 2024) ("HFPO-DA is environmentally persistent."). PFAS, including HFPO-DA, are toxic to human health. Id. at 32544. Individuals can be exposed to PFAS in drinking water. Id. at 32543. The U.S. Environmental Protection Agency ("EPA") has established extremely low standards for PFAS concentrations in drinking water, with the HFPO-DA limit set at 10 parts per trillion ("ppt"). Id. at 32532. Chemours is violating its discharge limits in its current Clean Water Act ("CWA") permit for the Washington Works Plant for several chemicals, including HFPO-DA, by large amounts. In November 2024, Chemours exceeded its average monthly HFPO-DA limit at Outlets 002 and 005 by 454% and 166%, respectively. Ex. 1 at 12-13. That pollution spike was so large that it was noticeable approximately 270 river miles downstream in Cincinnati's drinking water intake-a system which serves over a million people. Ex. 2. Chemours admits that its current treatment system is incapable of ensuring permit compliance and has asked the West Virginia Department of Environmental Protection ("WVDEP") and EPA to give it a three-year compliance schedule to upgrade that system. Ex. 3 at 1-2 (Chemours 2024 Permit App. Att. 25); Ex. 4 at 24 tbl. 10 (Att. 25c). The schedule would
1 EPA acknowledges that GenX and HFPO-DA are interchangeable terms. See 88 Fed. Reg. 18638, 18643 (Mar. 29, 2023) ("EPA is issuing a preliminary regulatory determination to regulate ... hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt (also known as a GenX chemicals).").
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begin on the effective date of its new permit, which WVDEP has not yet even drafted. Ex. 4 at 24. It took WVDEP ten years to reissue this permit the last time it expired. Compare Ex. 5 (2003 permit with 2008 expiration date) with Ex. 6 at 12 (2018 permit renewal). In effect, then, such a schedule would allow Chemours to maintain its full manufacturing output and continue violating its permit limits for toxic HFPO-DA for at least three years, and likely for many more. To remedy this unconscionable delay in treatment, while at the same time avoiding any potential conflict with the planned treatment upgrade, Plaintiff asks the Court to issue a preliminary injunction granting a limited form of interim relief to protect the public from additional PFAS exposure.
Chemours's permit provides that "[i]t shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit." Ex. 6 at 97 (Appx. A, Part II.2). Federal regulations
contain the same language. 40 C.F.R. 122.41 (c). Chemours's process wastewater discharges at
Outlets 002 and 005 are a major contributor of the HFPO-DA in its discharges, and usage of that chemical is under Chemours's control and proportional to amount of fluoropolymers the plant produces. This Court should therefore prohibit Chemours from violating its permit limits for HFPODA at Outlets 002 and 005 by any means necessary, including (1) cutting back the production that generates process wastewater containing HFPO-DA, and/or (2) sending process wastewater off-site for disposal by deep-well injection or incineration, as Chemours does for its PFAS-contaminated wastewater at its Fayetteville, NC plant.2 West Virginians deserve no less protection from PFAS than do North Carolinians. Without an injunction, Chemours will effectively have an unlimited license to pollute the Ohio River and downstream drinking water indefinitely.
2 EPA, Multi-Industry Per- and Polyfluoroalkyl Substances (PFAS) Study-2021 Preliminary Report at 5-5, available at https://www.epa.gov/ system/files/ documents/2021-09/ multi-industry-pfasstudy_preliminary-2021-report_508_2021.09.08.pdf (also attached as Ex. 7).
2
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STATUTORY BACKGROUND
The CWA prohibits any person from discharging any pollutant without specific authorization. 33 U.S.C. 131 l(a). The purpose of the CWA is to "restore and maintain the ... integrity of the Nation's waters." County of Maui v. Haw. Wildlife Fund, 590 U.S. 165, 170 (2020) (citation omitted). The CWA does this "by insisting that a person wishing to discharge any pollution into navigable waters first obtain EPA's permission to do so." Id. (citations omitted). Under the CWA, permittees who violate their National Pollutant Discharge Elimination System ("NPDES") permits are subject to federal and state enforcement action. 33 U.S.C. 1319, 1342(b)(7). In addition, citizens may sue any person who violates any term or condition in an NPDES permit, subject to two limitations. Id. 1365(a)(1), ()(6). First, the citizen must give 60 days' advance notice of his intent to file suit to EPA, the State, and the violator. Id. 1365(b)(1)(A). Second, a citizen may not sue if EPA or the State bring certain types of judicial or administrative enforcement actions. Id. 1365(b)(1)(B), 1319(g)(6)(A). Assuming those limitations are satisfied, citizens can seek both injunctive relief from the district court and civil penalties from the polluter.
STATEMENT OF FACTS
Chemours holds WV/NPDES Permit Number WV0001279, which regulates discharges into the Ohio River from its Washington Works Plant in Washington, West Virginia. Ex. 6. That permit was reissued in 2018, has been administratively extended since 2023, and is still in effect. Ex. 8. In the fact sheet accompanying that permit, WVDEP stated that "Outlets 002 and 005 in WV/NPDES Permit No. WV0001279 contain the process wastewaters associated with the HFPO-DA compound and the previously used PFOA compound." Ex. 9 at 14. WVDEP further explained that it was basing the HFPO-DA permit limits on a drinking water health goal of 140 ppt "to be protective of the State's narrative water quality criteria for human health and the designated uses of the Ohio River." Id. at 15.
3
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In the second half of 2024, Chemours consistently violated its average permit limit for HFPODA at Outlets 002 and 005, as shown by its DMRs (Ex. 1) and Chemours's own admissions (Ex. 10). Those violations are summarized in the following table:
Month
May June July Aug Nov Dec
* July Aug Sept Oct Nov Dec
Outlet
002 002 002 002 002 002
* 005 005 005 005 005 005
Limit (ug/1)
1.4 1.4 1.4 1.4 1.4 1.4
* 1.1 1.1 1.1 1.1 1.1 1.1
DMR (ug/1)
2.63 1.47 1.47 1.79 7.76 2.05
* 1.36 2.09 1.52 1.43 2.93 2.55
% Limit
88 5 5
28 454
46
* 24 90 38 30 166 132
The Greater Cincinnati Water Works ("GCWW") utility, which supplies drinking water to 1.1 million customers and is 270 river miles downstream from Chemours's outlets on the Ohio River,3 has detected increased levels of HFPO-DA in every intake sample since July 2024, with concentrations
as high as 17 ppt. Ex. 2 ,r 7 (Swertfeger Deel.). Those increased concentrations correspond to increased Chemours HFPO-DA discharges during that same time period. Id. ,r 10, figs. 1-2. GWCC's treatment
system is much less effective at removing HFPO-DA than other PFAS, and GWCC is concerned that the increase in HFPO-DA discharges "may present an increased public health risk to communities ...
that utilize the Ohio River as the source of their drinking water." Id. ,r,r 11-12. Louisville, which is
3 Chemours's Outlets 002 and 005 are at Ohio River Mile 190.2 and 190.8, respectively. Ex. 6 at 1. Cincinnati's drinking water intake is at River Mile 460. See ORSANCO, Assessment of Ohio River Water Quality Conditions at 27 (Mar. 2022), available at https:/ /www.orsanco.org/wpcontent/uploads/2016/07/ORSANCO_2022_305b_Report.pdf (also attached as Ex. 11).
4
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over 400 river miles downstream,4 has experienced a similar increase in HFPO-DA levels in the fourth
quarter of 2024, with levels reaching 52 ppt at one point in December. See Ex. 12 (Goodmann Deel.).
Louisiville has also attributed the increase in HFPO-DA concentrations in the Ohio River at its intake
to Chemours's discharges. Id. ,r,r 8-9.
In its December 2024 application for a renewed and modified NPDES permit, Chemours
states that it plans to upgrade its wastewater treatment systems to reduce its maximum permissible
discharges of HFPO-DA from 225 pounds a year to 74 pounds a year. Ex. 13 at 6 tbl. 4 (Att. 25b);
Ex. 14 at 9 (Att. 25). As a part of that application, Chemours submitted the following mass loading
analysis of its HFPO-DA discharges:
Table 4. Allowable Permitted Site Loading by Outlet
Outlet
005 002 007 003 011 001 006 030,031,032,033,034, 036,016,019 022,023,025 Total
Existing 95th Monthly Average Flow
(MGD) 50 6.4 1.8 4.4
0.018 0.19 0.10
0.018
0 048 63
Current HFPO-DA
AML (ng/L) 1,100 1,400 1,4001 1,4001 33,0003 1,400
140
7,5003
9903
Current PFOA AML (ng/L)
300 2,000 2,0001 2,000 6003 2,000
702
9303
2803
Permitted HFPO-DA
Load (lbs/yr)
168 27 7.7 19 1.8 0.85 0.043
0.42
0.14 225
Permitted PFOALoad
(lbs/yr)
46 39 11 27 003 1.2 0.021
0.051
0.041 124
Ex. 13 at 6 tbl. 4. According to that analysis, Outlets 002 and 005 comprise most of the average
discharge flow from the plant-56.4 million gallons per day ("MGD") out of a total of 63 MGD, or
89.5%. Id. Those two outlets are also responsible for most of the permitted loading of HFPO-DA
that can be discharged from the plant-19 5 pounds out of the total of 225 pounds, or 86.7%. Id.
Within those two outfalls, process water comprises 4.6 MGD of the 56.4 MGD, or 8.2%. Ex.
13 at 4 tbl. 3. As shown in the table below, that process water contributes an average of 75.6
4 Louisville's drinking water intake is at River Mile 600. See Ex. 11 at 27. 5
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pounds/year of the total loading of 195 pounds/year of HFPO-DA, or 38.8%. Thus, this small
amount of process water contains a relatively large portion of the total HFPO-DA that Chemours
discharges. Those facts are shown by the following excerpts from Attachment 25b, Table 3:
Flow Stream
Bldg. 162 Targeted Process (process wastewater) B514 W9 Line 1 (process wastewater) Monomer Neut. Tank (process wastewater) Dryer Belt Wash Water (process wastewater) Other Process Water B22 Sump (process wastewater) Granular Sump (process wastewater) B184 Sump (process wastewater) FP KO Pot (process wastewater) W9 Permeate (process wastewater) Other Process Water
Total
95th Percentile Flow (mgd)
0.07
0.2
0.2
0.3 2.0 0.06
0.16 0.16
0.0 0.26
1.2 4.6
HFPO-DA Existing Load
(lbs/yr)
0.6
3.5
1.7
0.5 3.9 38
16.9 2.8 2.7 4.0 1.0 75.6
PFOA Existing
Load (lbs/yr)
0.1
0.0
0.3
0.0 1.7 0.2
0.1 0.0 0.0 0.0 8.0 10.4
Ex. 13 at 4 tbl. 3.
Chemours uses HFPO-DA to manufacture fluoropolymers:
Chemours uses HFPO-DA and its ammonium salt as a patented polymerization aid in the manufacture of fluoropolymers.... HFPO-Dimer Acid is an aid used in the fluoropolymer manufacturing process to reduce the surface tension in the process, allowing the polymer particles to grow larger. The process is completed through heating or chemical treatment to remove residual HFPO-Dimer Acid (polymerization aid). The majority of the HFPO-Dimer Acid is then recovered and recycled for use in subsequent fluoropolymer polymerization processes. . . . HFPO-Dimer Acid is a critical part of the manufacturing process for Chemours' fluoropolymers.
Ex. 15. Thus, Chemours can control how much HFPO-DA it uses and how much it recovers. By
reducing the amount of fluoropolymers that it manufactures, Chemours could simultaneously reduce
its use of HFPO-DA, thereby also reducing discharges of that chemical to the Ohio River. Eliminating
6
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or reducing the load of HFPO-DA in process water flowing to Outlets 002 and 005 would significantly reduce the overall amount of HFPO-DA discharged by the Plant.5
The remaining HFPO-DA discharged by Chemours is contained in stormwater discharges that are related to the amount of rain falling on the site. Possible interim reductions in stormwater contributions may need further investigation. But the process wastewater discharges are entirely within Chemours's control. That water is generated by its manufacturing processes and can be reduced or eliminated until those upgrades are completed, either by reducing production or sending the water off-site for disposal, as Chemours does at its Fayetteville, NC plant.6
EPA issued an Administrative Order on Consent ("AOC") in April 2023 against Chemours Washington Works for its PFAS discharges in violation of the CWA. Ex. 18. That AOC did not impose any penalties but required, among other things, that Chemours submit a compliance plan within 120 days. Id. Chemours timely submitted its proposed plan, Ex. 16, but a year later EPA still had not approved it and PFAS violations were continuing. As a result, Plaintiff notified Chemours, WVDEP, and EPA in April 2024 that it intended to file a citizen suit. Plaintiff then learned that EPA and Chemours were engaging in settlement discussions. But with no resolution to that process in
5 In 2024, Chemours constructed a treatment system expected to remove 99% of the HFPO-DA loading from its Building 22 ("B22"), which it estimates to be 38 pounds per year. Ex. 3 at 3; Ex. 13 at 4; Ex. 4 at 11. But even when operational, the B22 System will not be sufficient to achieve permit compliance by itself. Ex. 16 at 31. 6 According to EPA, Chemours's Washington Works is one of six U.S. facilities that manufacture PFAS. See Ex. 7 at 5-3. That plant manufactures fluoropolymers and fluorotelomers. Id. At its Fayetteville, NC plant, which also manufactures PFAS, Chemours captures and disposes of all of its PFAS-contaminated process water off-site by deep well injection or incineration. Id. at 5-5. In its Consent Order Progress Report for Fourth Quarter 2024 for that plant, Chemours stated that "Chemours does not discharge its process wastewater and instead collects and ships its process wastewater offsite for disposal or recycles treated water internally within several manufacturing processes." Chemours, Consent Order Progress Report For Fourth Quarter 2024 at 5, available at https:/ /www.chemours.com/en/-/media/files/ corporate/fayetteville-works/28_ncdeq_4q2024quarterly-co-progress-report_01232025.pdf?rev=b8f936cd299c4af982662f66ee28d5b 1&hash =5F41AF406CA64CCAFA2C5D1E3AE40904 (also attached as Ex. 17).
7
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December 2024, Plaintiffs filed this action. After doing so, Plaintiff learned that Chemours sought a
three-year compliance schedule in its new permit application, Ex. 4 at 24, the Biden EPA rejected
Chemours's April 2023 proposed compliance plan, Ex. 19, and the Trump EPA froze all
environmental enforcement actions. Plaintiff also learned that Louisville and Cincinnati have recently
begun detecting Chemours's HFPO-DA discharges downstream in their drinking water intakes such
that their source water exceeds the 10 ppt drinking water standard set by EPA. Exs. 2, 12. In light of
those alarming developments, a preliminary injunction is necessary.
ARGUMENT
I.
Plaintiffs Have Standing to Sue
Section 505(g) of the CWA authorizes the filing of a citizen suit by "any person or persons
having an interest which is or may be adversely affected." 33 U.S.C. 1365(g). This provision confers
standing to the limits of the U.S. Constitution. PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d 64,
70 n.3 (3d Cir. 1990); see also Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453
U.S. 1, 16 (1981). To have constitutional standing, a plaintiff must suffer an actual or threatened injury-
in-fact that is fairly traceable to the challenged action by the defendant and is likely to be redressed by
a favorable decision. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000).
A. Plaintiffs Member Has Suffered an Actual or Threatened Injury in Fact
Environmental plaintiffs satisfy constitutional standing requirements when their members
have suffered an injury to their aesthetic, health, environmental or recreational interests. Friends of
the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000); see also Laidlaw,
528 U.S. at 183. A threatened injury is sufficient. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409
(2013). Plaintiffs member Charlise Robinson obtains her household domestic water from the Lubeck
Public Service District water system, which is downstream from Chemours's plant. Ex. 20 ,r,r 4, 7
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(Robinson Deel.). Since 2018, she has refrained from drinking and cooking with that water, but uses
it to a limited extent for brushing her teeth and cleaning. Id. ,r,r 16-17. In its permit application,
Chemours used Lubeck as the compliance point to define its proposing mixing zone and protect public drinking water. Ex. 3 at 5; Ex. 21 at 2-3 (Attachment 25d). Ms. Robinson is suffering ongoing and threatened injury from past and continuing exposure to PFAS in her household water from Chemours's unlawful discharges.
B. Plaintiffs Member's Injuries Are "Fairly Traceable" to Defendant's Conduct To satisfy the traceability prong, the Fourth Circuit has explained that "a plaintiff must merely show that a defendant discharges a pollutant that causes or contributes to the kind of injuries alleged in the specific geographic area of concern." Gaston Copper, 204 F.3d at 161 (internal quotation marks omitted). As this Court has recognized, the traceability prong for standing is met when plaintiffs member claims that her injuries result from excessive pollutants in the same stream into which defendant discharges those pollutants. OVEC v. Marfork Coal, No. 5:12-cv-1464, 2013 WL 4509601, at *5 (S.D. W. Va. Aug. 23, 2013). Ms. Robinson's injuries are fairly traceable to Chemours's excessive HFPO-DA discharges into the Ohio River because Chemours admits that its HFPO-DA treatment and compliance strategy is designed to protect Lubeck's public water supply downstream from those discharges. Ex. 3 at 5; Ex. 21 at 2-3.
C. Plaintiffs Member's Injuries Are Redressable by a Favorable Ruling from This Court
An environmental plaintiff satisfies the redressability prong of standing when it shows that it is likely that injunctive relief will remedy its injury. Gaston Copper, 204 F.3d at 154. Importantly, however, it need not show that an injunction would restore the watershed to a pristine state. OVEC v. Hobet Mining, LLC, 702 F. Supp. 2d 644, 652 (S.D. W. Va. 2010) (citing Student Pub. Int. Rsch. Grp. ofN.J., Inc. v. Ga.-Pac. Corp., 615 F. Supp. 1419, 1424 (D.N.J. 1985)). It is enough that the risk of injury is reduced. Massachusetts v. EPA, 549 U.S. 497, 521 (2007). Plaintiff satisfies the
9
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redressability requirement because reducing HDPO-DA in Chemours's discharges will reduce the risk
of exposure to that chemical in its member's household water.
D. Plaintiff Has Representational Standing to Sue on Behalf of Its Member An organization has representational standing when (1) at least one of its members would have
standing to sue in his or her own right, (2) the organization's purpose is germane to the interests it
seeks to protect, and (3) there is no need for the direct participation of the individual members in the
action. Gaston Copper, 204 F.3d at 155. Charlise Robinson is a member of the West Virginia Rivers
Coalition ("WVRC"). Ex. 20. The action is germane to WVRC's purposes. Id. Lastly, because this
action is one for injunctive and declaratory relief and not for monetary damages, individual members
are not required to participate in the action. PIRG, 913 F.2d at 70; OVEC v. Fola Coal Co., 274
F. Supp. 3d 378, 387 (S.D. W. Va. 2017).
II.
This Court Has Subject Matter Jurisdiction Over Chemours's Permit Violations
Plaintiff also satisfies the jurisdictional prerequisites for the commencement and prosecution
of a citizen suit against Chemours for its CWA violations. Plaintiff sent the required 60-day notice
letter in April 2024 (Ex. 22) and waited more than 60 days thereafter to file suit in December 2024
(ECF No. 1). See 33 U.S.C. 1365(b)(1)(A). No federal or state agency has filed a judicial action
against Chemours for the same violations. Ex. 23 (Demmerle Deel.). EPA's April 2023 AOC against
Chemours does not meet the requirements for preclusion under 1319(g)(6) of the CWA because it
did not impose any penalties. See United States v. Smithfield Foods, Inc., 191 F.3d 516, 526 (4th Cir.
1999); Sierra Club v. Powellton Coal Co., 662 F. Supp. 2d 514, 523-31 (S.D. W. Va. 2009); Save Our
Bays & Beaches v. City & County of Honolulu, 904 F. Supp. 1098, 1128-29 (D. Haw. 1994).
Furthermore, Plaintiff satisfies the jurisdictional standard set forth in Chesapeake Bay
Foundation, Inc. v. Gwaltney of Smithfield, 484 U.S. 49 (1987). In that case, the Supreme Court held
that, to invoke the jurisdiction of the federal courts, citizen plaintiffs must "allege a state of either
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continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue
to pollute in the future." Id. at 57. On remand from the Supreme Court in Gwaltney, the Fourth
Circuit held that the plaintiffs could establish jurisdiction under this standard "either (1) by proving
violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from
which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or
sporadic violations." 844 F.2d 170, 171-72 (4th Cir. 1988).
Plaintiff filed its complaint on December 5, 2024. ECF No. 1. The DMR for that month shows
both average and daily maximum limit violations for HFPO-DA at Outlets 002 and 005. Ex. 1 at 14-
16. The sampling that establishes those violations occurred on December 5 and 19, 2024. Ex. 10 at
19. The DMR for January 2025 also shows average and daily maximum limit violations for HFPO-
DA at Outlet 005. Ex. 1 at 17. The first Gwaltney test is therefore satisfied and this Court has subject
matter jurisdiction over Chemours's HFPO-DA violations.
III.
This Court Should Enjoin Chemours's Ongoing Violations of the Clean Water Act
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance
of equities tips in his favor, and that an injunction is in the public interest. Real Truth About Obama,
Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009). All four factors are satisfied here.
A. Plaintiff Is Likely to Succeed on the Merits
Section 505(a)(1) of the CWA authorizes citizens to bring suit for violation of any "effluent
standard or limitation." 33 U.S.C. 1365(a). Section 505()(7), in turn, defines "effluent standard or
limitation" to include "a permit or condition thereof issued under Section 402." Id. 1365()(7). The
Court has the power to require compliance with those permit conditions. Id. 1365(a).
Enforcement of the CWA is "intentionally straightforward." OVEC v. Bluestone Coal Corp.,
No. 1:19-cv-576, 2020 WL 4284804, at *5 (S.D. W. Va. July 27, 2020) (internal quotation omitted).
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The CWA's legislative history shows that Congress intended to expedite enforcement actions, such as this one. The Senate report on the 1972 CWA stated that"[e]nforcement of violations of requirements of this Act should be based on a minimum of discretionary decisionmaking or delay" and that "the issue before the courts would be a factual one of whether there had been compliance." S. Rep. No. 414, 92nd Cong., 2nd Sess. (1972) at 64, 80 reprinted in 1972 U.S. Code Cong. & Ad. News at 3730, 3746.
The CWA achieves the goal of expedited enforcement in two ways. First, it places the burden of measuring and reporting pollutant levels on permit holders. See, e.g., Powellton Coal Co., 662 F. Supp. 2d at 516. Enforcement is thus made easy and inexpensive because evidence of violations must be compiled and documented by the permit holders themselves. Bluestone Coal, 2020 WL 4284804, at *5 (internal citation omitted). Second, the CWA imposes strict liability for permit violations. See, ~ ' Sierra Club v. W. Va. Dep't of Env't Prot., 64 F.4th 487, 503 (4th Cir. 2023). A discharger's culpability or good faith does not excuse a violation. United States v. CPS Chem. Co., 779 F. Supp. 437, 442 (E.D. Ark. 1991). Consequently, a violation of a permit requirement by a discharger is an automatic violation of the CWA. PIRG v. Rice, 774 F. Supp. 317, 325 (D.N.J. 1991). When determining liability under the CWA, "[a]ll the court ... is called upon to do is compare the allowable quantities of pollution listed in the permits with the available statistics on actual pollution."' OVEC v. Hobet Min., LLC, 723 F. Supp. 2d 886, 896 (S.D. W. Va. 2010).
As established above, Chemours has reported violating its permit limits for HFPO-DA at Outlets 002 and 005 throughout 2024 and at Outlet 005 in January 2025. Exs. 1, 10. DMRs are binding admissions that may be used to establish liability under the CWA. Hobet Min., 723 F. Supp. 2d at 923. Consequently, Plaintiff is all-but-certain to succeed on its claim that Chemours's HFPO-DA exceedances are violations of its NPDES permit and the CWA.
12
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B. Plaintiff and the Environment Are Likely to Suffer Irreparable Harm If a Preliminary Injunction Is Not Granted
Plaintiff and the environment are likely to suffer irreparable harm without a preliminary injunction. Because Congress has expressly granted citizens a right of action to enforce the CWA and Plaintiff has shown "a distinct and palpable injury," Plaintiff "may invoke the general public interest in support of their claim." Warth v. Seldin, 422 U.S. 490, 501 (1975). Here, Plaintiff is protecting the general public interest in the Ohio River and clean drinking water. See Powell Duffryn, 913 F.2d at 73.
"Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,545 (1987); see also Sierra Club v. U.S. Army Corps of Eng'rs, 981 F.3d 251, 264 (4th Cir. 2020) (same). PFAS are "long duration" pollutants. EPA has explained that "PFAS tend to break down slowly and persist in the environment, and consequently, they can accumulate in the environment ... over time." 89 Fed. Reg. at 32532. As the Fourth Circuit has recognized, they are "known as forever chemicals." Regan, 103 F.4th at 1031. That characteristic of persistence applies to HFPO-DA-EPA specifically found that HFPO-DA has "similar persistence in the environment as longer chain PFAS, such as PFOA and PFOS."7 Chemours, too, admits that "HFPO-DA ... has been documented to persist in the environment."8 Additionally, EPA found that HFPO-DA is "more mobile than longer chain PFAS, leading to the potential to result in exposure at greater distances than legacy PFAS in off-site transport or in ground water." Ex. 24 at 2.
EPA has also explained the serious danger that PFAS exposure poses to human health:
7 EPA, Human Health Toxicity Assessment for GenX Chemicals Fact Sheet at 2(Mar. 2023), available at https://www.epa.gov/system/files/documents/2023-03/GenX-Toxicity-Assessment-factsheetMarch-2023-update.pdf (also attached as Ex. 24). 8 Chemours, Submission of Site Associated PFAS Fate and Transport Study Pursuant to Consent Order Paragraph 27 at 10 CTune 24, 2019) (attached as Ex. 25)
13
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The adverse health effects associated with exposure to such PFAS include (but are not limited to): effects on the liver (e.g., liver cell death), growth and development (e.g., low birth weight), hormone levels, kidney, the immune system (reduced response to vaccines), lipid levels (e.g., high cholesterol), the nervous system, and reproduction, as well as increased risk of certain types of cancer. 89 Fed. Reg. at 32537. EPA found similar effects from HFPO-DA exposure specifically, including "health effects ... on the liver, kidneys, the immune system, [and] development of offspring" with the liver being especially vulnerable to HFPO-DA exposure. Ex. 24 at 2. EPA believed "there [wa]s sufficient evidence to list the HFPO-DA ... on the [Toxics Release Inventory] pursuant to EPCRA section 313(d)(2)(B)(ii) for serious or irreversible reproductive dysfunctions and other chronic effects on the liver, development, hematological system, and immune system after oral exposure." 89 Fed. Reg. 81776, 81785 (Oct. 8, 2024). Moreover, the West Virginia State Legislature has also recognized that PFAS, including HFPO-DA, "are known to cause ... adverse health effects." W. Va. Code 2211C-1(a)(1). By Chemours's own admissions, it is discharging excessive amounts of HFPO-DA into the Ohio River and will be for at least the next three years. Exs. 1, 3, 4, 10. HFPO-DA contamination is the quintessential example of harm "oflong duration, i.e. irreparable" (Amoco, 480 U.S. at 545), since it lasts "forever." Courts have found irreparable harm in similar circumstances. See, e.g., Idaho Conservation League v. Atlanta Gold Corp., 879 F. Supp. 2d 1148, 1158-60 (D. Idaho 2012) (finding likelihood of irreparable harm from the discharge of "water containing arsenic in amounts well in excess of applicable effluent limitations"); PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp. 1158, 1168 (D.N.J. 1989), affd in relevant part, 913 F.2d 64 (3d Cir. 1990). This Court found irreparable harm sufficient to issue an injunction when a mining company was continually violating its limits for toxic selenium, which "contribut[ed] to the degradation of' the watershed. Hobet Min., 723 F. Supp. 2d at 924-25. The same is true here-Chemours is continually violating its limits for HFPO-DA, which EPA and West Virginia acknowledge is a toxic substance. Further, WVDEP set the current
14
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permit limit for HFPO-DA at a level necessary to protect drinking water from the Ohio River and public health. Ex. 9 at 15. Consequently, violations of that limit will cause irreparable harm to the designated use of the Ohio River as a water source for Plaintiffs member and the public at large who use downstream public water systems along the Ohio River.
Chemours's violations of its HFPO-DA limits under the CWA also threaten to make it more difficult and expensive for municipalities to comply with EPA's maximum contaminant level ("MCL") under the Safe Drinking Water Act of 10 ppt for HFPO-DA concentrations in drinking water. See generally 89 Fed. Reg. at 32532. The EPA determined that "people who drink water containing HFPO-DA in excess of the MCL over many years may have increased health risks," like the ones discussed above. See id. at 32620.
Untreated source water from the Ohio River is already close to exceeding or actually exceeding the MCL for HFPO-DA. For instance, in September 2022, Chemours measured HFPO-DA at 14 ppt just upstream of the Lubeck Public Service District's drinking water facility. Ex. 26. In 2023, the Little Hocking Water Association, whose source water is infiltrated by the Ohio River, detected HFPO-DA in its wellfield (before the water enters its treatment system) and found that those levels "have increased over ten-fold since [their] initial detection" in 2018. Ex. 27 at 7. Since the 2018 measurement was 32 ppt, the 2024 measurement was more than 320 ppt, or more than 32 times higher than what EPA has determined is safe.9 In addition, since July 2024, there is evidence of elevated HFPO-DA levels up to 52 ppt in drinking water intakes in the Ohio River over 270 and 400 miles downstream in Cincinnati and Louisville, respectively. Exs. 2, 12. Such elevated levels of HFPO-DA in source drinking water (before treatment) also indicate that irreparable harm is likely. See Atlanta Gold Corp.,
9 According to a publicly available EPA document, in 2018, the untreated source water at the Little Hocking Water Association had HPFO-DA levels of 32 ppt. Ex. 28. Little Hocking's treated water is currently below the 10 ppt MCL but only because it uses an expensive granulated activiated carbon ("GAC") system. Ex. 27.
15
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879 F. Supp. 2d at 1158-60 (finding sufficient harm to issue an injunction when there is a "significant possibility that harm to human health may result if the discharges continue unabated" and even if "municipal suppliers eventually remove the toxins from the water before it enters household taps."); see also United States v. Hartsell, 127 F.3d 343, 351-52 (4th Cir. 1997) (explaining that the CWA reasonably imposes more stringent limits than those under the SDWA because "the regulated pollutants [under the CWA] could harm waterways and aquatic life, and could introduce chemicals which hamper treatment facilities' ability to treat waste water, even at levels where they might not directly harm humans.").
C. The Balance of Equities Favors Plaintiff "If [irreparable] injury is sufficiently likely, ... the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco, 480 U.S. at 545, cited in S.C. Dep't of Wildlife & Marine Res. v. Marsh, 866 F.2d 97, 100 (4th Cir. 1989). Chemours's HFPO-DA permit limit is based on protecting water quality standards and drinking water uses along the Ohio River. Ex. 9 at 15.10 Achieving water quality standards is "one of the [CWA's] central objectives." Arkansas v. Oklahoma, 503 U.S. 91, 106 (1992). This Court has found that protecting water uses "is the overriding purpose of West Virginia's water quality standards and the goal of the state's permit requirements." OVEC v. Elk Run Coal Co., 24 F. Supp. 3d 532,579 (S.D. W. Va. 2014). Accordingly, the irreparable harm that would result from allowing Defendant to continue to discharge unlawful concentrations of HFPO-DA into the Ohio River outweighs any financial loss that Defendant might incur from compliance with an injunction from this Court. "Mere injuries, however substantial, in terms of money," are rarely cognizable in the equitable balance. See Roe v. Dep't of Def., 947 F.3d 207,228 (4th Cir. 2020) (cleaned up). "Harm to environment outweighs a defendant's
10 WVDEP set these limits based on a now-outdated 140 ppt standard for drinking water. Ex. 9 at 14. Thus, Chemours' violations of its 2018 permit limits are particularly concerning in light of the much lower 10 ppt standard set by EPA in 2024 for HFPO-DA in drinking water.
16
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financial interests, particularly where violations are of a longstanding and continual nature." Atlanta Gold Corp., 879 F. Supp. 2d at 1161-62 (CWA citizen suit). As established above, Chemours's HFPODA violations are longstanding and continuing. In balancing the equities, financial harms are less important because "[m]oney can be earned, lost, and earned again." OVEC v. U.S. Army Corps of Eng'rs, 528 F. Supp. 2d 625, 632 (S.D. W. Va. 2007). When it enacted the CWA, Congress made the clear choice in favor of protecting the environment even where industry's "capacity to comply would be stretched to the limit." 1972 U.S. Code Cong. & Admin. News at 3711. Congress anticipated that compliance "would cause economic hardship and plant closings." Student Pub. Int. Rsch. Grp. of NJ, Inc. v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1537 (D.N.J. 1984), affd, 759 F.2d 1131 (3d Cir. 1985). Accordingly, Congress decided that compliance with water quality based effluent limitations is required regardless of cost. See U.S. Steel Corp. v. Train, 556 F.2d 822, 838 (7th Cir. 1977); OVEC v. Apogee Coal Co., 555 F. Supp. 2d 640, 649 (S.D. W. Va. 2008); cf. United States v. Mun. Auth. of Union Twp., 150 F.3d 259,266 (3d Cir. 1998) (upholding court order requiring polluter to disgorge profits made from failing to reduce production to comply with CWA permit).
Consistent with this Congressional determination, EPA's NPDES regulations provide that "[i]t shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit." 40 C.F.R. 122.41(c). Chemours's permit echoes that same language. Ex. 6 at 97 (Appx. A, Part II.2). The Court therefore cannot consider Chemours's economic loss, if any, if it has to halt or reduce production to comply with its permit.
Moreover, a violator's failure to close its plant or slow its production "in the face of undisputed knowledge that continued operation would result in continued violations, reflects a certain degree of willfulness" with respect to its NPDES permit noncompliance. Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 1561 (E.D. Va. 1985), affd sub nom. 791 F.2d 304 (4th Cir.
17
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1986), vacated, 484 U.S. 49 (1987). "[I]f a regulated entity is incapable of operating in compliance with its permits, the 'one simple and straightforward way ... to avoid paying civil penalties' is to 'cease[] operations until it [is] able to' do so." Env't Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d 507, 526 (5th Cir. 2016) (quoting Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1141-42 (11th Cir. 1990)). Chemours has done the opposite-instead of reducing or ceasing production to come into compliance with its permit obligations, Chemours has recently increased production by adding a new finishing line with additional PFAS discharges into the Ohio River, Ex. 4 at 21,11 and intends to add yet another additional line according to its December 2024 permit application, Ex. 3 at 8. Chemours has gotten itself into this position, and "[i]t would seem elementary that a party may not claim equity in his own defaults." Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970). The balance of equities therefore favors Plaintiff.
D. A Preliminary Injunction Is in the Public Interest Finally, this preliminary injunction is in the public interest. Protecting water quality is "a critical public interest that profoundly outweighs a company's bottom line." OVEC v. Fola Coal Co., No. 2:13-21588, 2016 WL 3190255, at *11 (S.D. W. Va. June 7, 2016) (citing Atlanta Gold Corp., 879 F. Supp. 2d at 62). Protecting human health is also undoubtedly in the public interest, and, as discussed above, HFPO-DA has dire human health consequences that downstream water systems are already grappling with. See Exs. 2, 12, 27.12 But the "forever" nature of HFPO-DA also means that
11 In December 2024, HFPO-DA concentrations at an internal monitoring point of the effluent from that new finishing line were as high as 132,000,000 ppt, which was only reduced to 25,500 ppt at another internal monitoring point after treatement with GAC. See Ex. 29 (DMRs from Outlets 118 and 108 for WV/NPDES Permit Number WV0l 17986). 12 Although Little Hocking, Cincinnati, and Louisville are known to have HFPO-DA problems, at least 7 other public drinking water systems on the Ohio River between Parkersburg and Lousiville are also at risk-Huntington, WV; Ashland, KY; Ironton, OH; Russell, KY; Portsmouth, OH; Maysville, KY; and Northern Kentucky Water, KY. See Ex. 11 at 27.
18
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Chemours's violations today could also have long-term human health consequences. Thus,
preliminarily enjoining Chemours's conduct will protect the public downstream of Chemours until
treatment is installed.
Furthermore, when it enacted the PFAS Protection Act, the West Virginia Legislature declared
that "[i]t is in the public interest for West Virginia to reduce toxic chemicals such as PFAS chemicals
in drinking water supplies to protect the health of West Virginians and strengthen the state's
economy." W. Va. Code 22-1 lC-1 (a)(l 1).13 Thus, the West Virginia Legislature has determined that
reducing HFPO-DA discharges is in the public interest, both from a health and economic standpoint.
That declaration is "well-nigh conclusive." Berman v. Parker, 348 U.S. 26, 32 (1954).
*
*
*
In sum, all four Real Truth factors support issuing preliminary injunctive relief requiring
Chemours to comply with its HFPO-DA limits at Outlets 002 and 005 and eliminate its violations of
West Virginia water quality standards.
IV.
Only a Nominal Bond Should Be Required
Under Rule 65(c), the Court must fix a bond "in such sum as the court deems proper." The
Fourth Circuit has held that a district court has discretion in setting the bond amount, and can even
waive it, but "it is not free to disregard the bond requirement altogether." Pashby v. Delia, 709 F.3d
307, 332 (4th Cir. 2013). This Court has set bonds as low as $100. Sogefi USA, Inc. v. Interplex
Sunbelt, Inc., 538 F. Supp. 3d 620, 631 (S.D. W. Va. 2021) (Chambers, J.) ($100); Ohio Valley Env't
Coalition, Inc. v. U.S. Army Corps of Eng'rs, No. 3:11-cv-0149, 2011 WL 13161422, at *2 (S.D.W.
Va. Mar. 9, 2011) (Chambers,].) ($500); OVEC v. Bulen, No. 3:03-cv-2281, Dkt. No. 39 (S.D. W. Va.
Apr. 6, 2004) (Goodwin, J.) ($100). And just last week the U.S. District Court for the District of
13 The PFAS Protection Act defines "PFAS" to include HFPO-DA, id. 22-1 lC-1 (a)(1), and explains that PFAS are "known to cause ... adverse health effects," id. 22-11C-1(a)(5).
19
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Maryland "set a nominal bond of zero dollars under Rule 65(c)." Nat'l Ass'n of Diversity Officers in Higher Educ. v. Trump, No. 1:25-cv-00333-ABA, 2025 WL 573764, at *29 (D. Md. Feb. 21, 2025).
Congress empowered the public to enforce NPDES permits through injunctive relief. 33 U.S.C. 1365(a). Placing a hurdle in the form of a more-than-nominal bond to equitable relief in such cases would be contrary to the public interest. See Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995), cited in Pashby, 709 F.3d at 332; Div. No. 1, Detroit, Bhd. of Locomotive Eng'rs v. Consol. Rail Corp., 844 F.2d 1218, 1227 (6th Cir. 1988). Because Plaintiff brings this case in the public interest and to further Congress's express goals, the Court should require only a nominal bond of no more than $500.
CONCLUSION For these reasons, the Court should issue a preliminary injunction that prohibits Chemours from violating its permit limits for HFPO-DA at Outlets 002 and 005 by any means necessary, including (1) reducing the production that generates process wastewater containing HFPO-DA, and/or (2) sending that wastewater off-site for disposal by deep-well injection or incineration.
DATED: February 25, 2025
Respectfully submitted,
Isl Derek Teaney DEREK TEANEY (WVBN 10223) AMANDA DEMMERLE (WVBN 13930)
APPALACHIAN MOUNTAIN ADVOCATES, INC.
P.O. Box 507 Lewisburg, WV 24901 Telephone: (304) 646-1182 Email: dteaney@appalmad.org
ademmerle@appalmad.org
Isl James M. Hecker JAMES M. HECKER (PRO HAC VICE)
PUBLIC JUSTICE
1620 L Street NW, Suite 630 Washington, DC 20036 Telephone: (202) 797-8600 Email: jhecker@publicjustice.net
Counsel for Plaintiff
20 ED_018475O_00000671-00070
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
v.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant. CERTIFICATE OF SERVICE I, Derek 0. Teaney, do hereby certify that, on February 25, 2025, I electronically
filed the foregoing document with the Clerk of the Court using the CM/ECF filing system, which
will notify the following participants:
JAMES A. WALLS SPILMAN THOMAS & BATTLE, PLLC 48 Donley Street, Suite 800 Morgantown, WV 26501 (304) 291-7920
Isl Derek 0. Teaney
DEREK 0. TEANEY (WVBN 10223)
ED_018475O_00000671-00071
Chemours' Response in Opposition to Plaintiff's Motion for a Preliminary Injunction March 11, 2025
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
V.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant.
DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
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TABLE OF CONTENTS INTRODUCTION......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 4 ARGUMENT ................................................................................................................................. 8
I. Plaintiff Does Not Have Article III Standing Because an Injunction Would Not Redress Plaintiff's Alleged Injury........................................................................................... 8 II. A Preliminary Injunction Is Not Appropriate............................................................. 11
A. Legal Standard - Preliminary Injunctions ............................................................... 11 B. Irreparable Harm Will Not Befall Plaintiff in the Absence of a Preliminary Injunction Because Water Samples Already Show No Harm........................................ 12 C. A Preliminary Injunction Is Not in the Public Interest Because an Injunction Will Negatively Affect Washington Works's Employees, Customers, and the Public......... 15 D. The Balance of the Equities Weighs in Chemours' Favor Because Plaintiff Faces No Harm in the Absence of an Injunction, and an Injunction Would Burden Chemours, Its Employees, and Its Customers.................................................................. 18 E. Plaintiff Has Failed to Show Likelihood of Success on the Merits Because Permanent Injunctive Relief Is Unlikely Where Chemours, EPA, and WVDEP Are Already Addressing Exceedances...................................................................................... 19 CONCLUSION ........................................................................................................................... 20
11
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Defendant The Chemours Company FC, LLC ("Chemours") submits this Memorandum of Law in opposition to West Virginia Rivers Coalition's Motion for a Preliminary Injunction. Also submitted herewith are the Declarations of Catherine Boston, Andrew Hartten, James Hollingsworth, and Katelyn R. Walck. Chemours respectfully requests that the Court deny Plaintiff's motion.
INTRODUCTION With speculative assertions of harms that do not exist, Plaintiff seeks extraordinary relief that would dramatically undermine Chemours' integral role in the national and global supply chain. Yes, Chemours has had exceedances of its permit discharge limits for HFPO-DA, a PFAS, primarily during wet weather conditions. But three overarching points bear special emphasis: Chemours has been working-and will continue to work-with its regulators, the Environmental Protection Agency ("EPA") and the West Virginia Department of Environmental Protection ("WVDEP"), neither of which has sought emergency relief, to address these permit exceedances. Most importantly, Chemours consented to a 2023 EPA Administrative Order on Consent ("AOC"), which is designed to address, and is addressing, the precise exceedances that Plaintiff complains about. An application for a new water discharge permit, which will achieve further HFPO-DA reductions, is pending before and being actively processed by WVDEP. Second, recent sampling data show that the concentration of HFPO-DA is at indisputably safe levels in the Ohio River and in downstream providers' treated water. Plaintiff's member who is relied upon for associational standing gets her drinking water not from the Ohio River but from a groundwater-sourced public water system that already has treatment in place, provided by Chemours, which delivers safe, clean water.
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Third, Plaintiff's motion makes clear that the fundamental reason Plaintiff believes an emergency now exists-that is, the reason Plaintiff is asking this Court to short-circuit the ongoing administrative process despite the fact that the same environmental conditions existed a year ago-is the new Federal Administration. ECF No. 8 at 8 ("the Trump EPA froze all environmental enforcement actions"). A change in Administration does not create an emergency for Plaintiff's purpose in this matter or change Chemours' commitment to completing the AOC.
Turning to the specifics of the relief being sought, a preliminary injunction is inappropriate for a number of reasons.
First, Plaintiff does not have standing because the relief it seeks will not remedy its alleged injury. The sought-after injunction applies to Outlets 002 and 005, channels that discharge wastewater from Washington Works to the Ohio River. But, as referenced above, Plaintiff's member Charlise Robinson (relied on by Plaintiff to establish standing) gets her household water notfrom the Ohio River but from the Lubeck Public Services District-which (i) uses groundwater wells and (ii) is already utilizing filtration provided by Chemours which treats for PFAS all the water it delivers to Ms. Robinson.
Second, Plaintiff will not suffer irreparable harm without an injunction. The three-year delay between Chemours' first permit violation and Plaintiff's preliminary-injunction motion is telling. Moreover, EPA promulgated in 2024 a Maximum Contaminant Level ("MCL") for HFPODA under the Safe Drinking Water Act. That limit is intended to protect public health. Crucially, HFPO-DA levels in Plaintiff's member's water supply are under EPA 's Maximum Contaminant Level. Additionally, Chemours has actively been working for six years to reduce HFPO-DA in its effluent and to resolve these issues. The company has installed abatement projects, one of which
2
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was just completed in February 2025. And as part of the 2023 AOC with EPA that Chemours voluntarily agreed to, the company has proposed a compliance plan with further concrete abatement projects that would, once approved, bring the company into compliance, potentially in less than two years.
Third, an injunction works against the public interest. Washington Works is the workplace of hundreds of employees and contractors. One form of Plaintiff's requested relief, reducing production (which Plaintiff has not demonstrated would achieve permit limits in wet weather), would scale down Washington Works' s operations, disrupting workers' livelihoods. Scaled-down operations would also damage the medical-device, pharmaceutical, semiconductor, communications, and electric-vehicle sectors, which rely on Chemours to supply essential materials used to produce crucial products for those industries. Those products make modem society-from open heart surgery to electric vehicles-possible. The other form of Plaintiff's desired relief, massive off-site disposal of wastewater via a continuous supply of tanker trucks or rail cars moving around the country, is simply impossible. The fact that Plaintiff suggests such a fanciful option is a reminder of why evaluation of compliance options should be left to regulators.
Fourth, for the same reasons that underlie the irreparable-harm and public-interest prongs, the balance of equities strongly weighs in Chemours' favor. One of Plaintiff's proposed solutions would have massive economic impact on Chemours, the community surrounding Washington Works, and the national and global economies more generally. The other is simply not possible. Neither of Plaintiff's proposals would address the reality that Chemours' HFPO-DA permit exceedances from Outlets 002 and 005 are heavily correlated with precipitation events. In contrast, Chemours' plan to come into compliance pursuant to its AOC with EPA will address Plaintiff's concern in an orderly, achievable manner.
3
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Finally, Plaintiff has failed to show likelihood of success on the merits. Plaintiff must show that it is likely to succeed in pursuing its sought-after relief in its Complaint, including showing standing and entitlement to a permanent injunction. See Compl. at 11 ("Relief Requested"). As noted, Chemours and EPA are already administering an AOC process to resolve permit exceedances. Plaintiff has failed to explain why it is likely to receive a permanent injunction given this AOC process and Chemours' ongoing efforts to reduce HFPO-DA concentrations in discharges, including through its submitted water discharge permit revision.
BACKGROUND
Plaintiff has long known of this case's facts and only felt that a complaint was necessary and that injunctive relief was urgent following the 2024 Presidential election. Plaintiff provided its citizen suit notice letter in April 2024. It filed its Complaint on December 5, 2024, served the Complaint on January 9, 2025, and moved for a preliminary injunction on February 25, 2025. ECF Nos. 1, 7. Plaintiff seeks declaratory and injunctive relief and civil penalties, alleging that Chemours violated the Federal Clean Water Act at its Washington Works facility. Compl. ~ 1 (hereinafter ECF No. 1). Plaintiff principally asserts that Chemours discharged per- and polyfluoroalkyl substances ("PFAS") from four Washington Works outlets to the Ohio River in excess of limits in Chemours' National Pollutant Discharge Elimination System ("NPDES") Permit effective September 2018. ECF No. 1 ~~ 26, 31-35; ECF No. 7-6. The Permit sets effluent limits on two PFAS compounds, PFOA and HFPO-DA, which progressively become more stringent under a prescribed schedule. See ECF No. 7-6 at 7, 12, 16-17, 21-22, 25. Plaintiff alleges that Chemours first exceeded the most stringent HFPO-DA and PFOA limits-which became effective in January 2022-in February 2022 and July 2022, respectively. ECF No. 1 ~ 35; ECF No. 1-1 at 2-3.
4
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Plaintiff now claims that it will suffer irreparable harm unless the Court issues a preliminary injunction "prohibit[ing] Chemours from violating its permit limits for HFPO-DA at Outlets 002 and 005." ECF No. 8 at 20. According to Plaintiff, Chemours must either (1) scale down operations that generate process wastewater containing HFPO-DA or (2) transport the wastewater away from the site for disposal. Id.
Chemours Identified the Possible Compliance Issues and Has Consistently Worked to Meet the 2018 NPDES Permit's PFAS Limits
Chemours' predecessor, DuPont, voluntarily transitioned in 2013 from the use of PFOA to HFPO-DA as a polymer processing aid at Washington Works under a Voluntary Stewardship Program organized by EPA to reduce PFOA usage. Ex. 1, Hollingsworth Deel. ~ 11. HFPO-DA was chosen because it has a more favorable toxicological profile than PFOA. Id. at ~ 10. EPA approved the manufacture of HFPO-DA in 2009 under the Toxic Substances Control Act. Id. When it switched from using PFOA to HFPO-DA, DuPont entered into a Consent Order with WVDEP. The Consent Order imposed a limit on the amount ofHFPO-DA that Washington Works could discharge to the Ohio River. DuPont and Chemours complied with that limit.
Complying with the 2018 Permit's much lower HFPO-DA limits has proven to be technologically challenging, particularly for stormwater. The most stringent limits took effect January 1, 2022. See, e.g., Ex. 2, Nov. 2021 Email to K. Emery. The limits prohibit Chemours from discharging effluent with HFPO-DA concentrations greater than 2.3 micrograms per liter from each of Outlets 002 and 005 on any given day. See ECF No. 7-6 at 12, 22. The new limits are a significant decrease from the original allowable concentrations. Prior to January 2022, Chemours' daily HFPO-DA limit for Outlet 002 was 32 micrograms per liter, 14 times greater
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than the new benchmark. Id. at 12. Chemours' daily HFPO-DA limit for Outlet 005 was 43 micrograms per liter, 18 times greater than the new limit. Id. at 22.
Chemours has been proactive in working to meet the new limits. The company promptly identified PFAS abatement projects after issuance of the Permit, proposing treatment systems for Outlets 001, 002, 003, 005, and 006. Ex. 1, ~ 15. Within weeks of WVDEP issuing the 2018 Permit, Chemours hired consultant AECOM to identify abatement projects to meet the effluent limits. Id. at~ 16. By 2019, Chemours started designing abatement projects based on AECOM's advice. Id. at~ 17. By 2020, Chemours undertook a formal progress review and determined based on sampling results to stop one project and move forward with five projects. Id. at~ 18. Chemours regularly provided status updates to WVDEP summarizing the abatement efforts. Id. at~ 19. By the end of 2020, the company estimated that it would achieve compliance with the upcoming PFOA limits. Id. at~ 20. Less certain was compliance, specifically during wet weather, with the HFPO-DA limits. Id. at~ 21.
Chemours notified WVDEP in April 2021 that complying with the HFPO-DA limits during stormwater events by September 2021 (the original effective date for the most stringent limits) would not be attainable. Id. at~ 22. Chemours sought a compliance-deadline extension. Id. at~ 21. The company further explained that the COVID-19 pandemic had caused unexpected delays from equipment suppliers beyond Chemours' control. Id. at ~~ 21, 23-24. In light of such challenges, Chemours received a deadline extension to December 31, 2021. Id. at~ 26.
Meanwhile, Chemours continued its abatement efforts, id. at~ 27, meeting with WVDEP and EPA in September, October, and December 2021. The company reiterated that it needed additional time beyond December 31st to implement HFPO-DA abatement systems and to meet the stringent HFPO-DA restrictions. Ex. 3, Sept. 2021 "Chemours Washington Works NPDES
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Permit" Presentation at 5. Air deposition, the settling ofHFPO-DA emissions to the ground, posed challenges in wet weather. Ex. 1, ~ 25. Chemours assured the agencies that it recognized-and was addressing-challenges from air deposition and wet weather by installing tertiary air emissions abatement systems to further reduce air deposition. Ex. 3 at 5. Without a compliancedeadline extension, Chemours forecasted that it would violate the HFPO-DA limits taking effect January 1, 2022, despite the company's best efforts to come into compliance. Ex. 1, ~ 30.
As Chemours anticipated, discharges from Washington Works first exceeded the new HFPO-DA Permit limits in early February 2022 after days of rain and snowmelt. Ex. 4, Feb. 2022 Letter to WVDEP Regarding Exceedances. The company promptly informed the appropriate government officials about the exceedances. Id.
After continued discussion in 2022 and early 2023, EPA and Chemours reached agreement in April 2023 on the AOC "to address the violations." ECF No. 7-18 at 11. The AOC prescribes a process for Chemours to come into compliance with the Clean Water Act and the Permit. Id. at 8-10. It requires Chemours to (1) implement a sampling plan characterizing PFAS in Washington Works's stormwater and wastewater (which is completed), (2) submit to EPA an Alternatives Analysis and Implementation Plan ("Plan") within 120 days to ensure discharges stay within Permit limits, and (3) implement the plan under a set schedule once EPA approves it. Id.
Chemours submitted its Plan to EPA in August 2023 with its proposal for coming into compliance with the Permit. ECF No. 7-16. There was no formal response from EPA until December 24, 2024, when it, in consultation with WVDEP, conditionally approved parts of the Plan and rejected other parts. Ex. 1, ~ 34. The parts rejected were based on proposed management of sudden volumes of contaminated stormwater through infiltration into a hydrologically contained groundwater aquifer followed by subsequent treatment. ECF No. 7-19. EPA requested a revised
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plan within 30 days. Id. at 3. Accordingly, Chemours submitted a revised Plan in January 2025, which did not rely on groundwater infiltration. Ex. 5, Revised Plan Letter. Chemours also sent a follow-up letter to EPA on March 4, 2025, asking for EPA's expedited approval of Chemours' revised Plan. Ex. 1, ~ 34. Chemours committed to begin work promptly upon EPA approval of the Plan, expecting to finish within two years. Id. at~ 34, Attachment A ("We ask that you promptly approve our submission ... so that Chemours, WVDEP and EPA can move forward expeditiously with ... implementing the projects identified in the Plan"). The company now awaits EPA's response. EPA has expressed an intent to finalize the Plan quickly, stating in its December 2024 letter that it wishes "[t]o avoid continual revisions of the Plan." ECF No. 7-19 at 3. The Plan's proposed projects are expected to bring the company into compliance with the 2018 Permit and to reduce HFPO-DA levels even further than currently required. See Ex. 5.
While Chemours has been actively working to resolve the exceedances with EPA, it also has submitted to WVDEP a NPDES Permit renewal application. Ex. 1, ~ 36. The company submitted the initial application on February 24, 2023 and revised the application in December 2024 to align it with the proposed Plan. See ECF Nos. 7-3, 7-4.
Chemours' efforts over the last six years have resulted in new abatement technology installed at Washington Works. Recently, Chemours received WVDEP's authorization to implement the B-22 Sump Treatment Project, a project that further reduces HFPO-DA concentrations in Outfall 005 discharges. Ex. 6, May 2024 Consent Order. The B-22 Sump Treatment Project became operational in February 2025. Ex. 1, ~ 35.
ARGUMENT I. Plaintiff Does Not Have Article III Standing Because an Injunction Would Not
Redress Plaintiff's Alleged Injury. Plaintiff is not properly before the Court. Sampling analyses of water downstream of
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Washington Works show that no harm is occurring, despite Plaintiff's insistence that imminent injury will befall it without an injunction. Compare Ex. 7, Boston Deel.~~ 12, 20-22, 27 with ECF No. 8. Moreover, the desired relief-which pertains specifically to Outlets 002 and 005will not cure Plaintiff's speculative injury. ECF No. 8 at 20. The water provider noted in Plaintiff's motion gets its water from the groundwater, not directly from the Ohio River where Outlets 002 and 005 discharge effluent. Ex. 8, Hartlen Deel.~ 18; ECF No. 1 at~~ 32-33.
Under Article III of the Constitution, a plaintiff must establish standing to sue for each form ofrelief sought. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Jonathan R. v. Morrisey, No. 3:19-cv-00710, 2025 WL 655811, at *2 (S.D.W. Va. Feb. 28, 2025). Plaintiff is an organization, which may have standing to sue based on injury to itself or as the representative of its members who have been harmed. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir. 2000). Here, Plaintiff purports to represent its members. ECF No. 8 at 8-9. An organization has representational standing when, inter alia, at least one of its members has individual Article III standing. Friends of the Earth, Inc. v. Laidlaw Env 't Servs., Inc., 528 U.S. 167, 181 (2000). To have such standing, a member must show that she "suffered or [is] imminently threatened with a concrete and particularized 'injury in fact' that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision." Lexmarkint'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014).
The redressability element requires that it be likely, not merely speculative, that a favorable decision will remedy the alleged injury. Lujan, 504 U.S. at 561. "To determine whether an injury is redressable, a court will consider the relationship between 'the judicial relief requested' and the 'injury' suffered." California v. Texas, 593 U.S. 659, 671 (2021). Notably, "[i]n environmental cases, the 'relevant showing for purposes ofArticle III standing ... is not injury to the environment
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but injury to the plaintiff."' Ohio Valley Env't Coal., Inc. v. Marfork Coal Co., 966 F. Supp. 2d 667, 672-73 (S.D.W. Va. 2013).
Lastly, Plaintiff cannot rely on statutory standing alone to bypass the Article III standing requirement. The Supreme Court abrogated the view that the violation of a statutory right "automatically satisfies the injury-in-fact requirement whenever a statute ... authorize[s] [a] person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation." Spokeo, Inc. v. Robins, 578 U.S. 330,341 (2016).
Here, Plaintiff has moved for a preliminary injunction as a representative of its member, Charlise Robinson, and must show that Ms. Robinson's alleged injury will likely be redressed by the sought-after relief. ECF No. 8 at 8-9; Lujan, 504 U.S. at 561. Ms. Robinson's alleged injury is fear of PFAS exposure from her household water. ECF No. 8 at 8-9. But Ms. Robinson gets her water from the Lubeck Public Services District ("Lubeck"), which in tum gets its water from groundwater, not directly from the Ohio River where Chemours discharges its effluent. ECF No. 8 at 8; Ex. 8, ~ 18 (referring to the "Lubeck well field"). Moreover, Lubeck already has a granular activated carbon filtration system to filter out PFAS. Ex. 8, ~~ 10, 24, 27. Accordingly, Ms. Robinson suffers no injury from direct discharge from the site's outlets, and any alleged harm is not redressable by the injunction sought. 1
To elaborate, although river water containing Washington Works's discharges passes along the river edge near Lubeck's well field, the groundwater supplying Lubeck's system contains historical PFAS contamination presumably from permitted site emissions as well as other sources
1 If Ms. Robinson alleges a medical condition resulting from past PFOA exposure, she can seek redress under the Leach Settlement Agreement, notwithstanding that the multi-district litigation established for such claims was recently dissolved. ECF No. 7-20 at~ 4; In re: E.I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., No. 2:13-md-2433, 2025 WL 474225 (S.D. Ohio Feb. 12, 2025).
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to the Ohio River. Id. at~ 18. Thus, PFAS compounds, including PFOA and HFPO-DA, reach the groundwater supplying Lubeck slowly over time as they migrate through soil. Id.
Because of that existing contamination, DuPont entered into a settlement in 2005 that required it to install a granular activated carbon treatment system at Lubeck. Id. at ~ 10. The treatment system became operational in June 2007, and pursuant to an agreement with Lubeck, Chemours, as DuPont's successor, has monitored and maintained the filtration system monthly. Id. at~~ 24, 27. When Chemours monitors the system, it analyzes samples for 18 PFAS, including HFPO-DA. Id. at~ 28. Based on 2023 and 2024 samples, Lubeck's treated water has annual average HFPO-DA concentrations well below EPA's 10-nanograms-per-liter MCL for HFPO-DA. See Ex. 7, ~~ 20, 27; 40 C.F.R. 141.61(c)(2). The MCL is a conservative limit designed to protect public health. Ex. 7, ~ 15. (For a full explanation of why there are no potential adverse human health effects from HFPO-DA in Lubeck's system, see generally Exhibit 7, a toxicology analysis from Catherine Boston, a board-certified toxicologist with over fifteen years of experience. 2)
Plaintiffhas thus failed to show injury in fact and redressability and, by extension, standing to seek a preliminary injunction.
II. A Preliminary Injunction Is Not Appropriate. A. Legal Standard - Preliminary Injunctions
A preliminary injunction is an extraordinary remedy. Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). The burden on the party seeking a preliminary injunction is "exceedingly high." Mahmoud v. McKnight, 102 F.4th 191, 203 (4th Cir. 2024). To obtain a preliminary injunction, Plaintiff must show that (1) it is likely to succeed on the merits; (2) it is likely to suffer
2 Chemours acknowledges that, in the Spring of 2024, it discovered a valve malfunction in the Lubeck filtration system, which it promptly fixed and now systematically monitors. Ex. 8, ~~ 32-38. The short-term spike in HFPO-DA was not of a sufficient duration or magnitude to result in a risk to human health. Ex. 7, ~~ 23-27.
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irreparable harm if preliminary relief is not granted; (3) the balance of equities favors it; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008). Each of the Winter factors must be established independently. Pashby v. Delia, 709 F.3d 307,321 (4th Cir. 2013); USA Farm Labor, Inc. v. Micone, No. 23-2108, 2025 WL 586339, at *4 (4th Cir. Feb. 24, 2025) (same). Plaintiff's failure to satisfy any one ofthe factors permits the Court to deny an injunction without evaluating the remaining factors. Vitkus v. Blinken, 79 F.4th 352, 361 (4th Cir. 2023). Plaintiff has failed to demonstrate all four prongs.
B. Irreparable Harm Will Not Befall Plaintiff in the Absence of a Preliminary Injunction Because Water Samples Already Show No Harm.
Plaintiff attempts to skirt its obligation to show that it will suffer irreparable harm without an injunction and suggests that showing injury to "the environment" and to "the general public interest" suffices to meet its irreparable-harm burden. ECF No. 8 at 13. Plaintiff is incorrect. See Courtland Co. v. Union Carbide Corp., No. 2:21-cv-00101, 2021 WL 1255416, at *24-25 (S.D.W. Va. Apr. 5, 2021) (holding that a showing of environmental harm, without a corresponding showing "that the plaintiff itself will be irreparably harmed," is not enough to secure a preliminary injunction). Thus, Plaintiff must specifically show irreparable harm to itself. The closest Plaintiff gets is a statement about one of its members. Plaintiff states, "violations of th[e] [permit] limit [for HFPO-DA] will cause irreparable harm to the designated use of the Ohio River as a water source for Plaintiff's member." ECF No. 8 at 14-15. Because the only member that Plaintiff names in its Memorandum of Law is Charlise Robinson, see ECF No. 8, Chemours assumes that the reference to "Plaintiff's member" is a reference to Ms. Robinson. For several reasons, Plaintiff has failed to show that Ms. Robinson, and the West Virginia Rivers Coalition more broadly, will suffer irreparable harm without injunctive relief.
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First, Chemours already monitors and maintains granular activated carbon filtration systems at Lubeck, Ms. Robinson's water supplier. Ex. 8, ~ 24. Samples of Lubeck's treated water from 2023 and 2024 show the water's annual average HFPO-DA concentrations are well below 10 nanograms per liter. Ex. 7, ~~ 20, 27. The MCL for HFPO-DA in treated water that EPA established in 2024 for protecting human health is 10 nanograms per liter (measured in annual averages). Id. at~~ 15, 17; 40 C.F.R. 141.61(c)(2). Plaintiff, by reference to Ms. Robinson, is therefore claiming that it will suffer irreparable harm without immediate injunctive relief even though Ms. Robinson's treated water is already under the 10-nanograms-per-liter limit intended to protect public health. Moreover, when EPA established the HFPO-DA level in 2024, it gave public water systems five years-until 2029-to meet the limit. Far from imposing irreparable harm, the water that Ms. Robinson drinks is currently compliant with contaminant levels that do not become legally enforceable for another four years.
Second, the annual average concentration of HFPO-DA in the Ohio River's water just downstream of Washington Works, too, is below the MCL-at somewhere around 1.9 nanograms per liter to 3.1 nanograms per liter. Ex. 7, ~~ 21-22. Accordingly, the evidence refutes Plaintiff's contention that Chemours' discharges are endangering the Ohio River as a drinking water source.
Third, Chemours, EPA, and WVDEP are, and have been, working to reduce HFPO-DA concentrations in Washington Works's effluent. Ex. 1, ~~ 15-19, 22, 27-29, 32-36. Most recently, the B-22 Sump Treatment Project became operational in February 2025. Id. at~ 35. Additionally, Chemours, EPA, and WVDEP are advancing the Plan required under the AOC between Chemours and EPA; the Plan's project proposals will bring the company into compliance with its 2018 Permit limits. Id. at~~ 32-34. In short, various projects and processes are already underway to address the Permit exceedances that occur primarily during wet weather.
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Fourth, Plaintiff waited years to bring this action and to move for an injunction, which undermines its claim that irreparable harm will befall Plaintiff without immediate relief. Plaintiff alleges that Chemours first exceeded the most stringent HFPO-DA Permit limits in February 2022. ECF No. 1 ~ 35; ECF No. 1-1 at 2. Plaintiff then waited 34 months-nearly three years-to file its Complaint. ECF No. 1. Plaintiff then waited two and a half months to file its preliminaryinjunction motion. ECF No. 7; see Mary Ferrell Found., Inc. v. Eiden, No. 22-cv-06176-RS, 2023 WL 4551066, at *10 (N.D. Cal. July 14, 2023) (denying preliminary-injunction motion where movant "waited years ... to file suit and did not move for a preliminary injunction until several months later"). Plaintiff admits that a primary motivation for bringing this action is not any alleged environmental harm, but a speculative fear that the new Administration will not resolve Chemours' exceedances. See ECF No. 8 at 8. Plaintiff's fear is not only an insufficient basis for showing irreparable harm, but is also baseless given that Chemours is continuing to work with EPA and WVDEP to install projects that will achieve compliance. See Ex. 1, ~ 34 (Attachment A).
Plaintiff additionally refers to two public water systems downstream of Washington Works: the Greater Cincinnati Water Works and a Louisville, Kentucky system. ECF No. 8 at 45, 15. Plaintiff does not rely on the Cincinnati or Louisville systems to establish standing. See generally id. Instead, Plaintiff asserts that the Cincinnati and Louisville systems have detected increased HFPO-DA levels in recent months, levels that they allege "correspond to" Washington Work's HFPO-DA discharges. Id. at 4-5.
Cincinnati and Louisville are urban areas hundreds of miles downstream from Washington Works, as Plaintiff concedes. Id. Despite the 270-mile and 400-mile gaps between Washington Works and these systems, Plaintiff does not offer a fate-and-transport expert or analysis that explains how, despite the long distance, there would seem to be no dilution, but rather
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concentration, of HFPO-DA in the River. See generally id. In other words, Plaintiff offers no explanation other than conjecture correlating Washington Works's wastewater discharges and the systems' HFPO-DA detections hundreds of miles downriver.
Furthermore, both Cincinnati and Louisville have equipment that removes contaminants, including PFAS, to levels below EPA' s HFPO-DA MCL. Cincinnati's 2024 Water Quality Report shows HFPO-DA levels in finished water between non-detect and 6 nanograms per liter. See https://www.cincinnati-oh.gov/water/water-quality-and-treatment/water-quality-reports/2024water-quality-report-updated-march-2025/ at 7-8. Similarly, Louisville's communications to customers state that "current research shows levels of PFAS that are below the EPA's proposed regulation." See https://louisvillewater.com/your-water/water-quality/pfas/. Finally, the Cincinnati and Louisville systems, and the other drinking water systems along the Ohio River that Plaintiff mentions in footnote 12 of its motion, are members of a defined class of nationwide water utilities that settled drinking water-related claims against Chemours as well as other co-defendants. This settlement provides payment for future water treatment costs at eligible systems unless the individual system chose to opt out. See Aqueous Film-Forming Foam (AFFF) Prods. Liab. Litig. (MDL 2873), Master Dkt. No. 2:18-MN-2873-RMG, 2024 WL 489326 (D.S.C. Feb. 8, 2024) (discussing settlement agreements in the MDL).
C. A Preliminary Injunction Is Not in the Public Interest Because an Injunction Will Negatively Affect Washington Works's Employees, Customers, and the Public.
The injunction sought is not in the public interest for multiple reasons. Plaintiff proposes two forms of injunctive relief: (1) "reducing the production that generates process wastewater containing HFPO-DA" or (2) "sending that wastewater off-site for disposal." ECF No. 8 at 20.
The second proposal is simply not feasible. Ex. 1, ~~ 80-84. Plaintiff compares apples to oranges, suggesting that Chemours could transport wastewater off-site because the company has
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already done so for process wastewater at its North Carolina-based Fayetteville Works facility. ECF No. 8 at 7. When Chemours began transporting process wastewater offsite from Fayetteville Works, it needed about 10 trucks daily, from dawn to dusk, to haul the process wastewater to a deep well in Texas. See Ex. 1, ~ 84. In contrast, Washington Works would require more than 884 trucks or 221 rail cars to haul its approximately 4.6 million gallons ofprocess wastewater generated each day. Id. at~ 83. The trucks and rail cars would need to move the wastewater to an off-site facility, likely at great distance, taking days to return. See id. at~~ 81-84. Washington Works is not constructed to allow for such processing, and there would be neither enough trucks and rail cars available nor hours in the day to undertake the project. Id. Putting aside the infeasibility of hiring thousands of trucks or hundreds of rail cars daily, the traffic impacts-and air-pollution impacts from vehicle emissions-would be substantial. See Coal. to March on the RNC v. City of Milwaukee, No. 24-cv-0704-bhl, 2024 WL 3358149, at *21 (E.D. Wis. July 8, 2024) (denying a preliminary injunction in part because an injunction would put at risk "orderly traffic regulation").
As off-site disposal is not feasible, the only remaining proposal proffered by Plaintiff is reducing production. See ECF No. 8 at 20. Washington Works is the largest chemical manufacturing facility in West Virginia, employing over 400 employees, and 148 contractors, in its fluoropolymer processes alone. See Ex. 1, ~ 86. Scaling down production will reduce the demand for labor, thus reducing jobs. Id. Substantially trimming such a large facility's operations could harm Wood County and the local community's interests in maintaining employment and preserving job opportunities. See Micone, 2025 WL 586339, at *4-5 (affirming the denial of a preliminary injunction that, if granted, would have affected workers' wages).
Finally, Washington Works is not only important to Wood County, West Virginia; it also makes products that are critical to the United States. The processing units at issue-the PFA Line
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1, FEP, PTFE Fine Powder, and PTFE Granular operations-create vital products for the medicaldevice, electric-vehicle, and semiconductor-manufacturing sectors, to name a few. Ex. 1, ~~ 3879. Washington Works is the only facility in the country that produces Perfluoroalkoxy ("PFA"), a product needed for chip fabrication at all semiconductor manufacturing facilities. Ex. 9, Walck Deel. ~~ 9-11. The domestic semiconductor industry relies on the facility's PFA production. Id. at~ 16. An injunction affecting Outlets 002 and 005 would disrupt the PFA operations; a shutdown of those operations would cause an immediate shortage of multiple kilotons of PFA per year in the semiconductor market-impacting national security and the economy. Id. at ~~ 11, 17. Washington Works also produces FEP, a material inserted into medical devices including pharmaceutical stoppers, syringe plungers, and inhalers, and PTFE, which is used in medical guide catheters that are essential for performing minimally invasive surgeries. Ex. 1, ~~ 47-48, 54-56, 58-60, 67-69. Injunctive relief will inevitably disrupt the supply of such products, putting at risk people who need FEP-equipped devices for their health or would otherwise need to undergo riskier surgical procedures should PTFE-coated guide catheters become less accessible. Id. at~~ 58-60, 69; See Hybritech Inc. v. Abbott Lab 'ys, No. CV 86-7461/AK (PX), 1987 WL 123997, at *21 (C.D. Cal. July 14, 1987) (noting that an injunction impairing the supply of medical test kits would not be in the public interest).
Plaintiff omits key considerations in making its public-interest argument. An injunction, Plaintiff argues, would serve the public interest by "[p]rotecting water quality," "[p]rotecting human health," and "strengthen[ing] the state's economy." ECF No. 8 at 18-19. Not only is there no threat to human health given that the levels in any drinking water are below the MCLs, scaling down operations at the State's largest chemical manufacturing plant is likely to harm the State's
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economy: reduced operations at the facility means reduced labor demand, which in tum means fewer jobs and overall less spending in the State. See, e.g., Ex. 9, ~ 19; Ex. 1, ~ 86.
D. The Balance of the Equities Weighs in Chemours' Favor Because Plaintiff Faces No Harm in the Absence of an Injunction, and an Injunction Would Burden Chemours, Its Employees, and Its Customers.
The harm to Chemours from a preliminary injunction outweighs any harm to Plaintiff from the absence of an injunction-especially in light of the demonstrated lack of harm here. See Section II.B. above. To evaluate the balance of the equities, courts weigh potential harm to the movant in the absence of injunctive relief against potential harm to the nonmovant from an injunction. See Mountain Valley Pipeline, LLC v. W Pocahontas Props. Ltd. P'ship, 918 F.3d 353, 366 (4th Cir. 2019); Courtland Co., 2021 WL 1255416, at *26 (same).
In Courtland, the balance-of-equities analysis weighed in the nonmovant's favor. Id. at *27. There, a property owner brought a Clean Water Act citizen suit against its neighbor, alleging that the neighbor illegally discharged contaminants to navigable waters. Id. at *1-3. The claimant moved for a temporary restraining order pertaining to the discharges. Id. at *6. The court reasoned that, on one hand, the movant's property allegedly contained "somewhere between 15 and 70 years' worth" of contamination from the neighbor's discharges, so any additional harm to the movant in the absence of temporary relief would "seem[] to pale in comparison" and would be "difficult to estimate." Id. at *27. On the other hand, the movant's desired restraining order would have forced the neighbor to swiftly eliminate its discharges, despite the fact that "developing ... a comprehensive study and plan to eliminate and remediate such discharges would require much more time." Id. The equities, this Court held, tipped in the nonmovant's favor. Id.
Here, Plaintiff's insistence that immediate injunctive relief is warranted is not supported: sampling data show that the Lubeck system's treated water (which is treated by Chemours) and the Ohio River's water just downstream of Washington Works are both already under the EPA's
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10-nanograms-per-liter MCL for HFPO-DA. Ex. 7, ~~ 20-22, 27. Therefore, in the absence of a preliminary injunction, Plaintiff (i) will be left with treated water for its member that is already under EPA' s HFPO-DA MCL from groundwater and (ii) can expect that the EPA-led AOC process will result in even further reductions in HFPO-DA discharges.
Harm in the event of an injunction to Chemours, its employees and contractors, the community surrounding Washington Works, and the world more generally outweighs any harm to Plaintiff in the absence of an injunction. If the Court granted Plaintiff's desired relief and required scaling down of Washington Works' s operations, even assuming such scaling down would result in Permit compliance,3 Chemours and its employees, contractors, customers, and other stakeholders would suffer multiple types ofloss, as discussed in the public-interest section above. Plaintiff incorrectly argues that the Court cannot consider Chemours' economic harm in the balance-of-the-equities analysis. ECF No. 8 at 17. It provides no support for the proposition that regulations that bar a defense in an enforcement action also prevent the Court from considering economic loss to Chemours in evaluating a preliminary-injunction motion that, under applicable law, requires the Court to balance the equities.
E. Plaintiff Has Failed to Show Likelihood of Success on the Merits Because Permanent Injunctive Relief Is Unlikely Where Chemours, EPA, and WVDEP Are Already Addressing Exceedances.
To analyze success on the merits, courts often evaluate movants' complaints holistically, looking not only at asserted causes of action but also at requested relief. See, e.g., GMRI, Inc. v. Garrett, No. 3:14-0866, 2014 WL 1351126, at *2 (S.D.W. Va. Apr. 4, 2014) ("The Court finds that GMRI is likely to succeed on the merits of its Complaint-that is, GMRI is likely to succeed
3 While it would be reasonable to expect lower production to reduce the overall mass of discharges, Plaintiff does not explain how reducing production will result in meaningfully fewer HFPO-DA exceedances, which typically occur during wet weather unrelated to production.
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in obtaining declaratory and permanent injunctive relief'); DJR Assocs., LLC v. Hammonds, 241 F. Supp. 3d 1208, 1229 (N.D. Ala. 2017) ("ChemStation has a substantial likelihood of succeeding in obtaining permanent injunctive relief'); Fed. Deposit Ins. Corp. v. Jackson-Shaw Partners No. 46, Ltd., No. CIV. 92-20556 SW, 1994 WL 695376, at *3 (N.D. Cal. Dec. 8, 1994) ("[T]he Court cannot conclude that FDIC is likely to succeed in obtaining a permanent injunction").
Here, Plaintiff misses the mark when it argues that it "is all-but-certain to succeed on its claim that Chemours's HFPO-DA exceedances are violations of its NPDES permit and the CWA." ECF No. 8 at 12. Under the merits analysis from cases like GMRI, Plaintiff must additionally show likelihood of success in securing desired relief, particularly the injunctive relief sought in its Complaint. See ECF No. 1 at 11 ("Relief Requested"). Permanent injunctive relief requires a showing of standing and irreparable harm. Courtland Co. v. Union Carbide Corp., Nos. 2: 19-cv00894, 2:21-cv-00487, 2024 WL 4339600, at *21 (S.D.W. Va. Sept. 27, 2024) (noting that a Clean Water Act claimant failed to make the necessary showing for injunctive relief where "the record [wa]s devoid of any evidence that it or the public will suffer irreparable harm"). Plaintiff, as noted above, fails to show standing and harm here, particularly in light of (1) water sampling data from the Lubeck system and from the Ohio River which show low annual levels of HFPO-DA which are protective of public health according to EPA's MCL and (2) the compliance process already established by EPA's AOC, which is well underway. See the irreparable-harm analysis above in Section II.B.; see also Jonathan R. v. Morrisey, No. 3:19-cv-00710, 2025 WL 655811, at *2 (S.D.W. Va. Feb. 28, 2025) (declining to "assume the responsibilities of those who were elected to lead").
CONCLUSION For the reasons stated above, Chemours respectfully requests that the Court deny Plaintiffs Motion for a Preliminary Injunction.
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The Chemours Company FC, LLC By: Spilman Thomas & Battle, PLLC Isl Cli(ford F. Kinney. Jr. David L. Yaussy (WV State Bar No. 4156) Clifford F. Kinney, Jr. (WV State Bar No. 6220) SPILMAN THOMAS & BATTLE, PLLC 300 Kanawha Boulevard, East Charleston, WV 25301 (304) 340-3800 (304) 340-3801 (facsimile) dyaussy@spilmanlaw.com ckinney@spilmanlaw.com James A. Walls (WV State Bar No. 5175) SPILMAN THOMAS & BATTLE, PLLC 48 Donley Street, Suite 800 Morgantown, WV 26501 (304) 291-7920 (304) 291-7979 (facsimile) jwalls@spilmanlaw.com
21
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
v.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant.
CERTIFICATE OF SERVICE I, Clifford F. Kinney, Jr., hereby certify that on March 11, 2025 I electronically filed the foregoing "Defendant's Response in Opposition to Plaintiff's Motion for a Preliminary Injunction" via the Court's CMIECF electronic filing system, which will send notification to all e-filing participants in this action.
Isl Clifford F. Kinney, Jr. Clifford F. Kinney, Jr. (WV State Bar No. 6220)
22 ED_018475O_00000671-00096
Declaration of James Hollingsworth in Support of Chemours' Response in Opposition
March 11, 2025
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Exhibit 1
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
v.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant.
DECLARATION OF JAMES HOLLINGSWORTH IN SUPPORT OF CHEMOURS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
I, James Hollingsworth, do hereby certify, and affirm, based on my personal knowledge unless otherwise stated, that the following facts and things are true and correct to the best of my knowledge:
1. I am a resident of Wood County, West Virginia. 2. I am over the age of 18, and I am competent to make this Declaration. 3. I make this Declaration in support of The Chemours Company FC LLC's ("Chemours") Response in Opposition to Plaintiffs Motion for a Preliminary Injunction. 4. I have Bachelors of Science degrees in both Chemistry and Chemical Engineering from West Virginia Institute of Technology. 5. I have been the Plant Manager at the Chemours Washington Works chemical manufacturing facility in Wood County, West Virginia since June of 2022. Before that, I was Operations Director at Washington Works. As the Plant Manager and Operations Director, I am familiar with all of the commercial and operational aspects of the Washington Works.
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6. Since 2015, Washington Works has been owned and operated by Chemours. 7. The West Virginia Department of Environmental Protection ("WVDEP") issued Chemours a National Pollutant Discharge Elimination System ("NPDES") permit in July 2018 for the company's Washington Works facility in Wood County, West Virginia. 8. The NPDES permit took effect in September 2018. 9. The NPDES permit imposed effluent concentration limits on various compounds discharged from Washington Works, including on perfluorooctanoic Acid ("PFOA") and hexafluoropropylene oxide dimer acid ("HFPO-DA"), both of which are per- and polyfluoroalkyl substances ("PFAS"). 10. HFPO-DA 1s used in Chemours' polymerization aid technology package (commonly known as GenX). HFPO-DA is one ofthe most studied PFAS and GenX was formally approved by EPA under the Toxic Substances Control Act in 2009 before being put into use. There is over a decade of scientific data about HFPO-DA that confirm its safety profile. Multiple studies demonstrate that it does not bioaccumulate and, if incidental exposure were to occur, it is rapidly eliminated from the body. 11. PFOA is not used in any process utilized by Chemours. PFOA was used at Washington Works when the plant was previously operated by E.L DuPont de Nemours & Company. Its use was terminated at Washington Works in 2013, as part of a voluntary stewardship program led by EPA to reduce or eliminate PFOA usage before Chemours became an independent company in 2015. 12. The NPDES permit issued by WVDEP in 2018 contained a compliance schedule, providing limits gradually becoming more stringent over time.
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13. In particular, the permit imposed an interim maximum daily HFPO-DA concentration limit on Outlet 002 of 32 micrograms per liter. On Outlet 005, the permit imposed an interim maximum daily HFPO-DA concentration limit of43 micrograms per liter. The interim limits applied from September 2018 to August 2021.
14. The pe1mit's final HFPO-DA concentration limits were set to take effect in September 2021. At each of Outlets 002 and 005, the reduced daily HFPO-DA concentration limits were 2.3 micrograms per liter.
15. In 2018, as soon as the permit was issued, Chemours promptly identified abatement projects to reduce PFOA and HFPO-DA in Washington Works's effluent, proposing treatment systems for Outlets 001, 002, 003, 005, and 006.
16. Within weeks of WVDEP issuing the 2018 permit, Chemours hired consultant AECOM to help identify abatement projects to meet the effluent limits.
17. By 2019, Chemours started designing abatement projects using AECOM's advice. 18. By 2020, Chemours undertook a formal progress review and determined, based on sampling results, to move forward with five PFAS abatement projects. 19. Chemours regularly provided status updates to WVDEP summarizing the abatement efforts at Washington Works. 20. By the end of 2020, Chemours estimated that it would achieve compliance with the upcoming final PFOA limits. 21. Less certain was compliance with the lower HFPO-DA limits. Both the COVID19 pandemic and wet weather events created obstacles, as explained below, that forced Chemours to seek a compliance-deadline extension.
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22. Chemours notified WVDEP in April and September 2021 that complying with the HFPO-DA limits set to take effect in September 2021 (later extended to January 1, 2022) would not be attainable, especially during wet weather.
23. One obstacle, the COVID-19 pandemic, caused unexpected delays beyond Chemours's control.
24. For instance, the pandemic delayed Calgon Carbon beds required for the proposed Dryer Belt Wash Water Treatment Project by two months. Delays also stalled delivery of valves for the same project by approximately five months.
25. Another obstacle, wet weather, caused-and continues to cause-increased amounts of HFPO-DA to discharge through Washington Works's Outlets, including outlets 002 and 005. This is due, in part, to air deposition of permitted HFPO-DA air emissions that partially settle back to the ground. Wet weather events like rainfall carry the settled HFPO-DA to Washington Works's Outlets, causing an increased amount ofHFPO-DA to discharge to the Ohio River.
26. In light of these obstacles, Chemours received a compliance-deadline extension. The interim limits were extended to December 31, 2022, and the new effective date of the lower HFPO-DA limits was January 1, 2022.
27. Chemours continued its abatement efforts in the interim time. 28. However, Chemours reiterated to regulators that it needed additional time beyond December 31, 2021 to implement HFPO-DA abatement systems to continuously comply with the stricter HFPO-DA limits. 29. Chemours informed WVDEP and the United States Environmental Protection Agency ("EPA") that it recognized and was addressing challenges from air deposition and wet
4
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weather. To this, Chemours installed tertiary air emissions abatement systems to further reduce air deposition of PFOA and HFPO-DA.
30. Without a compliance-deadline extension, Chemours forecasted that it would have exceedances of the HFPO-DA limits taking effect January 1, 2022, despite the company's best efforts to come into compliance.
31. As anticipated, discharges from Washington Works first exceeded the new HFPODA permit limits in early February 2022 after days of rain and snowmelt.
32. To address the exceedances, Chemours and EPA entered into an April 2023 Administrative Order on Consent ("AOC"), and Chemours and EPA are continuing to follow the AOC's terms to bring Washington Works into compliance with Chemours' NPDES permit. [ECF No. 7-18].
33. Specifically, the AOC required that Chemours submit to EPA an "Alternatives Analysis and Implementation Plan" within 120 days for the treatment ofHFPO Dimer Acid and PFOA to ensure that such discharges meet numeric effluent limits at each of Outlets 001, 002, 005, and 006." The analysis was to include among other things: "i. A characterization ofthe discharges at each Outlet, including the quality and quantity of process water and stormwater; ii. A discussion of available alternatives, including a cost analysis, to achieve compliance with the 2018 Permit ... at such Outlet. ... and iii. Selection of the recommended alternative, a justification and any supporting documentation, and implementation/construction schedule."
34. Pursuant to the AOC, Chemours submitted its plan to EPA in August 2023. EPA formally responded more than a year later on December 24, 2024, conditionally accepting in part and rejecting in part Chemours's proposed plan. Chemours submitted a revised plan taking into
5
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account EPA's comments in January 2025. Chemours sent a follow-up letter to EPA regarding the plan in March 2025. (Attachment A). The plan contains the following project proposals:
a. The Contact Wastewater Treatment System ("CWTS")-A, which consists of granular activated carbon vessels in series to treat process wastewater prior to discharge through Outlet 005;
b. The CWTS-B, a carbon bed-based treatment system as a polishing step for process wastewater from two sources before being discharged. The system consists of granular activated carbon vessels in series prior to discharge to the BioPond;
c. The Dryer Belt Wash Water System, which already contains a granular activated carbon filtration system but which will contain another carbon vessel to achieve desired removal efficiencies prior to discharge through Outlet 002;
d. The B-22 Treatment System, another carbon bed-based system to treat wastewater from the B-22 sump before discharging to the BioPond and ultimately to Outlet 005. Three granular activated carbon vessels in series treat the wastewater, followed by a fourth carbon vessel as a spare to treat wastewater while changeouts of the first three vessels occur; and
e. The PFA Line 2 and 3 Finishing System, a system that-like the B-22 Treatment System-contains three carbon vessels followed by a fourth spare vessel.
35. Chemours simultaneously continues on-the-ground abatement efforts. As part of its permitting discussions with the agencies, Chemours proposed the B-22 Sump Treatment Project in March 2024, a project that further reduces HFPO-DA concentrations in Outfall 005 discharges.
6
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After receiving WVDEP's approval for the B22 Sump Treatment Project in August 2024, Chemours began operating that treatment project in February 2025.
36. Chemours has also submitted to WVDEP a renewal application for its NPDES permit. Chemours submitted the renewal application in February 2023 and submitted a revised application in December 2024 to align the application with proposals in Chemours's Alternatives Analysis and Implementation Plan. The revised permit application contains proposals that, if approved, will bring Chemours into compliance with existing discharge limits (from the 2018 permit) as well as potential future discharge limits (from the expected renewed NPDES permit).
37. I understand that plaintiff West Virginia Rivers Coalition, Inc. ("Plaintiff') filed a Motion for a Preliminary Injunction in this case asking the Court to enter an Order that prohibits Chemours from violating its NPDES permit limits for HFPO-DA at Outlets 002 and 005 "by any means necessary, including (1) cutting back the production that generates process wastewater containing HFPO-DA, and/or (2) sending process wastewater off-site for disposal by deep-well injection or incineration."
38. The following Washington Works processing units generate process wastewater containing HFPO-DA that flow to Outlets 002 and 005 (the "Subject Operations"):
PFA Line I; FEP; PTFE Fine Powder; and PTFE Granular. 39. PFA refers to Perfluoroalkoxy, a specific type of moldable fluoropolymer. 40. At Washington Works, Chemours currently manufactures PFA from two PFA finishing lines. PFA Finishing Line 1 is regulated by the NPDES permit at issue (WV/NPDES Permit Number WV0001279), while PFA Finishing Line 2 is regulated by a separate permit (WV/NPDES Permit Number WV 0117986) and does not discharge through outlets 002 or 005.
7
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Nevertheless, the reactors that feed PFA Finishing Line 2 are permitted through WV/NPDES Permit Number WV0001279 and discharge through outlets 002 and 005. Therefore, if Chemours cannot operate the PFA reactors that discharge through outlets 002 and 005, it is likely that PFA Finishing Line 2 also could not run.
41. Washington Works is the only facility in the United States that produces PFA. 42. Products manufactured from PFA offer continuous operating temperatures up to 500F (260C) and provide superior chemical resistance at high temperatures, excellent lowtemperature toughness, and exceptional flame resistance. These attributes make PFA an ideal choice for component development such as tubing, valves, fittings, filters, wires, and cables in end-market applications that are rapidly advancing, including semiconductor manufacturing, aerospace, consumer electronics, automotive, oil and gas, chemical processing, and wireless communications. 43. PFA's chemical inertness and high purity is especially well suited for the semiconductor or chip fabrication processes. Due to its unique combination of properties, including resistance to chemical, thermal, and physical degradation, PFA can withstand the extreme conditions and exacting purity requirements of the semiconductor chip manufacturing process. This performance in harsh environments allows for incredibly long equipment service life, enabling chip manufacturers to maximize yields, increase fabrication reliability and uptime, and ensure the safe, high-volume manufacture of semiconductor chips. 44. All semiconductor fabrication facilities, commonly referred to as "fabs," require significant amounts of PFA. 45. PFA-based infrastructure and equipment is used throughout many semiconductormanufacturing processes, including in the manufacture, transport, and storage of high-purity
8
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chemicals; bulk chemical distribution; wet etching, stripping, and cleaning; chemical mechanical planarization/polishing; and wafer handling and transport. Semiconductor manufacturers and upstream equipment manufacturers use PFA in a variety of applications. Without the use of PFA, semiconductor manufacturers would be at risk of dangerous fluid and gas leaks as well as particle contamination that is detrimental to semiconductor production yields. There are currently no viable substitutions or alternatives for PFA, that can deliver the performance and quality needed for advanced semiconductor manufacturing. PFA is an absolute requirement to enable the ultra-clean environments necessary for semiconductor fabrication.
46. The PFA resins that are produced at Washington Works are a critical piece of the domestic semiconductor value chain. PFA-based components are used in numerous critical applications across the semiconductor ecosystem including in wafer fabrication equipment and fab chemical delivery systems, as well as in upstream high-purity chemical production, transportation, and storage. These fluid handling systems and wafer fabrication equipment are then installed in semiconductor fabs around the country and used to manufacture semiconductor chips.
47. FEP stands for fluorinated ethylene propylene. FEP is a fluoropolymer resin with excellent physical, chemical, and electrical properties used in applications where resistance to chemicals and elevated temperatures is essential or serviceability at extremely low temperatures is desired.
48. More than five kilotons of FEP were produced at Washington Works and sold in 2024.
49. Eighty percent (80%) of the Washington Works FEP sold in 2024 was sold in the United States in support of U.S. business.
9
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50. FEP is primarily sold into the communication cable industry for production oflocal area network cables which are the backbone of modem communication and data networks.
51. FEP has fire-resistant properties offering significant safety advantages in its ability to resist ignition and limit the spread of flames making it an ideal choice for data centers, healthcare facilities, and industrial sites. FEP is engineered to produce consistent insulation and jacketing that ensures cable producers are able to meet safety standards set by the National Fire Protection Agency.
52. The shutdown or substantial downsizing of Chemours' FEP operation at Washington Works would cause a shortage of FEP to the plenum wire and cable market and significant impact to the American economy.
53. There is only one other producer of FEP in the United States. Chemours believes that the available capacity of this additional FEP producer would not be able to offset the shortage of supply caused by a Chemours site shutdown or substantial downsizing. The only other country that has significant capacity of FEP readily available in the world is the People's Republic of China, therefore, a shutdown or slowdown at Washington Works would leave American businesses with no other choice but to tum to China for supply. Safety and reliability of Chinese produced FEP would have to be evaluated by American cable producers to ensure that it satisfies strict NFPA requirements.
54. Although communication cable is the primary application for FEP, other critical industries that rely on FEP due to its unique combination of properties include aerospace, automotive, electronics, medical and pharmaceutical, and chemical manufacturing and processing. Chemours believes that these industries would also be significantly impacted by a Chemours site shutdown or substantial downsizing, and American businesses would need to look
10
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to China for supply and experience disruption to their businesses as they work through qualification efforts to ensure safety, reliability, and performance of their end products can be maintained with an alternative supplier.
55. FEP produced at Washington Works is also sent to another Chemours facility, located in Mechelen, Belgium, where the FEP is used to make FEP Coatings. FEP Coatings are used on medical guidewires that enable minimally invasive surgeries by guiding other devices such as stents and tools to the proper location in the body for placement or a procedure. The FEP Coatings provide a lubricious, smooth, and biologically inert coating that enables the guidewire to move through the body while minimizing trauma to the surrounding tissue.
56. FEP Coatings are used in metered dose inhalers, which are medical devices that deliver a specific amount of aerosolized medication to a recipient's lungs. Devices using Chemours' FEP coatings include both maintenance and rescue inhalers for individuals afflicted with asthma or chronic obstructive pulmonary disease ("COPD").
57. Medical devices approved by the U.S. Food and Drug Administration ("FDA") are particularly vulnerable to supply chain disruptions because each device, including the various components that make up the device, must navigate a rigorous approval process. Should a material used in a component of a medical device become unavailable, the manufacturer of the medical device must identify and rigorously test potential replacement materials, document any changes in properties of those materials, and submit filings to FDA proving that the devices made from the replacement materials are "substantially equivalent" to the previously approved device. This medical device qualification process is costly and time-consuming.
58. Accordingly, removal or significant downsizing of FEP production from Washington Works, and the resulting downstream disruption to FEP Coatings, would likely create
11
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a shortage of metered dose inhalers, directly impacting individuals who rely on them -many on a daily basis. Likewise, a shutdown or slowdown of FEP production would impact the availability of coated guidewires for the prolonged time period needed for medical suppliers to find suitable alternatives and qualify the use of those alternative supplies into their devices. This in turn could cause patients to have critical procedures delayed.
59. FEP is also used to make films that are applied to the underside of pharmaceutical vial stoppers and pre-filled syringe plungers to create a barrier between the drug substance and the stopper material. Most typically, this material is used for complex pharmaceuticals with very sensitive chemistry. The FEP film is used to protect the drug substance from "leachables" present in the stopper material typically a butyl rubber. While other materials can and do serve this purpose, they do not provide a sufficient barrier at extreme temperatures, such as those that were required for the Covid-19 vaccine. Some drug chemistries may also be incompatible with other stopper materials. While it is unlikely that the removal of this material from the market would impact drug development, as other polymers, such as Chemours' ETFE would remain available, the removal of FEP films would create challenges for production of existing pharmaceuticals that have only qualified stoppers or plungers with FEP films.
60. If Washington Works is unable to produce FEP film in planned quantities, it is likely that some drugs would need to temporarily come off the market, or be in short supply, for a period of 6-12 months. Notably, this has the potential to impact vaccination prior to the 2025-2026 winter flu/covid season, depending on each vaccine manufacturers' prior packaging choices. Stoppers and plungers made from Chemours materials are preferred in the industry due to our filing of a "drug master file" (DMF) for some of the materials. DMFs are used provide confidential information to the FDA regarding the manufacturing practices for a material, helping the FDA
12
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ensure that materials are safe, without disclosing confidential information directly to the customer. DMFs, while not disclosing information to a customer, provide a level of confidence to the industry that their packaging materials are manufactured to adequate safety standards and with appropriate manufacturing standards.
61. TeflonTM Fluoropolymer Foam Resin (FFR) is a fluoropolymer resin that is made using both PFA and FEP. FFR reduces the dielectric constant of insulating cable, enabling lightning-fast data transmission with minimal distortion, and facilitate the manufacture oflighter, smaller wires and cables.
62. More than 500 tons ofFFR were produced at Washington Works and sold in 2024. 63. Thirty-six percent (36%) of FFR sold in 2024 was sold into the United States in support of U.S. businesses. 64. FFR is primarily sold into the electronics and communication cable markets for specialty cables with the most demanding performance requirements such as the requirements for high-speed data centers. 65. Chemours believes that it is the only producer of FFR resin that can meet the requirements of the industry with no competitive offering commercially available in the world. 66. Chemours estimates that the demand for data center cable will increase due to the A.I. boom. The shutdown or substantial downsizing of Chemours' Washington Works' FFR operation would impact the establishment of necessary high-speed data center infrastructure and delay the United States and the world's technological advancement as alternative materials of construction would need to be developed and qualified for use. 67. PTFE stands for polytetrafluoroethylene. Washington Works produces PTFE in both fine powder and granular forms.
13
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68. PTFE is the preferred fluoropolymer for many applications, including breathable hydrophobic membranes, hoses used in automotive and aerospace applications, and highperformance wires and cables. PTFE fine powder sales in the United States support the aerospace and aircraft industry (20%), consumer textiles (18%), medical and pharmaceutical industries (10%), and automotive (9%).
69. PTFE produced at Washington Works is a critical component of many medical devices, including guide catheters. Guide catheters are used to facilitate procedures inside the body, typically the circulatory system. The guide catheters form a tunnel from the outside of a patient's body to the inside, which allows access to areas such as the heart for the installation of devices such as pacemakers or the replacement of a valve. Without these devices, the only alternatives for many patients is traditional open heart surgery, which comes with many disadvantages including large incisions, prolonged recovery time, and increased infection risk. These drawbacks also place a significant burden on the healthcare system, increasing total costs and increasing the occupancy of hospital beds for recovery.
70. Approximately 2.5 kilotons of PTFE fine powder produced at Washington Works was sold in 2024. Over 80% of these PTFE sales were to U.S. customers.
71. There is only one other producer of PTFE fine powder in the United States. Chemours believes that the available capacity of the other domestic PTFE fine powder producer would not be able to offset the shortage of supply caused by a Chemours site shutdown or substantial downsizing. Other countries with potential capacity to replace the volume of PTFE fine powder produced at Washington Works include China, Japan, and India.
72. PTFE fine powder is also used as battery binder to produce battery electrodes through a "dry" coating process.
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73. Historically, battery electrodes have been made through a "wet" solvent-based process, which involves the use of hazardous solvents and significant energy consumption through the drying / solvent evaporation step. PTFE is the critical material enabling this newer "dry" process. The dry process has a significant positive impact on the environment through the elimination of the use of hazardous solvents (e.g. NMP) and on battery production costs through the reduced physical footprint needed per unit output of battery capacity. Accordingly, PTFE is crucial for US battery manufacturers to be competitive with manufacturers in Asia (predominantly the Peoples Republic of China).
74. All grades of PTFE do not perform the same when used in the "dry process." The performance highly depends on both the characteristics of the PTFE itself as well as the other battery cell components that are mixed with it to create the battery electrodes. Therefore, any effort to qualify and implement an alternate supply of PTFE is expected to be highly disruptive to the cell manufacturer - both in terms of technical difficulty and resources/time required to make adjustments to their process.
75. Stopping or substantial downsizing of the PTFE fine powder lines at Washington Works would likely result in immediate original equipment manufacturer ("OEM") shutdown of domestic battery production and would likely force US OEMs and battery manufacturers to increase their dependence on non-US supply chains (Asia/China).
76. PTFE granular increases processing flexibility for molding different products and shapes, such as rods, tubes, and sheets.
77. Approximately 1.4 kilotons of PTFE granular produced at Washington Works was sold in 2024. Approximately 60% of the PTFE granular produced at Washington Works is sold to U.S. customers.
15
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78. PTFE sales in the U.S. supp01t the chemical manufacturing industry (37%), semiconductor industry (24%), electrical components (7%) and the aerospace and aircraft industry (7%).
79. There is only one otherproducerofPTFE granular in the United States. Chemours believes that the available capacity of the other domestic PTFE granular producer would not be able to offset the shortage of supply caused by a Chemours site shutdown or substantial downsizing. Other countries with potential capacity to replace the volume of PTFE granular produced at Washington Works include China, Japan, and India.
80. I understand that Plaintiff has suggested that the Court should order Chemours to send its Washington Works' process wastewater that flows to Outlets 002 and 005 off-site for disposal by deep-well injection or incineration as Chemours does at its Fayetteville, North Carolina facility. Plaintiff correctly notes that on average approximately 4.6 million gallons of process water flow through outlets 002 and 005 daily. [ECF No. 8 at 7, citing ECF No. 7-13 at 4, table 3]. For several reasons, that is impossible.
81. First, the 4.6 million gallons of daily process water is generated at multiple points and comingles with a much larger volume of water - approximately 51.8 million gallons per day - from other sources such as non-contact cooling water and stormwater, before it discharges through outlets 002 and 005. Separating these streams of process water from the other flows - to the extent it is technologically feasible - would require extensive analysis, engineering, and construction/retrofitting of numerous areas of Washington Works.
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82. Second, the Washington Works site is not set up for tanker truck or rail transportation of large volumes of process wastewater, including the physical infrastructure that would be required to store this volume of water onsite while it awaits loading as well as the infrastructure to safely and efficiently move that stored water to numerous tanker trucks or rail cars.
83. Third, even if the Washington Works site was set up for truck or rail transportation of large volumes of process wastewater, there are not enough trucks or rail cars to do the job. To capture and dispose of approximately 4.6 million gallons of process water daily, Chemours estimates that it would need more than 884 trucks per day or 221 rail cars per day. Based on Chemours' experience in the industry, those trucks and railcars simply do not exist.
84. Fourth, even ifthe Washington Works site was set up for truck or rail transportation of large volumes of process wastewater and the trucks and/or rail were available, there simply are not enough hours in the day to do the job. Chemours' experience at its Fayetteville Works site shows that it takes approximately one hour to load a single truck, or four hours to load a single railcar. Accordingly, it is not possible to load the expected 4.6 million gallons of process wastewater that flows to Outlets 002 and 005 daily.
85. For the reasons set out in the Declaration ofAndrew Hartten, I understand that even if Chemours totally stops production at the Subject Operations, there will still likely be violations of Chemours' NPDES permit limits for HFPO-DA at Outlets 002 and 005 during precipitation events.
17
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employees will lose their jobs and approximately 148 contactors will be displaced. Those jobs account for more than $1 million per week in salaries, wages, and benefits, and approximately $160,000 per week in contract services spend.
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 11, 2025.
James W. Hollingsworth Plant Manager, Washington Works The Chemours Company
18 ED_018475O_00000671-00116
West Virginia Rivers Coalition's Reply Brief in Support of its Motion for a Preliminary Injunction
March 18, 2025
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
v.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant.
PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION FOR A PRELIMINARY INJUNCTION
DEREK TEANEY AMANDA DEMMERLE
APPALACHIAN MOUNTAIN ADVOCATES, INC.
P.O. Box 507 Lewisburg, WV 24901 Telephone: (304) 646-1182 Email: dteaney@appalmad.org
ademmerle@appalmad.org
JAMES M. HECKER
PUBLIC JUSTICE
1620 L Street NW, Suite 630 Washington, DC 20036 Telephone: (202) 797-8600 Email: jhecker@publicjustice.net
Counsel for Plaintiff
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TABLE OF CONTENTS INTRODUCTION ........................................................................................................1 ARGUMENT ................................................................................................................ 3
I. Plaintiff Has Standing ....................................................................................... 3 II. Plaintiff Is Entitled to a Preliminary Injunction ............................................... 6
A. Plaintiff Is Certain to Succeed on the Merits ............................................... 7 B. Irreparable Harm is Occurring and Will Continue to Occur ...................... 8
1. In CWA Citizen Suits, Irreparable Harm Can Be Harm to the Plaintiff or the Public ................................................................ 8
2. Irreparable Harm Already Exists and Does Not Depend on Finding a SOWA MCL Violation ....................................................10
C. The Balance of Harms Favors Clean Drinking Water Sources Over Corporate Profits .........................................................................................14
D. An Injunction Is in the Public Interest .......................................................17 III. No Bond Should Be Required ..........................................................................20 CONCLUSION............................................................................................................20
11
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INTRODUCTION Chemours admits that it "has had exceedances of its permit discharge limits for HFPO-DA." ECF No. 17 at 1 (hereinafter "Br.''). It admits that it will continue violating those limits until it upgrades its treatment system, which "is expected to bring the company into compliance with the 2018 permit." Br. at 8. The upgrade will take at least two years. Id. That "time period assumes nearterm [EPA] approval as some of the work is seasonal dependent." ECF No. 17-1 at 22. The actual compliance date is unknown and unenforceable, however, because as of March 4, 2025, Chemours has "had no response from EPA on the [compliance] Plan." Id. Meanwhile, the media reports the Trump Administration has indefinitely frozen all ofEPA's enforcement litigation.1 Thus, Chemours's compliance plan is vaporware.2 In the face of this noncompliance and inaction, Chemours argues that it has no obligation to do anything to improve its interim compliance, such as reducing production. Chemours admits that the amount of HFPO-DA that it discharges is scaled to its production rate: "it would be reasonable to expect lower production to reduce the overall mass of discharges.'' Br. at 19 n.3. But Chemours rejects any production decrease on the ground that it is too big and its products are too important to change its business in any way. Id. at 16-18. That argument flies in the face of Chemours's NPDES permit, which expressly states that "[i]t shall not be a defense for [Chemours] in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit." ECF No. 7-6 at 97. Chemours wrongly believes that its permit is a paper tiger and this condition is superfluous.
1 Reuters, Trump administration halts environmental litigation, sidelines lawyers, sources say Gan. 24, 2024), available at ht1J'.!l;;/Lw~w.aotcom/ncws/trump-administr~tion-halts-environmcnt~: litigation-211750389.html. 2 In the computer context, "vaporware" is a touted product that "has not and may never become available." Vaporware, Merriam-Webster, ~www.merriam--webster.comLdictionary/vaporwarc.
1
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To justify its noncompliance, Chemours argues that its illegal discharges are harmless: "no harm is occurring," Br. at 9; Plaintiff's member "suffers no injury," id. at 10; and drinking water complies with the maximum contaminant level ("MCL") under the Safe Drinking Water Act ("SOWA"), id. at 13. Chemours reaches those conclusions only by misinterpreting the 10 parts per trillion ("ppt") threshold (see generally Declaration of Jennifer Schlezinger, Ph.D., attached as Plaintiff's Reply Exhibit 1) and improperly reframing Plaintiff's action as an SOWA enforcement action. But this is a citizen suit under the Clean Water Act ("CWA''), and cognizable harm must be measured by that statute's purpose and structure. When it issued the permit, the West Virginia Department of Environmental Protection (''WVDEP") concluded that the HFPO-DA limits in Chemours's CWA permit were necessary "to be protective of the State's narrative water quality criteria for human health and the designated uses of the Ohio River." ECF No. 7-9 at 16. The Supreme Court recently observed that water quality-based effluent limitations-like Chemours's HFPO-DA limitations-are "set without regard to cost or technology availability'' and "permit only those discharges that may be made without unduly impairing water quality." City & County of San Francisco v. EPA, 145 S.Ct. 704, 712 (2025) (internal quotation marks omitted). Those limitations are designed to ensure that water quality standards are actually achieved. Id. at 715. As a result, any violation of Chemours's HFPO-DA limits necessarily threatens human health and harms the river's designated use and the environment. Chemours is also barred from collaterally attacking its permit limits and conditions in this enforcement action.
Because Chemours is unwilling to achieve compliance on a meaningful timeframe, this Court should enjoin Chemours from violating its permit limits for HFPO-DA at Outlets 002 and 005 by any means necessary.
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I. Plaintiff Has Standing
ARGUMENT
In evaluating a plaintiff's evidence of standing at the preliminary injunction stage, "the court
must take such evidence as true and draw all reasonable inferences therefrom in a light most favorable
to the plaintiff." Courtland Co., Inc. v. Union Carbide Corp., No. 2:21-CV-00101, 2021 WL 1255416,
at *10 (S.D. W. Va. Apr. 5, 2021) (citations omitted). Plaintiff's evidence is that its member, Charlise
Robinson, has been injured by her exposure to HFPO-DA in the household water she obtains from
the Lubeck Public Service District and that she is reasonably concerned about that exposure. ECF
No. 7-20 ,r,r 7-22. Chemours admits that HFPO-DA from its plant is present in the Ohio River and
in Lubeck's water. Br. at 11, 13. But Chemours argues that Plaintiff cannot satisfy the injury and
redressability requirements for standing because Lubeck does not draw its drinking water from the
Ohio River and Lubeck's treated water complies with the annual average standard of the SDWA MCL
for HFPO-DA.3 Id. at 9-10. The first argument is factually incorrect and the second is legally
irrelevant.
Chemours claims that Lubeck "gets its water from the groundwater, not directly from the
Ohio River." Br. at 9. Not so. Chemours's litigation position is contradicted by Chemours's own
permit application, which stated that "[a] USGS study reports that about 39% of the volume pumped
by Lubeck is derived from induced infiltration from the Ohio River." ECF No. 7-14 at 7-8 & n.5.
The USGS study cited by Chemours specifically found that:
Part of the flow to the Lubeck well field also is derived directly from the Ohio River, which could be a source of contaminants.... Of approximately 665,000 gal of water pumped daily from the Lubeck well field, about 261,600 gal (39 percent) is derived
3 At bottom, Chemours's argument appears to be that, because it has already been required to install and maintain treatment systems to protect public health at downstream water systems, its NPDES permit violations are unenforceable.
3
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from induced infiltration from the Ohio River and about 403,400 gal (61 percent) is derived from the capture of ground water in the alluvium.4 Chemours had to certify under penalty of perjury that this information in its permit application is true, accurate, and complete. W. Va. Code St. R. 47-10-4.6.d. It is therefore bound by that statement in its application. As to the second argument, Chemours cites no case holding that standing to sue under the CWA requires the violation of a public health standard in addition to a violation of a CWA permit limit, and there is none. The rule in this Circuit is that when "discharge restrictions are set at the level necessary to protect the designated uses of the receiving waterways, their violation necessarily means that these uses may be harmed." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 157 (4th Cir. 2000). WVDEP set Chemours's HFPO-DA permit limits "at the level necessary to be protective of the State's narrative water quality criteria for public health and the designated uses of the Ohio River." ECF No. 7-9 at 16. Consequently, violations of those limits necessarily cause potential harm to the health of individuals who are exposed to the contaminated water, such as Ms. Robinson, regardless of whether Chemours has also violated the MCL under the SOWA. Ms. Robinson's injury is also based on the fact-a fact that Chemours concedes (Br. at 11 n.2)-that Lubeck's PFAS treatment system is imperfect. It can and does fail. During its last recognized failure, HFPO-DA-contaminated drinking water was distributed to Lubeck's customers,
with concentrations reaching at least 33 ppt, far above the MCL. ECF No. 17-7 il 25; see also Pl.'s
Reply Ex. 1 ,-i 17 (Dr. Schlezinger Deel.). Ms. Robinson was notified about those failures, and they adversely affected her quality of life. ECF No. 7-20 ,-i 20. That alone is a sufficient Article III injury.
4 USGS, Geohydrology and Simulation of Ground-Water Flow in Ohio River Alluvial Aquifers near Point Pleasant, Lubeck, Parkersburg, Vienna, Moundsville, and Glendale, West Virginia: Scientific Investigations Report 2004-5088 at 24 (2004) (attached as Pl.'s Reply Ex. 2).
4
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In any event, Plaintiff's rebuttal expert on the toxicological effects from PFAS exposure, Dr.Jennifer Schlezinger, has also determined that the levels of HFPO-DA found in Lubeck drinking water from
2023 and 2024 were enough to increase risks to human health. Pl.'s Reply Ex. 1 ,r,r 11, 17, 20-24 (Dr.
Schlezinger Deel.). Moreover, Chemours's redressability argument is implicitly an attack on its HFPO-DA permit
limits because it is claiming that there is no actionable CWA violation unless the exceedance also causes a violation of the MCL for HFPO-DA under the SDWA. In effect, Chemours is claiming that its permit limit is the CWA limit plus the SDWA limit. But courts "will not consider collateral attacks on the validity of permit conditions in the course of an enforcement action or citizen suit, whether those attacks arise offensively or defensively." Puget Soundkeeper All. v. Port of Tacoma, 104 F.4th 95, 105 (9th Cir. 2024); see also OVEC v. Pola Coal Co., LLC, No. 2:12-cv-3750, 2013 WL 6709957, at *13 (S.D. W. Va. Dec. 19, 2013). Furthermore, accepting Chemours's argument would impermissibly "raise the standing hurdle higher than the necessary showing for success on the merits." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
In any event, Plaintiff does not need to show any actual harm to the health of its member or the public to demonstrate standing. An increased risk of harm is sufficient. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir. 2000). "Redressability merely requires a plaintiff show that a favorable decision will lessen or reduce the pollution released into a body of water." OVEC v. Hobet Min., LLC, 702 F. Supp. 2d 644, 651-52 (S.D. W. Va. 2010). "The prevention of an even trifling violation which is sufficient to establish injury and traceability is likely to satisfy redressability." Id.
Nor must Plaintiff show that the requested relief would fix the entire problem. Courts have recognized that "complete redressability'' is not required, and that a plaintiff need only show that a favorable decision would alleviate its injury "to some extent." S. Envtl. Law Ctr. v. Bernhardt, 432
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F. Supp. 3d 626,634 (W.D. Va. 2020) (citing Consumer Data Indus. Ass'n v. King, 678 F.3d 898,902 (10th Cir. 2012), which in turn cites Massachusetts v. EPA, 549 U.S. 497,526 (2007)); see also Hobet Min., 702 F. Supp. 2d at 652 n.3 (discussing the doctrine of incremental redressability); Citizens for a Better Env't v. Caterpillar, 30 F. Supp. 2d 1053, 1071-72 (C.D. Ill. 1998) (finding redressability because plaintiff's citizen suit would "begin to redress" the river's environmental problems). "[f]he ability 'to effectuate a partial remedy' satisfies the redressability requirement." Uzuegbunam v. Preczewski, 592 U.S. 279, 291 (2021). Redressability is established when a favorable decision "would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered." Utah v. Evans, 536 U.S. 452, 464 (2002). Consequently, if Chemours were required to reduce its HFPO-DA discharges by any amount, such as by reducing its production rate or sending some process wastewater offsite for disposal, Plaintiff's risk of exposure to HFPO-DA would be lessened and its injuries would be redressed. II. Plaintiff Is Entitled to a Preliminary Injunction
Plaintiff is seeking a preliminary injunction to enforce a water-quality based effluent limitation in Chemours's NPDES permit under the CWA, "whose purpose it is to protect the waters of Appalachia and nation and their healthfulness, wildlife, and natural beauty." S. Appalachian Mtn. Stewards v. A & G Coal. Corp., 758 F.3d 560,569 (4th Cir. 2014). The NPDES permitting program is the "centerpiece of the CWA." Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 990 (D.C. Cir. 1997). The HFPO-DA limits in that permit are based on West Virginia narrative water quality standards. ECF No. 7-9 at 16. Section "301(b)(1)(C) [of the CWA] expressly identifies the achievement of state water quality standards as one of the Act's central objectives." Arkansas v. Oklahoma, 503 U.S. 91, 106 (1992). The Supreme Court has stated that the CWA "permits the district court to order that relief it considers necessary to secure prompt compliance with the Act. That relief can include, but is not limited to, an order ofimmediate cessation." Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982).
6
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A. Plaintiff Is Certain to Succeed on the Merits Chemours admits that it "has had exceedances of its permit discharge limits for HFPO-DA." Br. at 1. It also admits that those exceedances will continue until it upgrades its treatment plant, which will take years. Id. at 8. It offers no argument why those past and continuing exceedances are not violations of its permit and the CWA. Id. at 20. Instead, it tries to obfuscate the first preliminary injunction factor by combining it with the other factors. Id. at 19-20. That is incorrect. In this Circuit, "courts considering whether to impose preliminary injunctions must separately consider each Winter factor." Pashbyv. Delia, 709 F.3d 307,321 (4th Cir. 2013). In the case on which Chemours primarily relies, this Court analyzed them separately. GMRI, Inc. v. Garrett, No. 3:14-cv0866, 2014 WL 1351126, at *2 (S.D. W. Va. Apr. 4, 2014) ("The Court finds that all four of the requirements for preliminary injunctive relief are met in this case and that, therefore, preliminary injunctive relief is warranted."). Indeed, in GMRI, this Court's evaluation of the movant's likelihood of success examined only the elements of liability for the claim. Chemours's attempt to conflate the factors is therefore wrong as a matter of law, and Plaintiffs likelihood of success on the merits is uncontested. 5
5 Chemours also suggests that Plaintiff is not likely to succeed on the merits because of "the compliance process already established by EPA's [Administrative Order on Consent]." Br. at 20. But that administrative action is irrelevant to the merits because it does not meet the requirements for preclusion under 1319(g)(6) of the CWA because it did not impose any penalties. See United States v. Smithfield Foods, Inc., 191 F.3d 516,526 (4th Cir. 1999); Sierra Club v. Powellton Coal Co., LLC, 662 F. Supp. 2d 514, 523-31 (S.D. W. Va. 2009); Save Our Bays & Beaches v. City & County of Honolulu, 904 F. Supp. 1098, 1128-29 (D. Haw. 1994). Congress expressly contemplated citizen enforcement of the CWA in such circumstances. OVEC v. Hobet Min., LLC, 723 F. Supp. 2d 886, 920 (S.D. W. Va. 2010).
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B. Irreparable Harm is Occurring and Will Continue to Occur 1. In CWA Citizen Suits, Irreparable Harm Can Be Harm to the Plaintiff or the Public
Chemours argues that the only measure of irreparable harm is harm to the plaintiff, not harm to the environment and the public. Br. at 12. The only decision that Chemours cites to support that contention is Courtland Co. v. Union Carbide Corp, No. 2:21-cv-00101, 2021 WL 1255416, at *2425 (S.D. W. Va. Apr. 5, 2021). But Judge Copenhaver's statement about irreparable harm in that decision was dicta because he denied injunctive relief on other grounds-lack of standing and a defective pre-suit notice. Id. at *9-24. In a later ruling in a related case involving the same parties, he stated-twice-that a party can obtain an injunction in an environmental citizen suit where it shows that "it or the public has suffered an irreparable injury." Courtland Co. v. Union Carbide Corp., No. 2:19-cv-00894, 2024 WL 4339600, at *5-6 (S.D. W. Va. Sept. 27, 2024) (emphasis added). That view is consistent with how the Fourth Circuit has defined and applied the irreparable harm factor. See Hazardous Waste Treatment Council v. State of S.C., 945 F.2d 781, 788 (4th Cir. 1991) (evaluating whether "the absence of a new facility to handle waste, including out-of-state waste, would create irreparable harm, not only to HWTC but to the public, because of the possible creation of additional untreated waste"); see also E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 829 (4th Cir. 2004) (finding irreparable harm sufficient to support preliminary injunction based on, inter alia, "negative impacts" on natural gas consumers and hindrances to economic development in the absence of an injunction).
Moreover, it is consistent with longstanding Supreme Court precedent. In Sierra Club v. Morton, the Supreme Court held that, although injury to a litigant is necessary to establish standing, "once review is properly invoked, that person may argue the public interest in support of his claim." 405 U.S. 727, 737 (1972); see also id. at 740 n.15 ('The test of [private] injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert
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the interests of the general public in support of his claims for equitable relief."). And in Warth v. Seldin, the Supreme Court held that, so long as a litigant establishes injury to itself, it may invoke the general public interest where "Congress has granted a right of action." 42 U.S. 490, 501 (1975). Congress granted such a right of action in the Clean Water Act. Pub. Int. Rsch. Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.3d 64, 73 (3d Cir. 1990); see also Challenge v. Moniz, 218 F. Supp. 3d 1171, 1179-80 (E.D. Wash. 2016) (RCRA citizen suit). Plaintiff can therefore invoke harm to the public and the environment in support of its claim of irreparable harm.
Significantly, in this case, the harm to the public and the environment extends hundreds of miles downstream and affects millions of people who draw their drinking water from the Ohio River. See Pl.'s Reply Ex. 3 ,r,r 20-25 (Dr. Hoagland Deel.) (opining that the nature of HFPO-DA and the 2021 ORSANCO study cited by Chemours establishes that HFPO-DA from Chemours's discharges can travel downstream at least as far as Louisville, Kentucky). It is extraordinary that the protectors of the public drinking water systems in Cincinnati and Louisville have been so concerned with Chemours's HFPO-DA discharges that they submitted declarations supporting Plaintiff's motion. ECF Nos. 7-2 & 7-12. Those systems serve nearly two million people. Id. And Chemours's violations have only gotten worse in recent months. Pl.'s Reply Ex. 3 ,r 23 (Dr. Hoagland Deel.).
Chemours does not dispute that its permit limits for HFPO-DA are based on West Virginia water quality standards. Rather, Chemours argues that neither Plaintiff's member nor the public can suffer any irreparable harm unless the amount of HFPO-DA in drinking water exceeds the SDWA MCL of 10 ppt on an annual average. However, the courts have consistently held that violations of water quality-based effluent limitations-like Chemours's HFPO-DA limits-constitute irreparable injury to the environment and the public in CWA citizen suits. OVEC v. Pola Coal Co., LLC, No. 2:13-cv-21588, 2016 WL 3190255, at *10 (S.D. W. Va. June 7, 2016) (violations of narrative waterquality based limit prohibiting biological impairment of streams); Hobet Min., 723 F. Supp. 2d at 924
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(violations of numerical water quality-based limits for selenium); OVEC v. Apogee Coal Co., LLC, 555 F. Supp. 2d 640,648 (S.D. W. Va. 2008) (same); Pub. Int. Rsch. Grp. ofN.J., Inc. v. Rice, 774 F. Supp. 317, 328-29 (D.N.J. 1991) (violations of numerical water quality-based limits for nutrients, chlorine and dissolved oxygen); see also Sierra Club v. U.S. Army Corps of Eng'rs, 645 F.3d 978, 995 (8th Cir. 2011) (recognizing that "irreparable harm to the environment necessarily means harm" to an environmental organization's interests). As a result, harm to the Ohio River's designated use as a drinking water source constitutes irreparable harm to the West Virginia Rivers Coalition and the public. OVEC v. Apogee Coal Co., LLC, 555 F. Supp. 2d 640, 648 (S.D. W. Va. 2008) (holding violations of permit limits cause irreparable harm to environmental plaintiffs whose members use the receiving waters).
Chemours ignores the most on-point decision: Idaho Conservation League v. Atlanta Gold Corp., 879 F. Supp. 2d 1148, 1159 (D. Idaho 2012). In that case, the defendant mining company exceeded its water quality-based permit limits for arsenic. Id. at 1156, 1158-59. The court found irreparable harm even though "there is no evidence that the untreated waters of Montezuma Creek or the Middle Fork of the Boise River serve as a source of drinking water for Atlanta, Idaho or any other downstream community, and therefore no evidence that AGC's discharges are currently causing or contributing to a serious public health problem." Id. at 1159-60. The court concluded that "this makes no difference with respect to the Court's analysis on injunctive relief. Harm to the environment exists, even if municipal suppliers eventually remove the toxins from the water before it enters household taps." Id. at 1160.
2. Irreparable Harm Already Exists and Does Not Depend on Finding a SOWA MCL Violation
Chemours does not dispute that HFPO-DA is a toxic, forever chemical. Rather, Chemours insists that, because people may not yet be drinking water with an annual average HFPO-DA
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concentration in excess of the SDWA MCL for that toxin, Plaintiff cannot show irreparable harm. That is wrong both factually and legally, and Chemours is trying to impermissibly impose in this CWA citizen suit a threshold more suited to a toxic torts case, where a plaintiff must show actual exposure to a harmful substance at unsafe levels.
Factually, Chemours admits that the Lubeck treatment system failed in March 2024, which directly affected Plaintiff's member. Br. at 11 n.2. Further, as seen in Lubeck's data, Lubeck customers were exposed to drinking water that exceeded the MCL during three separate "significant and
sustained contamination events" over the past two years. Pl.'s Reply Ex. 1 ,r 17 (Dr. Schlezinger Deel.).
According to Dr. Schlezinger, those exposures increase health risks to Lubeck water users, including Ms. Robinson, particularly because those users may already have a high body burden of PFAS (due to past contamination from the same Washington Works facility), and combined interactions of different PFAS compounds "produce combined toxicity that is greater than the toxicity of each individual
PFAS." Id. ,r,r 17, 20-23.
As a legal matter, a violation of a Clean Water Act water quality-based effluent limitation causes irreparable harm regardless of whether there are also violations of an SDWA standard. As the Fourth Circuit has explained, the CWA reasonably imposes more stringent limits than those under the SDWA because "the regulated pollutants [under the CWA] could harm waterways and aquatic life, and could introduce chemicals which hamper treatment facilities' ability to treat wastewater, even at levels where they might not directly harm humans." United States v. Hartsell, 127 F.3d 343, 351-52 (4th Cir. 1997). "It is not necessary for Plaintiffs to establish that an immediate and catastrophic threat to public health exists before a federal Court can step in and order a defendant to stop its illegal discharges." Atlanta Gold Corp., 879 F. Supp. 2d at 1160. In other words, preliminary injunctions need not be last minute remedies. Mountain Valley Pipeline v. 6.56 Acres of Land, 915 F.3d 197,217 (4th Cir. 2019).
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Furthermore, although Chemours contends (Br. at 13) that HFPO-DA concentrations in the Ohio River are low, the data paint a more alarming picture. For instance, in September 2022, Chemours measured HFPO-DA at concentrations of 14 to 15 ppt along the east bank of the Ohio just upstream of the Lubeck Public Service District drinking water facility. ECF No. 7-26; Pl.'s Reply
Ex. 3 ,r,r 32 (Dr. Hoagland Deel.). Chemours's toxicologist ignored those data, instead using lower
values obtained from sampling the middle of the river channel to calculate her annual average. Pl.'s
Reply Ex. 3 ,r,r 31. Chemours's annual average ignores the "cross sectional variability in HFPO-DA
concentrations" at its downstream sampling location, which results from incomplete mixing across the channel. Id.
Chemours's declarant Mr. Hartten points to ORSANCO's monitoring of HFPO-DA in the Ohio River downstream of Washington Works in 2021, in an effort to imply that there is no connection between downstream HFPO-DA concentrations and Chemours's discharges. ECF No.
17-8 ,r,r 20-22. That is wrong. Dr. Hoagland explains that the values Mr. Hartten cites are attributable
to differences in river flow rates on the various sampling dates and to the fact that Chemours's HFPODA discharges precipitously dropped before ORSANCO's second sampling round. Pl.'s Reply Ex. 3
,r,r 19 & 22. Chemours's role in HFPO-DA concentrations downstream of its plant is further
corroborated by the fact that, during ORSANCO's 2021 sampling campaign, it detected no HFPO-
DA in the Ohio River upstream from the Washington Works facility. Id. ,r,r 12-13.
On brief, Chemours questions whether concentrations of HFPO-DA are "concentrating" at long distances from Washington Works. Br. at 14--15. But, as Dr. Hoagland explains, "HFPO-DA concentrations in the Ohio River are a function of both the concentrations of HFPO-DA from sources discharging to the Ohio River, as well as the streamflow of the Ohio River at the time of
sampling." Pl.'s Reply Ex. 3 ,r 19. Dr. Hoagland concludes that the HFPO-DA levels found in the
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Ohio River at Louisville, Kentucky, by ORSANCO are, at least in part, attributable to Chemours's discharges. Id. ,r,r 24--25.
Chemours next touts its "work" with regulators to reduce HFPO-DA, including the new B22 Sump treatment, as evidence that irreparable harm is not occurring. But EPA's administrative action has been pending for just shy of two years with no results, ECF No. 7-18, EPA recently rejected key components of Chemours's proposed plan under the administrative action, ECF No. 7-19, Chemours has not heard from the EPA since that rejection, Br. at 8, and, by its own admission, Chemours's compliance with its 2018 permit limits is, at best, two years away, id. at 3. Furthermore, Chemours admits that its new B22 treatment system will not result in permit compliance. See ECF No. 7-16 at
31.
Finally, Chemours asserts that Plaintiff's delay in seeking a preliminary injunction undermines Plaintiff's claims of irreparable harm. Br. at 14. Not so. "[A] plaintiff need not challenge an illegal act immediately after it happens; it may wait until it can estimate whether the act threatens it with irreparable harm." Steves & Sons, Inc. v.JELD-WEN. Inc., 988 F.3d 690, 718 (4th Cir. 2021) (internal quotation omitted). Furthermore, "delay may be excused where the party seeking a preliminary injunction delays only in the reasonable belief that negotiations may resolve the dispute." Lanin v. Borough of Tenafly, 515 F. App'x 114, 118 (3d Cir. 2013) (unpublished opinion). Plaintiff acted reasonably in waiting to pursue injunctive relief until the circumstances established that (1) Chemours's negotiations in 2023 through 2024 with federal and state enforcers would not diligently put an end to Chemours's unlawful discharges, (2) Chemours told WVDEP in December 2024 that it wanted a three-year compliance schedule, and (3) Cincinnati. and Louisville officials informed Plaintiff in January 2025 that recent spikes in HFPO-DA discharges from Chemours's facility were showing up in the domestic water source for millions of people hundreds of miles downstream. The ongoing environmental harm from Chemours's permit violations for a forever chemical is still irreparable,
13
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regardless of any delay. PennEnvironment v. PPG Indus., Inc., No. 12-cv-342, 2014 WL 6982461, at
*15 (W.D. Pa. Dec. 10, 2014) ("[H]arm to the environment has been classified as irreparable. That
harm did not become reparable (or 'less immediate') because of Plaintiffs' delay in filing for a
preliminary injunction, whatever the reason."). Further, "given the ample potential justifications for
[Plaintiff's] delay," the irreparable environmental harm from Chemours's toxic discharges should
"override any concern about delay." Ctr. for Individual Freedom, Inc. v. Ireland, 613 F. Supp. 2d
777, 806-07 (S.D. W. Va. 2009).
*
*
*
At bottom, Chemours is arguing that this Court cannot enjoin its unlawful HFPO-DA
discharges unless and until enough HFPO-DA breaks through the water treatment systems it had to
install the last time it polluted the Ohio River to send drinking water concentrations above 10 ppt on
an annual average. But the law does not so constrain this Court's equitable powers. Weinberger, 456
U.S. at 320. And health risks are presently increasing for water consumers downstream. Pl.'s Reply
Ex. 1 ,r,r 11, 17, 20-24 (Dr. Schlezinger Deel.). The irreparable harm to drinking water sources that
Chemours is causing must stop.
C. The Balance of Harms Favors Clean Drinking Water Sources Over Corporate Profits
The harm to Plaintiff, the public, and the environment from Chemours's continuing permit
violations is contamination of the Ohio River with excessive amounts of a toxic "forever chemical."
The only harm that Chemours seeks to balance in its favor is its claimed economic harm from not
being able to continue using and discharging that chemical. Br. at 18-19. In balancing the equities,
financial harms are less important because "[m]oney can be earned, lost, and earned again." OVEC v.
U.S. Army Corps of Eng'rs, 528 F. Supp. 2d 625, 632 (S.D. W. Va. 2007). Regardless, Chemours's
harm is self-inflicted, because in 2013 Chemours chose to use HFPO-DA as a substitute for the even
14
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more toxic PFOA that it had used previously. Br. at 5. Chemours then failed to take all necessary actions to comply with its permit limits for that chemical by WVDEP's January 1, 2022 deadline. Id.
The Fourth Circuit has recognized that "self-inflicted harm may be discounted or ignored altogether in the preliminary-injunction analysis." Mountain Valley Pipeline, 915 F.3d at 219. That rule is based on the principle that "a party may not claim equity in his own defaults." Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970). Chemours's economic harm is not cognizable because it is the result of its own chemical selection and failed chemical treatment. Thus, the economic impacts that Chemours points to are ones it should have already faced had it taken its permit limits for HFPO-DA seriously; instead, it fumbled the ball and externalized its problems onto the Ohio River and the public at large. Chemours cannot now insist that the monetary cost of reducing its current discharges justifies permitting it to discharge a recognized toxic chemical into the drinking water supply for millions of Americans. Chemours, "having made its bed, it must now lie in it." Project Control Servs., Inc. v. Westinghouse Savannah River Co.~ 35 F. App'x 359,366 (4th Cir. 2002) (unpublished opinion).
Chemours's arguments based on its claimed economic losses are also irrelevant because its permit clearly bars consideration of its costs of reduced production. ECF No. 7-6 at 97. If it is no defense that Chemours would have to reduce production to achieve compliance, it is also no defense that Chemours would have to incur costs and cut output to achieve compliance. Reducing production necessarily involves incurring costs and cutting output. By categorically refusing to do so, Chemours is either violating this permit condition or collaterally attacking it. Chemours is strictly liable for permit violations. Stoddard v. Western Carolina Regional Sewer Auth., 784 F.2d 1200, 1208 (4th Cir.1986) ("Liability under the Clean Water Act is a form of strict liability."). Collateral attacks on an NPDES
15
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permit in an enforcement action are prohibited. Puget Soundkeeper, 104 F.4th at 105. By failing to challenge its 2018 permit in state court, it "forever lost its right to do so." Id. at 106.6
Chemours argues that Courtland supports its position. Br. at 18. It does not. In that case, Judge Copenhaver denied a TRO and held that the balance of equities favored the defendant. The court reasoned that the harm to the plaintiff from the incremental addition of unpermitted discharges during the 14-day TRO period was outweighed by the cost to the defendant ofimmediately eliminating and remediating those discharges. Courtland, 2021 WL 1255416, at *27. Judge Copenhaver "agree[d] with the plaintiff that a Clean Water Act violator should not escape the costs - even high costs - of its violation," but viewed a TRO as a "blunt instrument" to achieve that goal in a very short time frame. Id.
Plaintiffis seeking a preliminary injunction, not a TRO, and is not seeking to require Chemours to comply within 14 days. Llke the defendant in Courtland, Chemours should not escape the costs of CWA compliance. Plaintiff is asking the Court to require Chemours to take interim steps to improve compliance with its permit limit within a reasonable time and well before the end of its proposed three-year compliance schedule. When the Court balances the harms, the equities tip strongly in favor of that approach.
6 Even assuming arguendo that production costs could be considered, Chemours has not shown that any reduction in production (even a small amount) is infeasible. Not all of Chemours' end users are in critically important industries. Some of the products made with HFPO-DA are used for ordinary products. For example, products manufactured from PFA are used in "consumer electronics,
automotive, oil and gas, chemical processing, and wireless applications." ECF No. 17-1 at 8 ,r 42. At
a minimum, the Court should require Chemours to establish the percentage of end uses that are not critical and reduce its production by an amount proportional to those uses. "'The essence of equity jurisdiction has been the power of the Chancellor . . . to mould each decree to the necessities of the particular case."' SAS Inst., Inc. v. World Programming Ltd., 952 F.3d 513, 527 (4th Cir. 2020) (quoting Hecht Co. v. Bowles, 321 U.S. 321,329 (1944)).
16
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D. An Injunction Is in the Public Interest As this Court has noted, protecting water quality is "a critical public interest that profoundly outweighs a company's bottom line." OVEC v. Pola Coal Co., No. 2:13-cv-21588, 2016 WL 3190255, at *11 (S.D. W. Va. June 7, 2016). Chemours argues the opposite-that the public interest requires it to continue its illegal discharges of HFPO-DA without any interim controls. Br. at 15-18. That argument defies logic and is unsupported by case law. Plaintiff raised two possible methods of making interim reductions in those dischargesreduced production or offsite disposal. Chemours does not deny that reducing production would improve its permit compliance7 and admits that it is "reasonable to expect lower production to reduce the overall mass of discharges." Br. at 19 & n.3. Chemours argues that such reductions are impracticable because they would impose high social costs in the form of reduced jobs and reduced supplies of critically important products. Id. at 16-17. But Congress has already weighed the public interests in jobs and domestic manufacturing against the public interest in clean water and found that the former yields to the latter. As the Supreme Court has observed, "Congress foresaw and accepted the economic hardship, including the closing of some plants, that effluent limitations [under the Clean Water Act] would cause." EPA v. Nat'l Crushed Stone Ass'n, 449 U.S. 64, 79 (1980). Moreover, that Congressional determination is embedded in Chemours's permit: "it shall not be a defense for [Chemours] in an enforcement action that it would
7 Chemours claims that its HFPO-DA violations are tied to wet weather events. Br. at 1, 3, 6, 19 n.3.
But the correlation it describes is "weak." Pl.'s Reply Ex. 3 ,r 28 (Dr. Hoagland Deel.) A review of
Chemours's own charts shows that there were HFPO-DA violations on January 3, 2025, when there was no rainfall, and on multiple other occasions when there was minimal precipitation. ECF No. 17-
8 at 14; see also Pl.'s Reply Ex. 3 ,r,r 27-29 (Dr. Hoagland Deel.). Further, Chemours admits that
HFPO-DA violations during wet weather are due in part to "[a]ir deposition, the settling of HFPODA emissions to the ground." Br. at 7. This air deposition of HFPO-DA comes from the stacks associated with Chemours's facility. Curtailing production from the facility will reduce the amount of air deposition, thus reducing or eliminating Chemours's violations during wet weather events.
17
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have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit." ECF No. 7-6 at 97. That language is mandatory and unequivocal. That condition effectively prohibits this Court concluding that halting or reducing production to comply is not in the public interest.
The West Virginia Legislature has also already weighed the public interest in the PFAS Protection Act, determining that it is "in the public interest ... to reduce toxic chemicals in drinking water supplies to ... strengthen the state's economy." W. Va. Code 22-11C-1(a)(12) (emphasis added). "[_W]hen the legislature has spoken, the public interest has been declared in terms well-nigh conclusive." Berman v. Parker, 348 U.S. 26, 32 (1954). The Ohio River is a drinking water supply for millions of people, including many West Virginians, ECF No. 7-11 at 27, and HFPO-DA is toxic, ECF No. 8 at 13-14. Thus, according to the Legislature, enjoining Chemours's toxic discharges will strengthen the state economy.
Chemours alludes to national security concerns from reducing its production. Br. at 16-17. That argument is an illusion based on unsupported beliefs, not credible evidence. See, e.g.. ECF No. 17-1 ,r,r 53-54, 65, 71, 79 ("Chemours believes ..."); ECF No. 17-9 ,r,r 11-18.8 Chemours's declarants do not identify any knowledge, education, or experience to qualify them to analyze national security. Although the rules of evidence are relaxed at the preliminary injunction stage, the Court must still evaluate the weight of the evidence before it, and "statements based on belief rather than personal knowledge may be discounted." Imagine Medispa. LLC v. Transformations, Inc., 999 F. Supp. 2d 862, 869 (S.D. W. Va. 2014) (citing Federal Practice & Procedure 2949); see also G.G. ex rel. Grimm v. Gloucester County Sch. Bd., 822 F.3d 709, 725 (4th Cir. 2016), vacated and remanded on other
8 For example, Chemours's chief Perfluoroalkoxy marketer brags that Chemours's product "has been identified as vital to the U.S. national security and economy." ECF No. 17-9 ,r 11. But her passive voice hides the identity of exactly who-beyond Chemours itself-regards Chemours's manufacturing to be a matter of national security.
18
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grounds, 580 U.S. 1168 (2017) (recognizing that, even though the Federal Rules of Evidence may be relaxed at the preliminary injunction stage, the nature of the evidence still informs the weight the court should give the evidence). Because Chemours's declarants rely only on their unsubstantiated beliefs, the Court should discount their testimony as nothing more than puffery and hyperbole.
Finally, while Chemours also protests (Br. at 15-16) that transporting all 4.6 million gallons of its process wastewater offsite would be infeasible, that all-or-nothing approach is a strawman. The real issue is whether it is feasible to transport any substantial amount of process wastewater offsite for disposal. On that issue, Chemours concedes that it has been feasible to send 10 truckloads of wastewater every day from its North Carolina plant to a deep well in Texas, over a thousand miles away. Br. at 16. A truck holds about 5,200 gallons, so 10 trucks can carry about 52,000 gallons a day.9 A large portion of Chemours's HFPO-DA loading is in a small percentage of the total 4.6 million gallons of process wastewater. The flow at the B22 sump is about 60,000 gallons per day and that waste stream contains 38 pounds of HFPO-DA per year. ECF No. 8 at 6 (citing ECF No. 7-13 at 4 tbl. 3). The flow at the Granular Sump is 160,000 gallons per day and that waste stream contains 16.9 pounds of HFPO-DA per year. Id. Three other wastewater streams are 20,000, 20,000, and 30,000 gallons per day and those three together contain 5.7 pounds of HFPO-DA per year. Id. Chemours has not shown that it is infeasible to send any of these wastewater streams off-site for disposal, and their total or partial elimination would make a substantial reduction in the total process wastewater loading of 75.6 pounds per year. Id.
The public interest in protecting water quality supports, at a minimum, a preliminary injunction requiring Chemours to take some interim steps such as these to improve its permit compliance.
9 4.6 million gallons divided by 884 trucks equals 5203 gallons. Br. at 16. 19
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Case 2:24-cv-00701 Document 18 Filed 03/18/25 Page 22 of 23 PagelD #: 1209
III. No Bond Should Be Required
Chemours has not made any argument that a bond should be required under Rule 65(c). As
a result, it has waived the bond requirement and the Court need not impose any bond. "A bond is not
mandatory and can be waived." Hernandez v. Montes, No. 5:18-CV-5-D, 2018 WL 405977, at *2
(E.D.N.C. Jan. 12, 2018); see also Poindexter v. Strach, 324 F. Supp. 3d 625, 636 (E.D.N.C. 2018)
(waiving bond requirement when plaintiffs request for no bond was unopposed).
CONCLUSION
The Court should issue a preliminary injunction that prohibits Chemours from violating its
permit limits for HFPO-DA at Outlets 002 and 005 by any means necessary, including (1) reducing
the production that generates process wastewater containing HFPO-DA, and/or (2) sending that
wastewater off-site for disposal by deep-well injection or incineration.
DATED: March 18, 2025
Respectfully submitted,
Isl Derek Teaney
DEREK TEANEY (WVBN 10223) AMANDA DEMMERLE (WVBN 13930)
APPALACHIAN MOUNTAIN ADVOCAIBS, INC.
P.O. Box 507 Lewisburg, WV 24901 Telephone: (304) 646-1182 Email: dteaney@appalmad.org
ademmerle@appalmad.org
Is I James M. Hecker
JAMES M. HECKER (ERO HAC VICE)
PUBLIC JUSTICE
1620 L Street NW, Suite 630 Washington, DC 20036 Telephone: (202) 797-8600 Email: jhecker@publicjustice.net
Counsel for Plaintiff
20 ED_018475O_00000671-00139
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA RIVERS COALITION, INC.,
Plaintiff,
v.
Civil Action No. 2:24-cv-00701
THE CHEMOURS COMPANY FC, LLC,
Defendant. CERTIFICATE OF SERVICE I, Derek 0. Teaney, do hereby certify that, on March 18, 2025, I electronically filed the
foregoing document with the Clerk of the Court using the CM/ECF filing system, which will notify
the following participants:
JAMES A. WALLS SPILMAN THOMAS & BATILE, PLLC 48 Donley Street, Suite 800 Morgantown, WV 26501 (304) 291-7920 jwalls@spilmanlaw.com
CLIFFORD F. KINNEY,JR. JOSEPH CREIGHTON UNGER DAVID L. YAUSSY SPILMAN THOMAS & BATILE, PLLC P.O. Box273 Charleston, WV 25301 (304) 340-3844 ckinney@spilmanlaw.com junger@spilmanlaw.com dyaussy@spilmanlaw.com
/s/ Derek 0. Teaney DEREK 0. TEANEY (WVBN 10223)
ED_018475O_00000671-00140
essage
Alexandra Dunn [adunn@croplifeamerica.org] 2/4/2025 9:12:49 PM Carpenter, Wesley [Carpenter.Wesley@epa.gov]; Amidon, Eric [Amidon.Eric@epa.gov] Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19,2025 ttachments:2025 EPA Invite to Administrator Zeldin.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Dear Mr. Amidon and Mr. Carpenter,
On behalf of CropLife America and RISE, the nation's associations for agricultural and specialty pesticides respectively, we are pleased to invite the Administrator to deliver the Keynote Address at our Winter Joint Boards Meeting in Arlington, VA at 9 am on March 19, 2025 at the Westin. More details are in the attached letter regarding this opportunity to address over 40 CEOs ofleading American companies. While we are certain that the Administrator is receiving many requests to speak at this time, we hope he is able to accept. As the letter notes, if he is not able to accommodate us, we would be happy to receive a surrogate from his office.
Please contact me if you have any questions about this invitation!
Regards,
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687
ropL.,.iff:
'/rAt,,tE:R!CA11:
ED_0 18475D_ 00000800-00001
ropl_if
'kAMEl~ICA
February 4, 2025
II RtHlll<>IIILible lmlustry f01
a !ilm1nd Er111ironmimt
The Honorable Lee M. Zeldin Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20004
Dear Administrator Zeldin:
Congratulations on your confirmation as EPA Administrator! Croplife America (CLA) and RISE (Responsible Industry for a Sound Environment) will host our joint Winter Boards Meeting on March 1819, 2025, at the Westin Arlington (801 North Glebe Street, Arlington, VA). Croplife America is the national trade association that represents the manufacturers, formulators, and distributors of agricultural pesticides. RISE is the national trade association that represents manufacturers, formulators, and distributors of specialty pesticides and fertilizers.
We understand that you have familiarity with agriculture and pesticide issues from interactions with growers in your home district of Suffolk County. As such, we are truly pleased to invite you to speak to our joint boards to open our EPA Dialogue session on Wednesday, March 19 for 30 minutes, beginning at 9:00am Eastern. Our members would welcome your insights as the new Administration's key leader in environmental policy and priorities for the agency and your plans for interacting with the U.S. Department of Agriculture and increasing the timeliness and predictability of pesticide registrations by regulators in the EPA Office of Pesticide Programs (OPP). Your remarks will be followed by a panel of leaders from OPP and from the Office of Agriculture and Rural Affairs.
The EPA Dialogue session is an essential part of two days of activities with the CLA Board of Directors and RISE Governing Board, who represent the top leaders of their companies in the U.S. and companies with which you are likely very familiar. The event provides an opportunity for both organizations' board members and leaders, from the agriculture and non-agricultural pesticide industries, to engage in policy discussions, share ideas, and participate in strategic planning.
Thank you for considering our request. If you are unable to accept our invitation, we would be very open to a senior surrogate from the Administrator's Office. If you have any questions, please do not hesitate to contact us at (202) 872-3850 or via email at _a_d_u_n_n~-~----~
Best regards,
flt
Alexandra Dapolito Dunn President and CEO Croplife America
Megan J. Provost President RISE
ED_018475O_00000801-00001
Jackson, Ryan [Ryan_Jackson@americanchemistry.com] 3/19/2025 4:30:20 PM Dickerson, Aaron [dickerson.aaron@epa.gov]; Brown, Ashley [Brown.Ashley@epa.gov]; Amidon, Eric [Amidon.Eric@epa.gov] RE: Meeting request for the Administrator - American Chemistry Council ttachments:2025 01 28 EPA Meeting Information Form Template.docx
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Thank you again. Attached is our completed form.
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469 700 2nd Street NE I Washington, DC I 20002 www.ame1icanchemistrv.com
From: Dickerson, Aaron <dickerson.aaron@epa.gov> Sent: Thursday, March 13, 2025 10:52 AM To: Jackson, Ryan <Ryan_Jackson@americanchemistry.com>; Brown, Ashley <Brown.Ashley@epa.gov>; Amidon, Eric <Amidon.Eric@epa.gov> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Thanks Ryan. Please complete the attached meeting request form.
From: Jackson, Ryan <gyan Jackson~ americanchemist y.com> Sent: Tuesday, March 11, 2025 6:19 PM To: Brown, Ashley <Brown.Ashley@~.Q~.:E.Q.Y.>; Dickerson, Aaron <dickerson.aaron@e129...:g_g_y_>; Amidon, Eric <Amidon.Eric@~129...:g_g_y_> Subject: Meeting request for the Administrator - American Chemistry Council
I
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from click
outside EPA, please on provided links.
exercise
additional
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when
deciding
All-
ED_018475O_00000897-00001
On behalf of the American Chemistry Council's President and CEO, we request a meeting with the administrator at the EPA to raise opportunities and to help achieve his Great American Comeback Initiative. Attached is a copy of our request letter. ACC and key member companies CEOs on our board of directors wish to attend. I would be happy to answer any questions and work with you to reach a convenient time. Thank you as always, Ryan Jackson
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
I h ...
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www .amcricanchcmistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe. +++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a
ED_018475O_00000897-00002
result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
ED_018475O_00000897-00003
EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
Meeting Logistics
American Chemistry Council
Requesting individual/organization:
Contact information: Title of the meeting:
Ryan Jackson, [ HYPERLINK "mailto:ryanjackson@americanchemistry.com" ], 202-679-
1469, Vice President, Federal Affairs Innovation and Domestic Manufacturing Opportunities from the Chemical Manufacturing Sectors and Contributions to Powering the Great American Come Back Initiative.
The chemical manufacturing sector is already responding and producing on each ofthe administrator's 5 pillars.
Describe the proposed meeting topic/ agenda, provide available briefing materials:
We are leading responsible and environmentally protective production through the industry's Responsible Care program. We are the foundation for new energy production, automotive production, and new domestic manufacturing as the necessary building blocks. EPA is the principalfederal regulator for our industry and the industry wishes to work with the EPA on permitting reforms at EPA including new uses for AI to protect and promote US innovation.
The chemical manufacturing sector is working on a series of regulatory actions from the previous administration some ofwhich present impediments to new domestic manufacturing. The purpose ofthe meeting is to ensure the administrator is aware ofkey priorities for the chemical manufacturing industry which coincide with the aims ofeach the EPA 's 5 pillar initiative and provide specific and concrete ways to work to achieve each ofthe 5 pillars.
Describe the action sought from the meeting and/or identify desired outcome(s):
The purpose is to inform the administrator ofways the chemical manufacturing industry can contribute to his plans for the EPA and how we are already working with new leadership at EPA.
At the administrator's convenience.
Proposed meeting date and time (if date is flexible please indicate the range):
** Some participants will now be Washington DC the week of April 7 which presents a convenient time for them ifconvenientfor the administrator.
Requested length of time:
30 minutes.
1 of 5
ED_018475O_00000898-00001
EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
Please explain any time sensitivity that impacts the date of the meeting, such as court-ordered or statutory deadline:
Not Applicable.
Proposed meeting location:
EPA headquarters.
If the Administrator is unable to meet, is a surrogate desired? If yes, who specifically?
No, only because we would like the participants representing all parts ofthe chemical manufacturing industry to have an opportunity to highlight key issues for the administrator.
Are you planning to issue a press-
No.
statement on this meeting?
Will you be requesting photography from No. the meeting?
Meeting Participants Expected meeting participants:
(-Name, organizational affiliation, email address. Please
in
the table
-Name, organizational affiliation Denise Dignam, Chemours Jim Fitterling, Dow Karen McKee, ExxonMobil
Rob Peterson, Oxy Ken Lane, Olin Scott Richardson, Celanese Peter Vanacker, Lyondel!Basell (LYE) Steven Prusak, CP Chemical
Email with ";" at the end
[HYPERLINK "mailto:Mary.cordes@chemours.com" ] Kmkolevar.dow.com
[HYPERLINK "mailto:Jason.d.gay@exxonmobil.com" ] [ HYPERLINK "mailto:Ian_davis@oxy.com" ] [ HYPERLINK "mailto:mmeenan@olin.com" ] [HYPERLINK "mailto:stephanie.daigle@celanese.com" ] [HYPERLINK "mailto:devin.sears@lyondellbasell.com" ]
[ HYPERLINK "mailto:gordst@cpchem.com"]
2 of5
ED_0 18475D_ 00000898-00002
EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
Chris Jahn, ACC
Kimberly Wise White, ACC
[HYPERLINK "mailto:Chrisjahn@americanchemistry.com" ] [HYPERLINK "mailto:Kimberly_white@americanchemistry.com" ]
Rob Simon, ACC Ross Eisenberg, ACC Ted Waugh, ACC Ryan Jackson
Robert_simon@americanchemistry.com Ross_eisenberg@americanchemistry.com
Ted_ waugh@americanchemistry.com Ryan _jackson@americanchemistry.com
Are any expected meeting participants federally registered lobbyists or lobbying organizations? (If yes, please identify.)
Yes,
Chris Jahn, ACC Ryan Jackson, ACC Ross Eisenberg, ACC Mary Cordes, Chemours Kevin Kolevar, Dow Jason Gay, ExxonMobil Ian Davis, Oxy Mike Meenan, Olin Devin Sears, LYE Stephen Gordon, CP Chemical
Are any expected meeting
No.
participants a partisan political
candidate, a representative of a
political party or a registered
political action committee
(PAC)? (If yes, please identify.)
Do any expected meeting participants seek or currently have any business interests with the Agency such as permits, contracts, litigation, grants, etc.? (If yes, please identify.)
Yes,
ACC and attendees are parties in the following, however litigation is not the subjectfor this meeting request:
ACCv. EPA, Case No. 24-1125 (D.C. Cir.) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union, AFL-CIO. v. EPA, Case No. 24-1151 (D.C. Cir.)
3 of5
ED_0 18475D_ 00000898-00003
EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
ACC v. EPA, Case No. 24-1250 (D.C. Cir.) Olin C01p. v. EPA, Case No. 25-1014 (8th Cir.) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union, AFL-CIO v. EPA, Case No. 25-1055 (3rd Cir.) FabriClean Supply et al. v. EPA, Case No. 25-60006 (5th Cir.) National Association ofManufacturers v. EPA, Case No.24-1191 (D.C. Cir.) Chamber ofCommerce ofthe United States ofAmerica, et al. v. EPA, Case No. 24-1193, 24-1161, 24-1166, 24-1271 (D.C. Cir.)
Background for the Meeting
Will the meeting involve legislation, broad policy options, or other general matters that involve a large and diverse range of persons and interests? (If yes, please describe.)
Generally, the chemical manufacturing sector can contribute to new domestic manufacturing, however, a regulatory environment which recognizes those new contributions is necessary. The industry would like to identify how to achieve permitting reform with the help ofAI; new energy, automotive production and other domestic production; all while maintaining world class environmental standards for air, water, and land.
Will the meeting involve regulations, rules, or other matters that impact a specific industry, sector of the economy, or group of persons? (If yes, please describe.)
Yes,
Procedures for Chemical Risk Evaluation Under the Toxic Substances Control Act (TSCA) and general procedures for permitting new chemistries and existing chemicals in commerce.
NSPSfor the Synthetic Organic Chemical Manufacturing Industry and NESHAP for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry (HON),
SNURs for 18 chemicals made from plastic waste-derived feedstocks (Proposed),
PFAS regulation generally to reach measurable water standard and actual remediation action.
Will the meeting involve a litigation
No.
matter, a permit, a grant, a contract, or
any other matter that involves specific
parties? (If yes, please identify the matter
and list the specific parties.)
Any additional notes or information?
No.
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EPA ADMINISTRATOR MEETING INFORMATION FORM
This form assists in planning participation in meetings. Please be complete to minimize need for follow up. This is not a meeting confirmation.
Technology for Virtual Meetings
Preferred Virtual Meeting Platform? Do you use Microsoft Teams? Disclaimer for recording the meeting.
Not Applicable. Not Applicable. Not Applicable.
Please return this completedform to [ HYPERLINK "mailto:zeldinscheduling@epa.gov" ], and copy [ HYPERLINK "mailto:brown.ashley@epa.gov"]
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Message
From:
Sent: To: CC: Subject:
Beck, Nancy [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=FC9AEA31F6DD4D55A9D37AF50F9469F7-C2C3E959-9B] 2/5/2025 3:01:11 AM Mark Bacchus (TMNA) [mark.bacchus@toyota.com] Drew Rak (TMNA) [drew.rak@toyota.com]; Catherine Palin [cpalin@autosinnovate.org] RE: Just checking in
Hi Mark, Thank you for offer of support. It is appreciated.
Best, Nancy
Nancy B. Beck, PhD, DABT Senior Advisor OCSPP (c) 202-790-2083
From: Mark Bacchus (TMNA) <mark.bacchus@toyota.com> Sent: Tuesday, February 4, 2025 1:49 PM To: Beck, Nancy <beck.nancy@epa.gov> Cc: Drew Rak (TMNA) <drew.rak@toyota.com>; Catherine Palin <cpalin@autosinnovate.org> Subject: Just checking in
I
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PROTECTED lil{i:fH1-fM
Hi Nancy! Welcome back to EPA!!!
Just checking in. I'm sure you are going nuts after the first few weeks of being back. Let us know if you need anything. We stand at the ready to support if you need it.
Mark Bacchus Senior Manager TOYOTA MOTOR NORTH AMERICA
Carbon Neutrality & Regulatory Affairs I Chemical Management Office
325 Jth St NW #1000 Washington, DC 20004 C: (734) 274-1533 W: (202) 463-6820 E: mark.bacchus~ toyota.com
My Diversity and Inclusion Commitment: I will be intentional to recognize my natural implicit bias. I will treat all others equally with dignity and respect. I will joyfully draw from the strength of other people's unique perspectives to help protect the environment and Toyota's diverse customers
and workforce.
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Message
From:
Sent: To: CC:
Subject:
Beck, Nancy [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=FC9AEA31F6DD4D55A9D37AF50F9469F7-C2C3E959-9B] 3/11/2025 12:39:30 PM Kunkler, Kyle [kkunkler@soy.org] Welch-White, Venus [WelchWhite.Venus@epa.gov]; cbrewer@cotton.org; Steve Hensley [shensley@cotton.org]; John Walt Boatright [johnwaltb@fb.org] RE: Virtual Meeting Request Re: Dicamba
Hi Kyle, We will ask the team to set this up.
Best, Nancy
From: Kunkler, Kyle <kkunkler@soy.org> Sent: Tuesday, March 11, 2025 7:21 AM To: Beck, Nancy <beck.nancy@epa.gov> Cc: Welch-White, Venus <WelchWhite.Venus@epa.gov>; cbrewer@cotton.org; Steve Hensley <shensley@cotton.org>; John Walt Boatright <johnwaltb@fb.org> Subject: Virtual Meeting Request Re: Dicamba
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Good Morning, Nancy,
I am reaching out to see if you and other relevant EPA staff are available to meet virtually to discuss dicamba this week? From the stakeholder side, ASA, National Cotton Council, and American Farm Bureau Federation would likely be joining, schedules permitting. This is a relatively time-sensitive discussion, so if there is the opportunity to get that meeting on the calendar this week, that would be immensely appreciated.
Thank you, and please let us know if you have any questions or need any additional information to set up a meeting.
Kyle
Kyle Kunkler
Senior Director of Government Affairs, American Soybean Association C: 202-702-9462 0: 202-960<m27 kkunkler@soy.org 1 M Street SE. Suite 200. Washington. DC. 20003 soygrowers.com
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essage
Heidi McAuliffe [hmcauliffe@paint.org] 4/10/2025 8:46:34 PM Beck, Nancy [beck.nancy@epa.gov]; Dekleva, Lynn [dekleva.lynn@epa.gov] Riaz Zaman [rzaman@paint.org]; Suzanne Chang [schang@paint.org] RE: ACA - EPA Meeting tomorrow ttachments:TSCA Reg Reform General Issues (002).pdf; ACA PMN Review Position April 2025.pdf
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Resending due to non-delivery report. Hopefully this one gets through to all parties. H
From: Heidi McAuliffe Sent: Thursday, April 10, 2025 4:44 PM To: Beck, Nancy <beck.nancy@epa.gov>; dekleva.lynn@epa.go Cc: Riaz Zaman <rzaman@paint.org>; Suzanne Chang <schang@paint.org> Subject: ACA - EPA Meeting tomorrow
Hi Nancy and Lynn,
I am thrilled that we finally have an opportunity to talk with you about the chemicals program. We are very interested in hearing your thoughts on the agency's priorities and capacity during this Administration and we are delighted to have the opportunity to share our industry's priorities as well.
I am sharing with you two documents that reference some very specific issues within the PMN review process and some suggestions for TSCA regulatory relief consideration. I don't expect to be able to review all of these issues in our short time frame tomorrow, but thought this would be a good way to start the conversation with you both. I hope this is the first of many conversations over the next couple of years. Many of these issues will be very familiar to you.
We will see you tomorrow and are looking forward to it.
Thanks again, Heidi
From: Beck, Nancy Sent: Friday, February 14, 2025 10:27 PM To: Heidi McAuliffe Subject: RE: Welcome Back to EPA
Caution: This email originated from outside of American Coatings Association. Exercise care before clicking on links, opening and downloading attachments. When in doubt, contact IT Department.
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Hi Heidi, I recommend that you speak with Abbie Tardif, the new Principal Deputy in OAR. Her email is: Tardif.Abigalc(a;cpa.goy.
Have a great long weekend! Nancy
From: Heidi McAuliffe <hmcauliffe@Eaint.org> Sent: Friday, February 14, 2025 8:39 AM To: Beck, Nancy <beck.nancy@~r29_,g_Qy> Cc: OCSPP 10 Internal Scheduling <OCSPP-IO-lnternal-Scheduling_@.~Q_~:R.QY> Subject: RE: Welcome Back to EPA
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Thanks for the quick response, Nancy. Much appreciated. I will wait to hear from your schedules for timing.
I also have a fairly urgent matter with regard to an aerosol coatings rulemaking finalized on January 17. Can you point me to the right person in OAQPS to talk with about this? I would really appreciate it.
Thanks, Heidi
From: Beck, Nancy <beck.nancy@~~Q.9_,RQ.\I:> Sent: Thursday, February 13, 2025 8:04 PM To: Heidi McAuliffe <hmcauliffe@Eaint.org> Cc: OCSPP 10 Internal Scheduling <OCSPP-IO-lnternal-Scheduling@.~Q_~:R_Q\I.> Subject: RE: Welcome Back to EPA
Caution: This email originated from outside of American Coatings Association. Exercise care before clicking on links, opening and downloading attachments. When in doubt, contact IT Department. Hi Heidi, Thank you for the good wishes and the vote of confidence! We would be happy to meet with you to learn about your TSCA priorities. I've cc'd our scheduling team so they can work with you to find a good window.
Best, Nancy
From: Heidi McAuliffe <hmcauliffe@Eaint.org> Sent: Thursday, February 13, 2025 4:04 PM To: Beck, Nancy <beck.nancy@~~Q.9_,RQ_\I_> Subject: Welcome Back to EPA
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Nancy,
Congratulations on your appointment and welcome back to US EPA and the chemicals program! ACA is thrilled to see that a veteran of the Lautenberg amendments is back in the office. TSCA implementation has only gotten more complex over the years and EPA needs experts like you to get back on track.
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At ACA, we have been working through the many, many issues presented by TSCA that result in barriers to innovation for paint and coatings products. I would like to meet with you to discuss our priorities. Could we find a time to meet? We are happy to come to EPA's offices, or alternatively, a virtual meeting works as well. Feel free to send me some days and times that work for you. Thanks and I look forward to hearing from you, Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs 202- 719-3686 I 202-329-1065 (m) 1202-263-1102 (fax) I====_::,_:=== 1-""-""-""-"-"-== 901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
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American Coatings
ASSOCIATIONSM
April 11, 2025
To: EPA Principal Deputy Assistant Administrator Nancy Beck EPA Deputy Assistant Administrator Lynn Dekleva
From:
American Coatings Association (ACA) Heidi McAuliffe, ACA VP Government Affairs Riaz Zaman, ACA Sr. Counsel Government Affairs Suzanne Chang, Counsel, Government Affairs
Re: Chemical Regulatory Reform - potential TSCA and EPCRA rules to include in a list for rescission or modification, or enforcement discretion.
The American Coatings Association ("ACA") 1 appreciates the opportunity to provide suggestions related to TSCA regulations to advance the agency's regulatory reform efforts. The Association's membership represents 90% of the paint and coatings industry, including downstream users (or processors) of chemicals, as well as chemical manufacturers. Our membership includes companies that manufacture paint, coatings, sealants and adhesives and their raw materials whose operations, manufacturing processes and products are directly affected by EPA regulations implementing TSCA. ACA is eager to assist EPA in developing an effective system for chemical risk evaluations with successful implementation of the Lautenberg Act's mandates, while reducing unnecessary or redundant regulatory requirements. To that end, please consider the following issues and related suggestions:
Reporting Requirements 1) Revisions to the TSCA 8{c) Reporting requirements under ...:...;:::,-=-=-=-=-=:..1.
a) ACA's requests EPA to rescind 40 CFR 717.17(b) entirely. b) In the alternative, clarify specific instances in which EPA will require records to be
submitted (e.g. in response to an inspection) and to specify that records submitted under this provision do not represent best available science and will not be used for purposes of Risk Evaluation (e.g. MBOCA FR Notice).
1 ACA is a voluntary, non-profit trade association working to advance the needs of the paint and coatings industry and the professionals who work in it. The organization represents paint and coatings manufacturers, raw materials suppliers, distributors, and technical professionals. ACA serves as an advocate and ally for members on legislative, regulatory and judicial issues, and provides forums for the advancement and promotion of the industry through educational and professional development services. ACA's membership represents over 90 percent of the total domestic production of paints and coatings in the country.
901 NEW YORK AVENUE NW, SUITE 300 WASHINGTON, DC 20001 T 202.462.6272 F 202.462.8549 www.paint.org
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c) The purpose of the regulation is to maintain and submit records of significant adverse reactions to health or the environment alleged to have been caused by the substance or mixture. EPA is authorized to notify requirements by federal register notice or individual notification.
d) Justification: The regulation is redundant of existing authority under TSCA. The requirement is vague, overbroad and likely to result in collection of non-contextualized information that is not reflective of the best available science for Section 6 (risk evaluation) purposes. The regulation does not provide clear parameters regarding when EPA can request records and the purpose of the submission. Because of the potential for data that is not of sufficient quality, EPA should not use this rule for compliance and enforcement matters related to record-keeping requirements. EPA also should not use collected information for risk evaluations, PMN evaluations, etc.
2. Revision or rescission of listing of 16 high priority chemicals in 40 CFR 716.120, triggering reporting of "unpublished health and safety studies."
a) ACA seeks recission of this requirement for the 16 high priority substances as finalized in 90 FR 11899 (March 13, 2025), EPA Docket No. EPA-HQ-OPPT-2023-0360-0059. As an alternative, ACA suggests the following amendments: establishing a de minimis level triggering the requirement, while establish an exemption from data submission for companies that manufacture or import only as an impurity or by-product. establish exemptions based on SDS listing thresholds or at a minimum specify that downstream importers can rely on information provided in an SDS. Modify the "known to" due diligence standard so companies are not responsible to list studies identified via a database search. extending the reporting period to 180 days after finalizing the rule. limit the use of unpublished data that does not meet TSCA's standards for scientific integrity and/or TSCA's requirement of being fit for purpose.
b) Justification: The requirement is vague and over-broad, potentially resulting in submission of non-contextualized information that is not reflective of the best available science. Failure to establish thresholds triggering reporting imposes an unnecessary burden on industry. Requirement is not required by statute. The statute indicates at 15 USC 2607{d)(1) that: "the Administrator may exclude certain types or categories of studies from the requirements of this subsection if the Administratorfinds that submission of lists of such studies are unnecessary... "
Export Notifications
3) ACA requests revisions to the TSCA 12(b) Annual notification requirements at _ __ ,;;__;:,..:....:..;::..::....,..;::;;..u=.w= by changing reporting to one time reporting for all types of Export Notification instead of annual notification.
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a) Justification: Annual reporting is unnecessary and burdensome on industry. Filing of the annual report does not provide EPA or the public with useful information.
4) Revisions to the TSCA 12(b) intent to export language a t : - - - - - - ~ a) EPA should remove language in the cited regulation regarding notification of "intent to export." It remains unclear as to when this intent is formed, such that it triggers the requirement. Instead, EPA should require notification of actual export within a reasonable timeframe, extended from the current 7-day notification period. ACA suggests 30 to 90 days from the date of actual export. b) Justification: The current requirement is vague, overly burdensome and the costs and burdens outweigh the speculative public benefits. Further the section is not required by statute and the statute doesn't specify timing.
PFAS Reporting Rule (TSCA 8(a)(7)) 5) Revisions to the TSCA 8{a)(7) Rule - _ _ _ __ a) Focus rule so upstream PFAS manufacturers submit information. Add exemptions to ....:.;::,-=...:..:....::....::.:=-==for articles, byproducts, impurities, R&D, low volume (<2500 lb). b) Restrict the universe of reportable chemicals to those chemicals listed by CAS and/or TSCA Accession number in the proposal, while addressing confidential chemicals on a case-by-case basis by requesting information from the company claiming confidentiality. c) Restrict reportable chemistries to thresholds identified on OSHA compliant SDS. d) Clarify that the "known to or reasonably ascertainable by" standard of due diligence allows reliance on SDS for the purpose of this rule. e) EPA should exempt small businesses from reporting purely based on TSCA Section 8{a)(1) and the unique compliance burden faced by small businesses. f) EPA should reduce the scope of reportable data that applies to years in the beginning of the lookback period, since this information is unlikely to yield the best available science. g) Justification: The NOAA grants EPA authority to determine the scope of data required for submission. The current requirement is likely to result in redundant data submissions that are not required by statute and are overly burdensome to both EPA and industry. As such, these burdens do not outweighed public benefits. Further, EPA has not specified how such a broad data collection effort will be used to advance PFAS regulation. It raises concerns that EPA will rely on information that does not represent the best available science. EPA should prioritize recent data which accurately reflects the current state of science and use of chemicals. TSCA Section 8{a)(S) requires EPA, to the extent feasible, to (A) not require unnecessary or duplicative reporting, (B) minimize compliance costs on small manufacturers and processors, and (C) apply any reporting obligations to those persons likely to have information relevant to effective implementation of TSCA.
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SNUR Requirements (see also ACA summary regarding PMN-related regulatory requirements) 6) ACA requests modifications to TSCA SNURs with manufacturing/import time limits for which the required testing under the Consent Order has been completed, as well as requirements for submitting testing that is also included in the Consent Order a) Rescind time limits on commercial activities included in some final SNURs, based on additional testing required under the Consent Order where those testing requirements are complete. For example, Alkanes, C22-30, chloro, as stipulated in the SNUR at - - ..:...===:...::.....::.~u=LJ.:LI requires: Manufacture (and import) are limited to 5 years. b) Justification: The manufacturing and import time limit requirements in the SNUR are unnecessary when testing is completed pursuant to a Consent Order, but also required in a SNUR. As a result, it creates a significant administrative burden to file a SNUN, for continued use of a chemical, as the time period for the SNURs expiration approaches. At a broader level, the requirement unnecessarily impedes economic development, requiring downstream customers of the original PMN submitter to expend resources managing the supply chain, to avoid disruptions in supply. The time limits on SNUR requirements also apply to imports, preventing reimportation of products originally manufactured in the United States, but sent to abroad for additional processing. Re-import requires submission of a SNUN which often aligns exactly with the original PMN submission. The submission is duplicative and unnecessary. The SNUN submission often requires the same tests already submitted by the original PMN submitter under terms of the Consent Order. 7) ACA also requests that EPA update SNURs with outdated volume reporting requirements. In consent orders and SNURs, EPA often includes a requirement to report volumes, while developing testing data. EPA will require manufacturing in lower volumes, prior to submission of test data. But, once testing is complete, EPA does not update SNURs or consent orders, still requiring reporting of volumes. This reporting requirements create an undue burden on industry. 8) EPA's proliferation of SNURs also triggers CDR reporting for manufacturers and importers of small amounts of 2,500 lbs or more per year. ACA recommends that EPA modify the CDR reporting requirement, as this creates a significant and perhaps unintended reporting burden on industry. 9) EPA should formally rescind proposed SNURs that have been outstanding for several years and are clearly not proceeding towards being finalized. These proposals trigger 12(b) export notification requirements, imposing an unnecessary reporting requirement on industry. ACA is currently developing a list of eligible SNURs and would welcome the opportunity to provide additional information.
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Import Certification Requirements 10) Modification to TSCA 13 Import Certification policy statements at 40 CFR 707.20(c} a) EPA should modify the rule to indicate that submission of a TSCA Compliance Certification Statement to EPA under TSCA Section 13 is not required where U.S. Customs and Border Protection has not refused entry of a shipment due to alleged non-compliance with TSCA. Further, the Certification Statement should not need to be maintained for the five-year period. b) In the alternaitive, EPA should require only that the Certification Statement is created and kept for 5 years by the importer but specify that it doesn't need to be directly submitted to EPA. c) Justification: This change would more clearly align with TSCA Section 13. The current certification submission and record-keeping requirement in 40 CFR 707.20 goes beyond the statutory requirement placing an undue burden on industry. The current requirement is duplicative since the shipment is still required to be in compliance with TSCA Inventory requirements and all other provisions of TSCA. Failure to comply results in severe penalties aggregating on a per day basis.
Polymer Exemption 11} EPA suggests several revisions to the Polymer Exemption rule at 40 CFR 723.250. The polymer exemption has become critical for the development of new products, since the Lautenberg Amendments have lead to increased backlog and delay in the PMN process. ACA strongly suggests streamlining the polymer exemption to facilitate more effective use of the exemption. a) EPA should rescind the requirement to annually report to EPA the number of substances manufactured under the exemption at 40 CFR 723.250(f}. i. Justification: The requirement goes beyond what is required by the statute and the costs and burdens do not outweigh public benefits. Providing the number of substances manufactured under the exemption provides no useful information to the public or EPA. b) EPA should modify the list of reactants from which polyester may be made at 40 CFR 723.250(e}(3} to allow polymers of low concern to qualify that would otherwise need a PMN. EPA should include both isomer specific and broad/nonisomer specific CAS numbers for currently listed exempt monomers, including: i. Anhydrides (often used as a diacid and not for anhydride functionality)concern is also addressed in "reactive functional group"; derivatives of similar compounds - esters, amides of carboxylic acids are allowed as part of carboxylic acid groups, anhydrides are functionally no different ii. Inclusion of stereoisomers of existing listed chemicals, especially UVCB since their structures are undefined under CAS iii. Justification: The current procedure, requiring a PMN, is not required by statute, for polymers of low concern. As a result, the PMN submission requirement is unnecessary and overly burdensome. The polymer
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exemption was designed to streamline approval of these substances, without going through the PMN process. c) EPA should modify the definition at ....:...:::.....::::..:....:....:........:....:::.==.J..:::::.L of "reactive functional group" to specify location of groups to clarify chemistries of concern. The current requirement is overly restrictive and is inclusive of groups that are known to not cause a risk. The definition can be better scoped to accommodate polymers of low concern. d) EPA should modify the recordkeeping requirements at 40 CFR 723.2500} i. Preferred: Allow for polymer exemption certification from suppliers for imported polymers to meet the record submission requirement. That is, the supplier must meet criteria in Section 723.2500): that the polymer meets the definition of polymer; polymer is not excluded from the exemption; polymer meets the exemption criteria; supplier is responsible for maintaining records according to the
record keeping requirements and will provide the records to US EPA within 15 working days of written request from EPA ii. Alternative: Restrict the above to either: Suppliers with a US presence; US suppliers; or only to re-imported PE polymers that were originally manufactured in the United States. iii. Justification: Not required by statute, overly burdensome, duplicative, impedes technological innovation and economic development - restricts conducting business if a company cannot re-import products made in the United States.
10. TSCA - Request enforcement discretion for the reasons noted above: TSCA 8{c) - 40 CFR Part 717 TSCA 12(b) - 40 CF Part 707 Subpart D TSCA 13 Import Certification Notice of Activity Form B Polymer exemption documentation replication when supplier states it meets the requirements
11. EPCRA / TRI Notifications and Listings:
1) EPA should maintain the de minimis exemption at....:....:::....:....:.......:....:....:::....::....::::..:.....:=== a) EPA should maintain the de minimis requirements that apply to chemicals listed in 372.28{a) (chemicals of special concern) and any additional chemicals listed therein, so that the de minimis exemption is available for TRI chemicals of special concern. b) Justification: Under the approach proposed by the prior administration, EPA would list chemicals of special concern without a de minimis triggering downstream notification and reporting requirements. This approach is not clearly authorized by the statute. The statute requires further analysis of toxicity prior to listing, while establishing a de minimis. Further, removing the de minimis for these chemicals is not required to
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adequately warn of any risks associated with storage and use. Removal of the de minimis exemption presents significant compliance challenges, with companies adopting varying limits of quantitation, to the extent quantifying amounts is even possible. Further, ACA recommends not listing PFAS chemicals as chemicals of special concern at this time, without conducting analysis of the listing criteria in EPCRA 313{d)(2) for each chemical. 2 2) Regarding revisions to the proposed supplier notification rule requiring companies to begin providing supplier notification for chemicals newly added to the Toxic Release Inventory (TRI) list before the new chemical is listed in the regulation. a) ACA is opposed to this proposal and recommends that EPA not finalize it. b) As an alternative approach, clarify that supplier notification requirements do not apply to PFAS automatically added by the NOAA until after the chemical is listed in the regulation {40 CFR 372.65} c) Justification: The proposed approach is not required by statute, and it is overly burdensome, potentially requiring updates to downstream notification within an unusually short time period. ACA has submitted detailed comment into the rulemaking docket.
Congressional Review Act Issues 12. EPA-identified issues under the Congressional Review Act: ACA supports further review and amendment of:
EPA's Risk Evaluation Procedural Rule: 1) ACA supports revocation of this rule so the whole chemical approach is no longer codified as part of EPA's procedures. As consistently noted in ACA's comments on the matter, the whole chemical approach leads to an inaccurate understanding of risk and raises the potential for imposing unnecessary risk mitigation requirements. 2) EPA must factor existing risk mitigation requirements and practices into its exposure evaluation.
2 This issue also affects non-PFAS chemistries. For example, naturally-occurring substances are also affected. If finalized, suppliers would struggle to identify maximum theoretical values for trace metals in a product, for the purpose of downstream notification. Establishing clear de minimis values would promote consistency in notification. Suppliers cannot certify that their materials do not contain any level of various trace metals and other relevant impurities. They certify materials contain "less than" an amount, typically at whichever level they test to. It is impossible to prove a negative. The approach proposed by EPA (i.e. listing without de minimis thresholds) results in inconsistent and meaningless information conveyed to downstream buyers.
EPA's guidance for TRI reporting suggests that when you have information such as "contains< 100 ppm" of a substance, companies are expected to report. This is not best available science as it's poor data. It is reasonable to establish a low de minimis for chemicals of special concern, such as 100 ppm, but it is not reasonable to do away with the de minimis altogether. Multiple agencies are utilizing 100 ppm as a de minimis for various PFAS regulations, such as the California juvenile products rule, which defines "regulated PFAS" as PFAS that is intentionally added or "the presence of PFAS in a product or product component at or above 100 ppm, as measured in total organic flourine." Additionally, MPCA's (Minnesota Pollution Control Agency's) FAQs regarding implementation of the MN PFAS in Products Law (Amara's Law) establishes an informal benchmark of 100 ppm total organic fluorine to signal the potential for intentionally added PFAS during screening assessments.
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New Chemical Review Procedural Rules - EPA supports revocation of this rule as it fails to address critical issues in EPA's new chemical review program. Please see ACA's supplemental document detailing issues and related suggestions to improve EPA's new chemical review program and related rules.
Sincerely, Heidi McAuliffe Vice President, Government Affairs American Coatings Association 202-719-3686 Suzanne Chang Counsel, Government Affairs American Coatings Association schang@paint.or Riaz Zaman Sr. Counsel, Government Affairs American Coatings Association rzaman@paint.org
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901 NEW YORK AVENUE NW, SUITE 300 WASHINGTON, DC 20001 T 202.462.6272 F 202.462.8549 www.paint.org
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American Coatings
ASSOCIATIONSM
To:
EPA Principal Deputy Assistant Administrator Nancy Beck
EPA Deputy Assistant Administrator Lynn Dekleva
From:
American Coatings Association (ACA), TSCA Risk Evaluation Working Group Heidi McAuliffe, ACA VP Government Affairs Riaz Zaman, ACA Sr. Counsel Government Affairs Suzanne Chang, Counsel, Government Affairs
Re: TSCA New Chemical Review Program
The American Coatings Association (ACA) is a voluntary, nonprofit trade association working to advance the needs of the paint and coatings industry and the professionals who work in it. The organization represents paint and coatings manufacturers, raw materials suppliers, distributors, and technical professionals. ACA serves as an advocate and ally for members on legislative, regulatory, and judicial issues. As such, ACA is requesting that EPA consider the following issues related the evaluation of premanufacture notices (PMNs) mandated under the Toxic Substances Control Act (TSCA).
Background The Lautenberg Amendments to TSCA requiring EPA to evaluate PMNs prior to commercialization has led to a significant backlog at EPA and delays exceeding the 90-day statutorily specified period in PM N approvals. These extended delays have further worsened the review process with inconsistent new chemical review procedures. Companies now delay or even cancel the introduction of new chemical technologies to the U.S. market thereby hindering market innovation within the U.S.; whereas prior to the TSCA amendments, companies began commercial activity 90 days after a PMN submission.
In December of 2024, EPA attempted to address problems in the PMN review process by finalizing a revised set of PMN procedural rules detailing required information for a PMN submission. EPA explains that the rule should improve timing of PMN reviews by clarifying data submission requirements while codifying existing data requirements and practices from the current submission procedures implemented in the CDX online PMN filing system.
Current Status ACA notes the following issues related to delays with PMN, LVE and SNUN processes and the new PM N procedural rules:
Address the existing backlog of PMN applications to promote innovation in the U.S. o Since June 2016, EPA's backlog has remained around 400 to 500 PMNs. o Prior to the Lautenberg Amendments, ACA member companies file around one to 30 PMNs per year; the paint and coatings industry as a whole spends over
901 NEW YORK AVENUE NW, SUITE 300 WASHINGTON, DC 20001 T 202.462.6272 F 202.462.8549 www.paint.org
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$15 million annually on research and development largely focused on new products and unique applications. o EPA's focus on evaluating new PMN applications while neglecting to address how it will simultaneously eliminate the backlog, fails to provide relief or direction to industry as they continually face regulatory uncertainty. o ACA members currently report delays in the SNUN and PMN processes of 8 months to over 3 years. o As result, ACA members avoid developing new chemistries, attempting to develop new products with chemistries already on the TSCA Inventory, limiting innovation, including innovation in safer technologies. o As an alternative, manufacturers are increasingly relying on exemptions to introduce new chemicals, such as the polymer exemption or the low-volume exemption. Using these exemptions fails to address the underlying issues and places a further strain on EPA resources. It also limits the international marketability of products, due to international preference for products listed on the TSCA Inventory. Further, use of the polymer exemption should be streamlined for better implementation. ACA has provided related suggestions in an accompanying document addressing TSCA regulatory reform. o Companies may attempt to move away from the polymer or LVE exemptions to list on the TSCA Inventory, but this requires disruption of supply due to delays in listing on the TSCA Inventory. As a result, a manufacturers cannot distribute the chemical while waiting for listing on the TSCA Inventory, requiring a final SNUR. o Companies attempting to update a SNUR with new testing information similarly face delays, disrupting placement of the chemical on the market. The terms of the LVE are no longer in effect once EPA issues a consent order, but the consent order does not go into effect until after EPA issues a SNUR. In effect, companies attempting to move from an LVE to a SNUR or consent order face significant delays. o Companies must delay introduction of a new chemical after receiving a consent order, while EPA finalizes a SNUR. Finalizing the SNUR can take over a year from when EPA issues the consent order. EPA also only authorizes market entry 75 days after issuing a final SNUR, under standard terms in the consent order.
Provide transparency on the (1) evaluation of new PMN applications to ensure consistency in reviews and (2) minimize potential conflicting and/or irrelevant requirements when EPA also issues a significant new use rule (SNUR). o ACA members report that EPA does not have a consistent approach to evaluating PM Ns, because the evaluation strategy might change depending on the identity of the reviewer, creating greater uncertainty for manufacturers. o A GAO Report recently identified lack of consistency in PM N review process: NCO (New Chemicals Division) has not developed a systematic process that ensures the division consistently allows all key practices, which could help the division manage the program's performance more effectively. 1 GAO recommends:
1 GAO, Report to Congress: NEW CHEMICALS PROGRAM: EPA Needs a Systematic Process to Better Manage and Assess Performance (Jan 2025) at p. 20-21, available online at: https://www.gao.gov/assets/gao-25-106839.pdf
2
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The Administrator of EPA should ensure NCO implements a systematic process that aligns the division's performance management approach with key management and assessment practices. (Recommendation 2)2 o EPA's practice of issuing a SNUR along with a Section S(e) consent order triggers perhaps unintended requirements on downstream users of chemical products containing the chemical. EPA requirements are triggered by the issuance of a SNUR, such as reporting at lower thresholds under the Chemical Data Reporting (CDR) reporting requirement and reporting exports under section 12(b). Consequently, any user of a SNUR substance and the PMN submitter must demonstrate compliance with the SNUR conditions and any other requirements that the SNUR triggers, imposing additional record-keeping requirements on downstream users.
Provide further guidelines related to estimating reasonably foreseen uses and data relevant to downstream uses, while further explaining how this data will be used during the PMN review process, especially where speculative uses are not within those intended to be commercialized. o EPA's requirement for submitters to include reasonably foreseen uses does not have clear parameters. Providing clear guidelines would help ensure that EPA receives the necessary information to focus their resources on evaluating the most salient data related to risks affecting human health and the environment. o EPA's reliance on default assumptions when there are incomplete data sets, especially related to downstream sites not controlled by the PMN submitter, results in conservative assumptions leading to overly broad restrictions. Guidance for estimating values under the due diligence standard and identifying which types of data would be most relevant in the agency's evaluation (i.e. worker safety, environmental fate, etc.) would help garner more complete submissions with better data quality.
Allow EPA to evaluate applications on individual fluorinated chemicals (PFAS) for the LVE (low volume) and LoREX (low release and low exposure) exemption from the PMN procedure o PFAS chemicals are currently ineligible for the LVE and LoREX exemption based on a false assumption that all fluorinated chemistries (PFAS) meet the same criteria for persistence, bioaccumulation and/or toxicity. The LVE and LoREX process established expedited reviews for use in limited conditions so that the risk is mitigated. Due to the regulatory climate surrounding PFAS, companies only apply for LVE or Lo REX exemptions based on the need to meet specific performance requirements.
Adhere to statutory time limits imposed on EPA when reviewing PMN submissions. o Although EPA requires complete submissions prior to beginning the 90-day PMN review period, there does not seem to be the same level of responsibility on EPA for their timely review of PMNs.
2 See footnote number 2.
3
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o EPA also frequently extends the time of PMN review based on 40 CFR 720.75(c)(4). This rule allows extensions for "good cause" without establishing clear criteria for the extension. Accordingly, EPA must also be held accountable to complete review within 90 days, while providing clear criteria for a "good cause" extension.
Improve the CDX interface to (1) accept large data files without timing out and (2) allow for multiple people to serve as contacts from the PMN submitter. o Currently, companies have reported being automatically timed out of CDX when submitting large data sets resulting in having to restart the upload process. o In addition to a primary contact, EPA should allow for at least two additional company representatives to receive notifications. The current system, as it is configured, causes delays when the primary contact is away for an extended period of time.
ACA would like the opportunity to discuss this matter with EPA and work towards a viable solution and promote innovation at U.S. based companies. Innovation within the paint and coatings industry drives improvements in product safety, including lowered emissions and toxicity and put U.S. companies at a competitive advantage. Please feel free to contact us if we can provide additional information.
Sincerely,
Heidi McAuliffe Vice President, Government Affairs American Coatings Association
202-719-3686
Riaz Zaman Sr. Counsel, Government Affairs American Coatings Association rzaman@paint.org 202-719-3715
Suzanne Chang Counsel, Government Affairs American Coatings Association
202-805-0764
4
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Jeff Blackwood Liblackwood@croplifeamerica.org] 2/20/2025 9:55:45 PM Beck, Nancy [beck.nancy@epa.gov] Manojit Basu [mbasu@croplifeamerica.org]; Altieri, Sonia [Altieri.Sonia@epa.gov] ubject:RE: Croplife meeting request
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Nancy,
Thanks for your quick reply. Since I emailed you it has come to my attention that our sister association RISE retained your prior employer, so it would be more appropriate for this meeting request to be directed to Lynn Dekleva.
I'll follow up with Sonia on that.
Thanks and best, -Jeff
From: Beck, Nancy <beck.nancy@epa.gov> Sent: Wednesday, February 19, 2025 6:19 PM To: Jeff Blackwood <jblackwood@croplifeamerica.org> Cc: Manojit Basu <mbasu@croplifeamerica.org>; Altieri, Sonia <Altieri.Sonia@epa.gov> Subject: RE: Croplife meeting request
Hi Jeff, Happy to meet with you and Mano. Fridays are generally best for me. I am looping in Sonia on our team to assist with scheduling. Please also let her know what topics you would like to cover and if there are any specific career staff you would like to join the discussion.
Best, Nancy
From: Jeff Blackwood <"blackwood era lifeamerica.or > Sent: Wednesday, February 19, 2025 3:34 PM To: Beck, Nancy <beck.nan y@.~Q~.:EQ..Y.> Cc: Manojit Basu <mbasu @era lifeamerica.or > Subject: Croplife meeting request
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Hello Nancy,
We haven't met before but I'm the VP of Government Relations at CropLife.
My colleague Mano and I would like to meet with you to initiate a dialogue on a number of issues.
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Do you have some time for us to come by your office in the near future? Thanks and best regards, -Jeff
Jeff Blackwood Vice President, Government Relations 202-604-3 771
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Mike Johnson [mjohnson@paint.org] 3/8/2025 2:38:35 AM Beck, Nancy [beck.nancy@epa.gov]
Rule Compliance Window
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Nancy - Yes, our team did hear from the air office yesterday. I was away from the office on other business most of the day today, but did get a report from the team that collaborative efforts are underway, and they are making good progress.
Thank you! - Mike
Michael Johnson President & CEO American Coatings Association (202)415-6768
Get Outlook for iOS
From: Beck, Nancy <beck.nancy@epa.gov> Sent: Friday, March 7, 2025 9:26:50 PM To: Mike Johnson <mjohnson@paint.org> Subject: RE: Aerosol Coatings Rule Compliance Window
Caution: This email originated from outside of American Coatings Association. Exercise care before clicking on links, opening and downloading attachments. When in doubt, contact IT Department. Hi Mike, My understanding is that someone from the air office has reached out to your team. I hope this has addressed your concerns.
Best, Nancy
From: Mike Johnson <mjohnson@paint.org> Sent: Thursday, March 6, 2025 7:50 AM To: Beck, Nancy <beck.nancy@epa.gov> Subject: Re: Aerosol Coatings Rule Compliance Window
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Nancy - Thank you for the quick response. The meeting this Friday, which has since been canceled, was to be with Abbie. Our team has been told that we should not expect the meeting with Abbie until the end of March or early April now. With the March 18 deadline for filing a challenge, that timing is obviously problematic. Is there anyone else at EPA that I could appeal to for an earlier meeting? My hope remains that we can resolve this administratively rather than having to escalate. Again, thank you for any advice or assistance you can provide. - Mike
Michael Johnson President & CEO American Coatings Association (202)415-6768 Get Outlook for iOS
From: Beck, Nancy <beck.nancy@epa.gov> Sent: Wednesday, March 5, 2025 7:56 PM To: Mike Johnson <miohnson@paint.org> Subject: RE: Aerosol Coatings Rule Compliance Window
Caution: This email originated from outside of American Coatings Association. Exercise care before clicking on links, opening and downloading attachments. When in doubt, contact IT Department.
Hi Mike. Since your rule is an air rule, someone in the air office is best. Have you asked Abbie for a recommendation on who to meet with? She may be the best person to assist you. Best, Nancy
From: Mike Johnson <miohnson@paint.org> Sent: Wednesday, March 5, 2025 6:09 PM To: Beck, Nancy <beck.nancy@epa.gov> Subject: Aerosol Coatings Rule Compliance Window
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Nancy - My name is Mike Johnson and I am the new CEO at the American Coatings Association. At the end of the Biden Administration a new aerosol coatings rule was finalized. Most of the provisions of the new rule are fine with our members. However, as we were clear about in our comments, our members would need a two-year window to sell through existing inventories, reformulate to the new standard and relabel accordingly. Instead, the Biden agency included only six-month window to comply. We do not want to reopen the rulemaking, but we would very much like the current leadership of the EPA to consider issuing a two-year non-enforcement notice so that our members may have the time they need to comply without incurring significant losses and additional cost. Our government affairs team met with Kaye Whitfield about this, and she suggested a meeting with Abbie Tardif. That meeting was originally scheduled for this Friday, March 7, however we were informed yesterday that the meeting had been canceled and could not be rescheduled before the end of the month. That is obviously problematic as the deadline for filing an official challenge to the rule, which we very much hope that we do not have to do, is March 18. I am hoping to have a better dialogue with someone in the new leadership of the agency who can help. I just do not know who that is and am hoping you can point me in the right direction. Thank you, in advance, for any assistance. - Mike Michael Johnson President & CEO American Coatings Association (202)415-6768 Get Outlook for iOS
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Wellman, Amber D [AMBER.D.WELLMAN@chemours.com] 3/18/2025 12:36:48 AM Beck, Nancy [beck.nancy@epa.gov]; Cordes, Mary [mary.cordes@chemours.com] ubject:RE: [EXT] RE: Follow up to NASA Event / Introduction
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Nice to meet you (virtually), Nancy! I look forward to meeting in person soon.
From: Beck, Nancy <beck.nancy@epa.gov> Sent: Monday, March 17, 2025 5:32 PM To: Cordes, Mary <mary.cordes@chemours.com> Cc: Wellman, Amber D <AMBER.D.WELLMAN@chemours.com> Subject: [EXT] RE: Follow up to NASA Event/ Introduction
External email. Confirm links and attachments before opening.
Hi Mary and nice to meet you Amber! I can forward your note to our schedulers to set up a meeting.
Best, Nancy
From: Cordes, Mary <ma .cordes@chemours.com> Sent: Monday, March 17, 2025 5:26 PM To: Beck, Nancy <beck.nancv@E?...129-=.KQ.Y.> Cc: Wellman, Amber D <AMBER.D.WELLMAN chemours.corn> Subject: Follow up to NASA Event/ Introduction
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Hi Nancy,
Hope you are doing well and was great to see you a couple weeks ago at the NASA event!
I am writing to introduce you to Dr. Amber Wellman, who is an analytical chemist by training and serves as the CSO for Chemours. She's also a phenomenally brilliant person and dear colleague. Amber oversees all of the work for our regulatory affairs and product stewardship groups.
I know you're swamped, but do you have time to meet with Amber and I and discuss some concerns we have around the TSCA program?
Also - please feel free to use my cell phone below if easier to connect that way. Looking forward to catching up!
Best,
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Mary
Mary Cordes Head of Federal Government Affairs The Chemours Company
Cell: + 1 (202) 394-4893 E-mail: mary.cordcs((i~chcmours.com
C
Chcmours.com
mours..
This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chcmours.com/cn/cmail-disclaimcr This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chemours.com/en/email-disclaimer
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essage
Mavian, Kari (K) [KMavian@dow.com] 3/17/2025 9:36:26 PM Beck, Nancy [beck.nancy@epa.gov]; Dekleva, Lynn [dekleva.lynn@epa.gov] Kolevar, Kevin (KM) [KMKolevar@dow.com]; Vega, Louis (LA) [LAVega@dow.com]; Walton, Vaneese (VC) [VLCope@dow.com] ubject:Dow/EPA Follow up
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Dear Nancy and Lynn,
Thank you for your time Thursday preparing for the meeting with our CEO, Jim Fitterling, and Administrator
Zeldin. Please let us know when that meeting has been confirmed, as it is not on our calendar yet. We requested time next week while Jim is in town, March 25-27th.
As we discussed, the topics Jim would like to raise with the Administrator include the following:
1. Appreciation for the Administrator's attention to the many untenable regulations proposed or implemented by the Biden Administration.
2. Specific issues:
o
Clarity on EPA's recent announcement that it will reconsider the NESHAPS (specifically the
HON). Dow has met with the Office of Air and Radiation regarding an extension of the current compliance
deadline, which is impossible to meet, and requesting reconsideration of the portions of the final rule that are
not technically feasible.
o
EPA's response to the ACI/ACC Request for Reconsideration of the 1,4-dioxane risk evaluation,
which was submitted nearly two years ago, but was ignored by the agency under the Biden administration.
o
A request for EPA to withdraw the TSCA SNUR on pyrolysis oil, which is creating uncertainty
in the market.
o
The reliability and viability of the IRIS program, and assessments that have been used for
regulatory purposes, and the critical need to return to risk- and science-based assessments done by program
offices in line with the statutes they administer.
3. Overall TSCA Policies, including achieving clarity and predictability with new chemical reviews and approvals and revising the risk evaluation framework rule to implement a risk- and best-available-science-based approach to reviewing chemicals, as mandated by TSCA.
4. Overall Advanced Recycling Policies, including a policy to allow equivalency between recycled and bio-based feedstocks to traditional feedstocks on the TSCA inventory; and moving forward with the 2020 proposed rule, Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Other Solid Waste Incineration Units Review (8/31/2020), which the Biden Administration
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withdrew. These actions would create a regulatory path forward for advanced recycling to be considered as manufacturing, which 25 States have affirmed.
Furthermore, we request additional time with you to provide input and feedback on more specific TSCA
policies, including,
o
Reconsideration of the Biden administration's 'whole chemical' approach, which is facially
inconsistent with TSCA's mandate,
o
Recognition of Congress's intent ofTSCA's role as a gap-filler, meaning that TSCA was
designed to work in concert with other statues administered either by EPA or other federal agencies and that
TSCA does not work in isolation or have supremacy over other statutes,
o
Reconsideration of the need for a separate review of all air and water exposures that other EPA
offices have already reviewed, or will review, as part of their remit,
o
Incorporation of de minimis regulatory threshold levels into rulemakings,
o
Consideration of the obligation for compliance with other Federal laws in risk evaluations,
including the requirement to wear PPE,
o
Consulting with industrial hygiene experts and reviewing global standards when deciding if new
workplace exposure levels need to be set,
o
Avoiding workplace protection requirements that are duplicative to OSHA Standards and
regulations and leave any workplace exposure compliance to OSHA. This is true of other workplace
requirements administered by other agencies.
o
Removing the 'no distribution' clause in Consent Orders and/or issue SNURs at the same time as
Consent Orders to allow for immediate commercialization when a new chemical is approved.
Perhaps we can follow up after Jim's meeting with the Administrator to dive further into these details. We will also give some more thought to the topics we discussed around site visits.
Many thanks for your time Thursday, and please contact me with any questions in advance of the meeting with Jim and the Administrator.
Best regards, Kari
Kari Mavian Global Direclor of Regulatory Advocacy and Policy
Dow 500 Nor1h Capitol Si NW, Suite: 200 . Washington. D.C. 20001 Mobile: 202.997.1()13 Email: kmavian@~dow.com
Seek Together
General Business
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essage
Jim Cooper [JCooper@afpm.org] 3/19/2025 2:54:25 PM Dekleva, Lynn [dekleva.lynn@epa.gov] Jerry Couri [JCouri@afpm.org]; Robert Benedict [RBenedict@afpm.org]; Beck, Nancy [beck.nancy@epa.gov] ubject:RE: AFPM Comments on Prioritization and Pre-Prioritization of Chemicals Under TSCA
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Thank you so much for your understanding and assistance, Lynn. This has been quite embarrassing for me.
Regards, Jim
James R. Cooper Senior Petrochemical Advisor
American Fuel & Petrochemical Manufacturers 11100 M Street, NW Suite 900 North Washington, DC 20036 202.457.0480 office 202.844.5497 direct
icooper@afpm.org
Learn more about AFPM at afpm.org
From: Dekleva, Lynn <dekleva.lynn@epa.gov> Sent: Wednesday, March 19, 2025 10:53 AM To: Jim Cooper <JCooper@afpm.org> Cc: Jerry Couri <JCouri@afpm.org>; Robert Benedict <RBenedict@afpm.org>; Beck, Nancy <beck.nancy@epa.gov> Subject: RE: AFPM Comments on Prioritization and Pre-Prioritization of Chemicals Under TSCA
[EXTERNAL.MESSAGE:.This.email.originated.outside.of.our.company................................................................................................J
Jim, I am acknowledging receipt of these comments and have forwarded them for posting in the docket. Regards Lynn
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From: Jim Cooper <JCooper@afpm.org> Sent: Wednesday, March 19, 2025 10:35 AM To: Dekleva, Lynn <dekleva.lynn@e_p~.,_gg_y> Cc: Jerry Couri <J_<;:_Q.!:!Jj_@afpm.org>; Robert Benedict <RBenedict~> Subject: AFPM Comments on Prioritization and Pre-Prioritization of Chemicals Under TSCA
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Dear Dr. Dekleva,
I am writing to request submission of the attached comments to the dockets for the following:
Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability
Benzene; EPA-HQ-OPPT-2018-0475
Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability
Ethylbenzene; EPA-HQ-OPPT-2018-0487
Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability
Styrene; EPA-HQ-OPPT-2018-0461
Pre-Prioritization of Existing Chemical Substances Under the Toxic Substances Control Act (TSCA);
EPA-HQ-OPPT-2023-0606
AFPM realizes it missed the deadline for submitting comments to the above dockets. When trying to submit comments, AFPM had difficulty reaching the appropriate docket website when searching the internet and when finally getting to the right webpage, realized the time for submission had just expired. The is the first time AFPM has experienced this type of difficulty in years of submitting comments under TSCA and apologizes for any inconvenience this may cause the Agency. AFPM members are producers of the individual chemicals for which we wish to submit comments and will be directly impacted throughout the prioritization, risk evaluation, and risk management phases. Any assistance you can provide in the submission of these comments to the appropriate dockets would be greatly appreciated.
Sincerely,
James R. Cooper Senior Petrochemical Advisor
American Fuel & Petrochemical Manufacturers 11100 M Street, NW Suite 900 North Washinqton, DC 20036 202.457.04/l0 office 202.844.5497 direct
icooper@afpm.org
Learn more about AFPM at afpm.org
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Lisa Dichoso [LDichoso@afpm.org] 3/11/2025 1:15:39 PM Brown, Ashley [Brown.Ashley@epa.gov] Aaron Ringel [ARingel@afpm.org]
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request for Administrator Zeldin
Good morning, Does the Administrator have any availability on Thursday, March 27? Please let me know.
All the best, Lisa
From: Brown, Ashley <Brown.Ashley@epa.gov> Sent: Monday, March 10, 2025 5:20 PM To: Aaron Ringel <ARingel@afpm.org> Cc: Abboud, Michael <abboud.michael@epa.gov>; Lisa Dichoso <LDichoso@afpm.org>; Hannah Sztorc <HSztorc@afpm.org> Subject: RE: AFPM meeting request for Administrator Zeldin
I Some people who received this message don't often get email from brown.ashlcy(a er a.goy. Learn wh this is important
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Thank you!
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Aaron Ringel <~BJ!:!R~L@afpm.org> Sent: Monday, March 10, 2025 5:19 PM To: Brown, Ashley <Brown.Ashley@_~~KQ~> Cc: Abboud, Michael <abboud.rnichael@eQE_,gQ_y_>; Lisa Dichoso <l.Dichoso~>; Hannah Sztorc <HSztorc@afpm.org> Subject: Re: AFPM meeting request for Administrator Zeldin
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Thanks Ashley, we'll come up with some additional times Chet is available for you and circle back this week. Appreciate the quick response!
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-Aaron
From: Brown, Ashley <Brown.Ashley~..Q~.:EQ.Y> Sent: Monday, March 10, 2025 5:14:00 PM To: Aaron Ringel <~BJi~_@afpm.org> Cc: Abboud, Michael <abboud.rnichael@_~I?il_,@y_>; Lisa Dichoso <LDichoso@afpm.org>; Hannah Sztorc <HSztorc@afpm.org> Subject: RE: AFPM meeting request for Administrator Zeldin
[EXTERNAL_MESSAGE:_This_email__originated_outside_of_our__company. _____________________________________________________________________________________________ _j
Hi Aaron,
Unfortunately, March 18 will not work. Likely all of that week the Administrator will be out of town as of right now. Happy to connect your with Senior Leadership at this time or happy to look at another time.
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Aaron Ringel <~BJD_g_d~> Sent: Monday, March 10, 2025 3:27 PM To: Brown, Ashley <Brown.Ashley@.~.QE..:K.QY.> Cc: Abboud, Michael <abboud.rnichael@_~piJ_,gg_y_>; Lisa Dichoso <LDichoso@afpm.org>; Hannah Sztorc <HSztorc@afpm.org> Subject: FW: AFPM meeting request for Administrator Zeldin
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Hi Ashley,
Travis Cone passed along your email as the best person to reach out to about scheduling a meeting with the Administrator. We took the liberty of filling out the attached meeting request form and I am also including a letter from our CEO to Administrator Zeldin as well. I've looped in Lisa Dichoso, Executive Assistant to our CEO Chet Thompson on this note in case there are scheduling questions.
Please let me know if you need any additional information!
Best, Aaron
Aaron Ringel Vice President Government Relations
American Fuel & Petrochemical Manufacturers 11100 M Street NW Suite !100 North Washinqton, DC 20006 202.457.04/l0 office 202.1144.5531 direct 703. 732.017'1 mobile
ED_018475O_00002378-00002
ARingel@a pm.org CONFIDENTIALITY NOTICE: This electronic messaqe contains information from the American Fuel & Petrochemical Manufacturers that may be confidential or privileged. The information is intended solely for the use of the individual(s) or entity(ies) named above. If you are not the intended recipient, be aware that any disclosure, copyinq, distribution, or use of the contents of this messaqe is prohibited. If you have received this e-mail in error, please notify us immediately by telepl1one at (202) 457-04/lO or by reply e-mail and permanently delete this e-mail, any attachments, and all copies thereof.
From: Aaron Ringel Sent: Monday, February 3, 2025 11:35 AM To: zeldinscheduling@~Q!-=.K9_\!. Cc: Sofia Tran <~I!1.!l@afpm.org>; abboud.michael@~piJ_,gQ\!. Subject: AFPM meeting request for Administrator Zeldin Please find attached a meeting request letter to EPA Administrator Zeldin on behalf of American Fuel & Petrochemical Manufacturers Association CEO Chet Thompson. Understanding the Administrator's busy schedule, we stand ready to work with your staff to set up a time at your earliest convenience. I'm looping in Chet's Executive Assistant Sofia Tran as well. Please feel free to reach out with any questions. Best, Aaron
Aaron Ringel Vice President Government Relations American Fuel & Petrochemical Manufacturers 11100 M Street NW Suite 900 North Washinqton, DC 20006 202.457.04/l0 office 202.1144.5fi3'I direct 703. 732.0171 mobile ARingel@a pm.org CONFIDENTIALITY NOTICE: This electronic messaqe contains information from the American Fuel & Petrochemical Manufacturers that may be confidential or privileged. The information is intended solely for the use of the individual(s) or entity(ies) named above. If you are not the intended recipient, be aware that any disclosure, copyinq, distribution, or use of the contents of this messaqe is prohibited. If you have received this e-mail in error, please notify us immediately by telephone at (20:n 457-0480 or by reply e-mail and permanently delete this e-mail, any attachments, and all copies thereof.
ED_018475O_00002378-00003
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Brown, Ashley [Brown.Ashley@epa.gov] 4/8/2025 1:43:43 PM Jackson, Ryan [Ryan_Jackson@americanchemistry.com] Re: Meeting request for the Administrator - American Chemistry Council
Would April 16 work
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From: Jackson, Ryan <Ryan_Jackson@americanchemistry.com> Sent: Tuesday, April 8, 2025 9:42:14 AM To: Brown, Ashley <Brown.Ashley@epa.gov> Subject: Re: Meeting request for the Administrator - American Chemistry Council
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Yes, no problem in the least.
Or whenever is most convenient for your scheduling.
erkan Chemistry
undl
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistrv.com
From: Brown, Ashley <Brown.Ashley@epa.gov> Sent: Monday, April 7, 2025 7:15:51 PM To: Jackson, Ryan <ryan_jackson@americanchemistry.com> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Hi Ryan! Thank you so much for your patience while we worked on our schedule. This week is tricky w/ two white house events. Could we look for sometime next week instead? Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
ED_018475O_00002607-00001
From: Jackson, Ryan <ryan_jackson@americanchemistry.com> Sent: Thursday, March 20, 2025 9:43 AM To: Brown, Ashley <Brown.Ashley@epa.gov> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Thanks for asking. We have this much interest, but we also want to understand the administrator has limited time. Our comments will be very concise and targeted and most importantly allow the administrator to comment as well.
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
From: Brown, Ashley <Brown.Ashley@e2.~.:EQ,Y-> Sent: Wednesday, March 19, 2025 11:56 PM To: Jackson, Ryan <ryan jackson@americanchemistry.com> Subject: FW: Meeting request for the Administrator - American Chemistry Council
Hi Ryan, Would all of the attendees in the document be expected to attend a potential meeting? If there are that many folks, would this still be a productive meeting at 30 min? Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Jackson, Ryan <gyan Jackson~ americanchemist y.com> Sent: Wednesday, March 19, 2025 12:30 PM To: Dickerson, Aaron <dickerson.aaron@e_QE_,gg_y_>; Brown, Ashley <Brown.Ashley~2.~.:E.Q,Y->; Amidon, Eric <Amidon.Eric@E~I1E...:@Y.> Subject: RE: Meeting request for the Administrator - American Chemistry Council
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Thank you again. Attached is our completed form.
ED_0 18475D_ 00002607-00002
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
From: Dickerson, Aaron <dickerson.aaron@eQ.9...,RQ.\I> Sent: Thursday, March 13, 2025 10:52 AM To: Jackson, Ryan <.B an Jackson americanchemist .com>; Brown, Ashley <Brown.Ashley@e2.~.:EQY->; Amidon, Eric <Amidon.Eric@e[:>iJ...,RQ.\I:> Subject: RE: Meeting request for the Administrator - American Chemistry Council Thanks Ryan. Please complete the attached meeting request form.
From: Jackson, Ryan <gyan Jackson~ americanchemist y.com> Sent: Tuesday, March 11, 2025 6:19 PM To: Brown, Ashley <Brown.Ashley@~2.~.:EQY->; Dickerson, Aaron <dickerson.aaron@eQ.9_,RQ.\I_>; Amidon, Eric <Amidon.Eric@~Q.9...,RQ.\I.> Subject: Meeting request for the Administrator - American Chemistry Council
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AllOn behalf of the American Chemistry Council's President and CEO, we request a meeting with the administrator at the EPA to raise opportunities and to help achieve his Great American Comeback Initiative. Attached is a copy of our request letter. ACC and key member companies CEOs on our board of directors wish to attend. I would be happy to answer any questions and work with you to reach a convenient time. Thank you as always, Ryan Jackson
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistrv.com
ED_0 18475D_ 00002607-00003
I h
April 14-16,, 202:5 W'e~h ln1ton, DC
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www .americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended
ED_018475O_00002607-00004
only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
ED_ 0 184 7 5D _ 00002607 -00005
Message
From:
Sent: To: CC: Subject:
Brown, Ashley [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =8D0606BC1F694C6AA1C3A90CO0B7825D-51E3 7D1D-82] 2/20/2025 7:32:52 PM Lisa Bockelman [lbockelman@croplifeamerica.org] Alexandra Dunn [adunn@croplifeamerica.org]; Atkinson, Emily [Atkinson.Emily@epa.gov] RE: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Lisa,
Thank you for understanding. Connecting you with Emily Atkins to further assist.
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Lisa Bockelman <lbockelman@croplifeamerica.org> Sent: Thursday, February 20, 2025 1:21 PM To: Brown, Ashley <Brown.Ashley@epa.gov> Cc: Alexandra Dunn <adunn@croplifeamerica.org> Subject: RE: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings,
Arlington, VA, 9 am, March 19, 2025
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Dear Ashley,
Thank you for your quick reply. While we are disappointed that Administrator Zeldin is not available, we very much would like him to speak to our Board members at another time when it is convenient for him.
As mentioned in our speaker form, we respectfully request a surrogate such as Chad McIntosh, Acting Deputy
Administrator, or Travis Voyles, Assistant Deputy Administrator, for this important engagement on Wednesday, March 19th at 9:00am ET in Arlington, Virginia (Ballston).
Thank you again for your time and consideration. Have a great day!
Best regards,
Lisa
Lisa F. Bockelman, Executive Assistant Croplife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone: 202-872-3849 Cell: 571-531-8663 Email: ;;.;;;_;;._;;_;_;..;;..;;.;;..;.;;_;;;.;..;..,.'--'-'_;;_i,;;.;.;.;;_;;;_;;;,;..;..;...;c..;..;..;;...;;;.;_;~
ED_0 18475D_00002698-00001
I
*A.MERI
From: Brown, Ashley <Brown.Ashley@e2.~.:EQ_Y-> Sent: Wednesday, February 19, 2025 7:08 PM To: Lisa Bockelman <lbockelrnan@croplifeamerica.org> Subject: RE: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Hi Lisa,
Thank you so much for your patience. We will not be able to make this speaking event work this time, but happy to schedule a meeting some time in the future.
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Lisa Bockelman <lbockelman @era lifeamerica.or > Sent: Thursday, February 13, 2025 11:44 AM To: ZeldinScheduling <ZeldinScheduling@~1_,_KQ_\!.> Cc: Brown, Ashley <Brown.Ashley@~2.~.:EQ.Y-> Subject: FW: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
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Good morning!
I conferred with Alex Dunn and attached for your review is the request form for Administrator Zeldin to speak at the Croplife America and RISE Joint Winter Boards Meeting on Wednesday, March 19th at 9:00am at the Westin Arlington. Also included in the PDF is the itinerary before and after Administrator Zeldin would speak as well as the original speaker request letter. We have all details except the security information - and when we hear back from the hotel, we will update the form and send it back to you.
Thank you for your consideration.
Sincerely,
Lisa
ED_0 18475D_ 00002698-00002
Lisa F. Bockelman, Executive Assistant Croplife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone: 202-872-3849 Cell: 571-531-8663 Email: lbockelman@croplifeamerica.org
I
*A.MERI
From: Alexandra Dunn <~Q.!!!'lf1@croplifeamerica.org> Sent: Wednesday, February 5, 2025 4:52 PM To: Lisa Bockelman <lbockelman era lifeamerica.or > Subject: Fwd: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025 Can you work on this tomorrow? Or Friday? Many thanks!
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone: 202-872-3850 Cell: 703-848-5687 Email: adunn({1,croplifcamcrica.or ~
Sent from my iPhone Begin forwarded message: From: ZeldinScheduling <Zcld inSchcdu Iing((J;;S:.J2<:t,gQy> Date: February 5, 2025 at 10:46:24 AM EST To: Alexandra Dunn <adunn({1,croplifcamcrica.or ~> Subject: FW: Invitation to Administrator Zeldin to Deliver Keynote Address at CropLife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
You don't often get email from zcldin,chcduling~.!._c:Di!li(J_\7. Learn wh this is important
ED_018475D_ 00002698-00003
Hello Alexandra, Please complete the attachment. Thank you.
Ashley
From: Alexandra Dunn <adunn@croplifeamerica.org> Sent: Tuesday, February 4, 2025 4:13 PM To: Carpenter, Wesley <Carpenter.Wesley@_~Q.9_,RQ.\I>; Amidon, Eric <Amidon.Eric@eQ.9_,fill_\l:> Subject: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links. Dear Mr. Amidon and Mr. Carpenter, On behalf of CropLife America and RISE, the nation's associations for agricultural and specialty pesticides respectively, we are pleased to invite the Administrator to deliver the Keynote Address at our Winter Joint Boards Meeting in Arlington, VA at 9 am on March 19, 2025 at the Westin. More details are in the attached letter regarding this opportunity to address over 40 CEOs ofleading American companies. While we are certain that the Administrator is receiving many requests to speak at this time, we hope he is able to accept. As the letter notes, if he is not able to accommodate us, we would be happy to receive a surrogate from his office. Please contact me if you have any questions about this invitation! Regards, Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687 Email: adunn(cvcroplifcamcrica.or ~
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Jackson, Ryan [Ryan_Jackson@americanchemistry.com] 4/10/2025 10:17:39 PM o: Brown, Ashley [Brown.Ashley@epa.gov] ubject:RE: Meeting request for the Administrator - American Chemistry Council
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Perfect. On it. Thanks so much.
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
From: Brown, Ashley <Brown.Ashley@epa.gov> Sent: Thursday, April 10, 2025 6:12 PM To: Jackson, Ryan <Ryan_Jackson@americanchemistry.com> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Yes sir! Our schedule is very fluid at this time for May and I am hoping toward the end of April we will have a better idea
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Jackson, Ryan <I~yan Jackson@americanchemist y.com> Sent: Thursday, April 10, 2025 5:46 PM To: Brown, Ashley <Brown.Ashley@.le_Q_~.,_g_g_y_> Subject: RE: Meeting request for the Administrator - American Chemistry Council
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Thank you so much. I absolutely can. Do you mean send you a reminder in a couple of weeks?
erkan" Chemistry
undl
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
ED_0 18475D_ 00002909-00001
700 2nd Street NE I Washington, DC I 20002 www.ame1icanchemistrv.com
From: Brown, Ashley <Brown.Ashley~..Q~.:EQ.Y> Sent: Thursday, April 10, 2025 5:43 PM To: Jackson, Ryan <_13 an Jackson americanchemist .com> Subject: RE: Meeting request for the Administrator - American Chemistry Council
No problem at all!!
Could you please re up this in late April?
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Jackson, Ryan <gyan Jackson~ americanchemist y.com> Sent: Thursday, April 10, 2025 4:01 PM To: Brown, Ashley <Brown.Ashley@~..Q~.:EQ.Y> Subject: RE: Meeting request for the Administrator - American Chemistry Council
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I'm sorry for the delay.
I hate to not jump at a date, but my conflict is that nearly all the folks who would come to the meeting are planning at this point in being in Dubai at an international chemical manufacturing meeting which is a regular thing and business making meeting for them.
Just to provide as much flexibility as possible for your schedule juggling - is it a problem or presumptuous to say literally anytime in May? I can just ensure that any date in May would work.
Thank you again so much for working with us.
RI
erkan" Chemistry
undl
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
700 2nd Street NE I Washington, DC I 20002 www.americanchemistrv.com
ED_0 18475D_ 00002909-00002
From: Brown, Ashley <Brown.Ashley~..Q~.:EQ.Y> Sent: Tuesday, April 8, 2025 12:10 PM To: Jackson, Ryan <_13 an Jackson americanchemist .com> Subject: RE: Meeting request for the Administrator - American Chemistry Council
How does April 18 look on your end?
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Jackson, Ryan <I~yan Jackson@americanchemist y.com> Sent: Tuesday, April 8, 2025 9:59 AM To: Brown, Ashley <Brown.Ashley@)e_Q_~.,EQ_Y-> Subject: Re: Meeting request for the Administrator - American Chemistry Council
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We do have a conference in town next week so if it's able to avoid Tuesday morning, that would be preferable but thank you for working with us on this.
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
From: Jackson, Ryan <gyan Jackson~ americanchemist y.com> Sent: Tuesday, April 8, 2025 8:42:14 AM To: Brown, Ashley <Brown.Ashley@)e_Q_~.,EQ_Y-> Subject: Re: Meeting request for the Administrator - American Chemistry Council
Yes, no problem in the least.
Or whenever is most convenient for your scheduling.
erkan Chemistry uncll
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 www.arnericanchemistry.co rn
ED_0 18475D_ 00002909-00003
From: Brown, Ashley <Brown.Ashley~..Q~.:EQ.Y> Sent: Monday, April 7, 2025 7:15:51 PM To: Jackson, Ryan <ryan jackson@americanchemistry.com> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Hi Ryan!
Thank you so much for your patience while we worked on our schedule. This week is tricky w/ two white house events. Could we look for sometime next week instead?
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Jackson, Ryan <r an ackson americanchemist .com> Sent: Thursday, March 20, 2025 9:43 AM To: Brown, Ashley <Brown.Ashley@~..Q~.:EQ.Y> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Thanks for asking. We have this much interest, but we also want to understand the administrator has limited time.
Our comments will be very concise and targeted and most importantly allow the administrator to comment as well.
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
an ackson damericanchernist .com 700 2nd Street NE I Washington, DC I 20002 wW\l..americanchemistrv.com
From: Brown, Ashley <Brown.Ashley@e..Q~.:EQ.Y> Sent: Wednesday, March 19, 2025 11:56 PM To: Jackson, Ryan < an ackson filamericanchemist .com> Subject: FW: Meeting request for the Administrator - American Chemistry Council
Hi Ryan,
Would all of the attendees in the document be expected to attend a potential meeting? If there are that many folks, would this still be a productive meeting at 30 min?
Ashley Brown U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
ED_0 18475D_ 00002909-00004
From: Jackson, Ryan <R an Jackson americanchemist .com> Sent: Wednesday, March 19, 2025 12:30 PM To: Dickerson, Aaron <dickerson.aaron@eQE_,gQ_y_>; Brown, Ashley <Brown.Ashley@e2.~.:E.Q_Y->; Amidon, Eric <Arnidon.Eric@e12.a.gov> Subject: RE: Meeting request for the Administrator - American Chemistry Council
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Thank you again. Attached is our completed form.
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
From: Dickerson, Aaron <dickerson.aaron@~QE_,gQ_y_> Sent: Thursday, March 13, 2025 10:52 AM To: Jackson, Ryan <13 an Jackson americanchemist .com>; Brown, Ashley <Brown.Ashley@~2.~.:E.Q_Y->; Amidon, Eric <Amidon.Eric@er:>iJ_,gQ_y_> Subject: RE: Meeting request for the Administrator - American Chemistry Council
Thanks Ryan. Please complete the attached meeting request form.
From: Jackson, Ryan <gyan Jackson~ americanchemist y.com> Sent: Tuesday, March 11, 2025 6:19 PM To: Brown, Ashley <Brown.Ashley@~2.~.:E.Q_Y->; Dickerson, Aaron <dickerson.aaron@e[:>E_,gg_y_>; Amidon, Eric <Amidon.Eric@~[:>E_,gg_y_> Subject: Meeting request for the Administrator - American Chemistry Council
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
AllOn behalf of the American Chemistry Council's President and CEO, we request a meeting with the administrator at the EPA to raise opportunities and to help achieve his Great American Comeback Initiative. Attached is a copy of our request letter. ACC and key member companies CEOs on our board of directors wish to attend. I would be happy to answer any questions and work with you to reach a convenient time.
ED_0 18475D_ 00002909-00005
Thank you as always, Ryan Jackson
. erkan Chemistry undl
Ryan Jackson Vice President, Federal Affairs 0: (202) 249-6718 C: (202) 679-1469
mericanchemist .com 700 2nd Street NE I Washington, DC I 20002 www.americanchemistry.com
I h ...
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www .americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
ED_0 18475D_ 00002909-00006
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www .americanchemistry.com
+++++++++++++++++++++++++++++ NOTICE: This email originated from a source outside of the American Chemistry Council. Do not click any links or access attachments unless you are expecting them, and know that the content is safe.
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ED_0 18475D_ 00002909-00008
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From: Sent: To: Attachments:
9144006360@vzwpix.com [9144006360@vzwpix.com] 4/12/2025 6:00:36 PM Brown, Ashley [Brown.Ashley@epa.gov] Untitled Attachment
caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
ED_018475O_00002914-00001
Message
From: Sent: To: Attachments:
9144006360@vzwpix.com [9144006360@vzwpix.com] 4/12/2025 6:00:36 PM Brown, Ashley [Brown.Ashley@epa.gov] text_0.txt
ED_018475O_00002915-00001
Can Lee do next week
ED_018475D_00002916-00001
essage
From:
Kafka, Michael T.
[Michael.Kafka@duke-
energy.com]
4/15/2025 9:30:35 PM
Cook, Steven
[cook.steven@epa.gov]
C:
DeRobertis, Cecilia
[DeRobertis.Cecilia@epa.gov];
Crossland, Andy
[Crossland.Andy@epa.gov]
Follow up regarding Roxboro
data and Duke Energy petition
for rulemaking
ttachments:Cover Letter_Duke Energy
Petition_CCR Rule_.pdf; Duke
Energy Petition for
Reconsideration of EPA's
Legacy CCR Rule 7-1-24 (with
exhibits).pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Good afternoon, Steven,
I am following up to inquire about scheduling a follow-up meeting with you to discuss the Roxboro facility data we provided to you as a result of our February 20 meeting. I call to your attention the attached petition for rulemaking Duke Energy submitted to then-Administrator Regan on July 1, 2024, requesting a narrow change focused on reconsideration of section 257. l0l(g)(4) of the final legacy CCR surface impoundments rule. Unfortunately, Duke Energy never had an opportunity to discuss our petition with the agency. Although the petition focuses on a narrow change to the rule's deferral provisions, in consideration of the extensive actions-closure by removal of CCR surface impoundments in compliance with section 102(c) and groundwater corrective action in compliance with sections 257.96 through 257.98-Duke Energy has undertaken and continues to undertake pursuant to the 2020 North Carolina coal ash consent order signed by then-Secretary of the North Carolina Department of Environmental Quality, Michael Regan, and numerous community groups, we believe the petition appropriately serves as a basis for further discussions with the agency regarding changes that would allow for the use of site-specific information to meet the section 257.102(d) closure performance standards, and thus, be fully protective of human health and the environment.
I look forward to hearing your thoughts and further discussing the data and information Duke Energy has provided to EPA pursuant to your request.
Best regards, Michael Kafka
From: Kafka, Michael T. Sent: Tuesday, April 8, 2025 11:36 AM To: Crossland, Andy <Crossland.Andy@epa.gov> Cc: DeRobertis, Cecilia <DeRobertis.Cecilia@epa.gov>; Cook, Steven <cook.steven@epa.gov> Subject: RE: Duke Energy Roxboro Steam Electric Plant Data and Information
Good morning, Andy,
ED_018475O_00002942-00001
In light of three weeks having passed, I wanted to follow up to see if Stephen has any questions regarding the data and information described below. In addition, I am hopeful we can set up a meeting with you, Stephen, and Cecilia within the next 30 days to discuss potential paths forward. I look forward to hearing from you.
Best regards, Mike
From: Kafka, Michael T. Sent: Tuesday, March 18, 2025 8:12 AM To: Crossland, Andy <Crossland.Andy@_~Q_~_g_Q_y_> Cc: DeRobertis, Cecilia <DeRobertis.Cecilia@~p-~_g_Q_y_>; Cook, Steven <cook.steven@e129..:.gg_y:> Subject: RE: Duke Energy Roxboro Steam Electric Plant Data and Information
Andy-thank you, I appreciate you accessing the site so quickly and downloading the data. Please reach out with any questions and let us know when Stephen and his staff are ready for a follow-up discussion.
From: Crossland, Andy <Crossland.Andy@e12.<:!:.RQY.> Sent: Tuesday, March 18, 2025 8:07 AM To: Kafka, Michael T. <Michael.Kafka@duke-energy.f_Ql:!l> Cc: DeRobertis, Cecilia <DeRobertis.Cecilia@)e2_~_g_Q_y_>; Cook, Steven <cook.steven@~9..:.gg_y:> Subject: [EXTERNAL] RE: Duke Energy Roxboro Steam Electric Plant Data and Information
*H IUllll liilillllllll llllllll *H 1\1111.1111111. 1111111! I rlte.JJJce. itDJ!ll ~~liii!~tilsll illli1 Elmail, ll1s:E! 11s:ammH al!11 S:1mEllllim1 ctmlrrF:Ht, l~iii!S: HEll 1~1J11ie,mt mali! S:iii!Hil1' I.am lk:\111\1 ~Ellizifi tlEll s:e1!11Ear, Ii IHlicimH riii!i!.ii)il! it, !tilE!m l(:\l m~\tJ clicli li1m1is, ~IElltml all1nwlllme;1m1!111 ml\l liHitElll\l l~tui II mrn 1ui1~mtill.
Michael,
Thanks for pulling this information together and making it available. Our team has it all downloaded and will begin reviewing it.
Best, Andy
Andy Crossland Director, Materials Recovery and Waste Management Division Office of Resource Conservation and Recovery Office of Land and Emergency Management (202) 853-4459 Crossland.andy(a;cpa.gov
From: Kafka, Michael T. <_M_i_c~_1a_e_l._K_a_fk_a~---~~ Sent: Friday, March 14, 2025 1:52 PM To: Crossland, Andy <Crossland.Andy@~2_~,.g_g_y_>; Cook, Steven <cook.steven@_~9..:.g.9_y_> Cc: Bednarcik, Jessica L <Jessica.Bednarcik duke-ener ,_~Q[.TJ.>; Gordon, Daisy L. <Daisy.Gordon( duke-energv,_~Q!!J> Subject: Duke Energy Roxboro Steam Electric Plant Data and Information
I
Caution: This email originated whether to open attachments or
from click
outside EPA, please on provided links.
exercise
additional
caution
when
deciding
Good afternoon, Stephen and Andy,
ED_018475D_00002942-00002
Again, thank you for your time on February 20 to discuss the legacy CCR surface impoundments rule and Duke Energy's extensive work done pursuant to the 2020 North Carolina coal ash consent order signed by thenSecretary of the North Carolina Department of Environmental Quality, Michael Regan. We share your desire for a durable program that is protective of human health and the environment while avoiding unnecessary actions that provide no concomitant environmental benefits, specifically the closure by removal of overlying landfills to address closed underlying CCR management units-a portion of which have ash in contact with the water table-when the adjacent basins are being closed by removal of CCR and groundwater is being actively remediated and presents no risks to off-site receptors.
At the meeting, Duke Energy's Senior Vice President of Environmental, Jessica Bednarcik, specifically discussed Duke Energy's ongoing basin closure work at the Roxboro Steam Electric Plant (Roxboro), as well as the robust groundwater corrective action program we are undertaking at the site. In response to your request to see data to support a risk-based approach that is as protective as the national minimum criteria, Duke Energy set up an FTP site, which contains six documents in three folders for your consideration:
1. Folder 1 titled "Duke Energy Comments: NODA and Technical Corrections"
1.
Duke Energy Comments on 1-16-25 Direct Final Legacy CCR Surace Impoundments Correction
Rule commenting on EPA's new definition of "Closed prior to October 19, 2015," which impacts
Roxboro. Duke Energy submitted these comments to the docket via Regulations.gov on March 10, 2025.
2.
Duke Energy NODA Comments (12-11-23), which specifically address Roxboro and two other
facilities subject to the North Carolina coal ash consent order, Belews Creek Steam Station and Marshall Steam
Station.
2. Folder 2 titled "Roxboro Fact Sheet and Attachments"
1.
Duke Energy Roxboro Corrective Action Fact Sheet.
2.
Attachments 1-9 of the Corrective Action Plan Fact Sheet, which include several technical
documents related to the groundwater remediation system.
3.
Attachment 10 of the Corrective Action Plan Fact Sheet, the North Carolina Annual
Groundwater and Surface Water Report, which contains a robust dataset and comprehensive information.
3. The last document titled "Roxboro Remediation Progress Presentation" provides details on Duke
Energy's groundwater monitoring and corrective action program, including information regarding
improvements to groundwater quality.
Please use the link below, which will take you directly to the FTP site folder where the above information can be found. The usemame and password are provided below. The retention time is 7 days, but please let me know if additional time is needed.
FTP site location:_Duke Energv secHre file transfer Login:! Ex. 6 : L----------------------------- Password! Ex. 6 ! L-------------------------
I would appreciate it if you would please confirm receipt of this information and notification that you were able to successfully access the documents. We would appreciate a follow-up meeting with you after you have had the opportunity to review the information.
Sincerely, Michael Kafka Deputy General Counsel
ED_018475D_00002942-00003
Troutman Pepper Hamilton Sanders LLP Troutman Pepper Building, 1001 Haxall Point, 15th Floor Richmond, VA 23219 troutman.com
Brooks M. Smith brooks.smith@troutman.com
July 1, 2024 VIA CERTIFIED MAIL AND E-MAIL
The Honorable Michael S. Regan Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Mail Code 1101A Washington, DC 20460
Re: Petition for Rulemaking to Reconsider Specific Provisions of the 2024 Coal Combustion Residual Rule
Dear Administrator Regan: On behalf of Duke Energy Corporation, we respectfully submit the attached petition for a rulemaking narrowly focused on reconsideration of 40 C.F.R. 257.101 (g)(4) of the final rule entitled Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments, 89 Fed. Reg. 38950 (May 8, 2024). We look forward to EPA's consideration and response to our petition. Best regards,
Brooks M. Smith cc: Andy Crossland
Michael Kafka, Esq.
ED_0 18475D_ 00002943-00001
PETITION BEFORE THE ADMINISTRATOR IN THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DUKE ENERGY CORPORATION,
Petitioner,
Filed with:
MICHEAL REGAN, in his capacity as EPA Administrator 1200 Pennsylvania Avenue, NW Washington, DC 20460
)
)
)
)
PETITION FOR RULEMAKING
)
DOCKET NO: - - - - - -
)
)
)
)
)
)
PETITION FOR RULEMAKING TO RECONSIDER SPECIFIC PROVISIONS OF THE 2024 COAL COMBUSTION RESIDUALS ("CCR") RULE
Duke Energy Corporation ("Duke Energy") respectfully petitions the United States Environmental Protection Agency ("EPA") pursuant to 5 U.S.C. 553(e) and 42 U.S.C. 6974(a) for a rulemaking narrowly focused on reconsideration of 40 C.F.R. 257.101(g)(4) of the final rule entitled Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments ("2024 CCR Rule"). 1 Reconsideration is necessary and appropriate to address a unique subset of previously closed CCR units that meet the statutory protectiveness standard in 42 U.S.C. 6944(a) but have less than 5 feet of separation between the base of the closed unit and the water table and/or some amount of free liquid (even if de minimis) in the closed unit.
INTRODUCTION The 2024 CCR Rule marked the consummation of years of rulemaking effort by EPA to address, among other things, the opinion of the United States Court of Appeals for the District of
1 89 Fed. Reg. 38950 (May 8, 2024).
1
ED_018475O_00002944-00001
Columbia Circuit in Utility Solid Waste Activities Group, et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018) vacating and remanding portions ofEPA's 2015 final rule entitled Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals From Electric Utilities.2 In finalizing the 2024 CCR Rule, EPA made a number of changes responsive to public comments on the proposed rule, including adjustments to the final compliance time frames for newly regulated legacy CCR surface impoundments ("legacy SI") and CCR management units ("CCRMU").3
EPA also created entirely new deferral categories for (1) legacy SI and CCRMU previously closed pursuant to substantially equivalent regulatory authority, and (2) CCRMU located under critical infrastructure.4 Importantly, units qualifying for the first deferral category are not exempt from the requirements of the 2024 CCR Rule but instead are temporarily relieved of the obligation "to comply with 257.102 until a permit authority can evaluate the adequacy of the previously completed closure and determine during permitting whether (as well as what) additional measures are necessary to ensure that the closure is as protective as 257.102."5 Units in the second deferral category also are not exempt, per se, but rather may defer closure "until the infrastructure is no longer needed, EPA or a Participating State Director determines closure is necessary to ensure that there is no reasonable probability of adverse effects on human
2 80 Fed. Reg. 21302 (April 17, 2015). The Advance Notice of Proposed Rulemaking for the 2024 CCR Rule was issued in October 2020, 85 Fed. Reg. 65015 (Oct. 14, 2020), and the Proposed Rule was issued in May 2023, 88 Fed. Reg. 31982 (May 18, 2023).
3 See 89 Fed. Reg. at 39005 (Table 1) and 39061 (Table 2). 4 40 C.F.R. 257. lOl(g) and (h), respectively. 5 89 Fed. Reg. at 39025.
2
ED_018475D_00002944-00002
health or the environment, or the closure or decommissioning of the facility, whichever occurs first. "6
EPA added the newly identified deferral categories in response to examples volunteered
by interested stakeholders during the public comment process.7 In so doing, EPA made clear
that the requirements of previous closures conducted under active State oversight, "even where
different, can result in closures that are equally protective as those conducted in accordance with Federal requirements."8 According to EPA:
[These closures] all share certain features such as the risks at the site have been fully evaluated by a regulatory authority. Even though the specific requirements may differ from 257 .102, there is nevertheless reason to believe that the closure will be protective, at least in the interim until a permitting authority can evaluate the adequacy of the closure to the CCR closure requirements.9
To obtain a deferral for a previously closed legacy SI or CCRMU under 40 C.F.R.
257.l0l(g), the closure must meet the following criteria:
(1) The owner or operator of the CCR unit must document that a regulatory authority played an active role in overseeing and approving the closure and any necessary corrective action, pursuant to an enforceable requirement. This includes a State or Federal permit, an administrative order, or consent order issued after 2015 under CERCLA or by an EPA-approved RCRA State program.
(2) The owner or operator of the CCR unit must document that the regulatory authority required or conducted a site-specific risk assessment prior to (or as part of) approving the closure and any necessary corrective action.
(3) The owner or operator of the CCR unit must document that it installed a groundwater monitoring system and performed groundwater monitoring that meets all of the following:
(i) Was capable of accurately representing background water quality;
6 40 C.F.R. 257.lOl(h). 7 89 Fed. Reg. 39030.
9 89 Fed. Reg. at 39031.
3
ED_018475D_00002944-00003
(ii) Was capable of accurately representing the quality of water passing the waste boundary; (iii) Was capable of detecting contamination in the uppermost aquifer; and (iv) Monitored all potential contaminant pathways.
(4) Must document that the closed unit meets either:
(i) The performance standard in 257.60; or (ii) The performance standard in 257.102(d)(2)(i).
(5) The owner or operator must include the following statement, signed by the owner or operator or an authorized representative, in the facility evaluation report for CCR management units specified in 257.75 or applicability report for legacy CCR surface impoundments specified in 257.I00(f)(l) along with all information required by paragraphs (g)(l) through (4) of the section:
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. 10
Duke Energy generally supports the newly identified deferral categories. However, as
explained in more detail below, Duke Energy respectfully submits that the requirements of
257.101(g)(4) are unnecessary to meet the statutory protectiveness standard, which requires
EPA's criteria to ensure that "there is no reasonable probability of adverse effects on health or
the environment,"11 and as a practical matter, will severely limit the availability of deferrals.
ARGUMENT
The deferral criteria in 257.I0I(g)(l)-(3) ensure that the previous closure was
conducted under active regulatory oversight supported by a site-specific risk assessment and a
10 40 C.F.R. 257.lOl(g)(l)-(5). 11 42 U.S.C. 6944(a). The requirements of 40 C.F.R. 257.101(g)(4)(i) and (ii) are repeated in 257.101 (h)(l) and (2) for CCRMU under critical infrastructure. However, this Petition is limited to 40 C.F.R. 257.101(g)(4).
4
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robust groundwater monitoring system with data to confirm the quality of groundwater associated with the unit. In addition, the closure equivalency determination in 257.101(g)(6) ensures that at the permitting stage, EPA (or the Participating State) will confirm whether the "equivalency" of the closure was successfully demonstrated, including whether the closure met the appropriate Part 257 closure standard. If it did not, then EPA (or the Participating State) must include specific requirements in the permit "necessary for the closed unit to achieve compliance with 257.102."
These requirements, taken together, are adequate to meet the statutory protectiveness standard. However, EPA also added 257.101(g)(4), which requires the owner or operator to document that the closed unit "meets" either the 5-foot aquifer separation requirement in 257.60 or the requirement to have eliminated free liquids in 257.102(d)(2)(i). Duke Energy respectfully requests that EPA reconsider 257.101(g)(4) for each of the following reasons.
First, 257.101(g)(4) creates a very real risk that previous closures performed under active State oversight that are demonstrated to be safe and protective will nonetheless be disqualified from the deferral option if there is less than 5 feet of separation between the base of the closed unit and the water table or even a de minimis amount of free liquid left in the closed unit. This would severely undermine and penalize the significant efforts undertaken by States and utilities to close legacy SI and CCRMU in the past, well before there was any federal regulatory requirement to do so (i.e., prior to the 2024 CCR Rule).
For example, on December 31, 2019, Duke Energy entered into a Settlement Agreement, a copy of which is attached hereto as Exhibit "A," with then-Secretary Michael Regan on behalf of the North Carolina Department of Environmental Quality ("NCDEQ"), and several community groups under which the parties to that agreement consented to the entry of a Consent
5
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Order entered by North Carolina superior court on February 5, 2020 ("Consent Order"), a copy of which is attached hereto as Exhibit "B," under which Duke Energy agreed to, inter alia, close the CCR surface impoundments by removal of CCR at seven coal ash sites in North Carolina. At three of the sites subject to the Consent Order-Belews Creek Steam Station ("Belews Creek"), Marshall Steam Station ("Marshall"), and Roxboro Steam Electric Plant ("Roxboro")-NCDEQ and the community groups expressly agreed that, in exchange for Duke Energy's agreement to excavate and remove all coal ash from the ash basins, any ash located underneath the overlying fills-each of which will be closed with a final cover system that incorporates a geosynthetic liner-need not be moved.
Under the Consent Order, the parties stipulated and agreed that for these three facilities (as wells as the other four facilities subject thereto),
Duke Energy's compliance with approved Groundwater Corrective Action Plans, NPDES permits, and SOCs [special orders by consent], along with the actions required by this Consent Order and through [NCJDEQ's administration ofthe statutes, rules and regulations that it implements, have resolved or will resolve the remaining alleged groundwater violations and surface water violations (i.e., those caused by impoundment sources) set forth in the Complaints filed in these actions. Consent Order, Injunctive Relief, at 11 (emphasis added). To address groundwater protection, as required by the Consent Order, pursuant to a groundwater monitoring plan approved by NCDEQ, following excavation in the footprint of the former ash basins and downgradient of the landfills, Duke Energy must conduct groundwater monitoring (including the installation of new wells ifreasonably necessary) and surface water sampling. In this plan, Duke Energy must propose (1) additional groundwater remedial measures for any coal ash constituent if the data indicate an increasing trend in groundwater concentrations in excess of the [North Carolina] 2L
6
ED_018475D_00002944-00006
groundwater standards for four (4) consecutive semi-annual sampling events for that constituent ... and (2) surface water treatment if the data shows impact from coal ash constituents above the 2B [North Carolina surface water] standards to waters of the State .... Consent Order at~~ 29, 45, 55. And to address groundwater corrective action, Duke Energy submitted a proposed groundwater corrective action plan to NCDEQ for its review and approval, which included active remedial measures "to address any groundwater contamination as required by [North Carolina's Coal Ash Management Act of 2014] ..., the 2L groundwater rules, and any other applicable laws, statutes, or regulations . . .. Upon approval of the proposed groundwater corrective action plan by NCDEQ, Duke Energy began implementing the plan "to remedy any material violations of the 2L groundwater standards as determined by NCDEQ," which are attributable to the ash basins, including the ash under the overlying fills. Consent Order at~~ 30, 46, 56. Updated Corrective Action Plans ("Updated CAPs") for Marshall, Belews Creek, and Roxboro were submitted to NCDEQ on December 31, 2019, and included a robust corrective action system with groundwater extraction wells, clean water infiltration wells, and treatment of extracted groundwater designed to meet an accelerated time frame specified in the Consent Order. The approved Updated CAPs are comprehensive and included human health and ecological risk evaluations, groundwater fate and transport modeling, surface water evaluations, geochemical modeling, remedial alternative evaluations, fractured bedrock evaluations, and more, to ensure the remedial approach selected was robust, met necessary time frames and requirements in the Consent Order, and was protective of human health and the environment. The Updated CAPs were approved by NCDEQ in 2021. Prior to approval, a separate approval was received by NCDEQ to begin pilot testing of the remediation systems on February 21, 2020.
7
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The pilot systems that were installed were robust and included a total of 96 extraction wells and 31 clean water infiltration wells to meet stringent dates in the Consent Order and assist in optimizing the full-scale system. The pilot test system was substantially constructed and operational in 2021, and each ran for six months to gather necessary data to complete design of the full-scale system, then continued operation during full-scale implementation. The full-scale system at these three facilities includes a total of 168 extraction wells and 84 clean water infiltration wells with capture zones between 1,200 feet to over 3,000 feet parallel to the CCR units. Additionally, when considering all five remedial systems at Belews Creek, Marshall, Roxboro, and two other Duke Energy coal-fired facilities in North Carolina, over 44 miles of piping have been installed and over 727 million gallons of groundwater have been extracted with over 101 million gallons of clean water infiltrated as of March 2024. Additional details on these systems can be found in the Duke Energy's comments submitted on December 11, 2023, in response to the November 7, 2023, Notice of Data Availability (Docket No.: EPA-HA-OLEM-2020-0107).
The foregoing demonstrates that the actions Duke Energy has taken and will continue to take pursuant to strict State oversight to close these regulated basins and CCRMUs and remedy any groundwater contamination are protective of human health and the environment and, as such, the deferral option should be available for all of these units.
Second, in the original 2015 rule, failure to meet the 5-foot aquifer separation standard triggered closure of the unit. However, EPA has now flipped the standard so that even a previously closed unit would need to meet the separation standard to obtain a deferral. This means that the primary impetus for many previous closures would now be grounds to deem them ineligible for the deferral option even ifthey were otherwise safe and protective.
8
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Third, EPA's use of the present tense "meets" suggests that the closed unit must be in compliance with one of the two provisions in 257.101(g)(4) now. However, since the free liquids performance standard is temporally connected to closure (i.e., "prior to installing the final cover system" for the unit being closed), the owner or operator will need to document that the standard was met at the time of closure (which could have occurred years ago), as well as now. This may be difficult if not impossible to demonstrate, thereby limiting if not eliminating the availability of the deferral option.
Fourth, the closure equivalency process in 40 C.F.R. 257.101(g)(6) indicates that EPA (or the Participating State) will impose permit requirements "necessary for the closed unit to achieve compliance with 257.102" if necessary. This suggests that EPA (or the Participating State) could require further dewatering or other engineering measures to address the closure performance standards if determined to be necessary to meet 257.102(d)(2)(i) at the time of permitting. However, as written, 257.101(g)(4) would preclude this scenario.
Finally, one of the overarching goals of the CCR regulatory program is to protect groundwater and thereby meet the statutory protectiveness standard. EPA suggests in the preamble that 257.101(g)(4) "directly addresses the reason that EPA has concluded that many previously completed closures do not meet the [protectiveness] standard."12 However, this is not the only option to address EPA's concern. Indeed, a more reasonable and defensible option would be to replace 257.101(g)(4) with a requirement that the owner or operator document compliance with 257.96 through 257.98 with respect to any necessary groundwater corrective action.
12 89 Fed. Reg. at 39031. 9
ED_018475D_00002944-00009
Duke Energy urges EPA to pursue this proposed approach as part of its reconsideration of
the 2024 CCR Rule by amending 257.101(g)(4) as follows:
(4) Must document that the closed unit meets the groundwater corrective action requirements in 257.96 through 257.98, where applicable. eitheF.
(i) The performance standard in 257.60; or (ii) The performance standard in 257.102(d)(2)(i).
Alternatively, EPA could simply add the proposed language as a third criterion to
the existing 257.101(g)(4) as follows:
(4) Must document that the closed unit meets either:
(i) The performance standard in 257.60; or (ii) The performance standard in 257.102(d)(2)(i); or (iii) the groundwater corrective action requirements in 257.96 through 257.98, where applicable.
CONCLUSION
Duke Energy respectfully requests that EPA grant this Petition, reconsider 40 C.F.R.
257.101(g)(4) in the 2024 CCR Rule and initiate a new rulemaking to amend it as proposed
herein.
Dated: July 1, 2024
DUKE ENERGY CORPORATION
By: ,;:,::r::,'1~?
Brooks M. Smith TROUTMAN PEPPER LLP 1001 Haxall Point 15th Floor Richmond, VA 23219 (804) 836-7331 brooks.smith@troutman.com
ED_018475D_00002944-00010
EXHIBIT A
DUKE ENERGY CAROLINAS, LLC, AND DUKE ENERGY PROGRESS, LLC,
Petitioners,
V.
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY,
Respondent,
APPALACHIAN VOICES, THE STOKES COUNTY BRANCH OF THE NAACP, MOUNTAINTRUEJIHE CATAWBA RIVERKEEPER FOUNDATION, THE SIERRA CLUB, THEWATERKEEPER ALLIANCE, and THE ROANOKE RIVER BASIN ASSOCIATION,
Respondent-Intervenors.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into on December
31st, 2019 ("Effective Date") between the Parties, defined as follows:
"Duke Energy": Duke Energy Carolinas, LLC and Duke Energy Progress, LLC "DEQ": The North Carolina Department of Environmental Quality "Community Groups": Appalachian Voices, Stokes County Branch of the NAACP,
MountainTrue, The Catawaba Riverkeeper Foundation, Waterkeeper Alliance, Sierra Club, Roanoke River Basin Association, Cape Fear River Watch, Inc., Neuse River Foundation/Sound Rivers, Inc., and NC State Conference of the NAACP. 1 The Parties enter into this Settlement Agreement in order to resolve the matters referenced herein.
Background
1 To the extent some of these Community Groups are not party to this litigation but rather to prior litigation addressing other Duke Energy coal ash facilities, they have been consulted by their counsel and agree to the terms and conditions herein only to the extent applied to the facility or facilities about which they have previously been involved in litigation related to the disposition of coal ash or alleged violations related to coal ash.
1
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1. On April 1, 2019, DEQ issued Coal Combustion Residuals Surface Impoundment Closure Determinations (the "Closure Determinations") pursuant to the Coal Ash Management Act ("CAMA") for Duke Energy's Allen, Belews Creek, Cliffside, Marshall, Mayo, and Roxboro Steam Stations (singular, "Facility"; collectively, the "Facilities"). These Closure Determinations ordered excavation of all coal combustion residuals ("CCR") impoundments at the Facilities.
2. On April 26, 2019, Duke Energy filed Petitions for Contested Case Hearing in the North Carolina Office of Administrative Hearings ("OAH") in 19 EHR 2398, 19 EHR 2399, 19 EHR 2401, 19 EHR 2403, 19 EHR 2404, and 19 EHR 2406 challenging DEQ's Closure Determination for each of the Facilities ("OAH Proceedings").
3. On May 9, 2019, DEQ issued a letter adjusting certain dates and making certain clarifications related to the Closure Determinations.
4. On May 24, 2019, Duke Energy filed Amended Petitions for each Facility in 19 EHR 2398, 19 EHR 2399, 19 EHR 2401, 19 EHR 2403, 19 EHR 2404, and 19 EHR 2406 challenging DEQ's May 9, 2019 letter in addition to DEQ's April 1, 2019 Closure Determinations.
5. In addition to the OAH Proceedings, the Parties are involved in the following litigation relating to the Facilities: the State Enforcement Actions ("State of North Carolina ex rel. North Carolina Department of Environmental Quality and Roanoke River Basin Association, Sierra Club, Waterkeeper Alliance, Cape Fear River Watch, Inc., Sound Rivers, Inc. and Winyah Rivers v. Duke Energy Progress, LLC 13 CvS 11032 (Wake County)" and "State ofNorth Carolina ex rel. North Carolina Department of Environmental Quality and Catawba Riverkeeper Foundation, Inc., Waterkeeper Alliance, MountainTrue, Appalachian Voices, Yadkin Riverkeeper, Inc., Dan River Basin Association, and
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Southern Alliance for Clean Energy v. Duke Energy Carolinas, LLC" 13 CvS 14461 (Mecklenburg County); three federal Clean Water Act lawsuits ("Roanoke River Basin Association v. Duke Energy Progress, LLC" No. 1: 16-cv-607 (MDNC) (Mayo), "Roanoke River Basin Association v. Duke Energy Progress, LLC" No. 1: 17-cv-452 (MDNC) (Roxboro), and "Appalachian Voices et al v. Duke Energy Carolinas, LLC" No. 1:17-cv1097 (MDNC) (Belews Creek)); and twelve petitions for judicial review ("PJRs") in North Carolina Superior Court petitioning two Orders issued in the OAH Proceedings (Case Nos. 19 CvS 19908, 19 CvS 19909, 19 CvS 19910, 19 CvS 19911, 19 CvS 19912, 19 CvS 19913, 19 CvS 22714, 19 CvS 22715, 19 CvS 22716, 19 CvS 22717, 19 CvS 22718, and 19 CvS 22719). 6. The Parties desire to resolve and settle any disputes between them in connection with the OAH proceedings, the State Enforcement Actions, the federal Clean Water Act lawsuits, and the PJRs in order to ensure that the impoundments are excavated on an expedited basis and to remove the uncertainty associated with litigation. The Community Groups and Duke Energy further agree that the actions to be taken by DEQ and Duke Energy under this Agreement and related Consent Order will resolve the pending issues in the Clean Water Act lawsuits.
The Facilities 7. This Agreement addresses the following impoundments at the Facilities regulated under
CAMA. a. At the Allen Steam Station, there are two CCR impoundments, the Retired Ash Basin and the Active Ash Basin. The Retired Ash Basin is approximately 123 acres
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and contains approximately 6,100,000 tons of coal ash and the Active Ash Basin is
approximately 170 acres and contains approximately 10,480,000 tons of coal ash.2
b. At the Belews Creek Steam Station, there is one CCR impoundment, the Ash Basin.
The Ash Basin is approximately 270 acres and contains approximately 11,970,000
tons of coal ash.
c. At the Cliffside Steam Station/Rogers Energy Complex, there are two CCR
impoundments, the Units 1-5 Inactive Ash Basin and the Active Ash Basin. The
Units 1-5 Inactive Ash Basin is approximately 46 acres and contains approximately
2,350,000 tons of coal ash and the Active Ash Basin is approximately 86 acres and
contains approximately 5,240,000 tons of coal ash.
d. At the Marshall Steam Station, there is one CCR impoundment, the Ash Basin. The
Ash Basin is approximately 360 acres and contains approximately 17,650,000 tons
of coal ash.3
2 Note that the tonnage of coal ash includes only the coal ash contained within the impoundments and not coal ash in landfills or structural fills. Duke Energy on the one hand, and DEQ and the Community Groups on the other, have a dispute as to whether coal ash under a lawfully permitted landfill is regulated by CAMA. At Allen, the Retired Ash Basin Landfill and subgrade is 25 acres and contains approximately 1,740,000 tons of coal ash. There is approximately 1,392,000 tons of coal ash beneath the Retired Ash Basin Landfill, and approximately 991,000 tons of coal ash in the area designated as the "DORS" area.
3 Note that the tonnage of coal ash includes only the coal ash contained within the impoundments and not coal ash in landfills or structural fills. Duke Energy on the one hand, and DEQ and the Community Groups on the other, have a dispute as to whether coal ash under a lawfully permitted landfill is regulated by CAMA. At Marshall, the Structural Fill beneath solar panels contains approximately 6,490,000 tons of coal ash. The subgrade fill beneath Industrial Landfill ("ILF") Cells 1 and 2 contains approximately 460,000 tons of coal ash. The subgrade fill beneath ILF Cells 3 and 4, contains approximately 409,000 tons of coals ash. The Old Ash Fill (1804 Phase I Landfill) contains approximately 626,000 tons of coal ash. The Retired Landfill (1804 Phase II Landfill) contains approximately 4,870,000 tons of coal ash. The ILF (Permit 18-12) contains approximately 2,050,000 tons of coal ash. The Marshall ILF continues to receive production ash and these tonnages represent the approximate tonnages as of the Effective Date.
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e. At the Mayo Steam Station, there is one CCR impoundment, the Ash Basin. The Ash Basin is approximately 153 acres and contains approximately 6,630,000 tons of coal ash.
f. At the Roxboro Steam Station, there are two CCR impoundments, the East Ash Basin and the West Ash Basin. The West Ash Basin is approximately 225 acres and contains approximately 12,970,000 tons of coal ash and the East Ash Basin is approximately 71 acres and contains approximately 7,100,000 tons of coal ash.4
8. Each of these impoundments is a CCR impoundment as defined by CAMA, N. C. Gen. Stat. 130A-309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261.
9. The total approximate amount of the coal ash set forth in paragraph 7 is estimated to be 80.5 million tons. Facility-Specific Obligations of Duke Energy. Allen
10. Closure of Coal Ash Impoundments. At the Allen Steam Station, Duke Energy will excavate and remove all coal ash from the Retired Ash Basin and Active Ash Basin, either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious
4 Note that the tonnage of coal ash includes only the coal ash contained within the impoundments and not coal ash in landfills or structural fills. Duke Energy on the one hand, and DEQ and the Community Groups on the other, have a dispute as to whether coal ash under a lawfully permitted landfill is regulated by CAMA. For Roxboro, the Roxboro Monofill contains approximately 6,818,000 tons of coal ash one portion of the landfill and an additional 7,635,000 tons of coal ash in a separate portion of that landfill. The Roxboro Monofill continues to receive production ash and these tonnages represent the approximate tonnages as of the Effective Date.
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process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. Duke Energy shall remove or permanently close all pipes currently running through or beneath the Retired Ash Basin and Active Ash Basin. Duke Energy will thereafter stabilize and close the area where the Retired Ash Basin and Active Ash Basin are located pursuant to applicable law. The total impoundment ash that will be excavated is estimated to be approximately 16,632,000 tons of coal ash. 11. Disposition of Other Coal Ash. Additionally, Duke Energy will excavate and remove coal ash from the Storage Areas, Structural Fills, and Landfill from the top of the Retired Ash Basin, either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. The total non-impoundment ash that will be excavated is estimated to be approximately 2,731,000 tons of coal ash. The closure plan will provide that ash shall remain for structural stability around the footers for the transmission towers, and that all ash that remains will be covered with a geomembrane layer. The amount of coal ash referred to in this paragraph that shall remain is estimated to be between 30,000 and 50,000 tons and is unsaturated. 12. Deadline for Closure. Duke Energy projects that it will require until December 31, 2037, to complete all excavation as required in Paragraphs 10 and 11 and the Parties understand that Duke Energy will request variances to meet the deadline imposed by this Agreement. Duke Energy shall complete all excavation required in Paragraphs 10 and 11 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be
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amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2037. For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time. The parties are aware that the Closure Plan submitted to DEQ for Allen on December 31, 2019, will not contain complete information reflecting the details of this Agreement. Pursuant to its statutory authority under N.C. Gen. Stat. 130A-309.214(c), DEQ directs that such information shall be submitted no later than 30 days after the Effective Date. 13. Groundwater Corrective Action Plan. No later than December 31, 2019, Duke Energy shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan will include active remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, ISA NCAC Subchapter 2L (the "2L groundwater rules"), and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 51 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 52.
Belews Creek 14. Closure of Coal Ash Impoundments. At Belews Creek, Duke Energy will excavate and
remove all coal ash from the Ash Basin except the impoundment coal ash under or within the waste boundary of the Pine Hall Road Landfill either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as
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environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. Duke Energy shall remove or permanently close all pipes currently running through or beneath the Ash Basin. Duke Energy will thereafter stabilize and close the area where the Ash Basin is located pursuant to applicable law. The total impoundment ash that will be excavated is estimated to be approximately 11,870,000 tons of coal ash. The closure plan will provide that ash shall remain underneath the Pine Hall Road Landfill, which is capped with a geosynthetic cap and has been closed pursuant to permit 8503-INDUS-1984 and stopped receiving coal ash in 2014. The amount of coal ash underneath the Pine Hall Road Landfill is estimated to be no more than 100,000 tons. Provided that, if Duke Energy is not able to demonstrate on or before February 1, 2020, that it is able to meet the requirements of paragraph 17, Duke shall submit an addendum to the closure plan on or before February 15, 2020, providing for the full excavation of this ash. 15. Deadline for Closure. Duke Energy projects that it will require until December 31, 2031, to complete all excavation as required in Paragraph 14, and the Parties understand that Duke Energy will request variances to meet the deadline imposed by this Agreement. Duke Energy shall complete all excavation required in Paragraph 14 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2034. For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time.
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16. Structural Stability, Monitoring, and Sampling. The coal ash under and within the waste boundary of the Pine Hall Road Landfill and within the waste boundary of the Ash Basin shall be stabilized with a permanent structure ("stability feature") for purposes of preserving the structural stability through the use of a wall unless a slope is shown to be as appropriate, so as to prevent lateral movement of the coal ash pursuant to a plan to be submitted for DEQ approval no later than June 30, 2020. Within seven (7) days of completing the stability feature, Duke Energy shall notify DEQ. Additionally, pursuant to a plan approved by DEQ, following excavation in the footprint of the former Ash Basin and downgradient of the Pine Hall Road Landfill, Duke Energy shall conduct groundwater monitoring (including the installation of new wells if reasonably necessary) and, upon reformation of surface water features that demonstrate DEQ-confirmed intermittent or perennial flows (not merely precipitation), surface water sampling. Consistent with the provisions of Paragraph 51, the plan shall propose (1) additional groundwater remedial measures for any coal ash constituent ifthe data indicate an increasing trend in groundwater concentrations in excess of the standards set forth in 15A NCAC 2L. 0202 ("2L groundwater standards") for four (4) consecutive semi-annual sampling events for that constituent, subject to the provisions of Paragraph 52, and (2) surface water treatment if the data shows impact from coal ash constituents above the 2B standards to waters of the State notwithstanding the provisions of Paragraph 52. This plan shall be submitted to DEQ no later than 120 days following completion of the stability feature. If appropriate, the additional monitoring plan will be integrated into the existing site monitoring plan to avoid redundant or conflicting monitoring programs. This paragraph shall not apply if the coal
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ash under and within the waste boundary of the Pine Hall Road Landfill and within the waste boundary of the Ash Basin is excavated. 17. Groundwater Corrective Action Plan. No later than December 31, 2019, Duke Energy shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan will include active remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 52. Ifthe coal ash under and within the waste boundary of the Pine Hall Road Landfill and within the waste boundary of the Ash Basin is not excavated, then at a minimum, Duke Energy shall remedy violations that DEQ determines are material violations of the 2L groundwater standards attributable to the Ash Basin at or beyond the geographic limitation as described in Paragraph 52 by December 31, 2029, subject to the provisions of Paragraph 51.
Cliffside/Rogers 18. Closure of Coal Ash Impoundments. At Cliffside Steam Station/Rogers Energy
Complex, Duke Energy will excavate and remove all coal ash from the Unit 5 Inactive Ash Basin and Active Ash Basin, either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. Duke Energy shall remove or
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permanently close all pipes currently running through or beneath the Unit 5 Inactive Ash Basin and Active Ash Basin. Duke Energy will thereafter stabilize and close the area where the Unit 5 Inactive Ash Basin and Active Ash Basin are located pursuant to applicable law. The total impoundment ash that will be excavated is estimated to be approximately 7,590,000 tons of coal ash. 19. Deadline for Closure. Duke Energy projects that it will require until December 31, 2028, to complete all excavation as required in Paragraph 18. Duke Energy shall complete all excavation required in Paragraph 18 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2029. 20. Groundwater Corrective Action Plan. No later than December 31, 2019, Duke Energy shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan will include active remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 50 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 52.
Marshall 21. Closure of Coal Ash Impoundments. At the Marshall Steam Station, Duke Energy will
excavate and remove all coal ash from the Ash Basin, except the coal ash under or within the waste boundaries of the PV Structural Fill and the 1804 Phase II Landfill, either (1) to
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lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. Duke Energy shall remove or permanently close all pipes currently running through or beneath the Ash Basin. Duke Energy will thereafter stabilize and close the area where the Ash Basin is located pursuant to applicable law. The total ash that will be excavated is estimated to be approximately 16,800,000 tons of coal ash. 22. Disposition of Other Coal Ash. Additionally, as part of its groundwater Corrective Action Plan for the Marshall site, Duke Energy will excavate and remove approximately 626,000 tons of coal ash from the 1804 Phase I Landfill (sometimes referred to as the "old ash fill") adjacent to the Ash Basin either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. Such excavation shall be complete no later than December 31, 2024. An approximate depiction of this excavation is attached as Exhibit A. The total ash that will be excavated from the 1804 Phase I Landfill is approximately 626,000 tons of coal ash. 23. Deadline for Closure. Duke Energy projects that it will require until December 31, 2034, to complete all excavation as required in Paragraph 21, and the Parties understand that Duke Energy will request variances to meet the deadline imposed by this Agreement. Duke Energy shall complete all excavation required Paragraph 21 by the statutory deadline set
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forth in the CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A309.215, but in any event not later than December 31, 2035. For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time. 24. Structural Stability, Monitoring, and Sampling. The coal ash under and within the waste boundary of the PV Structural Fill and the 1804 Phase II Landfill and within the waste boundary of the Ash Basin shall be stabilized with a permanent structure ("stability feature") for purposes of preserving the structural stability through the use of a wall unless a slope is shown to be as appropriate, so as to prevent lateral movement of the coal ash pursuant to a plan to be submitted for DEQ approval no later than June 30, 2020. Within seven (7) days of completing the stability feature, Duke Energy shall notify DEQ. Additionally, pursuant to a plan approved by DEQ, following excavation in the footprint of the former Ash Basin and downgradient of the PV Structural Fill and the 1804 Phase II Landfill, Duke Energy shall conduct groundwater monitoring (including the installation of new wells if reasonably necessary) and, upon re-formation of surface water features that demonstrate DEQ-confirmed intermittent or perennial flows (not merely precipitation), surface water sampling. Consistent with the provisions of Paragraph 51, the plan shall propose (1) additional groundwater remedial measures for any coal ash constituent if the data indicate an increasing trend in groundwater concentrations in excess of the 2L groundwater standards for four (4) consecutive semi-annual sampling events for that constituent, subject to the provisions of Paragraph 52, and (2) surface water treatment if the data shows impact from coal ash constituents above the 2B standards to waters of the
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State notwithstanding the provisions of Paragraph 52. This plan shall be submitted to DEQ no later than 120 days following completion of the stability feature. If appropriate, the additional monitoring plan will be integrated into the existing site monitoring plan to avoid redundant or conflicting monitoring programs. 25. Groundwater Corrective Action Plan. No later than December 31, 2019, Duke Energy shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. As part of the Corrective Action Plan, Duke Energy shall install a geosynthetic cap over the PV Structural Fill and 1804 Phase II Landfill by December 31, 2024. The Corrective Action Plan will include active remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 51 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 52. At a minimum, Duke Energy shall remedy any material violations of the 2L groundwater standards as determined by DEQ that is attributable to the Ash Basin at or beyond the geographic limitation as described in Paragraph 52 by December 31, 2029, subject to the provisions of Paragraph 50.
Mayo 26. Closure of Coal Ash Impoundments. At the Mayo Steam Station, Duke Energy will
excavate and remove all coal ash from the Ash Basin either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as
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environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. Duke Energy shall remove or permanently close all pipes currently running through or beneath the Ash Basin. Duke Energy will stabilize and close the area where the Ash Basin is located pursuant to applicable law. The total ash that will be excavated is estimated to be approximately 6,630,000 tons of coal ash. 27. Deadline for Closure. Duke Energy projects that it will require until December 31, 2028, to complete all excavation as required in Paragraph 26. Duke Energy may request variances to meet the deadline imposed by this Agreement. Duke Energy shall complete all excavation required in Paragraph 26 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2029. 28. Groundwater Corrective Action Plan. No later than December 31, 2019, Duke Energy shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan will include remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 50 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 52.
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Roxboro 29. Closure of Coal Ash Impoundments. At the Roxboro Steam Station, Duke Energy will
excavate and remove all coal ash from the West Ash Basin (and its extension impoundment area, sometimes referred to as the "Southern Extension Impoundment") and all coal ash from the East Ash Basin (and its extension impoundment area, sometimes referred to as the "Eastern Extension Impoundment") except the coal ash under or within the waste boundary of the Roxboro Monofill, Permit No. 7302-INDUS-1988. The excavated ash will be either (1) disposed of at lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) used for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy will provide reasonable notice to the Community Groups and DEQ. The scope of excavation is approximately depicted on Exhibit B to this agreement. Duke Energy shall remove or permanently close all pipes currently running through or beneath the West Ash Basin and East Ash Basin except those associated with the Roxboro Monofill. Duke Energy will thereafter stabilize and close the area where the West Ash Basin and East Ash Basins are located pursuant to applicable law. The total ash that will be excavated is estimated to be approximately 16,860,000 tons of coal ash. Additionally, Duke Energy will remove all coal ash fill from the Gypsum Pad area following retirement of the coal-fired generating units at Roxboro. 30. Disposition of Other Coal Ash. No later than 2 years and 6 months after the retirement of the coal-fired units at Roxboro, the remaining coal ash at the site will be closed and covered with a cap system that meets the requirements of North Carolina and federal law.
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31. Deadline for Closure. Duke Energy projects that it will require until December 31, 2035, to complete all excavation as required in Paragraph 29, and that the Parties understand that Duke Energy will request variances to meet the deadline imposed by this Agreement. Duke Energy shall complete all excavation required in Paragraph 29 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2036. For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time.
32. Structural Stability, Monitoring, and Sampling. The coal ash under and within the waste boundary of the Roxboro Monofill and within the waste boundary of the East Ash Basin shall be stabilized with a permanent structure ("stability feature") for purposes of preserving the structural stability through the use of a wall unless a slope is shown to be as appropriate so as to prevent lateral movement of the coal ash pursuant to a plan to be submitted for DEQ approval no later than June 30, 2020. Within seven (7) days of completing the stability feature, Duke Energy shall notify DEQ. Additionally, pursuant to a plan approved by DEQ, following excavation in the footprint of the former East Ash Basin and downgradient ofthe Roxboro Monofill, Duke Energy shall conduct groundwater monitoring (including the installation of new wells if reasonably necessary) and, upon reformation of surface water features that demonstrate DEQ-confirmed intermittent or perennial flows (not merely precipitation), surface water sampling. Consistent with the provisions of Paragraph 51, the plan shall propose (1) additional groundwater remedial measures for any coal ash constituent ifthe data indicate an increasing trend in groundwater
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concentrations in excess of the 2L groundwater standards for four (4) consecutive semiannual sampling events for that constituent, subject to the provisions of Paragraph 52, and (2) surface water treatment if the data shows impact from coal ash constituents above the 2B standards to waters of the State notwithstanding the provisions of Paragraph 52. This plan shall be submitted to DEQ no later than 120 days following completion ofthe stability feature. If appropriate, the additional monitoring plan will be integrated into the existing site monitoring plan to avoid redundant or conflicting monitoring programs. 33. Groundwater Corrective Action Plan. No later than December 31, 2019, Duke Energy shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan will include active remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 51 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 52. At a minimum, Duke Energy shall remedy any material violations of the 2L groundwater standards as determined by DEQ that is attributable to the East Ash Basin at or beyond the geographical limitation described in Paragraph 52 by December 31, 2029, subject to the provisions of Paragraph 51. 34. Progress Towards Groundwater Remediation. Subject to the prov1s10ns of this Agreement regarding substantial compliance in Paragraph 51, no later than June 30, 2020, Duke Energy shall submit a report for approval by DEQ analyzing the progress required by June 30, 2023 and by June 30, 2026 to achieve such compliance with 2L groundwater standards by December 31, 2029. Subject to the provisions of this Agreement regarding
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substantial compliance in Paragraph 50, no later than September 30, 2023 and September 30, 2026, Duke Energy shall submit reports demonstrating sufficient progress toward the goal of achieving compliance with the 2L groundwater standards. If DEQ determines that sufficient progress has not been made towards achieving this goal, Duke Energy shall implement additional remedial measures as required by DEQ.
Additional Obligations of Duke Energy 35. Submission of Closure Plans. Duke Energy will submit to DEQ one Closure Plan for each
impoundment pursuant to N.C. Gen. Stat. 130A-309.214(a) for each of the abovereferenced Facilities in accord with the provisions of this Agreement on or before December 31, 2019. Within 30 days thereafter, Duke Energy shall submit the supplemental information requested by DEQ in Paragraph 12. 36. Notice to Community Groups. During the implementation of the groundwater corrective action plans and any monitoring required by the terms of this Agreement, Duke Energy will provide concurrent copies to the Community Groups of coal ash excavation reports and groundwater monitoring data (including spreadsheets) for the Facilities as these are provided to DEQ. This may occur through U.S. Mail or electronic means to the person designated in Paragraph 67.
Obligations of DEO 37. Review of Closure Plans. DEQ will review these proposed Closure Plans and provide for
public participation consistent with N.C. Gen. Stat. 130A-309.214(b). The parties recognize that DEQ may request the submittal of additional information pursuant to N.C. Gen. Stat. 130A-309.214(c). After receiving public comment, DEQ will approve or disapprove the proposed closure plans pursuant to N.C. Gen. Stat. 130A-309.214(c).
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DEQ will not disapprove a proposed closure plan on the basis of the closure methodology employed, to the extent that such methodology is consistent with this Agreement. 38. Timely Review. In accordance with applicable law, DEQ agrees to conduct an expeditious review and act expeditiously on all applications by Duke Energy for permits necessary for Duke Energy to undertake the actions required under this Agreement as required by N.C. Gen. Stat. 130A-309.203. 39. Review of Variance Requests. DEQ acknowledges that the deadline for closure is a deadline for which the Secretary is authorized to grant a variance provided that the requirements ofN.C. Gen. Stat. 130A-309.215 are satisfied. DEQ acknowledges that an extension of time required to complete excavation ordered by DEQ and mandated by the terms of this Settlement Agreement may be a valid basis for seeking a variance from CAMA deadlines, including requests for variance under Paragraph 45 below for purposes ofbeneficiation. DEQ will approve or disapprove a request for variance at the appropriate time. 40. CCR Rule Deadlines. DEQ agrees to cooperate with (including as appropriate to support) and not oppose Duke Energy's efforts to extend the deadlines imposed by the federal CCR rule in court or before an administrative body to the extent that such an extension is necessary for Duke Energy to meet its obligations under this Agreement. 41. Further Excavation. For impoundments, structural fills, and landfills identified in this Agreement, DEQ shall not require additional excavation for CCR-impacted groundwater at Allen, Belews Creek, Cliffside, Marshall, Mayo, and Roxboro unless DEQ determines (1) there are material violations of the 2L groundwater standards or this Agreement within
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the meanmg of Paragraph 51 and (2) these material violations cannot reasonably be remedied by active remediation.
Obligations of the Community Groups 42. CAMA Variance Requests. The Community Groups will not oppose Duke Energy's
requests for variances on the closure deadlines set forth in CAMA in court or before an administrative body, provided Duke Energy does not request to extend such deadlines past December 31, 2034 for basins at Belews Creek, December 31, 2035 for basins at Marshall, December 31, 2036 for basins Roxboro, and December 31, 203 7 for basins at Allen. 43. Closure Plans and CAPs. The Community Groups agree that they will not challenge in court or before an administrative body DEQ's approval of Duke Energy's Closure Plans, CAPs (including application of a Restricted Designation), CAP implementation, landfill construction or operation permits, components or terms of NPDES permits or modifications to NPDES permits to the extent these components or terms are reasonably necessary for the obligations imposed by this Agreement (including, for example, NPDES permits or modifications relating to decanting and dewatering), stormwater permits, dam removal authorizations, or post-closure monitoring plans for Allen, Belews Creek, Cliffside, Marshall, Mayo, and Roxboro, or such other permits as required by this Agreement, provided those Closure Plans and CAPs conform with the terms of this Agreement. 44. CCR Rule Deadlines. The Community Groups agree not to oppose Duke Energy's efforts in court or in an administrative proceeding to extend the deadlines imposed by the federal CCR rule to the extent that such an extension is necessary for Duke Energy to meet its
21
ED_018475O_00002944-00031
obligations under this Agreement. Ifappropriate, the Community Groups will support such requests. 45. Deadlines for Coal Ash Recycling. The Community Groups agree not to oppose in court or before an administrative body, extensions to the CAMA closure dates as requested by Duke Energy, for the purposes of completing and beneficiation at Buck, Cape Fear, and HF Lee, through December 31, 2035.
Further Obligations 46. Superior Court Consent Order. The Parties will work together to submit a consent order
for injunctive relief incorporating the terms of this Agreement for filing in Wake County and Mecklenburg County Superior Court in Case Nos. 13-CVS-11032 and 13-CVS-14461 ("Consent Order") on or before January 31, 2020. In order to meet this deadline, the Parties will cooperate in the formation of the Consent Order, including periods for Notices. In the event the Superior Court refuses to enter the Consent Order, the parties agree that all parties shall retain the legal rights and positions that existed as of December 30, 2019 (including as applicable court rulings that constitute the law of the case). This paragraph shall be interpreted and enforced in order to fully effectuate the intent of the parties. To effectuate the intent ofthis paragraph, the Parties shall not object to the timeliness of any closure plan filed under the provisions of this paragraph and DEQ shall not approve any closure plan submitted under this Agreement prior to the entry of the Consent Order by the Superior Court, provided that DEQ may approve any closure plan on the last day for such approval under CAMA regardless of whether the Consent Order has been entered. It is expressly understood that in the event the Consent Order is not entered, and before the approval of
22
ED_018475D_00002944-00032
any closure plan by DEQ, Duke Energy intends to file alternative closure plans. It is further expressly understood that DEQ may not accept or approve these alternative closure plans. 47. Survival of Terms. The Parties intend and agree that the rights and obligations imposed by this Agreement shall be fully incorporated into the Consent Order contemplated by this Settlement Agreement, except for the obligations set forth in Paragraphs 48, 49 and 53. With the exception of the obligations set forth in Paragraph 48 (Dismissal of Related Litigation), Paragraph 49 (Compliance with CAMA), Paragraph 50 (DEQ Only State Entity Bound by this Agreement and Consent Order), and Paragraph 53 (Stipulations Between Only the Parties to this Agreement Regarding Rate Recovery Proceedings) this Settlement Agreement shall expire 90 days after entry of the Consent Order. 48. Dismissal of Related Litigation. Upon entry of the Consent Order by the North Carolina Superior Court and provided that there are no substantive modifications made by the Superior Court to the Consent Order, the Parties agree that Case Nos. 13 CvS 11032 and 13 CvS 14461 would be resolved. Within 15 days of entry of the Consent Order, Duke Energy shall dismiss with prejudice the following cases in the Office of Administrative Hearings: 19 EHR 2398, 19 EHR 2399, 19 EHR 2401, 19 EHR 2403, 19 EHR 2404, and 19 EHR 2406, and the following cases in North Carolina Superior Court: 19 CvS 19908, 19 CvS 19909, 19 CvS 19910, 19 CvS 19911, 19 CvS 19912, 19 CvS 19913, 19 CvS 22714, 19 CvS 22715, 19 CvS 22716, 19 CvS 22717, 19 CvS 22718, and 19 CvS 22719. Duke Energy and the Community Groups agree that the actions to be taken by Duke Energy and DEQ under this Agreement resolve and render moot the issues raised in the Clean Water Act lawsuits and will work cooperatively to prepare a joint motion dismissing those
23
ED_018475D_00002944-00033
claims with prejudice to be filed within 30 days of entry of the Consent Order in Superior Court. Each party shall bear its own costs and attorneys' fees in all litigation. 49. Compliance with CAMA. DEQ finds that the provisions of this Agreement satisfy the closure requirements ofN.C. Gen. Stat. 130A-309.214 for Duke Energy's obligations to close the CCR impoundments at the Facilities. In the event of inconsistency between this Agreement and DEQ's April 1 Closure Determinations, the terms of this Agreement shall control. 50. DEQ Only State Entity Bound by this Agreement and Consent Order. The Parties expressly acknowledge and agree to each of the following: a. The only State entity bound by this Agreement and any related Consent Order is DEQ. b. Nothing in this Agreement or any related Consent Order shall limit the arguments that
may be made or conclusions that may be drawn by other State entities in any matter or proceeding concerning recovery through rates of costs incurred by Duke Energy. c. Neither resolution of cases or issues pursuant to this Agreement, nor the related Consent Orders, shall have any preclusive or res judicata effect against other State entities. The Parties shall work together to ensure that the Consent Order effectuates the intent of this paragraph. 51. Substantial Compliance. For any term of this Agreement that requires compliance with the 2L groundwater standards, Duke Energy will not be deemed to be in violation of any such term and shall not be subject to civil penalties or enforcement action by DEQ so long as Duke Energy has used best efforts (as described in Paragraph 55) to implement the corrective action plan and post-closure monitoring and care plan unless DEQ determines
24
ED_018475D_00002944-00034
that there are multiple and material deviations from such standards at or beyond the geographic limitation set forth in paragraph 52 . 52. Geographic Limitation. Active remediation will not be required in the area within 500 feet of the waste boundary of each impoundments as shown on the most recent NPDES permit for each of the Facilities (except that if a property boundary or body of water is located closer than 500 feet to the waste boundary, that property boundary or body ofwater shall define the geographic limits for active remediation) ("geographic limitation"), provided that, subject to the provisions of Paragraph 51, coal ash constituents outside the geographic limitation described in this paragraph do not increase beyond the 2L groundwater standards post-closure. It is expressly understood and agreed that DEQ will not assess a civil penalty or pursue an enforcement action for any exceedances of the 2L groundwater standards within the geographical limitation so long as Duke Energy is making best efforts (as defined by paragraph 55) to implement the approved corrective action plan and closure plan as determined by DEQ. The corrective action plans may be periodically updated as required by DEQ ifthe groundwater cleanup fails to meet projected targets. 53. Stipulations Between Only the Parties to this Agreement Regarding Rate Recovery Proceedings.
a. DEQ and the Community Groups agree that closing the CCR impoundments at the Allen, Belews Creek, Cliffside, Marshall, Mayo, and Roxboro Steam Stations in accord with this Agreement (including the obligations imposed by the Consent Order contemplated by this Agreement) is reasonable, prudent, in the public interest, and consistent with law. This subparagraph applies only to the actions of
25
ED_018475D_00002944-00035
Duke Energy in entering into this Agreement and assuming the obligations under this Agreement. For example, and without limitation, the agreement in this subparagraph does not extend, nor shall it be construed to apply, to the issues of (i) whether Duke Energy acted prudently and reasonably in the past, or (ii) whether Duke Energy prudently and reasonably performs its obligations under this Agreement. Nothing in this Agreement shall be taken as an admission of any imprudent or unreasonable actions by Duke Energy. b. Nothing in this Agreement, including but not limited to subparagraph (a) above, shall be taken as an endorsement or opposition by DEQ or the Community Groups of recovery through rates of the costs incurred by Duke Energy implementing the terms of this Agreement or related Consent Order. c. DEQ and the Community Groups shall not challenge or otherwise object in court or before an administrative body to the reasonableness, prudence, public interest, or legal requirement for Duke Energy to comply with the obligations imposed by this Agreement, related Consent Order, or as to the Agreement itself. d. The Parties state and agree that the issue of recovery through rates of the costs imposed by this Agreement and related Consent Order is to be determined by the North Carolina Utilities Commission upon proper application and related legal proceedings. DEQ has no role in making the determination of the issue ofrecovery through rates of the costs imposed by this Agreement and related Consent Order. DEQ neither endorses nor opposes such recovery. e. Nothing in this Agreement shall prevent DEQ from providing factual nonconfidential information relating to the matters covered in this Agreement,
26
ED_018475D_00002944-00036
provided that it is expressly understood that Duke Energy does not waive any objection to the admissibility of this information based on evidentiary, administrative, statutory, or equitable grounds before any court or administrative body. If DEQ intends to file testimony or amicus briefs or provides discovery concerning the matters that are the subject of this Agreement in connection with ongoing judicial or administrative proceedings, it shall provide reasonable notice of the subject-matter of such testimony or brief or discovery before submitting it to the administrative agency or court. f. Nothing in this Agreement shall prevent the Community Groups from participating as permitted by law or agency ruling in rate recovery proceedings or objecting to Duke Energy's rate recovery on grounds not inconsistent with the terms of this Agreement. g. The Parties understand and agree that this Agreement and related Consent Order may be presented to the North Carolina Utilities Commission. 54. No Admission. By entering into this Agreement, no Party to this Agreement admits wrongdoing or liability related to matters covered in this Agreement. 55. Force Majeure. The Parties agree that it will not be a violation of this Agreement if performance of any of the obligations set forth is delayed by an extraordinary event that is beyond the control of Duke Energy, or any entity controlled by Duke Energy or its contractors, despite best efforts to fulfill the obligation. Such causes are war, civil unrest, act of God, or act of a governmental or regulatory body delaying performance or making performance impossible including any appeal or decision remanding, overturning, modifying or otherwise acting (or failing to act) on a permit or similar permission or action
27
ED_018475D_00002944-00037
that prevents or delays an action needed for the performance of any of the work contemplated under this Agreement such that it prevents or substantially interferes with Duke Energy's performance within the time frames specified herein. Duke Energy shall bear the burden of proving by a preponderance of the evidence the existence of such circumstances. Such circumstances do not include the financial inability to complete the work, increased cost of performance, or changes in business or economic circumstances.
a. To qualify as a force majeure under this Agreement, the failure of a permitting authority to issue a necessary permit in a timely fashion which prevents Duke Energy from meeting the requirements in this Agreement must be beyond the control of Duke Energy, and Duke Energy must have taken all steps available to it to obtain the necessary permit, including but not limited to submitting a complete permit application, responding to requests for additional information by the permitting authority in a timely fashion, and accepting lawful permit terms and conditions after expeditiously exhausting any legal rights to appeal those terms and conditions imposed by the permitting authority.
b. The requirement that Duke Energy use "best efforts" in this Agreement includes using commercially reasonable efforts to anticipate any event that delays its obligations and to address the event in a commercially reasonable manner as it is occurring or following the event such that delay is minimized to the greatest extent possible.
56. Stay of Pending Proceedings. Within 15 days of execution of this Agreement, the Parties shall take all actions necessary to stay further proceedings before the Office of Administrative Hearings in matters 19 EHR 02401 (regarding Allen), 19 EHR 02398
28
ED_018475D_00002944-00038
(regarding Belews Creek), 19 EHR 02399 (regarding Rogers/Cliffside), 19 EHR 02403 (regarding Marshall), 19 EHR 02404 (regarding Mayo), and 19 EHR 02406 (regarding Roxboro), and all petitions for judicial review related thereto. All stays shall remain in existence until an agreed-upon Consent Order is entered in Superior Court and no further discovery or other proceedings shall occur. 57. Obligations of Duke Energy. Upon entry of the Consent Order, Duke Energy Progress, LLC and Duke Energy Carolinas, LLC shall be responsible for carrying out the obligations of the Consent Order until relieved by the Court. 58. Limitation on Remedy. Notwithstanding the foregoing, the Parties' sole and exclusive remedy for breach of this Agreement shall be an action for specific performance or injunction. In no event shall any Party be entitled to monetary damages for breach of this Agreement. In addition, no legal action for specific performance or injunction shall be brought or maintained until: (a) the non-breaching Party provides written notice to the breaching Party which explains with particularity the nature of the claimed breach, and (b) within thirty (30) days after receipt of said notice, the breaching Party fails to cure the claimed breach or, in the case of a claimed breach which cannot be reasonably remedied within a thirty (30) day period, the breaching Party fails to commence to cure the claimed breach within such thirty (30) day period, and thereafter diligently complete the activities reasonably necessary to remedy the claimed breach. 59. Binding Agreement. This Agreement shall apply to, and be binding on, the Parties and their respective agents, successors, and assigns.
29
ED_018475D_00002944-00039
60. Modification of this Agreement. This Agreement may not be modified, altered or changed except by written agreement of all Parties, specifically referring to this Agreement.
61. Counterpart Originals. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
62. Authorization to Sign. The undersigned representatives of the Parties certify that they are fully authorized by the respective Parties whom they represent to enter into the terms and conditions of this Agreement and to legally bind such Parties to it.
63. No Limitation on Administrative Process and Judgment. The Parties recognize that DEQ is a governmental agency with statutory rights or obligations, and must abide by all applicable procedural and substantive laws and regulations in the exercise ofsuch authority during the implementation of this Agreement. No provision in this Agreement shall diminish, modify, or otherwise affect the statutory or regulatory authorities of DEQ. Nothing in this Agreement shall limit the opportunity for the Community Groups to participate in any administrative process to the extent consistent with their commitments in this Agreement.
64. No Limitation of Administrative and Contractual Rights. For any provision in this Agreement where DEQ makes a determination on a matter, nothing in this Agreement waives any rights of a Party under the North Carolina Administrative Procedure Act (including the right to appeal, if any), nor does a determination by DEQ on a matter prohibit a challenge to that determination under the terms of this Agreement, where appropriate.
30
ED_018475D_00002944-00040
65. Other Corrective Action. Nothing in this Agreement supersedes or negates Duke
Energy's obligation to conduct groundwater assessment and, if needed, corrective action
for sources of groundwater contamination other than coal ash impoundments governed by
this Agreement or CAMA at any of the Facilities.
66. Governing Law. The Parties agree that this Agreement shall be governed under and
controlled by the law of the State of North Carolina.
67. Notice. Whenever notice is required to be given or a document is required to be sent by
one Party to another under the terms of this Agreement, it shall be provided to all Parties,
directed to the individuals at the addresses specified below, unless those individuals or their
successors give notice of a change to the other Parties in writing. Notice or submission by
electronic mail is acceptable.
a. Asto DEQ:
Sheila Holman Assistant Secretary for the Environment 1601 Mail Service Center Raleigh, NC 27699-1601 sheila.holman@ncdenr.gov
Cc: William F. Lane General Counsel 1601 Mail Service Center Raleigh, NC 27699-1601 Bill.Lane@ncdenr.gov
b. As to Duke Energy:
Kodwo Ghartey-Tagoe Executive Vice-President and Chief Legal Officer Duke Energy Corp. Mail Code DEC48H 550 South Tryon Street Charlotte, NC 28202
31
ED_018475D_00002944-00041
Kodwo.Ghartcy-Tagoc(cz),duke-cncrgy.com c. As to the Community Groups:
Frank S. Holleman III Senior Attorney Southern Environmental Law Center Counsel for Community Groups 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-2356 fhollcman@sclcnc.org
[signatures on separate pages]
32 ED_018475D_00002944-00042
SETTLEMENTAGREErdENT
DUKE ENERGY CAROLINAS, LLC
By:
;___ _----j
,---
Date:
Kodwo Ghartey-Tagoe
Executive Vice-President, Chief Legal Officer
DUKE ENERGY CAROLINAS, LLC and Authorized
Designated Official for DUKE ENERGY CAROLINAS, LLC
By:___,_ __
Date:~Jf
Kodwo Ghartey-Tagoe
Executive Vice-President, Chief Legal Officer
DUKE ENERGY PROGRESS, LLC and Authorized
Designated Official for DUKE ENERGY PROGRESS, LLC
lo(Cf
ED_018475D_00002944-00043
SETTLEMENT AGREEMENT
THE N ~ ~ T M E N T OF ENVIRONMICNTAL QUALITY
By: ~ - ' - - - - - - ' - - - - - " " - " " ' - ~ F - - - - - ' - - - = - - Michael Regan
1%. Date: J/ /2{)/1 I
Secretary
ED_018475D_00002944-00044
SETTLEMENT AGREEMENT THE COMMUNITY GROUPS:
By: ---i;:;.,e.___;;___"!~l,.j.4~;;i;.,__~=
Frank S. Hollema Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
Senior Attomey Southern Environmental Law Center Counsel for the Community Groups
By:-1--1-~~~--l--:-'1---~'-"---
F Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
ED_018475D_00002944-00045
SETTLEMENT AGREEMENT
COMMUNITY GROUPS:
By: ~'-,L-~:;,;.:,:.-...:..::.....,~-'F""'~"""'-.....C. Fr . Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
By: -I--J'-~~~~:...=L:.--1:~ F Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
By: --+-+-____L.JL__--1---~ Frank S. Holleman III Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
By: -----+I-f---I-, Fra, Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
OF THE NAACP
Date: ---)'-/-e'-c--/-=-=-----
ED_018475D_00002944-00046
2
A ___- MAR-145 STRUCTURAL
___- FILL STORMWATER REDIRECT CHANNEL
C ---sr
RUCTURAL Fl CCESS ROAD
CBO D
E
3
4
30
5
6
7
8
MAR_C999.002.015 REV. 0
LEGEND
EXISTING MAJOR TOPOGRAPHIC CONTOUR
' "'\
EXISTING MINOR TOPOGRAPHIC CONTOUR
--800--
ESTIMATED BOTTOM OF CCR MAJOR TOPOGRAPHIC CONTOUR
-
ESTIMATED BOTTOM OF CCR MINOR TOPOGRAPHIC CONTOUR
ASH BASIN WASTE BOUNDARY (APPROXIMATE)
MAR-145 UPDATED ASH BASIN WASTE BOUNDARY (APPROXIMATE)
EXISTING SITE FEATURE (APPROXIMATE)
A
INDUSTRIAL LANDFILL (ILF) PHASE BOUNDARY (APPROXIMATE)
PROPERTY BOUNDARY
NOTES
1. BASIS OF BEARINGS: NC GRID NAD83/2011. ELEVATIONS ARE BASED ON NAVD88.
2. HORIZONTAL LIMITS OF ASH BASIN BASED UPON HISTORICAL TOPOGRAPHIC SURVEYS AND AVAILABLE DESIGN DRAWINGS FROM DUKE ENERGY. ACTUAL LIMITS TO BE ESTABLISHED DURING CLOSURE.
3. VERTICAL EXTENTS OF CCR WITHIN ASH BASIN BASED UPON AVAILABLE PRE-DEVELOPMENT
TOPOGRAPHY SURVEY AND 2014 BATHYMETRIC SURVEY. ACTUAL DEPTH OF CCR TO BE DETERMINED
B
DURING ASH BASIN CLOSURE.
4. PHASE I OF THE 1804 LANDFILL AND THE STRUCTURAL FILL ACCESS ROAD TO BE EXCAVATED AND REMOVED AS PART OF ASH BASIN CLOSURE. EXCAVATION GRADES SHOWN ARE APPROXIMATE.
5. CCR EXCAVATION GRADES ADJACENT TO CCR TO REMAIN IN PLACE INSIDE HISTORICAL ASH BASIN LIMITS TO BE ESTABLISHED AFTER ENGINEERING ANALYSES BASED UPON CONDITIONS AT THE TIME OF CLOSURE ARE COMPLETED. SLOPES SHOWN NOT TO EXCEED 5-HORIZONTAL TO 1-VERTICAL FOR PLANNING PURPOSES.
Rev. E 6. CCR WITHIN THESE AREAS TO REMAIN IN-PLACE AFTER CLOSURE.
REFERENCES
C
1. SEE SHEET MAR_C999.002.002 FOR DRAWING REFERENCES.
C
DRAWING KEY
N
511111111 oe~:i-E:-iE50a
GRAPHIC SCALE
.1ol_o_ _ _~15lo
(IN FEET)
06121/19 60603377
B
08/30119 60603377
C
10/11119 60603377
D
11/6/19 60603377
DES JMW JMW JMW JMW
DFTR MAW MAW MAW MAW
CHKD RJB RJB RJB RJB
ENG RJB RJB RJB RJB
APPD JAB JAB JAB JAB
6 Rev E; 12/30/19; by JLB; Revised for Settlement Exhibit 7
DESCRIPTION ISSUED FOR REVIEW (DRAFT 30%) ISSUED FOR REVIEW (DRAFT 60%) ISSUED FOR APPROVAL (DRAFT 100%) ISSUED FOR APPROVAL (DRAFT 100%)
8
AS'COM
N.C. ENGINEERING LICENSE NO. F-0342
ESTIMATED BOTTOM OF ASH CONTOUR MAP (OVERALL)
MARSHALL STEAM STATION CLOSURE PLAN (DRAFT 100%) CATAWBA COUNTY, NORTH CAROLINA
FOR
ISSUED FOR APPROVAL (DRAFT 100%)
SCALE: AS SHOWN
DWG TYPE: .DWG JOB NO: 60603377 DATE: 11/6/2019
FILENAME: EXPECTED BOTTOM OF ASH.DWG
DWG SIZE
DRAWING NO.
DES: DFTR:
JMW MAW
CHKD: ENGR: APPD:
RJB RJB JAB
REVISION
ANSI D 22.0"x34.0"
MAR_C999.002.015
E
9
10
ED_018475O_00002944-00047
5
6
7
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ASH WITHIN THIS AREA
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2 Sheet Se-::::Ro><b:Yo East Ash Basin Closure Pla7
10
20
30
L:=iyoLt:ESTl\~ATED BOTTOM o=- ASH CCl"1T'.)UR \~p,=:,
l'k-vember -10, 2o-l'J
03:5C:40pm
11/20/2019 11/06/2019 10/15/2019 8/30/2019 6/2612019
DATE
7812190186 7812190186 7812190180 7812190186 7812190186
JOB NO.
DESIGN PLAN DESIGN PLAN DESIGN PLAN DESIGN PLAN DESIGN PLAN PROJECT TYPE
BBC BBC BBC WBM BNB DES
BBC TM CK BBC TM CK BBC TM CK WBM BBC CK BNB NAP NAP DFTR CHKD ENGR
Rev F; 12/30/19; by JLB; Revised for Set
O:\Duke Ener,;i_/\~o;;oorc\ 73I~:"19o-126 EP.B Closure By Rer7ov-:=1I
ment Exhibit
CK CK CK CK CK APPD
ISSUED FOR REVIEW - 100% ISSUED FOR REVIEW - 100% ISSUED FOR REVIEW - 100% ISSUED FOR REVIEW - 60% ISSUED FOR REVIEW 30%
DESCRIPTION
7
N
A
wood.
Environment & Infrastructure Solutions
4021 STIRRUP CREEK DRIVE, SUITE 1CO DURHAM NC 277C3 TEL: (919) 381-9900 FAX: (919) 3B1-9801 LICENSURE: NC ENG: F-1253 NC GEOLOGY: C-247
SEAL
NOT FOR CONSTRUCTION
8
EXISTING MAJOR CONTOURS
EXISTING MINOR CONTOURS
APPROXIMATE ASH BASIN LIMIT OF WASTE
UNLINED PORTION OF INDUSTRIAL LANDFILL
00 LINED PORTION OF INDUSTRIAL LANDFILL
PERMITTED LCID LANDFILL LIMIT
....lo.
AREA A CLOSURE EVENT 1 LIMIT
0
0
AREA TO BE EXCAVATED
0)
~
EXISTING OVERHEAD ELECTRIC ESTIMATED BOTTOM OF ASH CONTOURS
PROJECT NOTES:
:,:,0,
1. BOTTOM OF ASH CONTOURS ARE BASED ON HISTORIC
-;::.
TOPOGRAPHY AND ARE FROM A DIFFERENT SOURCE THAN
THE LIMIT OF WASTE LINE; THEREFORE, THEIR EXTENTS
DIFFER.
REFERENCES:
1. APPROXIMATE LIMITS OF WASTE PRESENTED HEREIN WERE PREPARED BY SYNTERRA FOR DUKE ENERGY.
2. BOTTOM OF ASH CONTOURS TAKEN FROM AMEC FOSTER WHEELER, WASTE STRATEGY ANALYSIS, ROXBORO STEAM STATION, MARCH 25, 2015.
200
0
~-=..J
200
400 FT
!
SCALE: 1"=200'
ROXBORO EAST ASH BASIN CLOSURE PLAN
CLOSURE BY EXCAVATION
ROXBORO STEAM ELECTRIC PLANT
F
PERSON COUNTY, NORTH CAROLINA
ESTIMATED BOTTOM OF ASH CONTOUR MAP
FOR
ISSUED FOR REVIEW -100%
SCALE: AS SHOWN DWG TYPE: DWG JOB NO: 7812190186 DATE: 11/20/2019
FILENAME: ESTIMATED BOTTOM OF ASH CONTOUR MAP.dwg
DWG SIZE
DRAWING NO.
ANSI D 22"x34"
ROX C999.001.006
DES
BBC
DFTR: BBC
CHKD: TM
ENGR: CK
APPD: CK
REVISION
F
9
10
ED_018475O_00002944-00048
EXHIBITB
STATE OF NORTH CAROLINA COUNTY OF WAKE
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 13 CVS 11032
STATE OF NORTH CAROLINA ex rel.
)
NORTH CAROLINA DEPARTMENT OF
)
ENVIRONMENTAL QUALITY, DIVISION )
OF WATER RESOURCES,
)
Plaintiff,
)
ROANOKE RIVER BASIN ASSOCIATION, )
SIERRA CLUB, WATERKEEPER
)
ALLIANCE, CAPE FEAR RIVER WATCH, )
INC., NEUSE RIVERKEEPER
)
FOUNDATION, AND WINYAH RIVERS
)
FOUNDATION,
)
Plaintiff-Intervenors,
)
V.
)
DUKE ENERGY PROGRESS, LLC,
)
Defendant.
)
COUNTY OF MECKLENBURG
13 CVS 14661
STATE OF NORTH CAROLINA ex rel.
)
NORTH CAROLINA DEPARTMENT OF
)
ENVIRONMENTAL QUALITY, DIVISION )
OF WATER RESOURCES,
)
Plaintiff,
)
CATAWBA RIVERKEEPER
)
FOUNDATION, INC., APPALACHIAN
)
VOICES, YADKIN RIVERKEEPER,
)
MOUNTAINTRUE, DAN RIVER BASIN
)
ASSOCIATION, ROANOKE RIVER BASIN )
ASSOCIATION, SOUTHERN ALLIANCE )
FOR CLEAN ENERGY, AND
)
WATERKEEPER ALLIANCE,
)
Plaintiff-Intervenors,
)
V.
)
DUKE ENERGY CAROLINAS, LLC,
)
Defendant.
)
1 ED_018475D_00002944-00049
JOINT NOTICE OF SUBSTITUTION OF PROPOSED CONSENT ORDER Plaintiff the State of North Carolina upon the relation of Michael S. Regan, Secretary of the North Carolina Department of Environmental Quality ("DEQ"), Division of Water Resources, Plaintiff-Intervenors Roanoke River Basin Association, Sierra Club, Catawba Riverkeeper Foundation, Inc., Appalachian Voices, MountainTrue, and Waterkeeper Alliance ("Community Groups")1, and Defendants Duke Energy Progress, LLC and Duke Energy Carolinas, LLC ("Duke Energy") (collectively, the "Parties"), through undersigned counsel, hereby submit this Joint Notice of Substitution of Proposed Consent Order ("PCO"). Following filing of the PCO on January 31, 2020, the Parties (1) gathered original signatures for submission to the Court and (2) noticed certain scriveners' errors (including errors in certain cross-references to paragraphs, inconsistency in the use of possessives, and other minor edits). The exhibits to the PCO remain unchanged. In order to file the original signatures and correct the scriveners' errors, the Parties jointly submit the PCO attached hereto as Exhibit A as a substitution for the PCO filed with the Court on January 31, 2020.
Respectfully submitted, this the 3rd day of February, 2020.
1 The captions of these cases list all Plaintiff-Intervenors who have participated in this litigation. Several of the Plaintiff-Intervenors are no longer participating, as their claims regarding the coal ash sites they represent were resolved by previous orders of this Court and a separate settlement agreement. The Community Groups listed in the text of this motion are those currently participating in this litigation.
2
ED_018475D_00002944-00050
JOSHUA H. STEIN Attorney General
N.C. Bar No. 38660 Special Deputy Attorney General
Taylor Crabtree N.C. Bar No. 47667
Assistant Attorney General Brenda Menard N.C. Bar No. 35445
Special Deputy Attorney General N.C. Department of Justice Environmental Division Post Office Box 629 Raleigh, NC 27602-0629 fbenzoni@ncdoj.gov tcrabtree@ncdoj.gov bmenard@ncdoj.gov
Counsel/or P!a;ntiff
Fra9 S. Holleman, III N.C. Bar No. 43361 Nicholas S. Torrey N.C. Bar No. 43382 Leslie Griffith N.C. Bar No. 50122 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-2356 fhollemanG ,selcnc.org ntorrey@selcnc.org lgriffith@selcnc.org
Austin DJ Gerken N.C. Bar No. 32689 Amelia Y. Burnette N.C. Bar No. 33845 J Patrick Hunter N.C. Bar No. 44485 22 South Pack Square, Suite 700 Asheville, NC 28801 djgerken@selcnc.org aburnette(a) selcnc. org phunter@selcnc.org
Counselfor Plaintiff-lntervenors
3
ED_018475O_00002944-00051
w,r:B~D~:CKl~'so;i, ~~~~~-
l - James P. Cooney III ,
... I I ;
N.C. Bar No. 12140
One Wells Fargo Center, Suite 3500
301 South College Street
Charlotte, North Carolina 28202
Jim.Coone alwbd-us.com
HUNTON ANDREWS KURTH LLP Nash E. Long III N.C. Bar No. 24835 Brent A. Rosser N.C. Bar No. 28781 Melissa A. Romanzo N.C. State Bar No. 38422 Emma C. Merritt N.C. State Bar No. 35446 101 South Tryon Street, Suite 3500 Charlotte, NC 28280 nlong@hunton.com brosser(al,hunton.com mromanzo@hunton.com emerritt@hunton.com
Counsel.for Defendants
4
ED_018475D_00002944-00052
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served on counsel for all
Parties electronically addressed as follows:
Frank S. Holleman, III Nicholas S. Torrey Leslie Griffith SOUTHERN ENVIRONMENTAL LAW CENTER 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-2356 fholleman@selcnc.org ntorrey@selcnc.org lgriffith@selcnc.org
Austin DJ Gerken Amelia Y. Burnette J Patrick Hunter SOUTHERN ENVIRONMENTAL CENTER 48 Patton Avenue, Suite 304 Asheville, NC 28801 djgerken(mselcnc.org aburnette(alselcnc.org phuntcr@selcnc.org
LAW
Christopher W. Jones WOMBLE BOND DICKINSON. LLP (US) One Wells Fargo Center, Suite 3500 301 South College Street Charlotte, North Carolina 28202 Jim.Cooney(a)wbd-us.com
Nash E. Long III Brent A. Rosser Melissa A. Romanzo Emma C. Merritt HUNTON ANDREWS KURTH LLP 101 South Tryon Street, Suite 3500 Charlotte, NC 28280 nlong@hunton.com brosser@hunton.com mromanzo<mhunton.com emerritt(alhunton.com
Counsel/or Defendants
Counsel for Plaintiff-Intervenors
This the 3rd day of February, 2020.
Francisco Benz ni Special Deputy Attorney General
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Exhibit A
ED_018475D_00002944-00054
STATE OF NORTH CAROLINA COUNTY OF WAKE
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 13 CVS 11032
STATE OF NORTH CAROLINA ex rel.
)
NORTH CAROLINA DEPARTMENT OF
)
ENVIRONMENTAL QUALITY, DIVISION )
OF WATER RESOURCES,
)
Plaintiff,
)
ROANOKE RIVER BASIN ASSOCIATION, )
SIERRA CLUB, WATERKEEPER
)
ALLIANCE, CAPE FEAR RIVER WATCH, )
INC., NEUSE RIVERKEEPER
)
FOUNDATION, AND WINYAH RIVERS
)
FOUNDATION,
)
Plaintiff-Intervenors,
)
V.
)
DUKE ENERGY PROGRESS, LLC,
)
Defendant.
)
CONSENT ORDER
COUNTY OF MECKLENBURG
STATE OF NORTH CAROLINA ex rel.
)
NORTH CAROLINA DEPARTMENT OF
)
ENVIRONMENTAL QUALITY, DIVISION )
OF WATER RESOURCES,
)
Plaintiff,
)
CATAWBA RIVERKEEPER
)
FOUNDATION, INC., APPALACHIAN
)
VOICES, YADKIN RIVERKEEPER,
)
MOUNTAINTRUE, DAN RIVER BASIN
)
ASSOCIATION, ROANOKE RIVER BASIN )
ASSOCIATION, SOUTHERN ALLIANCE )
FOR CLEAN ENERGY, AND
)
WATERKEEPER ALLIANCE,
)
Plaintiff-Intervenors,
)
V.
)
DUKE ENERGY CAROLINAS, LLC,
)
Defendant.
)
13 CVS 14661 CONSENT ORDER
ED_018475D_00002944-00055
CONSENT ORDER Plaintiff, the State of North Carolina ex rel. North Carolina Department of Environmental Quality ("DEQ"), Division of Water Resources, Plaintiff-Intervenors, Roanoke River Basin Association, Sierra Club, Catawba Riverkeeper Foundation, Inc., Appalachian Voices, MountainTrue, and Waterkeeper Alliance ("Community Groups"), and Defendants, Duke Energy Carolinas LLC and Duke Energy Progress LLC ("Duke Energy") (collectively the "Parties"), hereby consent to the entry of this Consent Order in order to resolve the matters in controversy between them. The Honorable Paul Ridgeway, Senior Resident Superior Court Judge, is presiding over these matters pursuant to designation under Rule 2.1 of the General Rules of Practice. The Court makes, and the Parties hereby stipulate to, the following findings of fact and conclusions of law.
Findings of Fact and Conclusions of Law 1. These actions were brought by the State of North Carolina upon the relation of the
Secretary of DEQ, the State agency established pursuant to N.C. Gen. Stat. 143B279.1 et seq., and vested with the statutory authority to enforce the State's environmental protection laws, including laws enacted to protect the water quality of the State. The Division of Water Resources ("DWR") is a division within DEQ and all actions taken by DWR are necessarily actions ofDEQ. 2. This Court has jurisdiction over this action for injunctive relief for claims of existing or threatened violations of the laws, rules, and regulations governing the protection of the State's water resources pursuant to N.C. Gen. Stat. 7A-245 and 143-215.6C. 3. Venue is proper in Wake County for 13 CVS 11032 and Mecklenburg County for 13 CVS 14661 underN.C. Gen. Stat. 1-79 and 143-215.6C.
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4. Defendant, Duke Energy Carolinas, LLC ("Duke Energy Carolinas"), is a corporation
organized and existing under the laws of the State of North Carolina. Duke Energy Carolinas owns, operates, or has operated the coal-fired steam station facilities 1
addressed by DEQ's Mecklenburg County Complaint, Case No. 13 CVS 14661, and
this Order at the following locations: the Allen Steam Station ("Allen") in Gaston
County, Buck Steam Station ("Buck") in Rowan County,2 Cliffside Steam Station (now
referred to as the Rogers Energy Complex) ("Cliffside/Rogers") in Rutherford County
and Cleveland County, the Belews Creek Steam Station ("Belews Creek") in Stokes County, and the Marshall Steam Station ("Marshall") in Catawba County.3
5. Defendant Duke Energy Progress, LLC ("Duke Energy Progress"), is a corporation
organized and existing under the laws of the State of North Carolina. Duke Energy
Progress owns or operates coal-fired steam station facilities addressed by DEQ's Wake
County Complaint, Case No. 13 CVS 11032, and this Order at the following locations:
Mayo Steam Electric Generating Plant ("Mayo") in Person County and the Roxboro Steam Electric Generating Plant ("Roxboro") in Person County. 4
1 The facilities listed in Paragraphs 4 and 5 may be referred to singularly as "Facility" and collectively as "Facilities." 2 Buck has been selected by Duke Energy Carolinas, LLC as a beneficiation site pursuant to N.C. Gen. Stat. 130A-309.216(a). On December 16, 2016, the Community Groups dismissed their Complaint in Intervention with prejudice as to Buck. As set forth below, this Consent Order resolves the claims raised in DEQ's Complaint as to Buck. 3 In the Mecklenburg County Complaint, 13 CVS 14661, the Dan River Combined Cycle Station is also included. Complaint at 2, ~ 3. The Dan River Combined Cycle Station was addressed by a prior order of the Court, and is not at issue in this Consent Judgment. Order Granting Motions for Partial Summary Judgment, 13 CVS 14661 & 11032 (June 1, 2016) (the "Four Plant Order"). 4 In the Wake County Complaint, 13 CVS 11032, the Cape Fear Steam Electric Generating Plant, H.F. Lee Steam Electric Plant, Weatherspoon Steam Electric Plant and L.V. Sutton Electric Plant were also included. Complaint at 2, ~ 3. These facilities were addressed by prior orders of the Court and are not at issue in this Order.
3
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6. Plaintiff-Intervenors, the "Community Groups," are non-profit public interest organizations whose mission and interests include advocating for the protection of water quality for the health, protection, and enjoyment of their members. The Community Groups were allowed to intervene in these actions with no objection from DEQ. The Community Groups have stipulated that they assert no additional causes of action in these proceedings beyond those asserted by DEQ.
7. DEQ filed these civil enforcement actions in August of 2013. As set forth in the Complaints, DEQ sought mandatory injunctions requiring Duke Energy to assess and abate what it alleged were threatened or claimed violations of North Carolina's groundwater rules, found at Title 15A, Subchapter 2L of the North Carolina Administrative Code (the "2L groundwater rules"), threatened or claimed violations of North Carolina's water pollution laws set forth at N.C. Gen. Stat. 143-215.1, and threatened or claimed violations of National Pollutant Discharge Elimination System ("NPDES") permits at the above-referenced facilities ("Facilities") caused by the coal combustion residuals ("CCR") surface impoundments, and to seek through mandatory injunctive relief compliance with these laws, regulations, and rules.
8. In 2018 and 2019, DEQ issued NPDES permits (or, in the case of Marshall, a major modification of an NPDES permit) for each of the Facilities except Roxboro. For Roxboro, the NPDES permit is currently out for public comment. The NPDES permits set effluent limits on the discharge of wastewater. Constructed seeps-engineered features on or within the dam structures (such as toe drains or filter blankets) to collect seepage-are incorporated as permitted outfalls in these NPDES permits with monitoring and effluent limits.
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9. In 2018, the Environmental Management Commission ("EMC") approved a Special Order by Consent ("SOC") for each of the Facilities. The SOCs require accelerated decanting-removal of free water from the surface of the CCR impoundments-in a manner that protects surface water quality. Decanting is expected to substantially reduce or eliminate seepage flows of wastewater from CCR impoundments to nonconstructed or non-engineered seeps.
10. Subsequent to the filing of these actions, the General Assembly enacted Session Law 2014-122, which became effective on September 20, 2014. Part II of Session Law 2014-122 provided for the "Comprehensive Management of Coal Combustion Residuals" and added new Part 21 to Article 9 of Chapter 130A of the North Carolina General Statutes, which may be cited as the "Coal Ash Management Act of 2014" ("CAMA").
11. In July of 2016 CAMA was amended by House Bill 630, Session Law 2016-95. Pursuant to this amendment, on November 13, 2018, after Duke Energy established permanent water supplies to certain households and rectified deficiencies noted in dam safety orders, DEQ classified the CCR impoundments at the above-referenced Facilities as "low risk."
12. Pursuant to the provisions of CAMA and at the election of DEQ, low risk impoundments may be closed by excavation, by capping in place largely in compliance with the State rules for municipal solid waste landfills, or by closing in compliance with the federal CCR Rule. N.C. Gen. Stat. 130A-309.214(a)(3).
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13. The CCR impoundments5 at each of the Facilities are as follows: a. At Allen, there are two CCR impoundments, the Retired Ash Basin and the Active Ash Basin. The Retired Ash Basin is approximately 123 acres and contains approximately 6,100,000 tons of coal ash and the Active Ash Basin is approximately 170 acres and contains approximately 10,480,000 tons of coal ash.6 The Retired Ash Basin and the Active Ash Basin are CCR impoundments as defined by CAMA, N.C. Gen. Stat. 130A-309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261. For illustration purposes only, these CCR impoundments are depicted on Exhibit A. b. At Belews Creek, there is one CCR impoundment, the Ash Basin. The Ash Basin is approximately 270 acres and contains approximately 11,970,000 tons of coal ash. The Ash Basin is a CCR impoundment as defined by CAMA, N.C. Gen. Stat. 130A-309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261. For illustration purposes only, this CCR impoundment is depicted on Exhibit B. c. At Buck, there are three CCR impoundments, Basin 1, Additional Primary Pond/Basin ("Basin 1"); Basin 2, Primary Pond/Basin ("Basin 2"); and Basin 3, Secondary Pond/Basin ("Basin 3"). There is also one ash stack. Basin 1 is
5 CCR impoundments are defined in CAMA, N.C. Gen. Stat. B0A-309.201(6). 6 Note that the tonnage of coal ash includes only the coal ash contained within the CCR impoundments and not coal ash in landfills or structural fills. Duke Energy Carolinas and Duke Energy Progress, on the one hand, and DEQ and the Community Groups on the other, have a dispute as to whether coal ash under a lawfully permitted landfill is regulated by CAMA. At Allen, the Retired Ash Basin Landfill and subgrade is 25 acres and contains approximately 1,740,000 tons of coal ash. There are approximately 1,392,000 tons of coal ash beneath the Retired Ash Basin Landfill, and approximately 991,000 tons of coal ash in the area designated as the "DORS" area.
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approximately 71 acres and contains 3,550,000 tons of coal ash. The ash stack is adjacent to and partially above Basin 1, encompasses approximately 14 acres, and contains approximately 263,000 tons of coal ash. Basins 2 and 3 are separated by a divider dike built over ash, encompass approximately 57.5 acres and 21.5 acres, respectively, and contain approximately 1,998,000 and 864,000 tons of coal ash, respectively. Basin 1 and the ash stack are contained within one waste boundary, while Basin 2 and Basin 3 are contained in another waste boundary. For illustration purposes only, these CCR impoundments are depicted on Exhibit C. d. At Cliffside/Rogers there are two CCR impoundments, the Unit 5 Inactive Ash Basin and the Active Ash Basin.7 The Unit 5 Inactive Ash Basin is approximately 46 acres and contains approximately 2,350,000 tons of coal ash and the Active Ash Basin is approximately 86 acres and contains approximately 5,240,000 tons of coal ash. The Unit 5 Inactive Ash Basin and the Active Ash Basin are CCR impoundments as defined by CAMA, N.C. Gen. Stat. 130A309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261. For illustration purposes only, these CCR impoundments are depicted on Exhibit D. e. At Marshall, there is one CCR impoundment, the Ash Basin. The Ash Basin is approximately 360 acres and contains approximately 17,650,000 tons of coal ash. 8 The Ash Basin is a CCR impoundment as defined by CAMA, N.C. Gen.
7 The Units 1-4 Ash Basin was fully excavated and closed in February 2018. 8 Note that the tonnage of coal ash includes only the coal ash contained within the impoundments and not coal ash in landfills or structural fills. Duke Energy Carolinas and Duke Energy Progress
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Stat. 130A-309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261.
For illustration purposes only, this CCR impoundment is depicted on Exhibit
E.
f. At Mayo, there is one CCR impoundment, the Ash Basin. The Ash Basin is
approximately 153 acres and contains approximately 6,630,000 tons of coal
ash. The Ash Basin is a CCR impoundment as defined by CAMA, N.C. Gen.
Stat. 130A-309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261.
For illustration purposes only, this CCR impoundment is depicted on Exhibit
F.
g. At Roxboro, there are two CCR impoundments, the East Ash Basin and the
West Ash Basin. The West Ash Basin is approximately 225 acres and contains
approximately 12,970,000 tons of coal ash and the East Ash Basin is
approximately 71 acres and contains approximately 7,100,000 tons of coal ash.9
on the one hand, and DEQ and the Community Groups on the other, have a dispute as to whether coal ash under a lawfully permitted landfill is regulated by CAMA. At Marshall, the Structural Fill beneath solar panels contains approximately 6,490,000 tons of coal ash. The subgrade fill beneath Industrial Landfill ("ILF") Cells 1 and 2 contains approximately 460,000 tons of coal ash. The subgrade fill beneath ILF Cells 3 and 4, contains approximately 409,000 tons of coals ash. The Old Ash Fill (1804 Phase I Landfill) contains approximately 626,000 tons of coal ash. The Retired Landfill (1804 Phase II Landfill) contains approximately 4,870,000 tons of coal ash. The ILF (Permit 18-12) contains approximately 2,050,000 tons of coal ash. The Marshall ILF continues to receive production ash and these tonnages represent the approximate tonnages as of December 31, 2019. 9 Note that the tonnage of coal ash includes only the coal ash contained within the CCR impoundments and not coal ash in landfills or structural fills. Duke Energy Carolinas and Duke Energy Progress on the one hand, and DEQ and the Community Groups on the other, have a dispute as to whether coal ash under a lawfully permitted landfill is regulated by CAMA. For Roxboro, the Roxboro Landfill contains approximately 6,818,000 tons of coal ash in one portion of the landfill and an additional 7,635,000 tons of coal ash in a separate portion of that landfill. The Roxboro Landfill continues to receive production ash and these tonnages represent the approximate tonnages as of December 31, 2019.
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The East Ash Basin and the West Ash Basin are CCR impoundments as defined by CAMA, N.C. Gen. Stat. 130A-309.201(6), and the Federal CCR Rule 40 CFR Parts 257 and 261. For illustration purposes only, these CCR impoundments are depicted on Exhibit G. 14. On April 1, 2019, DEQ issued Coal Combustion Residuals Surface Impoundment Closure Determinations ("Closure Determinations"), pursuant to its authority under CAMA, electing and ordering excavation of the coal combustion residuals from the CCR impoundments as the method of closure in compliance with CAMA at six of the above-referenced Facilities: Allen, Belews Creek, Cliffside/Rogers, Marshall, Mayo and Roxboro. DEQ 's election of this method of closure was based upon its assessment of the required statutory criteria as applied to these Facilities. 15. On April 26, 2019, Duke Energy filed six Petitions for Contested Case Hearing in the North Carolina Office of Administrative Hearings ("OAH") challenging DEQ's Closure Determination for each of these Facilities, and on May 24, 2019 Duke Energy filed six Amended Petitions challenging subsequent DEQ actions related to the Closure Determinations (the "OAH Proceedings"). Duke Energy has filed twelve petitions for judicial review ("PJRs") appealing from two Orders issued in the OAH Proceedings. 16. Certain Plaintiff-Intervenors in these actions-Appalachian Voices, MountainTrue, Catawba Riverkeeper Foundation, Inc., Waterkeeper Alliance, Roanoke River Basin Association, and The Sierra Club-were allowed to intervene as RespondentIntervenors in the OAH Proceedings. 17. On December 31, 2019, the Parties, desiring to resolve and settle the OAH Proceedings and related PJRs, and to ensure that the CCR impoundments are excavated on an
9
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expedited basis and to remove any uncertainty associated with the litigation, entered into a Settlement Agreement (the "Agreement"), obligating each of the parties to take certain actions. 18. Pursuant to this Agreement, the Parties agreed to submit to the Court this Consent Order incorporating the terms of the Agreement with the exception of certain provisions. 19. For impoundment sources of groundwater contamination at each Facility, the obligations of Duke Energy Carolinas or Duke Energy Progress, as appropriate, are set forth below, including the closure method to be employed for closing the CCR impoundment(s) at each Facility, the requirements for remediating the alleged 2L groundwater violations caused by the CCR impoundment(s) at each Facility, and the requirements for addressing the alleged surface water violations at each Facility. 20. For any alleged 2L groundwater violations caused by sources other than CCR impoundments at any Facility (e.g., on-site landfills, on-site structural fills, or coal piles at certain Facilities), DEQ shall retain the authority to order appropriate corrective action under its administration and implementation ofthe statutes, rules and regulations under its purview. 10 21. The counter-obligations ofDEQ and the Community Groups are also as set forth below.
1 For clarity, the Parties understand the Complaints to address only groundwater contamination
caused by impoundment sources. Groundwater contamination, if any, caused by nonimpoundment sources is not resolved by this Consent Order and, as noted, will be separately addressed through DEQ's administration of the statutes, rules and regulations that it implements. By way of information, DEQ anticipates receiving Comprehensive Site Assessments for nonimpoundment sources of groundwater contamination that are not hydrologically connected to impoundment sources on March 31, 2020 for Allen, Belews Creek, Cliffside/Rogers, Mayo and Roxboro, and on July 1, 2021 for Buck.
ED_018475D_00002944-00064
INJUNCTIVE RELIEF The Parties stipulate and agree that for the above-referenced Facilities, Duke Energy's compliance with approved Groundwater Corrective Action Plans, NPDES permits, and SOCs, along with the actions required by this Consent Order and through DEQ's administration of the statutes, rules and regulations that it implements, have resolved or will resolve the remaining alleged groundwater violations and surface water violations (i.e., those caused by impoundment sources) set forth in the Complaints filed in these actions. 11 Based upon the foregoing findings of fact and conclusions of law as well as the stipulations of the Parties, 12 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:
Facility-Specific Obligations of Duke Energy Carolinas Allen
22. Closure of CCR Impoundments. Duke Energy Carolinas shall excavate and remove all coal ash from the Retired Ash Basin and Active Ash Basin, either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Carolinas shall provide reasonable notice to the Community Groups and DEQ. Duke Energy Carolinas shall remove or permanently close all pipes
11 The claims regarding facilities at the Cape Fear Steam Electric Generating Plant, H.F. Lee Steam Electric Plant, Weatherspoon Steam Electric Plant and L.V. Sutton Electric Plant in the Wake County Complaint, and the Asheville Steam Station, the Riverbend Steam Station, and the Dan River Steam Station were addressed by prior orders of the Court, and are not at issue in this Order. 12 Notwithstanding the foregoing, the Parties waive any requirement for formal findings of fact and conclusions of law regarding the allegations set forth in the Complaints filed by Plaintiff or Plaintiff-Intervenors in these actions, and agree that this Consent Order shall be binding upon them and enforceable to the same extent, including by contempt, as if entered by a Superior Court Judge after a hearing on the merits of all matters now pending.
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currently running through or beneath the Retired Ash Basin and Active Ash Basin. Duke Energy Carolinas shall thereafter stabilize and close the area where the Retired Ash Basin and Active Ash Basin are located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 16,632,000 tons. 23. Disposition of Other Coal Ash. Additionally, Duke Energy Carolinas shall excavate and remove coal ash from the Storage Areas, Structural Fills, and Landfill (each of which is located on the top ofthe Retired Ash Basin), either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Carolinas shall provide reasonable notice to the Community Groups and DEQ. Duke Energy Carolinas is not required to excavate the ash required for structural stability around the footers for the transmission towers; that ash shall be covered with a geomembrane layer. 24. Deadline for Closure. Duke Energy Carolinas projects that it will reqmre until December 31, 203 7, to complete all excavation as required in Paragraphs 22 and 23 and the Parties understand that Duke Energy Carolinas will request variances to meet the deadline imposed by this Consent Order. Duke Energy Carolinas shall complete all excavation required in Paragraphs 22 and 23 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to
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time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 203 8. 13 25. Groundwater Corrective Action Plan. On December 31, 2019, Duke Energy Carolinas submitted a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan includes active remedial measures intended by Duke Energy Carolinas to address any groundwater contamination caused by the Retired Ash Basin and Active Ash Basins as required byN.C. Gen. Stat. 130A309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 74 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. Upon approval of the proposed Groundwater Corrective Action Plan by DEQ, Duke Energy Carolinas shall implement the plan subject to such modification and amendments approved pursuant to N.C. Gen. Stat. 130A309.21 l(b)(3) and the 2L groundwater rules. 14 26. NPDES Permit and Special Order by Consent. On July 13, 2018, DEQ issued NPDES Permit No. NC0004979 for Allen. On April 18, 2018, the EMC approved SOC S17-009 for Allen, which sets a compliance schedule that requires completion of decanting by June 30, 2020. Duke Energy Carolinas shall comply with the terms of NPDES Permit No. NC0004979 and SOC SI 7-009 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless
13 For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time. 14 For clarity, this paragraph does not constitute approval of any portion or aspect of the Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
13
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otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction).
Belews Creek 27. Closure of CCR Impoundment. Duke Energy Carolinas shall excavate and remove
all coal ash from the Ash Basin except the impoundment coal ash under or within the waste boundary of the Pine Hall Road Landfill either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Carolinas shall provide reasonable notice to the Community Groups and DEQ. Duke Energy Carolinas shall remove or permanently close all pipes currently running through or beneath the Ash Basin. Duke Energy Carolinas shall thereafter stabilize and close the area where the Ash Basin is located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 11,870,000 tons. The closure plan provides that ash shall remain underneath the Pine Hall Road Landfill, which is capped with a geosynthetic cap and a soil cap and was closed pursuant to Permit No. 8503-INDUS-1984 in 2009. The amount of coal ash underneath the Pine Hall Road Landfill is estimated to be no more than 100,000 tons. 15 An approximate depiction of this excavation is attached as Exhibit H. On or before May 4, 2020, Duke Energy Carolinas shall submit either (a) a demonstration that it is able to meet the requirements of Paragraph 30 or (b) if it is not able to make such a
15 To the extent that any portion of the Pine Hall Road Landfill is not currently covered by a geosynthetic cap, Duke Energy Carolinas shall install such a cap in accordance with the Belews Creek closure plan approved by DEQ.
14
ED_018475D_00002944-00068
demonstration, an addendum to the closure plan providing for the full excavation ofthe impoundment coal ash under or within the waste boundary of the Pine Hall Road Landfill. The closure plan for Belews Creek shall not be deemed complete prior to this submission. 28. Deadline for Closure. Duke Energy Carolinas projects that it will require until December 31, 2031, to complete all excavation as required in Paragraph 27, and the Parties understand that Duke Energy Carolinas will request variances to meet the deadline imposed by this Consent Order. Duke Energy Carolinas shall complete all excavation required in Paragraph 27 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2034. 16 29. Structural Stability, Monitoring, and Sampling. Duke Energy Carolinas shall stabilize the coal ash under and within the waste boundary of the Pine Hall Road Landfill and within the waste boundary of the Ash Basin with a permanent structure ("stability feature") for purposes of preserving the structural stability through the use of a wall unless a slope is shown to be as appropriate, so as to prevent lateral movement of the coal ash, pursuant to a plan to be submitted for DEQ approval no later than June 30, 2020. Within seven (7) days of completing the stability feature, Duke Energy Carolinas shall notify DEQ. Additionally, pursuant to a plan approved by DEQ, following excavation in the footprint of the former Ash Basin and downgradient of the
16 For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time.
15
ED_018475D_00002944-00069
Pine Hall Road Landfill, Duke Energy Carolinas shall conduct groundwater monitoring (including the installation of new wells ifreasonably necessary) and, upon re-formation of surface water features that demonstrate DEQ-confirmed intermittent or perennial flows (not merely precipitation), surface water sampling. Consistent with the provisions of Paragraph 74, in this plan Duke Energy Carolinas shall propose (1) additional groundwater remedial measures for any coal ash constituent if the data indicate an increasing trend in groundwater concentrations in excess of the standards set forth in 15A NCAC 2L .0202 ("2L groundwater standards") for four (4) consecutive semi-annual sampling events for that constituent, subject to the provisions of Paragraph 75, and (2) surface water treatment if the data shows impact from coal ash constituents above the concentrations in standards set forth in 15A NCAC 2B .0101 et seq. ("2B standards") to waters ofthe State notwithstanding the provisions of Paragraph 75. This plan shall be submitted to DEQ no later than 120 days following completion of the stability feature. If appropriate, the additional monitoring plan will be integrated into the existing site monitoring plan to avoid redundant or conflicting monitoring programs. This paragraph shall not apply if the coal ash under and within the waste boundary of the Pine Hall Road Landfill and within the waste boundary of the Ash Basin is excavated. 30. Groundwater Corrective Action Plan. On December 31, 2019, Duke Energy Carolinas submitted a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan includes active remedial measures intended by Duke Energy Carolinas to address any groundwater contamination caused by the Ash Basin as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater
16
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rules, and any other applicable laws, statutes, or regulations, provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. If the coal ash under and within the waste boundary of the Pine Hall Road Landfill and within the waste boundary of the Ash Basin is not excavated, then at a minimum, Duke Energy Carolinas shall remedy violations that DEQ determines are material violations ofthe 2L groundwater standards attributable to the Ash Basin at or beyond the geographic limitation as described in Paragraph 75 by December 31, 2029, subject to the provisions of Paragraph 74. Upon approval of the proposed Groundwater Corrective Action Plan by DEQ, Duke Energy Carolinas shall implement the plan subject to such modification and amendments approved pursuant to N.C. Gen. Stat. 130A-309.211(b)(3) and the 2L groundwater rules. 17 31. NPDES Permit and Special Order by Consent. On March 21, 2019, DEQ issued NPDES Permit No. NC0024406 for Belews Creek. On July 12, 2018, the EMC approved SOC S18-004 for Belews Creek, which sets a compliance schedule that requires completion of decanting by September 30, 2020. Duke Energy Carolinas shall comply with the terms ofNPDES Permit No. NC0024406 and SOC S18-004 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction).
17 For clarity, this paragraph does not constitute approval of any portion or aspect of the Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
17
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Buck 32. Closure of CCR Impoundments. Duke Energy Carolinas shall excavate and remove
all coal ash from Basins 1, 2, and 3 either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes. Duke Energy Carolinas shall remove or permanently close all pipes currently running through or beneath Basins 1, 2, and 3. Duke Energy Carolinas shall thereafter stabilize and close the area where Basins 1, 2, and 3 are located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 6,412,000 tons. 33. Disposition of Other Coal Ash. Additionally, Duke Energy Carolinas shall excavate and remove coal ash from the ash stack either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes. 34. Deadline for Closure. Duke Energy Carolinas projects that it will require until December 31, 2035, to complete all excavation as required in Paragraphs 32 and 33. Duke Energy Carolinas shall complete all excavation required in Paragraphs 32 and 33 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2035. 18 35. Groundwater Corrective Action Plan. Duke Energy Carolinas shall submit a proposed Groundwater Corrective Action Plan to DEQ for its review and approval.
18 For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time.
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The Corrective Action Plan must include remedial measures designed to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 74 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. Upon approval ofthe proposed Groundwater Corrective Action Plan, Duke Energy Carolinas shall implement the plan subject to such modification and amendment approved pursuant to N.C. Gen. Stat. 130A-309.211(b)(3) and the 2L groundwater rules. 19 36. NPDES Permit and Special Order by Consent. On September 17, 2018, DEQ issued NPDES Permit No. NC0004774 for Buck. On July 12, 2018, the EMC approved SOC S18-004 for Buck, which sets a compliance schedule that requires completion of decanting by March 31, 2020. Duke Energy Carolinas shall comply with the terms of NPDES Permit No. NC004774 and SOC S18-004 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction). 37. Prior Settlement of Buck Unaffected. Nothing in this Consent Order alters, changes, overrides, or invalidates the separate Settlement Agreement and Release dated December 21, 2016, between Yadkin Riverkeeper, Inc., and Waterkeeper Alliance,
19 For clarity, this paragraph does not constitute approval of any portion or aspect of the Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
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Inc., on the one hand, and Duke Energy Carolinas, on the other, or any provision thereof.
Cliffside/Rogers 38. Closure of CCR Impoundments. Duke Energy Carolinas shall excavate and remove
all coal ash from the Unit 5 Inactive Ash Basin and Active Ash Basin, either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Carolinas shall provide reasonable notice to the Community Groups and DEQ. Duke Energy Carolinas shall remove or permanently close all pipes currently running through or beneath the Unit 5 Inactive Ash Basin and Active Ash Basin. Duke Energy Carolinas shall thereafter stabilize and close the area where the Unit 5 Inactive Ash Basin and Active Ash Basin are located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 7,590,000 tons. 39. Deadline for Closure. Duke Energy Carolinas projects that it will reqmre until December 31, 2028, to complete all excavation as required in Paragraph 38. Duke Energy Carolinas shall complete all excavation required in Paragraph 38 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, but in any event not later than December 31, 2029. 40. Groundwater Corrective Action Plan. On December 31, 2019, Duke Energy Carolinas submitted a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan includes active remedial measures
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intended by Duke Energy Carolinas to address any groundwater contamination as required byN.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 74 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. Upon approval of the proposed Groundwater Corrective Action Plan by DEQ, Duke Energy Carolinas shall implement the plan subject to such modification and amendment approved pursuant to N.C. Gen. Stat. 130A-309.211(b)(3) and the 2L groundwater rules.20 41. NPDES Permit and Special Order by Consent. On July 13, 2018, DEQ issued NPDES Permit No. NC0005088 for Cliffside/Rogers. On April 18, 2018, the EMC approved SOC SI 7-009, which sets a compliance schedule that requires completion of decanting by March 31, 2020. Duke Energy Carolinas shall comply with the terms of NPDES Permit No. NC0005088 and SOC SI 7-009 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction).
Marshall 42. Closure of CCR Impoundment. Duke Energy Carolinas shall excavate and remove
all coal ash from the Ash Basin, except the coal ash under or within the waste boundaries of the PV Structural Fill and the 1804 Phase II Landfill, either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid
2 For clarity, this paragraph does not constitute approval of any portion or aspect of the
Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
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waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Carolinas shall provide reasonable notice to the Community Groups and DEQ. Duke Energy Carolinas shall remove or permanently close all pipes currently running through or beneath the Ash Basin. Duke Energy Carolinas shall thereafter stabilize and close the area where the Ash Basin is located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 16,800,000 tons. An approximate depiction of the excavation at Marshall is attached as Exhibit I. 43. Disposition of Other Coal Ash. Additionally, for the Marshall site, and due to the hydrogeological setting of the 1804 Phase I Landfill (sometime referred to as the "old ash fill") adjacent to the Ash Basin, Duke Energy Carolinas shall excavate and remove approximately 626,000 tons of coal ash from the 1804 Phase I Landfill adjacent to the Ash Basin either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Carolinas shall provide reasonable notice to the Community Groups and DEQ. Such excavation shall be complete no later than December 31, 2024. An approximate depiction of the excavation at Marshall is attached as Exhibit I. 44. Deadline for Closure. Duke Energy Carolinas projects that it will require until December 31, 2034, to complete all excavation as required in Paragraph 42, and the Parties understand that Duke Energy Carolinas will request variances to meet the
22
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deadline imposed by this Consent Order. Duke Energy Carolinas shall complete all excavation required in Paragraph 42 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2035. 21 45. Structural Stability, Monitoring, and Sampling. The coal ash under and within the waste boundary of the PV Structural Fill and the 1804 Phase II Landfill and within the waste boundary of the Ash Basin shall be stabilized with a permanent structure ("stability feature") for purposes of preserving the structural stability through the use of a wall unless a slope is shown to be as appropriate, so as to prevent lateral movement of the coal ash pursuant to a plan to be submitted for DEQ approval no later than June 30, 2020. Within seven (7) days of completing the stability feature, Duke Energy Carolinas shall notify DEQ. Additionally, pursuant to a plan approved by DEQ, following excavation in the footprint of the former Ash Basin and downgradient of the PV Structural Fill and the 1804 Phase II Landfill, Duke Energy Carolinas shall conduct groundwater monitoring (including the installation of new wells if reasonably necessary) and, upon re-formation of surface water features that demonstrate DEQconfirmed intermittent or perennial flows (not merely precipitation), surface water sampling. If Duke Energy Carolinas demonstrates to the satisfaction of DEQ that groundwater monitoring in the footprint of the former Ash Basin and downgradient of the PV Structural Fill and the 1804 Phase II Landfill is impracticable, DEQ may require
21 For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time.
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upgradient or side-gradient monitoring. Consistent with the provisions of Paragraph 74, in this plan Duke Energy Carolinas shall propose (1) additional groundwater remedial measures for any coal ash constituent if the data indicate an increasing trend in groundwater concentrations in excess of the 2L groundwater standards for four (4) consecutive semi-annual sampling events for that constituent, subject to the provisions of Paragraph 75, and (2) surface water treatment if the data shows impact from coal ash constituents above the 2B standards to waters of the State notwithstanding the provisions of Paragraph 75. This plan shall be submitted to DEQ no later than 120 days following completion of the stability feature. If appropriate, the additional monitoring plan will be integrated into the existing site monitoring plan to avoid redundant or conflicting monitoring programs. 46. Groundwater Corrective Action Plan. On December 31, 2019, Duke Energy Carolinas submitted a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan includes active remedial measures intended by Duke Energy Carolinas to address any groundwater contamination as required byN.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 74 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. Upon approval of the proposed Groundwater Corrective Action Plan by DEQ, Duke Energy Carolinas shall implement the plan subject to such modification and amendment approved pursuant to N.C. Gen. Stat. 130A-309.211(b)(3) and the 2L groundwater rules. In addition, Duke Energy Carolinas shall install a geosynthetic cap over the PV Structural Fill and 1804 Phase II
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Landfill by December 31, 2024. At a minimum, Duke Energy Carolinas shall remedy any material violations ofthe 2L groundwater standards as determined by DEQ that are attributable to the Ash Basin at or beyond the geographic limitation as described in Paragraph 75 by December 31, 2029, subject to the provisions of Paragraph 74.22 47. NPDES Permit and Special Order by Consent. On April 2, 2018, DEQ issued a major modification of NPDES Permit No. NC0004987 for Marshall. On April 18, 2018, the EMC approved SOC S17-009 for Marshall, which sets a compliance schedule that requires the completion of decanting by March 31, 2021. Duke Energy Carolinas shall comply with the terms of NPDES Permit No. NC0004987 and SOC SI 7-009 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction).
Facility-Specific Obligations of Duke Energy Progress Mayo
48. Closure of CCR Impoundment. Duke Energy Progress shall excavate and remove all coal ash from the Ash Basin either (1) to lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Progress will provide reasonable notice to the Community Groups and DEQ. Duke
22 For clarity, this paragraph does not constitute approval of any portion or aspect of the Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
25
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Energy Progress shall remove or permanently close all pipes currently running through or beneath the Ash Basin. Duke Energy Progress will stabilize and close the area where the Ash Basin is located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 6,630,000 tons. 49. Deadline for Closure. Duke Energy Progress projects that it will reqmre until December 31, 2028, to complete all excavation as required in Paragraph 48. Duke Energy Progress may request variances to meet the deadline imposed by this Consent Order. Duke Energy Progress shall complete all excavation required in Paragraph 48 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, but in any event not later than December 31, 2029. 50. Groundwater Corrective Action Plan. On December 31, 2019, Duke Energy Progress submitted a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan includes remedial measures intended by Duke Energy Progress to address any groundwater contamination as required by N.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 74 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. Upon approval of the proposed Groundwater Corrective Action Plan by DEQ, Duke Energy Progress shall implement
26
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the plan subject to such modification and amendment approved pursuant to N.C. Gen. Stat. 130A-309.21 l(b)(3) and the 2L groundwater rules. 23 51. NPDES Permit and Special Order by Consent. On July 13, 2018, DEQ issued NPDES Permit No. NC0038377 for Mayo. On August 15, 2018, the EMC approved SOC S18-005, which sets a compliance schedule that requires the completion of decanting by December 31, 2020. Duke Energy Progress shall comply with the terms of NPDES Permit No. NC0038377 and SOC S18-005 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction).
Roxboro 52. Closure of CCR Impoundment. Duke Energy Progress shall excavate and remove all
coal ash from the West Ash Basin (and its extension impoundment area, sometimes referred to as the "Southern Extension Impoundment") and all coal ash from the East Ash Basin (and its extension impoundment area, sometimes referred to as the "Eastern Extension Impoundment") except the coal ash under or within the waste boundary of the Roxboro Landfill, Permit No. 7302-INDUS-1988. The excavated ash shall be either (1) disposed of at lined onsite locations for disposal in a CCR landfill, industrial landfill, or municipal solid waste landfill or (2) used for beneficial use for cementitious purposes or another industrial process at least as environmentally protective. If a process other than a cementitious process is to be used, Duke Energy Progress shall
23 For clarity, this paragraph does not constitute approval of any portion or aspect of the Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
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provide reasonable notice to the Community Groups and DEQ. The scope of excavation of the East Ash Basin is approximately depicted on Exhibit J to this Consent Order. Duke Energy Progress shall remove or permanently close all pipes currently running through or beneath the West Ash Basin and East Ash Basin except those associated with the Roxboro Landfill. Duke Energy Progress shall thereafter stabilize and close the area where the West Ash Basin and East Ash Basin are located pursuant to applicable law. The total coal ash that will be excavated is estimated to be approximately 16,860,000 tons. Additionally, Duke Energy Progress shall remove all coal ash fill from the Gypsum Pad area following retirement ofthe coal-fired generating units at Roxboro. 53. Disposition of Other Coal Ash. Duke Energy Progress shall commence closure of the Roxboro Landfill, Permit No. 7302-INDUS-1988, no later than 30 days after the date on which the Roxboro Landfill receives the final receipt of waste utilizing a cap system that meets the requirements of North Carolina and federal law. 54. Deadline for Closure. Duke Energy Progress projects that it will reqmre until December 31, 2035, to complete all excavation as required in Paragraph 52, and that the Parties understand that Duke Energy Progress will request variances to meet the deadline imposed by this Consent Order. Duke Energy Progress shall complete all excavation required in Paragraph 52 by the statutory deadline set forth in CAMA, as amended by House Bill 630, or as may further be amended from time to time, and
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subject to any variances granted pursuant to N.C. Gen. Stat. 130A-309.215, but in any event not later than December 31, 2036.24 55. Structural Stability, Monitoring, and Sampling. The coal ash under and within the waste boundary ofthe Roxboro Landfill and within the waste boundary ofthe East Ash Basin shall be stabilized with a permanent structure ("stability feature") for purposes of preserving the structural stability through the use of a wall unless a slope is shown to be as appropriate so as to prevent lateral movement of the coal ash pursuant to a plan to be submitted for DEQ approval no later than June 30, 2020. Within seven (7) days of completing the stability feature, Duke Energy Progress shall notify DEQ. Additionally, pursuant to a plan approved by DEQ, following excavation in the footprint ofthe former East Ash Basin and downgradient ofthe Roxboro Landfill, Duke Energy Progress shall conduct groundwater monitoring (including the installation of new wells if reasonably necessary) and, upon re-formation of surface water features that demonstrate DEQ-confirmed intermittent or perennial flows (not merely precipitation), surface water sampling. Consistent with the provisions of Paragraph 74, in this plan Duke Energy Progress shall propose (1) additional groundwater remedial measures for any coal ash constituent if the data indicate an increasing trend in groundwater concentrations in excess of the 2L groundwater standards for four (4) consecutive semi-annual sampling events for that constituent, subject to the provisions of Paragraph 75, and (2) surface water treatment if the data shows impact from coal ash constituents above the 2B standards to waters of the State notwithstanding the
24 For clarity, this paragraph does not constitute a variance of the CAMA deadline for completion of closure. DEQ will approve or disapprove a request for variance at the appropriate time.
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provisions of Paragraph 75. This plan shall be submitted to DEQ no later than 120 days following completion of the stability feature. If appropriate, the additional monitoring plan will be integrated into the existing site monitoring plan to avoid redundant or conflicting monitoring programs. 56. Groundwater Corrective Action Plan. On December 31, 2019, Duke Energy Progress submitted a proposed Groundwater Corrective Action Plan to DEQ for its review and approval. The Corrective Action Plan includes active remedial measures intended by Duke Energy Progress to address any groundwater contamination as required byN.C. Gen. Stat. 130A-309.211, the 2L groundwater rules, and any other applicable laws, statutes, or regulations, subject to the provisions of Paragraph 74 and provided that active remedial measures shall not be required to remediate areas within the geographic limitation as specified in Paragraph 75. Upon approval of the proposed Groundwater Corrective Action Plan by DEQ, Duke Energy Carolinas shall implement the plan subject to such modification and amendment approved pursuant to N.C. Gen. Stat. 130A-309.211(b)(3) and the 2L groundwater rules. At a minimum, Duke Energy Progress shall remedy any material violations of the 2L groundwater standards as determined by DEQ that is attributable to the East Ash Basin at or beyond the geographical limitation described in Paragraph 75 by December 31, 2029, subject to the provisions of Paragraph 74.25 57. Progress Towards Groundwater Remediation. Subject to the provisions of this Consent Order regarding substantial compliance in Paragraph 74, no later than June 30,
25 For clarity, this paragraph does not constitute approval of any portion or aspect of the Groundwater Corrective Action Plan. DEQ will approve or disapprove the Groundwater Corrective Action Plan at the appropriate time.
30
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2020, Duke Energy Progress shall submit a report for approval by DEQ analyzing the progress required by June 30, 2023 and by June 30, 2026 to achieve compliance with 2L groundwater standards by December 31, 2029 at or beyond the geographic limitation described in Paragraph 75 around the East Ash Basin. Subject to the provisions of this Consent Order regarding substantial compliance in Paragraph 74, no later than September 30, 2023 and September 30, 2026, Duke Energy Progress shall submit reports demonstrating sufficient progress toward the goal of achieving compliance with the 2L groundwater standards. If DEQ determines that sufficient progress has not been made towards achieving this goal, Duke Energy Progress shall implement additional remedial measures as required by DEQ. 58. NPDES Permit and Special Order by Consent. On January 18, 2020, DEQ provided public notice of draft NPDES Permit No. NC0003425 for Roxboro. On August 15, 2018, the EMC approved SOC S18-005 for Roxboro, which sets a compliance schedule that requires the completion of decanting by June 30, 2020. Duke Energy Progress shall comply with the terms of the NPDES Permit No. NC0003425 as issued following public comment and SOC S18-005 including any future amendments by DEQ or the EMC, respectively, when such an amendment becomes effective (unless otherwise ordered by the North Carolina Office of Administrative Hearings or a court of competent jurisdiction).
Additional Obligations of Duke Energy Carolinas and Duke Energy Progress 59. Submission of Closure Plans. On December 31, 2019, Duke Energy Carolinas and
Duke Energy Progress submitted to DEQ one closure plan for each CCR impoundment
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pursuant to N.C. Gen. Stat. 130A-309.214(a) for each of the above-referenced Facilities. 60. Notice to Community Groups. During the implementation of the Groundwater Corrective Action Plans and any monitoring required by the terms of this Consent Order, Duke Energy Carolinas and Duke Energy Progress shall provide concurrent copies to the Community Groups of annual reports required under Paragraph 84 of this Consent Order, coal ash excavation reports and groundwater monitoring data (including spreadsheets) for the Facilities as these are provided to DEQ. This may occur through U.S. Mail or electronic means to the person designated in Paragraph 80.
Obligations of DEO 61. Review of Closure Plans. DEQ shall review proposed closure plans and provide for
public participation consistent with N.C. Gen. Stat. 130A-309.214(b). DEQ may request the submittal of additional information pursuant to N.C. Gen. Stat. 130A309.214(c). After receiving public comment, DEQ shall approve or disapprove the proposed closure plans pursuant to N.C. Gen. Stat. 130A-309.214(c). DEQ will not disapprove a proposed closure plan on the basis of the closure methodology employed, to the extent that such methodology is consistent with this Consent Order. 62. Timely Review. In accordance with applicable law, DEQ shall conduct an expeditious review and act expeditiously on all applications by Duke Energy Carolinas and Duke Energy Progress for permits necessary to undertake the actions required under this Consent Order as required by N.C. Gen. Stat. 130A-309.203.
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63. Review of Variance Requests. DEQ acknowledges that the deadline for closure is a deadline for which the Secretary is authorized to grant a variance provided that the requirements ofN.C. Gen. Stat. 130A-309.215 are satisfied. DEQ acknowledges that an extension of time required to complete excavation ordered by DEQ and mandated by the terms of this Consent Order may be a valid basis for seeking a variance from CAMA deadlines, including requests for variance under Paragraph 66 below for purposes of beneficiation. DEQ will approve or disapprove a request for variance at the appropriate time.
64. CCR Rule Deadlines. DEQ agrees to cooperate with (including as appropriate to support) and not oppose Duke Energy Carolinas's or Duke Energy Progress's efforts to extend the deadlines imposed by the federal CCR rule in court or before an administrative body to the extent that such an extension is necessary for Duke Energy Carolinas or Duke Energy Progress to meet its obligations under this Consent Order.
65. Further Excavation. For CCR impoundments, structural fills, and landfills identified in this Consent Order, DEQ shall not require additional excavation for CCR-impacted groundwater at Allen, Belews Creek, Buck, Cliffside/Rogers, Marshall, Mayo, and Roxboro unless DEQ determines (1) there are material violations of the 2L groundwater standards or this Consent Order within the meaning of Paragraph 74 and (2) these material violations cannot reasonably be remedied by active remediation.
Obligations of the Community Groups 66. CAMA Variance Requests. The Community Groups will not oppose requests for
variances made by Duke Energy Carolinas or Duke Energy Progress as to the closure
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deadlines set forth in CAMA in court or before an administrative body, provided that there are no requests to extend such deadlines past December 31, 2034 for the basins at Belews Creek, December 31, 2035 for the basins at Marshall or Buck, December 31, 2036 for the basins at Roxboro, and December 31, 2038 for the basins at Allen. 67. Closure Plans and Corrective Action Plans. The Community Groups will not challenge in court or before an administrative body DEQ's approval of Duke Energy Carolinas's and Duke Energy Progress's closure plans, Corrective Action Plans (including application of a Restricted Designation), Corrective Action Plan implementation, landfill construction or operation permits, components or terms of NPDES permits or modifications to NPDES permits to the extent these components or terms are reasonably necessary for the obligations imposed by this Consent Order (including, for example, NPDES permits or modifications relating to decanting and dewatering), stormwater permits, dam removal authorizations, or post-closure monitoring plans for Allen, Belews Creek, Buck, Cliffside/Rogers, Marshall, Mayo, and Roxboro, or such other permits as required by this Consent Order, provided those closure plans and Corrective Action Plans conform with the terms of this Consent Order. 68. CCR Rule Deadlines. The Community Groups will not oppose Duke Energy Carolinas's or Duke Energy Progress's efforts in court or in an administrative proceeding to extend the deadlines imposed by the federal CCR rule to the extent that such an extension is necessary to meet the obligations under this Consent Order. If appropriate, the Community Groups will support such requests.
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69. Deadlines for Coal Ash Recycling. The Community Groups will not oppose in court or before an administrative body, extensions to the CAMA closure dates as may be requested for the purposes of completing beneficiation at Buck, Cape Fear, and HF Lee, through December 31, 2035. For purposes ofthis paragraph only, Cape Fear River Watch, Inc., Waterkeeper Alliance, Sound Rivers, and Winyah Rivers Foundation (together "additional community groups"), DEQ, and Duke Energy Progress consent to amending the Order Granting Motion for Partial Summary Judgment entered on April 4, 2016 and amended on June 9, 2017, with respect to Paragraph 19 (H.F. Lee) and Paragraph 34 (Cape Fear). The signatures of these additional community groups on this Consent Order shall apply only to the provisions ofthis paragraph. The Motion seeking an amendment to the Order Granting Motion for Partial Summary Judgment shall be filed separately from this Consent Order.
Further Obligations 70. Closure Method. The terms of this Consent Order satisfy the closure method
requirements ofN.C. Gen. Stat. 130A-309.214 for Duke Energy Carolinas and Duke Energy Progress at the Facilities. In the event of inconsistency between this Consent Order and the closure method ordered in DEQ's April 1 Closure Determinations, the terms of this Consent Order shall control.26 71. Consent Order and Settlement Agreement. The Court takes judicial notice that the Parties entered into a Settlement Agreement on December 31, 2019. Nothing in this
26 For clarity, this paragraph does not constitute approval of the closure plan. DEQ will approve or disapprove the closure plan at the appropriate time.
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Consent Decree is intended to alter, amend, or change any surviving obligations of the Settlement Agreement. The Parties further agree that: a. Except as set forth in Paragraph 72, below, the only State entity bound by this
Consent Order is DEQ. b. Except as set forth in Paragraph 72, below, the resolution of cases or issues
pursuant to this Consent Order shall have no preclusive, res judicata, or collateral estoppel effect against the State of North Carolina or any other State entity other thanDEQ. c. Nothing in this Consent Order shall limit the arguments that may be made or conclusions that may be drawn by other State entities in any matter or proceeding concerning recovery through rates of costs incurred by Duke Energy. 72. Release of Claims. Notwithstanding any other provision of this Consent Order, for the Facilities listed in Paragraphs 4 and 5, this Consent Order releases and resolves the civil claims for injunctive relief set forth or which could have been set forth by Plaintiff against Duke Energy Progress and Duke Energy Carolinas in the above-captioned matters for past and continuing alleged violations of the water quality statutes and regulations referenced in the Complaints based on information reasonably known to DEQ at the time of filing of the Consent Order. For clarity, this release does not apply to any alleged groundwater violations referenced in Paragraph 20. 73. No Limitation of Authority for Unknown or Future Endangerment. Plaintiff retains all legal and equitable remedies to address any imminent and substantial endangerment to the public health or welfare or the environment that is presently unknown or which may arise in the future as a result of activities at the Facilities
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whether related to the violations addressed in this Consent Order or otherwise. The Parties reserve all legal and equitable remedies available to enforce the provisions of this Consent Order, including requesting the Court to exercise its contempt powers. 74. Substantial Compliance. For any term ofthis Consent Order that requires compliance with the 2L groundwater standards, neither Duke Energy Carolinas nor Duke Energy Progress will be deemed to be in violation of any such term of this Consent Order and shall not be subject to civil penalties or enforcement action by DEQ at a Facility covered by this Consent Order so long as Duke Energy Carolinas or Duke Energy Progress, as applicable, has used best efforts (as described in Paragraph 77) to implement the Corrective Action Plan and post-closure monitoring and care plan unless DEQ determines that there are multiple and material deviations from such standards at or beyond the geographic limitation set forth in Paragraph 75. 75. Geographic Limitation. Active remediation will not be required in the area within 500 feet of the waste boundary of each CCR impoundment as shown on the most recent NPDES permit for each of the Facilities (except that if a property boundary or body of water is located closer than 500 feet to the waste boundary, that property boundary or body of water shall define the geographic limits for active remediation) ("geographic limitation"), provided that, subject to the provisions of Paragraph 74, coal ash constituents outside the geographic limitation described in this paragraph do not increase beyond the 2L groundwater standards post-closure. DEQ will not assess a civil penalty or pursue an enforcement action for any exceedances of the 2L groundwater standards within the geographical limitation so long as Duke Energy Carolinas or Duke Energy Progress, as applicable, is making best efforts (as defined by
37
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Paragraph 77) to implement the approved Corrective Action Plan and closure plan as determined by DEQ. The Corrective Action Plans may be periodically updated as required by DEQ if the groundwater cleanup fails to meet projected targets. 76. No Admission. No Party admits wrongdoing or liability related to matters covered in this Consent Order. 77. Force Maj eure. It will not be a violation of this Consent Order if performance of any of the obligations contained in any paragraph is delayed by an extraordinary event that is beyond the control of Duke Energy Carolinas or Duke Energy Progress, as applicable, or any entity controlled by Duke Energy Carolinas or Duke Energy Progress, as applicable, or their contractors, despite best efforts to fulfill the obligation. Such causes are war, civil unrest, act of God, or act of a governmental or regulatory body delaying performance or making performance impossible including any appeal or decision remanding, overturning, modifying, or otherwise acting (or failing to act) on a permit or similar permission or action that prevents or delays an action needed for the performance of any of the work contemplated under this Consent Order such that it prevents or substantially interferes with Duke Energy Carolinas's or Duke Energy Progress's performance within the time frames specified herein. Duke Energy Carolinas or Duke Energy Progress, as applicable, shall bear the burden of proving by a preponderance of the evidence the existence of such circumstances. Such circumstances do not include the financial inability to complete the work, increased cost of performance, or changes in business or economic circumstances. a. To qualify as a force majeure under this Consent Order, the failure of a permitting
authority to issue a necessary permit in a timely fashion which prevents Duke
38
ED_018475D_00002944-00092
Energy Carolinas or Duke Energy Progress from meeting the requirements in this Consent Order must be beyond the control of Duke Energy Carolinas or Duke Energy Progress, as applicable, and Duke Energy Carolinas or Duke Energy Progress must have taken all steps available to obtain the necessary permit, including but not limited to submitting a complete permit application, responding to requests for additional information by the permitting authority in a timely fashion, and accepting lawful permit terms and conditions after expeditiously exhausting any legal rights to appeal those terms and conditions imposed by the permitting authority. b. The requirement that Duke Energy Carolinas and Duke Energy Progress use "best efforts" in this Consent Order includes using commercially reasonable efforts to anticipate any event that delays obligations and to address the event in a commercially reasonable manner as it is occurring or following the event such that delay is minimized to the greatest extent possible. c. Duke Energy Carolinas or Duke Energy Progress, as applicable, shall notify the Court, DEQ, and the Community Groups in writing within ten (10) days of knowledge of the event which causes or may cause delay, describing in detail the anticipated length of the delay, the precise cause or causes of the delay, the measures taken and to be taken by Duke Energy Progress or Duke Energy Carolinas to prevent or minimize the delay, and a timetable by which those measures will be implemented. Failure to comply with the notice requirements constitutes a waiver of any defense to a failure to comply with the terms and conditions of this Order.
39
ED_018475D_00002944-00093
The Parties may, in advance of the actual occurrence of an event causing delay, move the Court for a determination as to whether the event will excuse the delay. 78. Obligations of the Defendants. Duke Energy Progress and Duke Energy Carolinas shall be responsible for carrying out their respective obligations of the Consent Order until relieved by the Court. 79. No Limitation on Administrative Process and Judgment. DEQ is a governmental agency with statutory rights or obligations, and must abide by all applicable procedural and substantive laws and regulations in the exercise of such authority during the implementation of the provisions in this Consent Order. No provision in this Consent Order shall diminish, modify, or otherwise affect the statutory or regulatory authority of DEQ. For any provision in this Consent Order where DEQ makes a determination on a matter, nothing in this Consent Order waives any rights of a Party under the North Carolina Administrative Procedure Act (including the right to appeal, if any), nor does a determination by DEQ on a matter prohibit a challenge to that determination under the terms of this Consent Order, where appropriate. Nothing in this Consent Order shall limit the opportunity for the Community Groups to participate in any administrative process to the extent consistent with their commitments in this Consent Order and as set forth in Paragraph 71. 80. Notice. Whenever notice is required to be given or a document is required to be sent by one Party to another under the terms of this Consent Order, it shall be provided to all Parties, directed to the individuals at the addresses specified below, unless those individuals or their successors give notice of a change to the other Parties in writing. Notice or submission by electronic mail is acceptable.
40
ED_018475D_00002944-00094
a. Asto DEQ:
Sheila Holman Assistant Secretary for the Environment 1601 Mail Service Center Raleigh, NC 27699-1601 shcila.holman@ncdcnr.gov
Cc: William F. Lane General Counsel 1601 Mail Service Center Raleigh, NC 27699-1601 Bill.Lanc(cz>,ncdcnr.gov
b. As to Duke Energy:
Kodwo Ghartey-Tagoe Executive Vice-President and Chief Legal Officer Duke Energy Corp. Mail Code DEC48H 550 South Tryon Street Charlotte, NC 28202 Kodwo.Ghartcy-Tagoc(iz),duke-cncrgy.com
c. As to the Community Groups:
Frank S. Holleman III Senior Attorney Southern Environmental Law Center Counsel for Community Groups 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-2356 fhollcman@sclcnc.org
81. Effective Date. This Consent Order shall take effect immediately upon entry and shall
remain in effect until further order of this Court. The Parties shall comply with the
terms of this Consent Order.
82. Continuing Jurisdiction. The Court shall retain continuing jurisdiction to enforce the
terms and conditions of this Consent Order, to modify this Consent Order, and to
resolve disputes arising under this Consent Order. This Consent Order may be
41
ED_018475D_00002944-00095
modified, altered, or changed upon application to the Court by written consent of all Parties. Absent consent of all Parties, a Party may seek modification or amendment of this Consent Order only upon a showing of a substantial change of facts and circumstances such that it would no longer be equitable to enforce the terms and conditions of this Consent Order absent such modification or amendment. In the event that any Party seeks such a modification or amendment without the consent ofany other Party, all Parties have the right to be heard by the Court. This Consent Order shall remain in force and effect until all obligations and terms have been completed or satisfied. Upon Duke Energy Carolinas and Duke Energy Progress demonstrating completion of all obligations imposed by this Consent Order for each Facility to the satisfaction of Plaintiff and Plaintiff-Intervenors, Plaintiff and Plaintiff-Intervenors shall file appropriate notice and satisfaction documents with the Court. 83. Compliance. The parties agree that the actions required by this Consent Order (including costs incurred) are for the purpose of complying with CAMA and coming into compliance with applicable laws, rules, and regulations. For clarity, in ordering methods of closure for the impoundments, DEQ did not seek to impose a fine or penalty. This paragraph relates solely to issues arising under federal tax law. 84. Reporting. Duke Energy Carolinas and Duke Energy Progress shall submit annual progress reports to DEQ detailing the work and activities undertaken and completed pursuant to the requirements set forth in this Consent Order. The annual reports are due no later than the thirtieth (30th) day of January for the duration of this Consent Order.
42
ED_018475D_00002944-00096
85. Enforcement. The full power of the Court, including the contempt provisions of Article 2, Chapter 5A of the North Carolina General Statutes, shall be available to enforce this Consent Order. In no event shall any Party be entitled to monetary damages for breach of this Consent Order. In addition, no action under this Consent Order shall be brought or maintained until: (a) the non-breaching Party provides written notice to the breaching Party which explains with particularity the nature of the claimed breach, and (b) within thirty (30) days after receipt ofsaid notice, the breaching Party fails to cure the claimed breach or, in the case of a claimed breach which cannot be reasonably remedied within a thirty (30) day period, the breaching Party fails to commence to cure the claimed breach within such thirty (30) day period, and thereafter diligently complete the activities reasonably necessary to remedy the claimed breach.
86. Signature. This Consent Order may be signed by the Court out-of-court, out-of-term, and out-of-county, and by the Parties in counterparts.
43 ED_018475D_00002944-00097
CONSENTED TO BY:
f t THE NORTH CA, OL
By: t/f '
Michael Regan
-9 A DEPARTMENT OF ENVIRONMENTAL QUALITY
,
Date:fl=j/
i2f)jj)
Secretary
By: -tc:::- ~
Francisco Benzoni, as to form only
Date: ~ I / 5.6 / Z-,t: L-j6 ---1,--7+-------
Special Deputy Attorney General
44 ED_018475D_00002944-00098
DUKE ENERGY CAROLINAS, LLC By: __J'--"--'--'-l-f'liAf"ft"~~:...._;:____k-+-+
Date: ~
Kodwo Ghartey-Tagoe -
Executive Vice-President, Chief Legal Officer
DUKE ENERGY CAROLINAS, LLC and Authorized
Designated Official for DUKE ENERGY CAROLINAS, LLC
DUKE ENERGY PROGRESS, LLC
By: -'--------=-----"'---':.c:...._---1-
Date: ~ - 3' I/ Zt,zo
Kodwo Ghartey-Tagoe
Executive Vice-President, Chief Legal Officer
DUKE ENERGY PROGRESS, LLC and Authorized
Designated Official for DUKE ENERGY PROGRESS, LLC
ED_01847SD_00002944-00099
THE COMMUNITY GROUPS:
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
B
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
N, INC.
By: -+----+-'--.::.__.-c:_+---1-Frank S. Holleman III
.. /i'
~li.--
Senior Attorney
Southern Environmental Law Center
Counsel for the Community Groups
Date:_,.-+--"'-I,_[-+--/u_) 2-A>
{
46 ED_018475D_00002944-00100
THE COMMUNITY GROUPS:
\ , __..
Senior Attorney
Southern Environmental Law Center
Counsel for the Community Groups
ASSOCIATION
By:
I
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
.,
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
UND RIVERS, INC.
,:
By:
/ Date:
Senior Attorney Southern Environmental Law Center Counsel for the Community Groups
47
ED_018475O_00002944-00101
IT IS HEREBY ORDERED. This __ day of _ _ _ _, 2020.
The Honorable Paul C. Ridgeway Senior Resident Superior Court Judge
48 ED_018475D_00002944-00102
Leopold, Matt
[MLeopold@hunton.com]
3/23/2025 10:56:15 PM
Cook, Steven
[cook.steven@epa.gov]
ubject:
Meeting Request
ttachments:Template_OCSPP
External Meeting
Request-2025_.docx
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hello Steven,
I would like to request a meeting on behalf of ExxonMobil. We are meeting with OCSPP on April 1 at 1:00 to discuss advanced recycling. If possible we would like to meet before or after that meeting. I have attached the meeting request form that we provided to OCSPP. Please let me know if you need anything else.
Best regards, Matt
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.corn
ED_018475O_00002949-00001
External Meeting Request Office of Chemical Safety and Pollution Prevention
U.S. Environmental Protection Agency
This assists in planning participation in events and activities. This is not a confirmation ofattendance.
Basic Back2round
Today's date Requesting individual and/or affiliation Requested meeting date or date range Requested meeting time slot (e.g. 45 min)
3/4/2025 ExxonMobil 3/11/2025 (or contact me with other options)
1 hour
Virtual or In-Person
In-Person
Meeting Description Title of Meeting Purpose: (e.g., meet and greet, 12olicy discussion, informational): Agenda of proposed topics to be discussed
List of attendees (name, title, email address)
Attachments [please attach agenda and other meeting material(s)]
Discuss Advanced Recycling
Informational, policy discussion, rulemaking
ExxonMobil would like to present information on its Advanced Recycling process Melanie Bower, Development Manager - Circular Products [HYPERLINK "mailto:melanie.m.bower@exxonmobil.com"] Jeff Kovacs, Regulatory Affairs and Compliance Manager [HYPERLINK "mailto:jeffrey.k.kovacs@exxonmobil.com" ] Jared Brown, Senior Counsel, [ HYPERLINK "mailto:jared.f.brown@exxonmobil.com" ] Matt Leopold, Partner [ HYPERLINK "mailto:mleopold@hunton.com" ] To be provided
Contact Information Your name: Telephone number: Mailing address: E-mail address:
Matt Leopold 2025281371 2200 Pennsylvania Ave mleopold@hunton.com
ED_018475D_ 00002950-00001
EPA Contacts Primary: Sonia Altieri, altieri.sonia@epa.gov Secondary: Ruth Malloy, malloy.ruth@epa.gov
ED_0 18475D_ 00002950-00002
essage
Bridgeford, Tawny [TBridgeford@nma.org] 3/14/2025 3:53:31 PM Cook, Steven [cook.steven@epa.gov] NMA Comments on Phosphogypsum Petition ttachments:NMA Letter Opposing RCRA-TSCA Phosphate Petition (Final & Sent to EPA) (Apr. 26, 2021).pdf; FINAL TFI Opposition to RCRA and TSCA Rulemaking Petition (Mar. 29 2021) (004).pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Appreciated your time yesterday discussing Good Samaritan implementation. We are excited to support this next phase in creating a pilot program that will result in essential benefits to communities impacted by abandoned mine lands.
Separately, wanted to share the National Mining Association's letter opposing the petition for rulemaking filed with the U.S. Environmental Protection Agency on Feb. 8, 2021, which seeks the promulgation of certain rules pursuant to RCRA, TSCA, and the APA, related to phosphogypsum and process wastewater from phosphoric acid production. The Fertilizer Institute submitted a more extensive opposition response. I've attached their letter if you do not already have it.
Tawny
National Mining Association
Tawny Bridgeford General Counsel & Senior Vice President, Regulatory Affairs National Mining Association 101 Constitution Ave. NW, Suite 500 East Washington, D.C. 20001
Direct: (202) 463-2629 Cell: (202) 731-8339
ED_018475O_00002951-00001
April 26, 2021
Via email
Michael Regan Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW #1101A Washington, D.C. 20460
Administrator Regan:
The National Mining Association ("NMA") respectfully submits this letter opposing the petition for rulemaking 1 (hereinafter, "Petition") filed with the U.S. Environmental Protection Agency ("EPA") on Feb. 8, 2021, which seeks the promulgation of certain rules pursuant to the Resource Conservation and Recovery Act ("RCRA") 7004(a)2, the Toxics Substances Control Act ("TSCA") 21 3, and the Administrative Procedure Act ("APA") 5534. In light of existing federal and state laws and an ongoing EPA enforcement initiative regulating the management of phosphogypsum ("PG") and process wastewater from phosphoric acid production ("process wastewater"), the rulemakings requested by petitioners are unnecessary, would substantially undermine ongoing regulation and enforcement, and would likely result in considerable needless cost and regulatory burden to the phosphate manufacturing industry. Thus, NMA urges EPA to deny all of petitioners' requests.
Statement of Interest
NMA is a national trade association representing the producers of most of America's coal, metals, industrial and agricultural minerals; the manufacturers of mining and mineral processing machinery, equipment, and supplies; and the engineering and consulting
The petitioners include the People for Protecting Peace River, Atchafalaya Basinkeeper, Bayou City Waterkeeper, Calusa Waterkeeper, Center for Biological Diversity, Cherokee Concerned Citizens, Healthy Gulf, ManaSota-88, Our Santa Fe River, People for Protecting Peace River, RISE St. James, Sierra Club's Florida and Delta chapters, Suncoast Waterkeeper, Tampa Bay Waterkeeper, Waterkeeper Alliance, Waterkeepers Florida, and WWALS Watershed Coalition.
2
42 U.S.C. 6974(a).
3
15 U.S.C. 2620.
4
5 U.S.C. 553.
ED_O18475D_ 00002952-00001
PAGE 2
firms, financial institutions, and other firms serving the mining industry. NMA's membership includes the owners and operators of phosphate manufacturing facilities that produce the PG and process wastewater targeted for regulation in this Petition. EPA's response to this Petition is of direct interest to those members.
As the agency is aware, these wastes have undergone extensive review as directed by Congress5 and based on that review are not regulated as RCRA Subtitle C hazardous wastes.6 In requesting that EPA reverse a Bevill regulatory determination, petitioners' raise an important legal issue that would, if agreed to by the agency, establish adverse legal precedent with broad regulatory repercussions outside the phosphate manufacturing sector as well.
NMA's letter focuses on petitioners' request that EPA: (1) reverse the agency's 1991 Bevill Regulatory Determination excluding PG and process wastewater from RCRA Subtitle C hazardous waste regulation; and (2) promulgate a rule that governs the safe treatment, storage and disposal of PG and process wastewater as hazardous wastes under RCRA Subtitle C. NMA has an extensive history weighing in on all RCRA-related regulatory issues pertaining to the mining industry's extraction, beneficiation, and mineral processing wastes. 7 Most recently, NMA participated in EPA's rulemaking process establishing RCRA Subtitle D non-hazardous waste regulations for coal combustion residuals ("CCR") that raised similar issues regarding the Bevill Amendment.8
NMA understands that The Fertilizer Institute ("TFI") submitted a letter to EPA on Mar. 29, 2021, 9 responding to petitioners' allegations and opposing petitioners' requests. TFl's Opposition includes extensive information regarding the robust and mature federal and state regulatory frameworks that already govern PG stacks and process wastewater. TFl's Opposition also highlights the consent decrees and RCRA consent orders being negotiated through EPA's mining and mineral processing compliance and enforcement initiative ("MMPI") that specify PG stack system design, construction, operation, closure,
5
The Solid Waste Disposal Act Amendments of 1980 included several provisions directly related to
the regulation of mining and mineral processing wastes (collectively called the "Bevill Amendment."). See
RCRA 3001 (b)(3)(A)(ii) (42 U.S.C. 6921 (b)(3)(A)(ii)), 3001 (b)(3)(C) (42 U.S.C. 6921 (b)(3)(C)), 8002(f)
(42 U.S.C. 6982(f)), & 8002(p) (42 U.S.C. 6982(p)).
6
See 40 C.F.R. 261.4(b)(7); See also EPA's "Final Regulatory Determination for Extraction and
Beneficiation Waste," 51 Fed. Reg. 24,496 (July 3, 1986) (RCRA Subtitle C regulation of extraction and
beneficiation wastes was unwarranted); EPA's "Final Regulatory Determination for Special Wastes from
Mineral Processing (Mining Waste Exclusion)," 56 Fed. Reg. 27,300 (June 13, 1991) (RCRA Subtitle C
regulation for 20 mineral processing wastes unwarranted).
7
Prior to NMA's formation in 1995, its predecessor the American Mining Congress advocated on
these issues. NMA will furnish these comments upon request.
8
See NMA comments to EPA on the "Hazardous and Solid Waste Management System;
Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities,"
75 Fed. Reg. 35,128 (filed Nov. 19, 2010) (EPA-HQ-RCRA-2009-0640-7681) ("NMA CCR Comments"),
available at https://www.regulations.gov/commenUEPA-HQ-RCRA-2009-0640-7681.
9
TFI Opposition to Petition for Rule making (filed Mar. 29, 2021) ("TFl's Opposition").
National Mining Association '101 Constitution Avenue, NW I Suite 500 East I Washington, DC 2000 I I (202) 463-2600
ED_018475D_00002952-00002
PAGE 3
and post-closure care, as well as financial assurance requirements and groundwater protection and corrective action provisions. As briefly discussed below, these measures were carefully tailored to individual facility conditions. NMA strongly encourages EPA to consider this information as it demonstrates that additional federal regulation is not only unnecessary for PG and process wastewater but would upend significant investment and efforts already made by EPA and today's operating facilities to design and implement those agreed upon measures. 10 NMA also endorses TFl's arguments opposing petitioners' TSCA claims.
A. EPA Lacks the Statutory Authority to Reverse its Bevill Regulatory Determination Excluding PG and Process Wastewater from RCRA Subtitle C Regulation
Contrary to petitioners' claims, Congress has indicated, EPA has agreed, and case law has held that EPA lacks the authority to reverse its 1991 Bevill Regulatory Determination excluding PG and process wastewater from RCRA Subtitle C regulation.
1. The Bevill Amendment & Regulatory Process
Congress enacted RCRA in 1976. Subtitle C of RCRA generally established a "cradle to grave" management scheme governing the generation, transportation, treatment, storage, and disposal of the hazardous wastes that would be subject to this stringent RCRA Subtitle C program. 11
On Dec. 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA Subtitle C. 12 EPA proposed to exempt certain "special wastes" - high volume, low hazard wastes - including "phosphate-rock mining, beneficiation, and processing wastes." 13 EPA's 1978 proposal explained that "special wastes" would be subject to fewer regulatory requirements because they were generated in "very large volumes," "posed relatively low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous waste treatment, storage, and disposal. 14 EPA abandoned the "special waste" concept, however, when the agency promulgated final hazardous waste regulations in
10
NMA is aware of the reported March 28, 2021, breach of a pond liner at the "Eastport Terminal"
owned by HRK Holdings, LLC., which is sited on property formerly occupied by the closed Mulberry
Phosphates Co. Piney Point, Florida facility. NMA endorses the letter submitted by TFI on Apr. 9, 2021,
explaining why this site is not representative of phosphate manufacturing facilities currently in operation
and should not be used to call into question the responsible management of PG and process wastewater at
active facilities.
11
42 U.S.C. 6921-6931.
12
43 Fed. Reg. 58,946 (Dec. 18, 1978).
13
Id. at 59,015.
14
Id. at 58,992.
National Mining Association '101 Constitution Avenue, NW I Suite 500 East I Washington, DC 2000 I I (202) 463-2600 ED_018475D_00002952-00003
PAGE 4
1980.15 EPA's final rule sought to apply the full suite of hazardous waste regulations to mining and mineral processing wastes.
Recognizing the absurdity of regulating "special wastes" in such an inflexible, onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations in October 1980 with the Bevill Amendment. 16 As a counterpoint to EPA's prior actions described above, the Bevill Amendment established a special process that EPA was required to follow before "special wastes" could be regulated as hazardous wastes under RCRA Subtitle C. 17 Congress included within the wastes to be studied "solid waste from extraction, beneficiation, and processing of ores and minerals, including phosphate rock." 18
First, the Bevill Amendment established a temporary exemption from regulation under Subtitle C, until the completion of a study and submittal of the report described below. 19 Second, Congress directed EPA to conduct "a detailed and comprehensive study on the adverse effects on human health and the environment, if any, of the disposal and utilization of solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from uranium mining ."20
In contrast to EPA's 1980 rulemaking, Congress expressly directed that the Bevill study include an analysis of:
1) the source and volumes of such materials generated per year;
2) present disposal and utilization practices;
3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials;
4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved;
5) alternatives to current disposal methods;
15
45 Fed. Reg. 33,084 (May 19, 1980).
16
See RCRA 3001 (b)(3)(A), 42 U.S.C. 6921 (b)(3)(A).
17
See Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) ("Indeed,
our reading of the statute and legislative history strongly suggests that Congress designed the Bevill
Amendment to break with the previous approach to regulation of hazardous industrial wastes.").
18
RCRA 3001 (b)(3)(A)(ii) (42 U.S.C. 6921 (b)(3)(A)(ii)) (emphasis added).
19
RCRA 3001 (b)(3)(A) (42 U.S.C. 6921 (b)(3)(A)).
20
RCRA 8002(p) (42 U.S.C. 6982(p)) (emphasis added).
National Mining Association '101 Constitution Avenue, NW I Suite 500 East I Washington, DC 2000 I I (202) 463-2600 ED_018475D_00002952-00004
PAGE 5
6) the costs of such alternatives;
7) the impact of those alternatives on the use of phosphate rock and uranium ore, and other natural resources; and
8) the current and potential utilization of such materials.
Third, Congress directed that EPA publish a report on such study, which was to include "appropriate findings."21 The report was required in conjunction with a second report on a study of mining wastes. Both were due not later than 36 months after Oct. 21, 1980.22 The Bevill Report was to be submitted to the Committee on Environment and Public Works of the United States Senate and the Committee on Energy and Commerce of the United States House of Representatives.23
Fourth, the Bevill Amendment further stipulated that within six months after the Report to Congress, EPA, after public hearings and the opportunity for comment, had to determine whether to promulgate regulations under RCRA Subtitle C for mining and mineral processing wastes, or determine that such regulations were unwarranted.24 Finally, if EPA determined that such regulations were warranted, EPA could then engage in notice and comment rulemaking to promulgate the RCRA Subtitle C regulations. 25
2. EPA's Actions to Implement the Bevill Amendment for Mineral Processing Wastes Including PG and Process Wastewater
On Nov. 19, 1980, EPA took the first step in responding to Congress' directives by issuing an interim final rule ("IFR") amending its hazardous waste regulations to exclude from RCRA Subtitle C regulation solid waste from the extraction, beneficiation and processing of ores and minerals - including phosphate rock. 26 EPA noted that its IFR was meant to provide "clear guidance" to the mining and mineral processing industries that these streams were not subject to regulation as hazardous waste. The agency, however, also indicated its intent to engage in further rulemaking regarding the scope of
21
Id.
22
See id. See also RCRA 8002(f) (42 U.S.C. 6982(f)).
23
Id.
24
RCRA 3001 (b)(3)(C)(42 U.S.C. 6921 (b)(3)(C)).
25
See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) ("Section
3001 (b)(3)(C) provides that the product of the notice and comment process [on the Report to Congress] will
be a determination of whether regulation is warranted in the future, not regulations themselves.")
26
See 45 Fed. Reg. 76,618 (Nov. 19, 1980) (Interim Final Rule). EPA specifically excluded from
hazardous waste regulation, "[s]olid waste from the extraction, beneficiation and processing of ores and
minerals (including coal), including phosphate rock and overburden from the mining of uranium ore." Id. at
76,620 (40 C.F.R. 261.4(b)(6)).
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PAGE 6
the Bevill Amendment.27 Over the next five years, EPA completed a study of mining wastes (consisting of extraction and beneficiation) and submitted a report to Congress.28 On July 3, 1986, EPA published a determination that regulation of such wastes under RCRA Subtitle C was not warranted.29
EPA's study of mineral processing wastes occurred on a second track and covered the PG and process wastewater streams that are targeted in the Petition. EPA evaluated these waste streams under the Bevill Amendment over the span of nearly six years and issued the final Regulatory Determination for mineral processing wastes in June 1991.30 Throughout this rulemaking process (described below), EPA consistently viewed PG and process wastewater as meeting the "high volume" and "low hazard" criteria the agency used to decide which mineral processing wastes should be temporarily excluded from Subtitle C regulation pending the agency's Report to Congress and ultimate Regulatory Determination.
Specifically, EPA published a series of proposals concluding that PG met the "high volume" and "low hazard" criteria and warranted temporary deferral from Subtitle C regulation, pending its Report to Congress and a Regulatory Determination .31 On Sept.1, 1989, EPA issued a final rule concluding that PG met the criteria.32 Accordingly, EPA amended 40 C.F.R. 261.4(b)(7) to exclude from hazardous waste regulation:
Solid waste from the ... processing of ores and minerals (including coal), including phosphate rock and overburden from the mining of uranium .... (i) The following solid waste from the processing of ores and minerals [] are retained within this exclusion: ... (D) Phosphogypsum from phosphoric acid productI.0n; ....33
Similarly, EPA published a series of proposals concluding that process wastewater should be subject to temporary deferral from Subtitle C regulation, pending completion of
27
Id.
28
EPA, "Report to Congress on Wastes from the Extraction and Beneficiation of Metallic Ores,
Phosphate Rock, Asbestos, Overburden from Uranium Mining, and Oil Shale," EPA/530-SW-85-033
(1985). EPA was sued for failure to meet the statutory deadline to publish studies on mining and mineral
process wastes. See Concerned Citizens of Adamstown v. EPA, 1985 U.S. Dist. LEXIS 16605 (D.D.C.
Aug. 21, 1985) (imposing two schedules for completing the RCRA 8002 studies).
29
51 Fed. Reg. 24,496 (July 3, 1986).
30
56 Fed. Reg. 27,300 (June 13, 1991).
31
See 50 Fed. Reg. at 40,294 (Oct. 2, 1985); 53 Fed. Reg. at 41,296 (Oct. 20, 1988); and 54 Fed.
Reg. at 15,342 (Apr. 17, 1989).
32
54 Fed. Reg. 36,592, 36,631 (Sept. 1, 1989).
33
Id. at 36,641-642.
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PAGE 7
its Report to Congress and a Regulatory determination.34 On Jan. 23, 1990,35 EPA issued a final rule retaining process wastewater as one of the 20 mineral processing streams subject to temporary Subtitle C deferral.36 Accordingly, EPA revised 40 C.F.R. 261.4(b)(7) to exclude from hazardous waste regulation:
Solid waste from the ... processing of ores and minerals (including coal), including phosphate rock and overburden from the mining of uranium ore. . .. For the purposes of 261.7(b)(7), solid waste from the processing of ores and minerals will include only the following wastes, until EPA completes a report to Congress and a regulatory determination on their ultimate regulatory status: ... (iv) Phosphogypsum from phosphoric acid production; ... (xvi) Process wastewater from phosphoric acid production ...."37
In the 1990 Report to Congress, EPA tentatively determined that "regulation under Subtitle C of RCRA [was] unwarranted for ... process wastewater from phosphoric acid production [and PG] from phosphoric acid production[.]"38 EPA explained that it was addressing radionuclide hazards from PG under the National Emission Standards for Hazardous Air Pollutants (40 C.F.R., Part 61, Subpart R). 39 EPA also acknowledged certain damage cases and concerns over the characteristics of PG and process wastewater and preventing contamination.40 However, EPA determined that the cost of full or partial Subtitle C regulation would significantly affect viability of the domestic industry. Ultimately, EPA decided to further examine whether additional regulation was needed under RCRA or other statutes.41 EPA's conclusion in the Report to Congress was consistent with the primary concerns underlying Congress' enactment of the Bevill Amendment and ensuring a strong and economically viable American mining and minerals industry.42
34
54 Fed. Reg. at 15,342, 15,344, Table 2 (Apr. 17, 1989) (proposing the inclusion of process
wastewater); 54 Fed. Reg. at 36,631, Table 2 (Sept. 1, 1989) (proposing to conditionally retain process
wastewater); 54 Fed. Reg. at 39,305 (Sept. 25, 1989) (proposing to permanently retain process
wastewater).
35
55 Fed. Reg. 2322 (Jan. 23, 1990) (Final Rule).
36
Id. at 2338, 2341-42, Table 2 (concluding that process wastewater "is [a] high volume and low hazard
waste and, is, therefore, retained in the exemption").
37
Id. at 2353.
38
Report to Congress, Vol. I at 11-12.
39
Id. at 13.
40
Id.
41
Id. at 14.
42
Envtl. Def. Fundv. EPA, 852 F.2d 1309, 1315 (D.C. Cir. 1988) (" ... Congress intended attention to
cost and the economic impact of regulatory controls in making a regulatory determination. The emphasis
on economic factors is consistent with Congress' obvious goal in passing the Bevill Amendment - to
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Finally, on June 13, 1991, EPA concluded its statutory duties under the Bevill Amendment with publication of its Regulatory Determination for the twenty "high volume" and "low hazard" mineral processing wastes.43 For both PG and process wastewater, the 1991 Regulatory Determination concluded that RCRA Subtitle C regulation was unwarranted.44 EPA concluded that even a Subtitle C-Minus program would result in the industry incurring compliance costs that would be "difficult to withstand" and "would create economic hardship for and threaten the continued viability of many of the facilities in the industry."45 In view of these economic impacts, EPA determined that RCRA Subtitle C controls were too inflexible and costly.46 Moreover, because EPA believed that even a RCRA Subtitle D program might be difficult for the industry to withstand, EPA stated that it "ha[d] serious reservations regarding the economic feasibility of a traditional waste management program designed within the contours of the RCRA statute."47 Thus, with its Regulatory Determination, EPA retained both streams under its exclusion from RCRA Subtitle C hazardous waste regulation at 40 C.F.R. 261.4(b)(7).
After ruling out any form of Subtitle C regulations and seriously discounting the possibility of Subtitle Das a feasible regulatory program, EPA identified a two-pronged approach for PG and process wastewater. First, the agency would "rely upon existing authorities under RCRA Section 7003 and CERCLA Section 106 to respond effectively to emergency situations that arise."48 Second, the agency would evaluate potential options under TSCA "to address the complex issues associated with phosphoric acid industry special
relieve the mining industry of the onerous economic burden of stringent Subtitle C controls if at all possible.").
43
56 Fed. Reg. at 27,300.
44
Id. at 27,316.
45
Id. The evaluation of Subtitle C-Minus assumed EPA would exercise all of the regulatory flexibility
provided under RCRA 3004(x) (42 U.S.C. 6924(x)). In their Petition, petitioners cite to this provision as
a basis for Subtitle C-Minus regulation of PG and process wastewater (Petition at 39); however, such an
application was already evaluated, and rejected, by EPA in the 1990 Report to Congress and 1991
Regulatory Determination.
46
Id.
47
Id.
48
Id. RCRA 7003 (42 U.S.C. 6973) provides EPA with broad authorities to address activities that
pose an imminent and substantial endangerment to health or the environment, and CERCLA 106 (42
U.S.C. 9606) provides EPA with similar authorities to address the release or threatened release of
hazardous substances. Notably, although the Petition cites to these provisions, there is no recognition that
they are in place to address activities at phosphoric acid manufacturing facilities that may pose an
imminent and substantial endangerment. See Petition at 16. The Petition also fails to acknowledge that
EPA and its state partners have spent well over a decade employing such authorities to address the very
types of concerns asserted by petitioners, through negotiated consent decrees and orders tailored to each
individual operating facility pursuant to EPA's MMPI. EPA's MMPI and the extensive environmental
protection enhancements adopted by industry pursuant to the MMPI are described in TFl's Opposition.
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wastes."49 NMA disputes petitioners' assertion that EPA's Regulatory Determination "announced the development and future promulgation of a TSCA regulatory program for [PG] and process wastewater."50 EPA merely stated it would "focus on developing risk management strategies to reduce or eliminate risks posed by phosphoric acid production wastes," including methods to "reduce the toxicity and/or volume of these wastes."51
To that end, EPA established the TSCA Phosphoric Acid Waste Dialogue Committee ("Committee"), comprised of representatives of industry, environmental organizations, 52 and state and federal agencies. The Committee, through the assistance of EPA and technical resources, exhaustively evaluated potential process modifications for phosphoric acid production. As aptly explained in TFl's Opposition, the Committee ultimately concluded that no better alternatives to the existing process were available, and, as a result, that TSCA regulation was inappropriate.
3. The Bevill Amendment Establishes a One-Time Special Process for Making Bevill Regulatory Determinations
An analysis of the Bevill Amendment reveals that the above-described special Bevill process established by Congress provided for a one-time evaluation of mining and mineral processing wastes that cannot be subsequently reversed. First, the Bevill Amendment by its terms calls for a "study" and a "report."53 The use of the singular, as well as the statutory context, means that Congress deliberately established a one-time study and one-time Report to Congress obligation. Similarly, Congress called for a onetime regulatory determination when it stated that "not later than six months after the date of submission of the applicable study" EPA should "either determine to promulgate regulations ... or determine that such regulations are unwarranted."54
Second, Congress made it clear it was establishing a one-time study, report and regulatory determination obligation when it required that the report and study be completed by a date certain, i.e., Oct. 21, 1980.55 Finally, the Bevill Amendment established a temporary exemption from RCRA Subtitle C regulation for "special wastes," an approach consistent with a one-time study, report, and regulatory determination.56 If
49
56 Fed. Reg. at 27,316.
50
Petition at 16.
51
56 Fed. Reg. at 27,316.
52
Notably, one of the Petitioners here, ManaSota-88, was a member of the Committee. See TFl's
Opposition at 14 n. 74.
53
RCRA 8002(n) (42 U.S.C. 6982(n)).
54
RCRA 3001 (b)(3)(C) (42 U.S.C. 6921 (b)(3)(C)).
55
RCRA 8002(n) (42 U.S.C. 6982(n)).
56
RCRA 3001 (b)(3)(A) (42 U.S.C. 6921 (b)(3)(A)).
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Congress had intended to extend the Bevill process forty years beyond the 1980 date Congress established for completion of the Bevill study and report, Congress would have done so explicitly.57 That Congress did not do so confirms that it intended the Bevill process consist of a one-time report, study, and regulatory determination for mineral processing wastes.
EPA's issuance of the 1991 Regulatory Determination completed the Bevill process for mineral processing wastes, including PG and process wastewater. For the reasons stated above, EPA lacks the authority to reverse its 1991 Regulatory Determination. Any attempt by EPA to do so in a future rulemaking would be unlawful. Accordingly, EPA should deny petitioners' request to reverse the 1991 Regulatory Determination and issue regulations under RCRA Subtitle C.
4. The D.C. Circuit Has Ruled that the Bevill Amendment Established a One-Time Study, Report, and Regulatory Determination Process
In Solite Corp. v. EPA, 58 NMA argued that future waste streams from the mineral processing industry should be eligible for the Bevill study, report and Regulatory Determination process before they were subject to RCRA Subtitle C regulation. In Solite, NMA challenged EPA's decision that only those mineral processing wastes that were generated between 1983 and 1988 were eligible for Bevill Amendment coverage, 59 and that processing waste streams generated at some future point would therefore be subject to RCRA Subtitle C regulation.
In denying NMA's challenge, the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") relied on the explicit language of the Bevill Amendment for extraction, beneficiation, and processing wastes. The Court stated as follows:
57
The Bevill Amendment is completely silent on EPA's authority to redo or reverse a final regulatory
determination that the Agency has already properly reached pursuant to the Amendment's statutorily
prescribed procedures and deadlines. If Congress had wanted to give EPA this authority, it would have
done so explicitly. It is a fundamental principle of administrative law that an agency's authority to act must
come directly from Congress. Absent such authority, an agency may not act. See U.S. Telecom Ass'n v.
FCC, 359 F.3d 554,566 (D.C. Cir. 2004) ("[S]tatutory silence simply leaves th[e] lack of authority
untouched. In other words, the failure of Congress to use Thou Shalt Not language doesn't create a
statutory ambiguity of the sort that triggers Chevron deference."); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060
(D.C. Cir. 1995) ("We refuse ... to presume a delegation of power merely because Congress has not
expressly withheld such power."); Ry. Labor Executives' Ass'n v. Nat'/ Mediation Bd., 29 F.3d 655, 671
(D.C. Cir. 1994) (en bane) ("Were courts to presume a delegation of power absent an express withholding
of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with
Chevron and quite likely with the Constitution as well.").
58
952 F. 2d. 473 (D.C. Cir. 1991).
59
54 Fed. Reg. at 36,596.
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The statutory provision directing EPA to study Bevill wastes suggests by its terms that a one-time study is sufficient. See 42 U.S.C. 6982(p) ("The Administrator shall conduct a detailed and comprehensive study.... [and] shall publish a report of such study...."). 60
The Court explained further:
The way in which the temporary nature of the Bevill Amendment is expressed in the statute also lends support to EPA's interpretation [that the Bevill Amendment establishes a one-time Bevill process]. See 42 U.S.C. 6921 (b)(3)(A) (Bevill exclusion operative "until at least six months after. ... submission of the applicable study").61
Finally, the Court stated:
In any event, this court's holding in EDF II secures EPA's position that a onetime determination is sufficient. There we interpreted the Bevill Amendment as an exclusion specifically for "the category of wastes designated as 'special wastes[]' ....in EPA's 1978 proposed hazardous waste regulations." EDF II, 852 F.2d at 1329 (quoting 51 Fed. Reg. 36,234 (1986)). While we did not go so far as to foreclose Bevill status for a future waste that might satisfy a preset criterion, we clearly enough rejected the theory that Congress intended the coverage of the Bevill exclusion to evolve with time.62
The D.C. Circuit has already ruled that the Bevill Amendment creates a one-time Bevill study, report and Regulatory Determination process. Therefore, EPA should deny petitioners' request to reexamine and reverse the 1991 Regulatory Determination for mineral processing wastes.
Petitioners' request is diametrically opposed to EPA's position in Solite. Significantly, in that case EPA argued that the Bevill Amendment established a one-time process. In a notice of proposed rulemaking that was part of the regulatory history of the rule challenged in Solite, EPA stated that:
Both the administrative record and Congressional intent clearly indicate that the Bevill Amendment was intended to provide a temporary exclusion, pending further study, over a fixed time period. Congress directed EPA to conduct a single study of wastes generated by mineral mining and processing facilities, because of concern that existing wastes might not be readily amenable to Subtitle C controls and might pose relatively low hazard to human health and the environment. Moreover, contrary to some
60
Solite, 952 F.2d at 491.
61
Id.
62
Id. (emphasis added).
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commenter's assertions, the statutory language includes explicit time limits on the Bevill exclusion, which apply to the submission of the required Report to Congress and subsequent regulatory determination.
In addition, EPA believes that making a one-time reinterpretation is not contrary to the interests of either industry or the environment. With regard to the concern raised by several commenters that the development of new technologies would be stifled, EPA notes that any new wastes generated in the future will be regulated under an established regulatory scheme (i.e., either the Subtitle C or D program). Therefore, rather than facing regulatory uncertainty and incentives to generate large volumes of any new mineral processing wastes, industry will instead have substantial knowledge of the regulatory regime that it will face. 63
In justifying its position that the Bevill Amendment created a one-time obligation in Solite, EPA then stated to the D.C. Circuit in its Brief for Respondent that:
This decision followed from EPA's reading of congressional intent based on the statutory language and scheme of sections 3001 (b)(3) and 8002(p) of RCRA, which establish a temporary exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to study new wastestreams. EPA's construction was also based on other indicia, such as the strict statutory time periods governing the mineral processing waste exclusion in section 3001(b)(3)(A) of RCRA. 54 Fed. Reg. at 15,338; 54 Fed. Reg. at 36,956. From this evidence of congressional intent, EPA reasonably determined that Congress authorized EPA to make a one-time interpretation or snapshot of mineral processing wastes, rather than a continuing series of studies and regulatory determinations....64
EPA concluded that:
There is nothing in the statute itself which suggests that the Bevill process should be an ongoing, evolving process, with updated reports to Congress and regulatory determinations.65
EPA should not be allowed to reverse the position it previously took on the same Bevill rulemaking and before the D.C. Circuit. For this reason, EPA should deny the Petition seeking reversal of the 1991 Regulatory Determination and promulgation of RCRA Subtitle C regulations for the disposal of PG and process wastewater.
63
54 Fed. Reg. 15,316, 15,338 (April 17, 1989).
64
Brief for the Respondent, Solite Corp. v. EPA, at 68, May 8, 1991 (Final Brief).
65
Id. at 69.
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NMA is aware that EPA recently interpreted its authority differently during the RCRA CCR rulemaking and accepted public comment on whether to reverse its previous CCR Regulatory Determinations and list CCRs as a "special waste" to be regulated under RCRA Subtitle C.66 NMA filed comments on EPA's proposal and objected to such actions, explaining that EPA lacked authority to revisit previous Bevill Regulatory Determinations.67 Ultimately, EPA declined to revisit its prior Regulatory Determinations, citing the need for additional information.68 As a result, the issue of whether EPA had authority to reverse its prior Bevill Regulatory Determinations regarding CCR was never adjudicated.69 NMA maintains its position that EPA lacks the statutory authority to reverse Regulatory Determinations in any case.7
66
75 Fed. Reg. 35,128, 35,132-33 & 35,149-60 (June 21, 2010).
67
See NMA CCR Comments at 14-21.
68
See 80 Fed. Reg. 21,302 (Apr. 17, 2015) ("EPA is deferring its final decision on the Bevill
Regulatory Determination because of regulatory and technical uncertainties that cannot be resolved at this
time."). See also id. at 21,309 ("This rule defers a final Bevill Regulatory Determination with respect to CCR
that is disposed in CCR landfills and CCR surface impoundments until additional information is available on
a number of key technical and policy questions.")
69
In Appalachian Voices v. EPA, the agency argued that it "does have authority to revise these initial
Bevill Amendment Regulatory Determinations should it conclude that it is appropriate to do so." See EPA's
Opening Brief, No. 1:12-cv-00523-RBW (D.D.C. filed Oct. 11, 2012) at 14 n.5. See also EPA Reply Brief,
No. 1:12-cv-00523-RBW (D.D.C. filed Dec. 13, 2012) at 4 ("[W]e wish to make clear that we disagree with
Intervenor-Defendants' arguments concerning the scope of EPA's authority to reverse prior Regulatory
Determinations. Contrary to lntervenors' arguments (see lntervenors Mem. at 18-21 ), EPA does have the
authority to reconsider Bevill Amendment regulatory determinations based on new information.") (emphasis
in original). NMA was one of the Intervenor-Defendants in this case. The United States District Court for the
District of Columbia did not decide this issue. See Appalachian Voices v. EPA, 989 F. Supp. 2d, 30, 53
("Whether these statutory provisions create a one-time obligation, as the Intervenor-Defendants contend, or
whether they create a process which the EPA must follow before regulating coal ash under Subtitle C, as
the EPA argues, it is clear that the Bevill Amendment removes the regulation of coal ash as a hazardous
waste from the RCRA's general regulatory scheme by creating a different process for regulating coal ash
as hazardous waste.")
70
Assuming, for purposes of argument, that EPA has the authority to reverse its prior Regulatory
Determinations, which it does not as demonstrated above, EPA must go through the entire statutorily
mandated Bevill process before proposing a reversal of a Regulatory Determination. See Envtl. Def. Fund
v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) ("The statute clearly states that the agency is to base its
regulatory determinations on the information gathered for the 8002(p) [the extraction, beneficiation and
processing waste] study"). The legislative history supports this reading. Representative Bevill, the sponsor
of the statutory amendment that bears his name, stated explicitly that any EPA Regulatory Determination
would be based in part on the public hearings and any comments that were submitted on the Report to
Congress: "Finally, let me direct the House's attention to the fact that after EPA concludes these studies, it
will be required to obtain public views on them and to make known whether as a result of this process EPA
believes any regulation of these materials is necessary." 126 Cong. Rec. at 3362 (1980). The multi-step
decision-making process set forth in the Bevill Amendment, including the submission of a Report to
Congress, was specifically designed to enable Congress and other federal agencies to "evaluate the basis
of the Agency's decision, and to address the question of what degree of regulation, if any, is appropriate."
Id. (emphasis added).
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B. EPA Should Reject the Petition Because Robust Regulatory Frameworks and Individually Tailored and Extensive Controls are in Place at Phosphate Manufacturing Facilities
Petitioners cite several "damage cases" in support of their claim that additional federal regulation is warranted under RCRA and TSCA. But those cases relate to facilities that are no longer operational or predate EPA's enforcement initiative, enhancements in state regulations, and the federal EPA consent decrees and RCRA consent orders adopted under EPA's MMPI.
TFl's Opposition describes the existing state and federal regulation of PG stacks in detail.71 TFI also explains the extensive requirements contained in various consent decrees and RCRA consent orders governing such stacks, which are tailored to the facilities in question and address many of the same issues raised in the Petition.72 These decrees and RCRA orders protect human health and the environment. Among many other things, they include requirements for enhanced PG stack design, operational standards, stack and pond liners, groundwater monitoring, corrective action (where appropriate), closure, post-closure care and financial assurance obligations.73
This existing regulation and the ongoing state and federal oversight of PG stacks confirm that additional federal regulation is not warranted. Such additional regulation would interfere with ongoing state and federal oversight and would likely result in considerable needless cost and regulatory burdens on EPA, states, and the phosphate manufacturing industry. Additional regulation would also upend the reliance interests of companies that have expended significant resources negotiating and implementing the various decrees and RCRA orders over the past several years. Indeed, as TFI explains, EPA recently evaluated the need for additional federal regulation of PG stacks under CERCLA on two occasions, and both times concluded that additional regulation was not warranted.74
Petitioners fail to explain why a different result is compelled or even appropriate here. Instead, if issues arise and warrant, EPA has enforcement authority under section 7003 of RCRA to take action to abate any imminent and substantial endangerment to human health or the environment. In fact, EPA has exercised this authority with respect to PG in the past and could exercise it again in the future, in the unlikely event it is necessary to do so. 75 In short, in light of the state and federal regulation and the various consent decrees and RCRA consent orders already in place and under negotiation, there are no more "gaps" to fill with respect to regulating PG to ensure adequate protection of human health and the environment.
71
TFl's Opposition at 31-40.
72
Id. at 41-49.
73
Id. at 45-50.
74
Id. at 51-56.
75
Id. at 43, 49.
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Conclusion Like TFI, NMA urges EPA to deny the Petition seeking additional federal regulation of PG stacks and process wastewater. As demonstrated in TFl's Opposition, the phosphate manufacturing industry already complies with rigorous design, construction, and operating requirements through state and federal programs and enforceable agreements with the agency. RCRA Subtitle C requirements are simply unnecessary given modernday practices and the stringent and comprehensive requirements applicable to today's operating facilities. Congress carefully constructed the one-time Bevill Amendment process to determine the final regulatory status of Bevill wastes, including the PG and process wastewater generated by the phosphate manufacturing industry. EPA does not have the authority to reopen these Regulatory Determinations and reverse course. NMA urges the agency to seriously consider the legal ramifications of reopening Regulatory Determinations that industry has relied upon for decades, ignoring the statutorily-mandated process for evaluating Bevill-exempt wastes, and pursuing RCRA Subtitle C regulations on "high volume," "low risk" mineral processing waste streams that are already extensively regulated to prevent adverse effects on health and the environment from the disposal of such wastes. If you have any questions regarding NMA's opposition to petitioners' requests, please contact me at tbridgeford@nma.org or (202) 463-2629. Sincerely,
Tawny A. Bridgeford Deputy General Counsel & Vice President, Regulatory Affairs
CC: Barry Breen, Acting Assistant Administrator, Office of Land and Emergency Management
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F~he Hizer Institute
Nourish, Replenish, Grow
The Fertilizer Institute's Opposition to The Petition for Rulemaking Pursuant to Section 7004(a) of The Resource Conservation and Recovery Act,
Section 21 of The Toxic Substances Control Act, and Section 553 of The Administrative Procedure Act
Concerning The Regulation of Phosphogypsum and Process Wastewater from Phosphoric Acid Production
March 29, 2021
8488359vl/21436-0028
4201 Wilson Boulevard Suite 700 Arlington, VA 22203
202.515-2714 office 443.739-1358 cell ethomas@tfi.org
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TABLE OF CONTENTS
I. Executive Summary ............................................................................................................... 2 II. Statement of Interest .............................................................................................................. 5 III. Petitioners' RCRA Rulemaking Petition is Barred by The Plain Language of the Bevill
Amendment ............................................................................................................................ 6 A. History ofEPA's Study of Mineral Processing Wastes, Report to Congress, and 1991
Regulatory Determination................................................................................................ 7 1. EPA's Temporary Deferral of Hazardous Waste Regulation for Mineral Processing
Wastes ........................................................................................................................ 8 2. EPA's Study and Report to Congress on Mineral Processing Wastes..................... 11 3. EPA's 1991 Regulatory Determination ................................................................... 12 4. EPA's TSCA Dialogue Committee ......................................................................... 14 B. EPA Has No Legal Justification for Revisiting Its Earlier Regulatory Determinations 16 1. The Petition Must Be Denied Because a Regulatory Determination Is Neither a
Regulation Subject to RCRA 7004(a) Nor a Rule Subject to APA 553(e) ....... 16 2. EPA's 1991 Regulatory Determination Was a One-Time Event............................. 21 3. Petitioners' Reliance on EPA's Coal Combustion Residuals Rulemaking is
Inapposite, And Their Assertions That EPA Contemplated The "Reopening" of Its 1991 Regulatory Determination Are Factually Incorrect ........................................ 26 IV. Robust and Mature Regulatory Frameworks Already Regulate PG Stacks and Are Buttressed By Consent Decrees and RCRA Consent Orders Tailored to Individual Facility Conditions Under EPA's MMPI .......................................................................................... 29 A. Since the 1991 Regulatory Determination, Comprehensive Federal and State Programs Have Been Implemented for PG Stacks......................................................................... 31 1. Florida ...................................................................................................................... 33 2. Idaho ........................................................................................................................ 35 3. Louisiana .................................................................................................................. 36 4. North Carolina ......................................................................................................... 37 5. Wyoming.................................................................................................................. 38 6. The Breadth of Existing State Programs Tailored to Specific Conditions Demonstrates That Additional Regulation Is Unnecessary ..................................... 39 B. EPA's MMPI Has Addressed and Will Continue to Address Any Residual Risks Posed by PG Stacks .................................................................................................................. 41 1. The History of the Mineral Processing Initiative ..................................................... 43 2. MMPI Consent Decrees and RCRA Consent Orders .............................................. 45 3. The Facilities Identified as "Damage" Cases in the Petition Are Covered by Binding Consent Decrees or RCRA Compliance Orders or Are No Longer in Operation ... 49
8488359vl/21436-0028
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C. EPA Recently Evaluated the Risks Associated with PG and Process Wastewater from Phosphoric Acid Production, and Declined to Impose Additional Federal Regulation 51 1. In Its Hardrock Mining Rulemaking, EPA Evaluated, But Did Not Require, Additional Financial Responsibility Requirements for PG and Process Wastewater .................................................................................................................................. 52 2. Similarly, In Its Chemical Manufacturing Industry Rulemaking, EPA Evaluated, But Did Not Require, Additional Financial Responsibility Requirements for PG and Process Wastewater ................................................................................................. 54
V. Petitioners' Demand That EPA Prioritize PG and Process Wastewater Under TSCA 6 is Inappropriate and Unfounded .............................................................................................. 56 A. Petitioners' Demand Is Not Cognizable Under TSCA 21 .......................................... 58 B. PG and Process Wastewater Are Not Eligible for Prioritization Under TSCA 6 ....... 59 C. PG and Process Wastewater Do Not Satisfy Key Criteria for Prioritization ................. 59
VI. The Petition Does Not Justify the Issuance of a Testing Rule Under TSCA 4, Requiring PG and Process Wastewater Manufacturers to Develop Information ................................. 62
VII. The Petition Does Not Support Promulgation of a Significant New Use Rule ................... 67 VIII. TSCA 9 Cannot Be Invoked to Justify Regulation of PG or Process Wastewater Under
TSCA ................................................................................................................................... 71 IX. Petitioners' Discussion of So-Called "Feasible Alternatives" is Unsupported and Does Not
Provide a Basis for Rulemaking .......................................................................................... 71 X. Conclusion ........................................................................................................................... 74
Attachment A - Ardaman & Associates, Inc., Technical Memorandum on PG and Process Wastewater Management (Mar. 26, 2021)
Attachment B - Letter from Andrew Wheeler, EPA Administrator, to Corey Rosenbusch, TFI President and CEO (Oct. 14, 2020) (Dkt. ID No. EPA-HQ-OAR-2020-0442-0015)
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11 ED_0 18475D_ 00002953-00003
The Fertilizer Institute ("TFI"), on behalf of its members, respectfully submits this Opposition to the February 8, 2021, Petition for Rulemaking (hereinafter, "Petition") filed with the U.S. Environmental Protection Agency ("EPA" or "Agency") pursuant to the Resource Conservation and Recovery Act ("RCRA") 7004(a), 1 Toxic Substances Control Act ("TSCA") 21,2 and the Administrative Procedure Act ("APA") 553.3 The Petitioners4 seek "the promulgation of rules that:
(1) reverse [EPA's] 1991 Bevill regulatory determination excluding phosphogypsum [("PG")] and phosphoric acid production process wastewater ('process wastewater') from [RCRA] Subtitle C hazardous waste regulation;
(2) govern the safe treatment, storage and disposal of [PG] and process wastewater as hazardous wastes under RCRA Subtitle C;
(3) initiate the prioritization process for designating [PG] and process wastewater as high priority substances for risk evaluation under [TSCA] 6(b)(1)(B)(i);
(4) require manufacturers to conduct testing on [PG] and process wastewater under TSCA 4(a)(l)(A)(ii); and
(5) determine under TSCA 5(a) that the use of [PG] in road construction 1s a significant new use. "5
For the reasons set forth below, Petitioners requested actions must and should be denied.
42 U.S.C. 6974(a).
15 U.S.C. 2620.
5 U.S.C. 553.
4
The Petitioners are the People for Protecting Peace River, Atchafalaya Basinkeeper, Bayou City
Waterkeeper, Calusa Waterkeeper, Center for Biological Diversity, Cherokee Concerned Citizens, Healthy Gulf,
ManaSota-88, Our Santa Fe, People for Protecting Peace River, RISE St. James, Sierra Club's Florida and Delta
chapters, Suncoast Waterkeeper, Tampa Bay Waterkeeper, Waterkeeper Alliance, Waterkeepers Florida, and
WWALS Watershed Coalition.
Petition at 1.
1
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I.
Executive Summary
The Bevill Amendment to RCRA precluded EPA from regulating solid waste from the
extraction, beneficiation, and processing of ores and minerals, including phosphate rock, until the
Agency (1) performed a "detailed and comprehensive study on the adverse effects on human health
and the environment, if any, of the disposal and utilization of solid waste" from these sectors;
(2) submitted reports to Congress on the results of the study; (3) solicited public comment on its
reports to Congress; and (4) issued a regulatory "determination" regarding the final RCRA status
of these waste streams.6 EPA's evaluation included PG and process wastewater and was
comprehensive, spanning nearly six years and consisting of nine Federal Register notices. EPA
completed the evaluation in 1991 and concluded that Subtitle C regulation was unwarranted. 7
This 1991 Regulatory Determination was a one-time determination and brought the Bevill
evaluation process mandated by Congress to an end. Congress was precise in its language to
distinguish a "determination" from a "regulation" or a "rule." Petitions like the one at issue here
may only seek review of "regulations" under RCRA and "rules" under the APA. The 1991
Regulatory Determination that Petitioners request EPA to "revisit" is neither. 8 Further, the U.S.
Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") concluded that the 1991
Regulatory Determination at issue here was a one-time determination not subject to re-visitation
at a later date, rejecting industry arguments that the scope of Bevill-exempt mineral processing
waste streams could expand over time.9 Thus, Petitioners' jurisdictional claim that EPA can grant
their requested relief through RCRA 7004(a) or APA 553 is incorrect.
6
RCRA 6921(b)(3)(A)(ii) (42 U.S.C. 3001(b)(3)(A)(ii)), 6921(b)(3)(C) (42 U.S.C. 3001(b)(3)(C)) &
8002(p) (42 U.S.C. 6982(p)).
7
56 Fed. Reg. 27,300 (June 13, 1991) (Regulatory Determination).
See Am. Portland Cement All. v. EPA, 101 F.3d 772 (D.C. Cir. 1996); Appalachian Voices v. EPA, 989 F.2d
30 (D.D.C. 2013).
9
Solite Corp. v. EPA, 952 F.2d 473,491 (D.C. Cir. 1991).
2
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Further, even assuming arguendo that EPA could grant their requested relief and engage m a rulemaking to "revisit" its 1991 Regulatory Determination, the examples proffered by Petitioners are inapposite. In the first example, EPA's 2010 coal combustion residuals ("CCR") proposed rule, 10 the Agency expressly left open the possibility of revisiting its 2000 Regulatory Determination11 that Subtitle C regulation was not warranted. In their second example, Petitioners reference EPA's 1997 RCRA supplemental proposed rule, wherein the Agency solicited comment on purported "damage" cases associated with certain Bevill-exempt mineral processing streams. 12 However, EPA did not commit, much less even suggest, that it would reexamine the regulatory status of any such stream. 13
Finally, Petitioners fail to acknowledge (1) the now comprehensive federal and state regulations that have evolved since EPA's 1991 Regulatory Determination (including EPA's own recent studies and determinations regarding those regulations), and (2) the enforcement actions resulting in binding Consent Decrees and RCRA Consent Orders that apply to PG stack systems and address the purported risks identified in the Petition.
Similarly, the requested reliefunder TSCA must be denied. In seeking to have EPA initiate prioritization under TSCA 614 and issue a significant new use rule under TSCA 5(a)(2)15 Petitioners disregard, and ask EPA to ignore, the clear limits that Congress set forth in Section 21 16 of the Act. That section identifies the specific EPA actions that may be pursued by administrative petitions, and designation for prioritization under TSCA 6 and promulgation of significant new
10
75 Fed. Reg. 35,128, 35,146-35,148 (June 21, 2010) (Proposed Rule).
II
65 Fed. Reg. 32,214 (May 22, 2000) (Regulatory Determination).
12
62 Fed. Reg. 26,041, 26,054 (May 12, 1997) (Supplemental Proposed Rule).
13
63 Fed. Reg. 28,556, 28,580 (May 26, 1998) (Final Rule).
14
15 U.S.C. 2605.
15
Id. 2604(a)(2).
16
Id. 2620.
3
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use rules under TSCA 5(a) are excluded from the types of actions that may be sought or granted through a petition.
Putting aside the impropriety of the Petition, PG and process wastewater fail to satisfy several key criteria for prioritization. Among other things, PG and process wastewater (and their components) are not listed in the 2014 update to the TSCA Work Plan; they are not widely commercialized and are not used in consumer applications; and they are not associated with widespread exposure. Similarly, the use of PG in road construction is neither "new" nor "significant" as those terms are used under TSCA 5(a)(2), particularly in light ofEPA's recent conclusion that use of PG in road construction would be "at least as protective of public health" as disposal in PG stacks.
Petitioners also ask EPA to require testing under TSCA 4,17 but fail to specify what testing is necessary. They also fail to meet their heavy burden under Section 4 to set forth facts to demonstrate that existing data and information on PG and process wastewater are insufficient to meet EPA's data needs. Moreover, Petitioners ignore the substantial body of data that already exists, which does not support the idea that the manufacture, distribution, processing, use, or disposal of PG or process wastewater "may present an unreasonable risk of injury to health or the environment," as is needed to justify a rule under Section 4 to require testing.
Finally, Petitioners imply but fail to offer any evidence to establish that regulation under TSCA is necessary because other existing regulatory authorities - under federal or state law - are inadequate.
17
Id. 2603.
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II. Statement of Interest TFI represents companies that are engaged in all aspects of the fertilizer supply chain in
the United States. Our industry is essential to ensuring that American farmers receive the nutrients they need to enrich the soil and, in tum, grow the crops that feed our nation and the world. The fertilizer industry supports nearly 500,000 high-quality American jobs and has an economic benefit of more than $130 billion annually. Half of crop yields are attributable to fertilizer, demonstrating its critical importance to farmers and national food security.
The two streams identified in the Petition result from the production of phosphoric acid at TFI member companies' phosphate fertilizer production facilities. Over the span of nearly six years, EPA evaluated whether these streams, and others generated by the mining and mineral processing sectors, should be regulated as hazardous waste in response to a mandate by Congress enacted on October 21, 1980, commonly referred to as the "Bevill Amendment."18 The proposals included: (1) 50 Fed. Reg. 40,292 (Oct. 2, 1985); (2) 53 Fed. Reg. 41,288 (Oct. 20, 1988); (3) 54 Fed. Reg. 15,316 (Apr. 17, 1989); (4) 54 Fed. Reg. 39,298 (Sept. 25, 1989); and (5) 55 Fed. Reg. 32,135 (Aug. 7, 1990). TFI submitted comments and provided testimony throughout each ofthese proceedings (including submissions on November 14, 1985,19 November 21, 1988,20 May 31,
18
The Bevill Amendment, named after its sponsor, Senator Tom Bevill, prohibited EPA from regulating solid
wastes from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock, as hazardous
waste until EPA studied "the adverse effects on human health and the environment, if any," associated with these
streams and issued a Report to Congress and subsequent Regulatory Determination. See 42 U.S.C.
6921(b)(3)(A)(ii), 6921(b)(3)(C) & 6982(p).
19
TFI, "Comments to the Environmental Protection Agency, Office of Solid Waste by The Fertilizer Institute
Concerning Proposed Rules Published October 2, 1985 for Reinterpretation of the Mining Waste Exclusion" (Nov.
14, 1985).
20
TFI, "Comments to the Environmental Protection Agency, Office of Solid Waste by The Fertilizer Institute
Concerning Proposed Rule Published October 20, 1988 Defining The Scope of The Bevill Exclusion With Respect to
Mineral Processing Wastes" (Nov. 21, 1988).
5
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1989,21 November 9, 1989,22 and October 19, 1990).23 Ultimately, EPA concluded its obligations under the Bevill Amendment with a July 1990 Report to Congress,24 and a June 13, 1991 Regulatory Determination for twenty mineral processing streams, including PG and process wastewater. 25
Thus, given TFI' s representation of the fertilizer industry, including phosphoric acid and phosphate fertilizer manufacturers, and its substantial involvement on behalf ofthe industry during the rulemakings, development of the Report to Congress, and ultimate 1991 Regulatory Determination, TFI has a substantial interest in EPA's response to the Petition. III. Petitioners' RCRA Rulemaking Petition is Barred by The Plain Language of the
Bevill Amendment In the RCRA component of the Petition, Petitioners invoke RCRA 7004(a)26 and APA 553(e)27 seeking (1) "a rule reversing EPA's 1991 Bevill regulatory determination excluding [PG] and [process wastewater] from RCRA Subtitle C hazardous waste regulation;" and (2) the "promulga[tion of] regulations under RCRA Subtitle C governing the safe treatment, storage and disposal of [PG] and process wastewater as hazardous wastes."28 EPA must deny these requests because a RCRA "determination" is neither a "regulation" nor a "rule" subject to a petition under either RCRA 7004(a) or APA 553(e). Notwithstanding this statutory bar, the Petitioners fail
21
TFI, "Comments to the Environmental Protection Agency by The Fertilizer Institute Concerning Proposed
Rule Mining Waste Exclusion" (May 31, 1989).
22
TFI, "Comments to the Environmental Protection Agency by The Fertilizer Institute Concerning Proposed
Rule Mining Waste Exclusion and Definition of Designated Facility" (Nov. 9, 1989).
23
TFI, "Comments to the U.S. Environmental Protection Agency by The Fertilizer Institute Concerning Report
to Congress on Special Wastes from Mineral Processing" (Oct. 19, 1990).
24
EPA, "Report to Congress on Special Wastes From Mineral Processing, Volume I: Summary and
Recommendations" (July 1990) (hereinafter, "Report to Congress, Vol. I") and EPA, "Report to Congress on Special
Wastes from Mineral Processing, Volume II: Methods and Findings" (July 1990) (hereinafter, "Report to Congress,
Vol. 2").
25
56 Fed. Reg. at 27,300.
26
42 U.S.C. 6974(a).
27
5 U.S.C. 553(e).
28
Petition at 6.
6
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to recognize that the Bevill Amendment mandated a one-time Report to Congress and a Regulatory Determination for mineral processing wastes. As such, Petitioners requested RCRA relief is not available, and EPA must deny this request.
A. History of EPA's Study of Mineral Processing Wastes, Report to Congress, and 1991 Regulatory Determination
The long and involved administrative history of EPA' s evaluation of phosphate mineral processing wastes bears restating if only to remind the Agency of its extensive rulemaking efforts, as well as the substantial expenditure of time, energy, and resources that the Agency, industry, environmental advocates, and other stakeholders have expended responding to those efforts.
The Bevill Amendment stems from Congress' concern that EPA was proposing hazardous waste management regulation for mining and mineral processing wastes without the requisite information regarding the asserted hazards of such wastes, the feasibility of their regulation under hazardous waste management requirements, and the economic impact of such regulation. In 1978, EPA proposed exempting certain "special wastes" from management as hazardous wastes because the Agency had ''very little information on the composition, characteristics, and the degree of hazard posed by these wastes ...."29 EPA identified "special wastes" as high volume, low hazard wastes, specifically including "phosphatic-rock mining, beneficiation, and processing wastes."30 Upon promulgation of the May 1980 final rule implementing the first set of RCRA hazardous waste management regulations, however, EPA abandoned the "special waste" concept and sought to apply the full panoply of hazardous waste regulations to mining and mineral processing wastes. 31
29
43 Fed. Reg. 58,946, 58,991 (Dec. 18, 1978) (Proposed Rule).
30
Id. at 59,015.
31
45 Fed. Reg. 33,066 (May 19, 1980) (Final Rule and Interim Final Rule).
7
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Before those rules took effect, in October 1980, Congress passed the Bevill Amendment requiring that EPA defer RCRA Subtitle C regulation of"special wastes" until at least six months following the submission of a Report to Congress.32 Congress included within the wastes to be studied "solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock."33 Further, Congress specified eight criteria34 to be analyzed in EPA's study and resulting Report to Congress, and required EPA to consider "studies and other actions of Federal and State agencies concerning" the wastes at issue, "with a view toward avoiding duplication of effort."35 Finally, no later than six months after the Report to Congress, EPA was required to issue a regulatory "determination" on whether Subtitle C management of any of the studied wastes was warranted.36
1. EPA's Temporary Deferral of Hazardous Waste Regulation for Mineral Processing Wastes
In response to the Bevill Amendment, on November 19, 1980, EPA issued an interim final rule ("IFR") amending its hazardous waste regulations to exclude from Subtitle C regulation solid waste from the extraction, beneficiation and processing of ores and minerals - including phosphate rock. 37 EPA noted that its IFR was meant to provide "clear guidance" to the mining and mineral processing industries that these streams were not subject to regulation as hazardous
32
RCRA 3001(b)(3)(A) (42 U.S.C. 6921(b)(3)(A)).
33
RCRA 3001(b)(3)(A)(ii) (42 U.S.C. 6921(b)(3)(A)(ii)) (emphasis added).
34
The criteria for evaluation were: "(1) the source and volumes of such materials generated per year; (2) present
disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal
and reuse of such materials; (4) documented cases in which danger to human health or the environment has been
proved; (5) alternatives to current disposal methods; (6) the costs of such alternatives; (7) the impact of these
alternatives on the use ofphosphate rock and uranium ore, and other natural resources; and (8) the current and potential
utilization of such materials." RCRA 8002(p) (42 U.S.C. 6982(p)).
3s
Id.
36
RCRA 3001(b)(3)(C) (42 U.S.C. 6921(b)(3)(C)).
37
45 Fed. Reg. 76,618 (Nov. 19, 1980) (Interim Final Rule). EPA specifically excluded from hazardous waste
regulation, "[s]olid waste from the extraction, beneficiation and processing of ores and minerals (including coal),
including phosphate rock and overburden from the mining of uranium ore." Id. at 76,620 (40 C.F.R. 261.4(b)(6)).
8
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waste; however, the Agency also indicated its intent to engage in further rulemaking regarding the scope of the Bevill Amendment.38
EPA bifurcated its Bevill Amendment reviews between mining (consisting of extraction and beneficiation) and mineral processing. The two waste streams at issue in the Petition - PG and process wastewater - result from mineral processing operations. EPA's evaluation of mineral processing operations spanned nearly six years, and concluded when the Agency issued its June 1991 Regulatory Determination for mineral processing wastes. 39
Throughout its rulemaking process to meet its Bevill Amendment obligations, and develop "high volume" and "low hazard" criteria to determine what mineral processing wastes should be temporarily excluded from Subtitle C regulation pending its Report to Congress and Regulatory Determination, EPA consistently viewed PG as meeting its exemption criteria. For example, in its October 2, 1985,40 October 20, 1988,41 and April 17, 1989,42 proposed rules, EPA concluded that PG met its proposed criteria.43 In addition, on September 1, 1989, EPA issued its final rule setting forth its "high volume" and "low hazard" criteria to evaluate mineral processing wastes,44 and concluded that PG met the criteria for temporary deferral of Subtitle C and inclusion in the Report to Congress and a Regulatory Determination.45 Accordingly, EPA amended 40 C.F.R. 261.4(b)(7) to exclude from hazardous waste regulation:
38
Id. at 76,618.
39
56 Fed. Reg. at 27,300.
40
50 Fed. Reg. at 40,294
41
53 Fed. Reg. at 41,296.
42
54 Fed. Reg. at 15,342.
43
Notably, in its October 2, 1985, proposal, EPA determined that PG was generated at an annual rate of 47
million tons per year, and was the highest volume mineral processing waste at that time, generated in significantly
higher volumes than "waste generated by other industries already subject to regulation under Subtitle C." 50 Fed.
Reg. at 40,294. Similarly, in its October 20, 1988, proposal, EPA concluded that PG was generated in the largest
amounts of the mineral processing streams proposed for temporary deferral of Subtitle C regulation based on both
industry-wide and average facility data. 53 Fed. Reg. at 41,296.
44
54 Fed. Reg. 36,592 (Final Rule).
45
Id. at 36,631.
9
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Solid waste from the ... processing of ores and minerals (including coal), including phosphate rock and overburden from the mining of uranium.... (i) The following solid waste from the processing of ores and minerals [] are retained within this exclusion: ... (D) Phosphogypsum from phosphoric acid production; ....46
Similarly, EPA concluded that process wastewater should be subject to temporary deferral
from Subtitle C regulation, pending completion of its Report to Congress and a Regulatory
determination. EPA proposed the inclusion of process wastewater on April 17, 1989,47
conditionally retained it in a September 1, 1989 final rule,48 and proposed to permanently retain it
in a September 25, 1989, proposed rule. 49 Ultimately, in a January 23, 1990, final rule,50 EPA
listed process wastewater as one ofthe 20 mineral processing streams subject to temporary Subtitle
C deferral, study, inclusion in its Report to Congress, and ultimate Regulatory Determination.51
As such, EPA revised 40 C.F.R. 261.4(b)(7) to exclude from hazardous waste regulation:
Solid waste from the ... processing of ores and minerals (including coal), including phosphate rock and overburden from the mining of uranium ore. . .. For the purposes of 261.7(b)(7), solid waste from the processing of ores and minerals will include only the following wastes, until EPA completes a report to Congress and a regulatory determination on their ultimate regulatory status: (iv) Phosphogypsum from phosphoric acid production; . . . (xvi) Process wastewater from phosphoric acid production ...."52
In promulgating the final rule, EPA announced: "This final rule completes the rulemaking
regarding the Bevill status of mineral processing wastes until the completion of the required report
to Congress and Regulatory Determination."53
46
Id. at 36,641 - 642.
47
54 Fed. Reg. at 15,342, 15,344, Table 2.
48
54 Fed. Reg. at 36,631, Table 2.
49
54 Fed. Reg. at 39,305 (noting that process wastewater was generated at an average per facility rate of
56,359,141 metric tons per year).
50
55 Fed. Reg. 2322 (Jan. 23, 1990) (Final Rule).
51
Id. at 2338, 2341-42, Table 2 (concluding that process wastewater "is [a] high volume and low hazard waste
and, is, therefore, retained in the exemption").
52
Id. at 2353.
53
Id. at 2323.
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2. EPA's Study and Report to Congress on Mineral Processing Wastes
In the 1990 Report to Congress, EPA' s tentative determination was that "regulation under Subtitle C of RCRA is unwarranted for ... process wastewater from phosphoric acid production [and PG] from phosphoric acid production ...."54 EPA's conclusion in the Report to Congress regarding additional regulation of PG and process wastewater under RCRA Subtitle C is consistent with the primary concerns underlying Congress' enactment of the Bevill Amendment, and the enunciation ofthe study criteria: Namely, the need for a strong and economically viable American mining and minerals industry and the substantial threat to that continued viability posed by RCRA Subtitle C regulation. The D.C. Circuit recognized this very fact in reviewing Congress' intent in enacting the Bevill Amendment: "... Congress intended attention to cost and the economic impact of regulatory controls in making a regulatory determination. The emphasis on economic factors is consistent with Congress' obvious goal in passing the Bevill Amendment - to relieve the mining industry of the onerous economic burden of stringent Subtitle C controls if at all possible. " 55
EPA solicited comment on its Report to Congress as required by the Bevill Amendment.56 In response, TFI provided detailed comments in support of EPA's conclusion that Subtitle C regulation of PG and process wastewater was unwarranted. 57 Specifically, TFI noted the unsuitability and inflexibility of the Subtitle C program for PG and process wastewater given the geographic variability in the nature and concentration of naturally occurring constituents in the phosphate ore body. 58 Thus, a "one-size-fits-all" treatment requirement would not be practical.
54
Report to Congress, Vol. I at 11-12.
55
Envtl. Def Fund v. EPA, 852 F.2d 1309, 1315 (D.C. Cir. 1988).
56
55 Fed. Reg. at 32,135.
57
See supra n. 23.
58
Id. at 35.
11
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Further, TFI noted that the effects of phosphate rock mineral processing are determined almost exclusively by the hydrogeologic setting of each facility. 59 Also, TFI indicated that if Subtitle C requirements are applied to PG stacks, every active PG stack would need to be closed in accordance with Subtitle C, leading to severe supply disruptions of a needed agricultural nutrient.60 Finally, TFI challenged EPA on the Agency's cost estimates for Subtitle C compliance, noting that EPA had severely underestimated the costs of (1) constructing new stacks, closing existing stacks, neutralizing process wastewater, and managing stormwater in PG stacks, and (2) replacing process equipment due to the scaling of calcium and other metallic fluorosilicates in piping and equipment as a result of neutralizing process wastewater.61
3. EPA's 1991 Regulatory Determination On June 13, 1991, EPA concluded its statutory duties under the Bevill Amendment with publication of its Regulatory Determination for the twenty "high volume" and "low hazard" mineral processing wastes.62 For both PG and process wastewater, the 1991 Regulatory Determination concluded that Subtitle C regulation was unwarranted. 63 EPA concluded that even a Subtitle C-Minus program (which would have involved tailored Subtitle C standards based on EPA's exercise of its authority under RCRA 3004(x) (42 U.S.C. 6924(x)) would result in the industry incurring compliance costs that would be "difficult to withstand" and "would create economic hardship for and threaten the continued viability of many of the facilities in the industry."64 In view of these economic impacts, EPA determined that RCRA Subtitle C controls
59
Id. at 36.
60
See, e.g., id. at 51-53.
61
Id. at41-69.
62
56 Fed. Reg. at 27,300.
63
Id. at27,316.
64
Id. In their Petition, Petitioners cites to this provision as a basis for Subtitle C-Minus regulation of PG and
process wastewater (Petition at 39); however, such an application was already evaluated, and rejected, by EPA in the
1990 Report to Congress and 1991 Regulatory Determination.
12
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were too inflexible and costly.65 Moreover, because EPA believed that even a RCRA Subtitle D program might be difficult for the industry to withstand, EPA stated that it "has serious reservations regarding the economic feasibility of a traditional waste management program designed within the contours of the RCRA statute."66 Thus, with its Regulatory Determination, EPA retained both streams under its exclusion from hazardous waste regulation at 40 C.F.R. 261.4(b)(7).
The Agency, having ruled out any form of Subtitle C control, and seriously discounting the possibility of Subtitle D providing a feasible basis for regulation, identified a two-pronged approach for PG and process wastewater. First, it would "rely upon existing authorities under RCRA Section 7003 and CERCLA Section 106 to respond effectively to emergency situations that arise."67 RCRA 7003 68 provides EPA with broad authorities to address activities that may pose an imminent and substantial endangerment to health or the environment, and CERCLA 10669 provides EPA with similar authorities to address the release or threatened release of hazardous substances.70 Second, EPA would evaluate potential options under TSCA "to address the complex issues associated with phosphoric acid industry special wastes."71
While Petitioners assert that the 1991 Regulatory Determination "announced the development and future promulgation of a TSCA regulatory program for [PG] and process wastewater,"72 this is wrong. Rather, EPA noted that the TSCA evaluation would "focus on developing risk management strategies to reduce or eliminate risks posed by phosphoric acid
65
Id.
66
Id.
67
Id.
68
42 U.S.C. 6973.
69
Id. 9606.
70
Although the Petition cites to these provisions, there is no recognition that they are in place to address
activities at phosphoric acid manufacturing facilities that may pose an imminent and substantial endangerment. See
Petition at 16. Nor does the Petition recognize that EPA has invoked RCRA 7003 in regulating PG and process
wastewater operations. See infra at 43, 49.
71
56 Fed. Reg. at 27,316.
72
Petition at 16.
13
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production wastes," including methods to "reduce the toxicity and/or volume of these wastes.'m Importantly, EPA never suggested that it would back-track on its extensive work to implement the Bevill Amendment under RCRA.
4. EPA's TSCA Dialogue Committee To fulfill its stated evaluation scope under TSCA, EPA convened the TSCA Phosphoric Acid Waste Dialogue Committee ("Committee"), comprised of representatives of industry, environmental organizations,74 and state and federal agencies. 75 The Committee engaged technical consultants to support its evaluation, and met six times between December 1, 1992 and March 29, 1994.76 Committee deliberations focused on evaluating process changes that were "technically and economically feasible," and that did not "introduce new environmental or human health risks.'m In particular, the Committee evaluated "major opportunities for volume and/or toxicity reduction in the phosphoric acid production process."78 The Committee thoroughly evaluated potential process modifications and technologies that may be applicable to phosphoric acid production. For example, the Committee identified "all of the major opportunities for volume and/or toxicity reduction in the phosphoric acid production process," with the goal of defining "those alternatives with the most promise as well as those alternatives that offered little possibility of
73
56 Fed. Reg. at 27,316.
74
The environmental organizations were the Nature Conservancy, Pamlico/Tar River Foundation,
Environmental Defense Fund, ManaSota-88, Environmental Assistance Foundation, and Southwest Research and
Information Center. See Memorandum from Greg Bourne, Committee Facilitator, Southeast Negotiation Network, to
Phosphoric Acid Waste Dialogue FACA Committee Members at 16, 74 (Sept. 29, 1995) (hereinafter, "TSCA
Committee Report").
75
Notably, although one of the Petitioners, ManaSota-88, was a member of the Committee, Petitioners assert
that they were unable to locate the TSCA Committee Report, and, instead, elected to cite in their Petition to an EPA
report issued in an unrelated rulemaking and three years after the Committee concluded its activities. See Petition at
17 & nn. 93, 94 & 96.
76
TSCA Committee Report at 1.
77
Id. at 19.
78
Id. at 20-21.
14
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achieving the Committee's objectives."79 This effort resulted in the identification of over 32 potential technologies or practices to investigate.80 Based on a viability review performed by EPA, and discussion by the Committee, the vast majority of the technologies were rejected because they did not "offer promise for significant reductions in volume or toxicity, other than sulfur and fluoride recovery."81
The Committee also evaluated sulfur and fluoride recovery technologies and their applications to the phosphoric acid industry.82 The sulfur recovery option was terminated "due to lack of sufficient information on emerging technologies that might offer some promise."83 This left the fluoride recovery technology, which focused on recovering fluorosilicic acid from PG stacks and using it to make hydrogen fluoride. 84 Although some fluoride recovery technology has been utilized by the industry, more comprehensive fluoride recovery was ultimately dismissed because of its limited application.85
After a thorough review of potential technologies spanning 15 months, the Committee concluded that no better alternatives to the existing process were available.86 As a result, the Committee's work was terminated and TSCA regulation was deemed inappropriate.87
79
Id.
80
Id. at 76-81.
81
Id. at 21.
82
Id. at 22-25.
83
Id. at 24.
84
Id. The fluoride recovery option is premised on reducing fluoride concentrations in PG stacks, but does not
eliminate a PG stack.
85
Id. at 25. See Leif Bouffard, Phosphate Engineering & Construction Co. presentation to the American
Institute of Chemical Engineers, entitled "PECO HF Process" (May 25, 1991), available at
htt s://aichccf.starcha ter.com/ima es/down loads/I 4. Phos hate Gcneral/1991.2. 7. f.
86
TSCA Committee Report at 63.
87
Id. at 2.
15
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B. EPA Has No Legal Justification for Revisiting Its Earlier Regulatory Determinations
While Petitioners concede that the D.C. Circuit has distinguished between a RCRA "regulation" and "determination," with the latter being a one-time process, they nonetheless attempt to maneuver around this insurmountable jurisdictional hurdle by asserting "nothing precludes EPA from conducting additional study or revisiting the initial determination at a later date ...."88 However Petitioners seek to characterize their effort, this argument fails based on the plain language of RCRA and case law concluding that (1) a RCRA "determination" is neither a "regulation" nor a "rule," and (2) a RCRA "determination" is a one-time event that EPA cannot revisit.
1. The Petition Must Be Denied Because a Regulatory Determination Is Neither a Regulation Subject to RCRA 7004(a) Nor a Rule Subject to APA 553(e)
Petitioners ask that EPA engage in rulemakings to (1) "reverse" its 1991 Regulatory Determination as to PG and process wastewater, and (2) list the two streams as hazardous waste.89 As the bases for their demand, Petitioners invoke both RCRA's petition for regulation provision (RCRA 7004(a))90 and the APA's petition for rulemaking provision (APA 553(e)).91 Petitioners' proposed relief reflects a fundamental misunderstanding of RCRA, as the 1991 Regulatory Determination is neither a "regulation" nor a "rule," but rather is a "determination" mandated by Congress. Without the ability to petition EPA to engage in a rulemaking to "reverse" its 1991 Regulatory Determination, Petitioners' second request (i.e., that EPA list the two streams
88
Petition at 17.
89
Id. at 1, 17-19.
90
42 U.S.C. 6974(a).
91
5 U.S.C. 553(e). See Petition at 6.
16
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as hazardous waste) necessarily fails because the 1991 Regulatory Determination concluded that these streams would not be subject to Subtitle C.
At least two courts have held that a regulatory "determination" is not a RCRA "regulation." First, in 1996, a group ofpetitioners challenged EPA' s 1995 Regulatory Determination for cement kiln dust in the D.C. Circuit under RCRA'sjudicial review provision (RCRA 7006(a)(l)).92 The 1995 Regulatory Determination resulted from requirements in the Bevill Amendment for cement kiln dust that were similar to those found in the Bevill Amendment for mineral processing wastes - namely, a study, Report to Congress, and Regulatory Determination.93 As with mineral processing wastes, EPA was precluded from regulating cement kiln dust as a hazardous waste until it completed these activities and issued its Regulatory Determination.94
RCRA 7006(a)(l) applies to legal challenges to an "action of the Administrator in promulgating any regulation, or requirements under [RCRA] or denying any petition for the promulgation, amendment or repeal of any regulation under [RCRA]."95 After an exhaustive evaluation of the statutory language requiring EPA to issue a regulatory determination for cement kiln dust, the D.C. Circuit concluded that EPA's 1995 Regulatory Determination was not a "regulation" subject to judicial review under RCRA 7006(a)(l).96 In particular, the D.C. Circuit noted "the text of the Bevill Amendment juxtaposes the terms 'determin[ation]' and 'regulation,' signifying that, consistent with the principle that effect must be given to each word of a statute, the two terms were intended to have distinct meanings."97 Thus, the D.C. Circuit dismissed the petitions for review.
92
Am. Portland Cement All. v. EPA, 101 F.3d at 772.
93
See 42 U.S.C. 6921(b)(3)(A)(iii), 6921(b)(3)(C) & 6982(0).
94
Id. at 6921(b)(3)(C).
95
Id. 6976(a)(l) (emphasis added).
96
Am. Portland Cement All., 101 F.3d at 775.
97
Id.
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Second, in 2013, the U.S. District Court for the District of Columbia heard a legal challenge to an EPA regulatory determination under the Bevill Amendment, this time EPA's 1993 and 2000 Regulatory Determinations for coal ash.98 The issue before the court was whether the Regulatory Determinations were a "regulation" subject to RCRA 2002(b).99 In this case, plaintiffs asserted that EPA failed to perform a non-discretionary duty under RCRA 2002(b) to review and, as necessary, revise 40 C.F.R. 261.4(b)(4) for coal ash at least every three years. 100 RCRA 2002(b) requires such a review and, as necessary, revision to EPA' s RCRA "regulations."101
The Court recognized the D.C. Circuit's analysis in American Portland Cement regarding the distinction between a RCRA "regulation" and "determination." In light of this analysis, the Court first concluded that "the Bevill Amendment carves out a distinct regulatory process for Bevill wastes that does not fall within the EPA's routine regulatory authority under the RCRA."102 Second, and as a result, the Court concluded that RCRA 2002(b) did not apply to 40 C.F.R. 261.4(b)(4) because it resulted from EPA's actions under the Bevill Amendment, including the resulting 1993 and 2000 Regulatory Determinations for coal ash. 103
Here, Petitioners seek to compel EPA to "reverse" its 1991 Regulatory Determination for PG and process wastewater and revise 40 C.F.R. 261.4(b)(7)(ii) to remove both streams from the hazardous waste regulation exclusion. However, just as the D.C. Circuit and U.S. District Court concluded that RCRA 7006(a)(l) and 2002(b) do not apply to Bevill Amendment regulatory determinations and the resulting exclusions from the definition of hazardous waste set
98
Appalachian Voices, 989 F.2d at 30.
99
42 U.S.C. 6912(b).
100
Section 261.4(b)(4), like 40 C.F.R. 261.4(b)(7), resulted from EPA's evaluation under the Bevill
Amendment of coal ash, concluding that Subtitle C regulation was not warranted. Both regulatory sections exclude
the enumerated solid wastes from regulation as hazardous waste.
IOI
42 U.S.C. 6912(b).
102
Appalachian Voices, 989 F.2d at 53.
103
Id.
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forth in EPA' s regulations, EPA also is precluded from granting Petitioners' request under RCRA 7004(a).
Like RCRA 2002(b) and 7006(a)(l), RCRA 7004(a) applies to "the promulgation, amendment, or repeal of any regulation under [RCRA]."104 It does not authorize the submission of a petition to amend, revise, or reverse a regulatory "determination" or the resulting regulatory exclusion resulting from it. Thus, this provision is inapposite to the relief requested by Petitioners and cannot be provided by EPA.
Similarly, Petitioners' request under APA 553(e) must fail. APA 553(e) allows an interested party to petition an agency "for the issuance, amendment, or repeal of a rule." 105 In relevant part, a "rule" is defined as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy ...."106 For "rulemakings," the APA requires a notice of proposed rulemaking, except when the rulemaking is purely interpretative in nature. 107 Thus, the APA only applies to "legislative rules," which must go through notice-and-comment rulemaking, and "interpretive rules," which do not. The D.C. Circuit has described the difference as follows:
An interpretive rule ... only "reminds affected parties of existing duties." On the other hand, ifby its action the agency intends to create new law, right or duties, the rule is properly considered to be a legislative rule. 108 However, the Bevill Amendment specifically refers to a "determination" and does not invoke either the RCRA or APA rulemaking provisions. 109 Rather, it required EPA to solicit public
104
42 U.S.C. 6974(a) (emphasis added).
105
5 U.S.C. 553(e) (emphasis added).
106
Id. 551(4).
107
Id. 553(b).
108
Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (internal citations omitted).
109
See 42 U.S.C. 6921(b)(3)(C).
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comment only on its Report to Congress. no Fulfilling this obligation, EPA solicited public comment on its Report to Congress in August 1990,111 approximately ten months before issuing its "final" 1991 Regulatory Determination.
Reinforcing EPA's correct position that a RCRA regulatory "determination" is not a "rule," EPA did not prepare a regulatory flexible analysis for the determination "[b]ecause in today's regulatory determination EPA does not establish new regulatory controls."112 The Regulatory Flexibility Act applies"[w]hen an agency promulgates a final rule under section 553 [ofthe APA], after being required by that section or any other law to publish a general notice of proposed rulemaking."113 Because a RCRA "determination" is not a "rule," as defined in the APA, Petitioners attempt to invoke APA 553(e) to compel EPA to "revisit" the 1991 Regulatory Determination cannot be granted.
Finally, Petitioners' demand that EPA engage in a rulemaking to list both PG and process wastewater as hazardous wastes must fail. 114 While EPA has the authority to promulgate "regulations" identifying hazardous waste characteristics and listing particular hazardous wastes, such authority is limited by the Bevill Amendment and EPA's 1991 Regulatory Determination. To be sure, the Bevill Amendment did provide EPA with the authority to identify mining and mineral processing wastes as hazardous waste, but limited EPA's ability to do so until (1) at least six months after submission of the Report to Congress,115 and (2) only if the Agency identified in
110
Id.
111
55 Fed. Reg. at 32,135 ("Information submitted in public comments will be used in conjunction with the
Report to Congress to make the final regulatory determination on these wastes.") (emphasis added).
112
60 Fed. Reg. 7366, 7377 (Feb. 7, 1995) (Regulatory Determination). In the 1991 Regulatory Determination,
EPA previously determined, as part of its Report to Congress, that there were no "small businesses" in the mineral
processing industries. Thus, EPA had no reason to discuss whether a "determination" is a "rule" subject to the
Regulatory Flexibility Act. See 56 Fed. Reg. at 27,317.
113
5 U.S.C. 604(a) (emphasis added).
114
Petition at 18-19.
115
42 U.S.C. 6921(b)(3)(A).
20
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its Regulatory Determination that such regulation was warranted. 116 For both PG and process wastewater, the 1991 Regulatory Determination identified EPA' s intent not to proceed with Subtitle C regulation for either stream. 117 Under the Bevill Amendment, the 261.4(b)(7)(ii) moratorium is inextricably linked to the 1991 Regulatory Determination, and inasmuch as EPA concluded not to impose Subtitle C on PG and process wastewater, the condition precedent for EPA's statutory authority to regulate these streams as hazardous waste was not fulfilled. Thus, the Bevill Amendment precludes the relief sought by Petitioners because it is not a "regulation."
2. EPA's 1991 Regulatory Determination Was a One-Time Event Petitioners assert that EPA is able to "revisit" its 1991 Regulatory Determination, and describe it as an "initial" determination. 118 However, Petitioners' assertion misses the mark based on the clear congressional language, contemporaneous EPA statements regarding the one-time nature of its Bevill Amendment obligations, and federal case law concluding that the Bevill process for mineral processing wastes was a one-time event. As such, Petitioners' request for EPA to "revisit" its 1991 Regulatory Determination is unsupported and cannot proceed. EPA's actions under the Bevill Amendment are clearly one-time events, and not subject to further reevaluation under the Bevill Amendment, RCRA 7004(a), or any other RCRA provision. The language of RCRA 8002(p)119 contemplates a "detailed and comprehensive study." Next, RCRA 3001(b)(3)(A)120 prohibits EPA from regulating any mineral processing waste under Subtitle C "until at least six months after the date of the submission of the applicable study" as required by RCRA 8002(p). Finally, under RCRA 3001(b)(3)(C),121 EPA must
116
Id. 6921(b)(3)(C).
117
56 Fed. Reg. at 27,316.
118
Petition at 17.
119
42 U.S.C. 6982(p) (emphasis added).
120
Id. 6921(b)(3)(A) (emphasis added).
121
Id. 6921 (b)(3 )(C) (emphasis added).
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"either determine to promulgate regulations [under Subtitle C] or determine that such regulations are unwarranted," and sets a time frame to do so within "six months after the date ofthe applicable study required to be conducted under" RCRA 8002(p).
Words matter and the use of the singular in each of the above quotes indicates Congress' intent to establish a one-time study, one Report to Congress, and a single Regulatory Determination. It is a fundamental principle of administrative law that all exercises of EPA' s power must be grounded in a grant of congressional authority - it cannot be presumed. 122 As such, the one-time Bevill Amendment requirements for PG and process wastewater were completed by EPA with the Agency's 1991 Regulatory Determination, as set forth in 40 C.F.R. 261.4(b)(7)(ii)(D) (for PG) and (P) (for process wastewater). Applying RCRA 7004(a) in an unauthorized attempt to revisit EPA's Bevill Amendment activities would trigger a rulemaking process that, if granted, would not be subject to specific deadlines, procedures and decisional criteria mandated by the Congress in 1980, and would be at odds with the explicit statutory requirements set forth in RCRA 3001(b)(3)(A), 3001(b)(3)(C), and 6982(p) for mineral processing wastes.
Courts have given great deference to an agency's interpretation of its statutory mandate made contemporaneous with the discharge of its obligations. 123 In the course of EPA's implementation of its Bevill Amendment mandate, the Agency consistently recognized that the Amendment required a one-time study, Report to Congress, and Regulatory Determination. In its
122
See North Carolina v. EPA, 531 F.3d 896, 922 (D.C. Cir. 2008) ("Lest EPA forget, it is 'a creature of statute,'
and has 'only those authorities conferred upon it by Congress'; 'if there is no statute conferring authority, a federal
agency has none."') (internal citations omitted); Am. Bus. Ass 'n v. Slater, 231 F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J.,
concurring) ("[A] statutory silence on the granting of a power is a denial of that power to the agency.") (emphasis in
original).
123
Power Reactor Dev. Co. v. Int'! Union ofElectricians, 367 U.S. 396,408 (1961) ("Particularly is this respect
due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men
charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly
while they are yet untried and new."') (internal citations omitted).
22
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October 20, 1988, proposed rule, EPA stated that if the proposal is promulgated "this reinterpretation and the subsequent Report to Congress and regulatory determination represent the final stages of EPA's response to the provisions of RCRA section 8002(p); there will be no further studies or regulatory determinations related to ore and mineral processing wastes as a group." 124 In responding to comments on the October 20, 1998 proposed rule, EPA likewise noted that Congress had directed it to conduct "a single study" "over a fixed time period," with the result being a "one-time" determination. 125
In its September 1, 1989 final rule on mineral processing wastes, EPA responded to a comment suggesting that the Agency was under a continuing statutory duty to study and report to Congress on mining and mineral processing wastes. With respect to mineral processing wastes, EPA again noted that its Bevill activities were "one-time" events "over a fixed period of time."126 And, with respect to mining wastes, which were also subject to a Bevill evaluation, EPA stated that "the 1985 Report [to Congress on mining wastes], and the subsequent regulatory determination, discharged its statutory duty with respect to all extraction and beneficiation wastes." 127
Further, in its September 25, 1989 proposed rule on mineral processing wastes, EPA reassured stakeholders and the public that it "will take final action on the proposed wastes by January 15, 1990. At that time, the final boundaries ofthe Bevill exclusion for mineral processing wastes will be established."128 Finally, in the Agency's January 23, 1990 final rule on mineral processing wastes, EPA stated that"[t]his final rule completes the rulemaking regarding the Bevill
124
53 Fed. Reg. at 41,288 (emphasis added).
125
54 Fed. Reg. at 15,337-38.
126
54 Fed. Reg. at 36,596.
127
Id. (emphasis added).
128
54 Fed. Reg. at 39,300 (emphasis added).
23
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status of mineral processing wastes until the completion of the required [R]eport to Congress and
Regulatory Determination."129
Confirming EPA's contemporaneous conclusion that the Bevill Amendment was a one-
time event, the D.C. Circuit rejected arguments by industry groups that the Bevill exclusion
should be available for future mineral processing waste streams. 130 That court found that "[t]he
statutory provision directing EPA to study Bevill wastes suggests by its terms that a one-time
study is sufficient."131 In reviewing that statutory language, and its earlier interpretation of the
Bevill Amendment, the Solite court stated "we clearly enough rejected the theory that Congress
intended the coverage of the Bevill exclusion to evolve with time."132 Notably, in the Solite
litigation, it was EPA, consistent with its position while implementing its Bevill mandate, arguing
that the Bevill Amendment process was a one-time event:
This decision followed from EPA's reading of congressional intent based on the statutory language and scheme of sections 3001(b)(3) and 8002(p) ofRCRA, which establish a temporary exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to study new wastestreams. EPA's construction was also based on other indicia, such as the strict statutory time periods governing the mineral processing waste exclusion in section 3001(b)(3)(A) of RCRA. 54 Fed. Reg. at 15,338; 54 Fed. Reg. at 36,956. From this evidence of congressional intent, EPA reasonably determined that Congress authorized EPA to make a one-time interpretation or snapshot of mineral processing wastes, rather than a continuing series of studies and regulatory determinations....
* * *
There is nothing in the statute itself which suggests that the Bevill process should be an ongoing, evolving process, with updated reports to Congress and regulatory determinations. 133
129
55 Fed. Reg. at 2,323 (emphasis added).
130
See Solite Corp., 952 F.2d at 491.
131
Id. citing 42 U. S.C. 6982(p) ("The Administrator shall conduct a detailed and comprehensive study ... and
shall publish a report of such study ....") (emphasis added).
132
Id.
133
Brief for the Respondent, Solite Corp., at 68-69 (filed May 8, 1991) (Final Brief) (emphasis added).
24
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Thus, having satisfied its Bevill Amendment obligations in 1991, absent further Congressional direction, EPA does not have authority to revisit its 1991 Regulatory Determination. Congress precluded that possibility not only by directing EPA on the criteria and methodology for the studies, but also by requiring that EPA submit the report to both houses of Congress. 134 Congress required that EPA fully apprise it of EPA's potential actions with respect to mining and mineral processing wastes. Clearly, Congress reserved to itself the authority to consider EPA's ultimate regulatory determinations in the context of the reports submitted by EPA. Congress' silence signaled its approval ofEPA's actions. Accordingly, the Agency cannot move forward and reexamine its 1991 Regulatory Determination without receiving Congressional authorization to do so.
Finally, a re-visitation ofEPA' s 1991 Regulatory Determination would undo the regulatory certainty that EPA has championed. 135 EPA rejected industry comments that precluding application of the Bevill exclusion to future waste streams might inhibit technology changes that could result in a net decrease in waste generation. 136 The-Agency pointed out that by foreclosing future Bevill determinations, industry would not be faced with regulatory uncertainty that would inhibit the development of new technological processes. 137 Clearly, for existing waste streams, certainty was precisely what Congress intended. If the Agency were to grant the Petitioners' request and reexamine its 1991 Regulatory Determination, it would undermine, in whole or in part,
134
RCRA 8002(p) required the Reports to Congress for both mining and mineral processing wastes to be
transmitted to the U.S. Senate Committee on Environment and Public Works and the U.S. House of Representatives
Committee on Energy and Commerce.
135
In addition, such a re-visitation would receive considerably less deference in litigation. See, e.g., INS v.
Cardoza-Fonseca, 480 U.S. 421, 446 n. 30 (1987) ("An additional reason for rejecting the INS's request for
heightened deference to its position is the inconsistency of the positions the BIA has taken through the years.") (citing
Watt v. Alaska, 451 U.S. 259,273 (1981)); see also Smiley v. Citibank (South Dakota), NA., 517 U.S. 735, 742 (1996)
("[s]udden and unexplained change, or change that does not take account oflegitimate reliance on prior interpretation,
may be 'arbitrary, capricious [or] an abuse of discretion."') (internal citations omitted).
136
54 Fed. Reg. at 36,596.
137
Id.
25
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the substantial state and industry efforts at developing and implementing regulatory controls and programs over the intervening period since the 1991 Regulatory Determination.
3. Petitioners' Reliance on EPA's Coal Combustion Residuals Rulemaking is Inapposite, And Their Assertions That EPA Contemplated The "Reopening" of Its 1991 Regulatory Determination Are Factually Incorrect
Attempting to sever the 1991 Regulatory Determination from the required study and Report to Congress, Petitioners cite to three reasons why EPA could "revisit" its 1991 Regulatory Determination for PG and process wastewater: (1) EPA announced its decision to "revisit" its 2000 Regulatory Determination for coal combustion residuals ("CCRs"); (2) EPA statements in its 1991 Regulatory Determination regarding PG and process wastewater; and (3) EPA's 1997 supplemental proposed rule wherein EPA solicited comment on purported "damage" cases associated with certain Bevill-exempt mineral processing streams. 138 TFI's preceding comments demonstrate conclusively why the Bevill Amendment requirements, consisting of EPA's temporary deferral of mineral processing wastes from hazardous waste regulation, development of criteria for determining what mineral processing wastes would be evaluated, the study, Report to Congress, 1991 Regulatory Determination, and ultimate exclusion of twenty mineral processing wastes from hazardous waste regulation, were a one-time occurrence. 139 Nonetheless, TFI responds to Petitioners' three remaining arguments below.
138
Petition at 17-18.
139
TFI is aware that EPA took the position before the District Court in the Appalachian Voices case, in the
context of the Subtitle C exclusion for CCRs, that it did "have authority to revisit these initial Bevill Amendment
Regulatory Determinations should it conclude that it is appropriate to do so." EPA, "Combined Opposition to
Plaintiffs' Motions for Summary Judgment, and Memorandum in Support of EPA's Cross-Motion for Summary
Judgment in Case Nos. 1: 12-CV-00585 and 1: 12-CV-00629, and for Partial Summary Judgment and Order to Govern
Further Proceedings in Case No. 1: 12-CV-0052," Appalachian Voices at n. 5 (filed Oct. 11, 2012). As shown in TFI's
Opposition, (1) that conclusion is in error, and (2) even were it correct, it would not apply to PG and process
wastewater.
26
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EPA's 2000 Regulatory Determination for CCRs,140 while explicitly recognizing the exclusion of CCRs from Subtitle C and development of Subtitle D standards, also indicated the Agency may "revise this determination accordingly" and impose Subtitle C standards if the results of its further studies suggested a need to do so. 141 By contrast, EPA's 1991 Regulatory Determination at issue here expressly concluded that Subtitle C regulation of PG and process wastewater was unwarranted. 142 But, the Agency decided to convene a committee comprised of representatives of industry, state and federal regulatory agencies, and environmental groups to evaluate possible regulation of these streams under TSCA. 143 And, EPA only indicated that it would "revisit" its 1991 Regulatory Determination regarding PG and process wastewater "[i]f information obtained or findings developed during the TSCA investigation are such that RCRA could better handle this matter."144
As discussed in Section III.A.4 of TFI's Opposition, to evaluate TSCA controls on the two phosphate streams, EPA convened a Committee that met six times. 145 At the conclusion of the Committee's deliberations, there were no consensus-based process changes or other technologies identified that were technically and economically feasible, and that did not introduce new environmental or human risks. 146 Importantly, the Committee did not conclude, much less suggest, that RCRA "could better handle this matter." Thus, the condition precedent, assuming arguendo that EPA has the authority to revisit a regulatory determination, is not met here.
140
65 Fed. Reg. at 32,214.
141
Id. at 32,215.
142
56 Fed. Reg. at 27,316 ("Therefore, the Agency has serious reservations regarding the economic feasibility
of a traditional waste management program designed within the contours of the RCRA statute.").
143
Id.; see TSCA Committee Report at 74.
144
56 Fed. Reg. at 27,316 (emphasis added).
145
See TSCA Committee Report at 1.
146
Id. at 19.
27
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Also, in the CCR rulemaking, EPA based its decision to "revisit" Subtitle C regulation on additional cases of "proven" and "potential" damage cases since the 2000 Regulatory Determination. 147 In particular, EPA identified more than 100 "alleged" damage cases. 148 Unlike those circumstances, Petitioners refer to fewer than 10 alleged "damage" cases related to PG and process wastewater since the 1991 Regulatory Determination. 149 Those largely are historical and predate EPA's comprehensive and enforceable settlements and orders under the Agency's RCRA National Enforcement Initiative for Mining and Mineral Processing ("MMPI") regarding the management of these streams, including financial assurance and corrective action requirements. 150
Finally, in its CCR rulemaking, EPA expressed concern that impoundments holding CCR wastes did not have groundwater monitoring, citing to its 2000 Regulatory Determination that only 38% of the units storing CCR wastes had groundwater monitoring systems in place. 151 By comparison, all active PG stacks have groundwater monitoring in place, which has been significantly enhanced through the settlements and orders under the MMPI. Thus, Petitioners reliance on the CCR rulemaking is inapposite.
As a last gasp to persuade EPA to revisit its 1991 Regulatory Determination, Petitioners point to a 1997 EPA supplemental proposed rule where the Agency, according to Petitioners, "suggested it would revisit its Bevill regulatory determinations for certain 'high-risk' mining wastes."152 However, this argument is misleading and unconvincing.
147 148 149 150
Orders.
151 152
75 Fed. Reg. 35,128, 35,146-35,148 (June 21, 2010) (Proposed Rule). Id. at 35,147. See Petition at 24-25, 29, 30-32, 35. See infra Section IV.B for a discussion of the MMPI and resulting Consent Decrees and RCRA Consent
75 Fed. Reg. at 35,144. Petition at 17.
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In the supplemental proposed rule, EPA never suggested "it would revisit" its 1991 Regulatory Determination. Rather, EPA solicited comment on purported "damage" cases associated with the management of certain mineral processing streams. 153 Industry responded with evaluations ofthese cases, and comments regarding the one-time nature of EPA' s 1991 Regulatory Determination. 154 In the final rule, EPA merely acknowledged the receipt ofthe comments without further indicating an intent to reexamine the Bevill-exempt status of any excluded mineral processing streams. 155 And, in the 14 years since, EPA has taken no action in this regard. IV. Robust and Mature Regulatory Frameworks Already Regulate PG Stacks and Are
Buttressed By Consent Decrees and RCRA Consent Orders Tailored to Individual Facility Conditions Under EPA's MMPI Petitioners reference so-called "damage" cases they assert support their request for additional federal regulation of PG and process wastewater. Petitioners fail to acknowledge, however, that these cases, in large part, antedate significant enhancements in state regulations, the MMPI, and the legally binding Consent Decrees and RCRA Consent Orders resulting from the MMPI, which collectively address the risks asserted in the Petition. In its 1991 Regulatory Determination, EPA acknowledged that consideration of alternative state regulatory schemes, in addition to existing federal schemes, is contemplated by RCRA 8002(p)(5). 156 Contrary to Petitioners' assertions, EPA and the states have developed robust programs to regulate PG stacks in a manner protective of human health and the environment. The imposition of additional, vastly different and inconsistent requirements on phosphate mineral
153
62 Fed. Reg. at 26,054.
154
See, e.g., TFI, "Comments to the United States Environmental Protection Agency by The Fertilizer Institute
Concerning EPA's Proposed Rule on Land Disposal Restrictions" (Aug. 12, 1997).
155
63 Fed. Reg. at 28,580.
156
56 Fed. Reg. at 27,305.
29
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processmg wastes would substantially interfere with these existing federal, state, and local programs.
Further, EPA's MMPI subjected twenty phosphoric acid mineral processing facilities to comprehensive inspections. As a result of the MMPI inspections, industry negotiations with EPA and state environmental agencies have resulted in binding settlements and orders imposing comprehensive design, operation, closure, post-closure, groundwater protection, corrective action, and financial assurance obligations applicable to the majority of remaining facilities' PG stacks. 157
Industry has modified their manufacturing processes and PG stack systems, and constructed new processes and systems specifically to comply with these existing state and local requirements, and additional measures adopted under the MMPI. These efforts have resulted in substantial expenditures to assure protection of human health and the environment. Retrofitting these units based on additional federal regulation (such as RCRA Subtitle C) would result not only in increased and potentially unsustainable costs, but also would result in the inequitable loss of expenditures made to modify and construct phosphoric acid production and associated waste management facilities consistent with existing regulation and legally binding agreements entered under the MMPI.
Finally, EPA already has comprehensively evaluated the phosphoric acid industry on two recent occasions as part of its statutory mandate under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 158 and determined in the CERCLA context, there is no need to impose additional federal regulation on the management
157
See, e.g., EPA, "National Enforcement Initiative for Mining and Mineral Processing Summary of Activities
2005 to 2016," at 2-3 (Nov. 15, 2016) (Dkt. EPA-SFUND-2015-0781-0390).
158
42 U.S.C. 9608(b).
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of PG and process wastewater based on the degree and duration of risk represented by the modem industry.
A. Since the 1991 Regulatory Determination, Comprehensive Federal and State Programs Have Been Implemented for PG Stacks
While Petitioners assert that additional regulation is needed for PG stacks, they fail to acknowledge the comprehensive federal and state laws and regulations that are in place for PG stacks to protect public health and the environment. At the federal level, these include EPA's enforcement authority under RCRA 7003,159 which allows the Agency to take action to abate any actual or threatened imminent and substantial endangerment to human health or to the environment from PG or process wastewater. This broad enforcement authority enables EPA to take action even before any damage has occurred, as long as the PG or process wastewater presents a risk of harm that would be "imminent and substantial." In addition to this RCRA enforcement authority, which EPA has utilized to address PG and process wastewater operations, see infra at 43, 49, federal law also provides additional regulation through the National Emission Standards for Radon Emissions from PG Stacks ("PG NESHAP")160 and the Phosphoric Acid NESHAP. 161
Petitioners summarily dismiss the PG NESHAP as not protective of human health: Their statement is false. 162 As noted in the 1989 PG NESHAP final rule, "EPA strives to provide maximum feasible protection against risks to health from hazardous air pollutants ... by means of a two-step standard setting approach."163 The first step in the evaluation determines an "acceptable risk that considers all health information, including risk estimation uncertainty."164 The second
159
42 U.S.C. 6973.
160
40 C.F.R. Part 61, Subpart R.
161
40 C.F.R. Part 63, Subpart AA.
162
Petition at 15.
163
54 Fed. Reg. 51,654, 51,655 (Dec. 15, 1989) (Final Rule).
164
Id.
31
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step sets the standard "at a level that provides 'an ample margin of safety' in consideration of all health information."165
After thorough evaluation, EPA concluded that, with some exceptions, PG should be exclusively managed in stacks or mines to protect human health. 166 In concluding that this practice provided sufficient safety, EPA evaluated health information, and conservatively considered risk estimation uncertainty. Finally, EPA provided an "ample margin of safety" in its standard by requiring that radon emissions from an inactive stack not exceed 20 pCi/m2-s. 167
Petitioners fail to mention or substantively evaluate the Phosphoric Acid NESHAP and its recent amendments that address PG stacks as part of EPA's most recent eight-year technology review and "residual risk" evaluation under the Clean Air Act ("CAA"). 168 In performing such "residual risk" evaluations, EPA is required to determine whether its emission standards provide an ample margin of safety to protect public health. 169 In 2015, after completing its most recent evaluation of the Phosphoric Acid NESHAP, EPA enhanced its regulations, requiring additional, meaningful measures at PG stacks and cooling ponds to reduce potential fugitive hydrogen fluoride emissions (hydrogen fluoride is a CAA Hazardous Air Pollutant). 170
165
Id.
166
In 1992, EPA revised the PG NESHAP to allow for the use of PG in agriculture and research and
development, provided certain conditions were met. 57 Fed. Reg. 23,305 (June 3, 1992) (Final Rule). In addition,
EPA put in place a procedure to request EPA' s approval of other uses of PG, provided the proposed use is at least as
protective as PG disposal in a stack or mine. Id. at 23,316 (codified at 40 C.F.R. 61.206).
167
54 Fed. Reg. at 51,655.
168
42 U.S.C. 7412(d)(6) & 7412(f)(2).
169
Id. 7412(f)(2)(B).
170
80 Fed. Reg. 50,386 (Aug. 19, 2015) (Final Rule). Specifically, EPA's regulations require the preparation
and submission to EPA of a "gypsum dewatering stack and cooling pond management plan" identifying control
measures to minimize fugitive hydrogen fluoride emissions. 40 C.F.R. 63.602(d). For existing stacks, at least one
control measure must be identified, and for new stacks, at least two control measures must be identified, selected from
seven options identified by EPA, and based on the Agency's independent technical evaluation and consultation with
industry and other stakeholders. Id. 63.602(e)(3). The plan must include details on how the facility will implement
the plan and show compliance with the selected control measures, and also requires specific EPA approval. Id.
63.602(e)(4).
32
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Beyond federal regulations, the states where active PG stacks are located also have implemented comprehensive regulations. These state regulations reflect the specific local geography, geology, and climate of each state. Specifically, Florida, Idaho, Louisiana, North Carolina, and Wyoming each have enacted legislation and promulgated regulatory programs comprehensively regulating PG stacks in the manner best suited to protect human health and the respective environment of each state. Reluctantly, Petitioners include a cursory acknowledgement of these detailed state programs regulating PG stacks, but assert there is a lack of regulations specific to PG stacks. 171 They are mistaken. As explained below, these state regulations provide a comprehensive state regulatory scheme complementing existing federal regulation (including the PG NESHAP and Phosphoric Acid NESHAP), resulting in substantial protections of human health and the environment.
1. Florida Florida's PG Management Rules provide robust protections for health and the environment. The Florida Department of Environment Protection ("FDEP") oversees the crucial aspects of PG systems, including the storage and management of process water from phosphoric acid production. 172 Florida's regulatory scope is comprehensive, covering PG stack siting, design, construction, operations and maintenance, closure, post-closure long-term care, and financial assurance. These regulations are especially important because Florida has far more phosphoric acid manufacturing facilities than any other state. FDEP has promulgated a litany of regulations to manage PG stacks and phosphoric acid production creating a comprehensive regulatory scheme covering all aspects of PG stack
171
Petition at 25.
172
As authorized by the PG management program. Fla. Stat. Ann. 403.4154.
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operation. 173 FDEP has promulgated regulations prohibiting disposal of PG without a permit,174 the procedure for requesting a written determination, 175 prohibiting any construction, operation, expansion, or modification of a PG stack without a permit issued by FDEP, 176 long-term care of PG stacks for fifty years from the date of closure,177 financial assurance as a condition to the issuance of a PG stack permit,178 and the closure of unlined PG stacks. 179
Further, FDEP has promulgated highly detailed performance standards specifying location, operation, groundwater monitoring, surface water management, leachate management, and interim stack management plans to control the potential movement of solutions into the environment, and
to prevent potential violations of applicable discharge standards. 18 Finally, for closure of a PG
stack, FDEP requires PG stack owners to submit closure plans and schedules181 that must meet numerous requirements, including general information related to the owner and history of the PG stack, information regarding the topographical, hydrological, and geological aspects of the area affected by the PG stack, a groundwater monitoring plan, assessment of effectiveness of the existing PG stack design and operation, closure performance standards, and closure design and operation plans which must be certified by a registered professional engineer. 182
Moreover, FDEP has promulgated comprehensive regulations regarding construction of new PG stacks or lateral expansion of existing PG stacks,183 including specific requirements for
173
See also Ardaman & Associates, Inc., "Technical Memorandum on Phosphogypsum and Process Wastewater
Management" at 4-11 (Mar. 26, 2021), included as Attachment A (hereinafter, "Ardaman Technical Memorandum").
174
Fla. Admin. Code Ann. R. 62-673.300.
175
Id. R. 62-673.310.
176
Id. R. 62-673.320.
177
Id. R. 62-673.630.
178
Id. R. 62-673.640.
179
Id. R. 62-673.650.
180
Id. R. 62-673.340.
181
Id. R. 62-673.600.
182
Id. R. 62-673.610.
183
In particular, FDEP has promulgated regulations requiring composite liners and leachate control systems
with specific parameters best suited to protect the environment in Florida. See id. R. 62-673.400.
34
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earthen dams for dikes used for PG stacks. 184 Additional regulations specify freeboard standards and govern requirements for decanting process water from the top of PG stacks. 185 Further, operating plans for the PG stack must address nearly every aspect of operating PG stacks186 and require annual training of personnel. 187
It is important to recognize that FDEP's comprehensive regulatory program is relevant well beyond the state of Florida - the robust FDEP program has served as the model for supplemental measures applicable to facilities located in other states, under legally binding Consent Decrees and RCRA Orders agreed to with EPA and relevant state environmental agencies pursuant to the MMPI.
2. Idaho The Idaho Department of Environmental Quality ("IDEQ") oversees several programs addressing PG stacks, including programs protecting groundwater and air quality. With respect to groundwater protections, IDEQ requires best management practices and best practical methods used to prevent potential degradation of groundwater aquifers by PG stacks. 188 In terms of air quality standards, IDEQ has established annual, bimonthly, and monthly standards for the total fluoride content in vegetation for feed and forage which requires monitoring of forage adjacent to
184
See id. R. 62-672.300, 62-672.600, 62-672.650. Specifically regarding PG stacks, these provisions include
requiring new PG stacks to meet certain minimum specifications including specific parameters as to the width and
thickness of each gypsum dike, the slope ofthe PG stack, lengths of the inboard dike, levee, or windrow used to create
rim ditch, and maximum fluid levels in the rim ditch. Id. R. 62-672.700, 62-672.750.
185
These regulations include specific methods for decanting, the distance from decant location to the outer edge
of any cut on the exterior slope on the stack, measures for the decant pipe, and inspections. Id. R. 62-672. 760.
186
For instance, the operating plans must include, among other parameters, the method used to raise and operate
the stack, the procedures used to decant process water, the location of pumps, spillways, and staff gauges, emergency
measures in the event of mechanical or power failures, waste management plan, and site specific water management
plans that must be based on a five-year water balance analysis and updated annually. Id. R. 62-672. 780. FDEP further
has promulgated rules regarding the operating procedures for both earthen dams and dikes used for PG stacks. Id. R.
62-672.400, 62-672.650.
181
Id. R. 62-672.800-870.
188
See Idaho Admin. Code R. 58.01.11.301.
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phosphoric acid plants and PG stacks to ensure compliance. 189 Also, phosphoric acid unit processes are subject to limitations on fluoride emissions. 190
Additionally, Idaho legislation comprehensively regulates construction and design requirements applicable to PG stacks. Prior to construction of a new PG stack, a material component thereof, or lateral expansion the owner must submit to IDEQ a plan for review and approval which must meet design and construction specifications to control and minimize the potential movement of solutions and constituents into the environment. 191 The minimum design requirements include run-on and runoff controls, composite liners (or approved alternatives), leachate control systems, collection (decant) ponds for leachate control systems, synthetic liners for auxiliary holding ponds, liner or pipes to convey process wastewater, and design standards for freeboard, safety, and slope stability. 192 The owner must also submit a construction completion report that includes final record drawings and conformance of construction to the approved design and construction plan, including construction quality control plans. 193
3. Louisiana The Louisiana Department of Environmental Quality ("LDEQ") has promulgated the Louisiana Solid Waste Regulations 194 which regulate PG stacks as solid waste landfills and surface impoundments. 195 Louisiana has standards for landfills and impoundments (along with all other types of industrial solid waste disposal facilities) that include siting restrictions, buffer zones, geology standards, implementation plans, groundwater monitoring, surface hydrology, stormwater
189
See id. R. 58.01.01.577.
190
See id. R. 58.01.01.750-51.
191
Idaho Code Ann. 39-l 76E.
192
See id.
193
Id. 39-l 76F.
194
As authorized by La. Stat. Ann. 30:2151, et seq.
195
See 33 La. Admin. Code Pt VII, 709-713.
36
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run-on and run-off protection, plans and specifications, liners, facility administrative procedures, operating restrictions, operation plans and standards, emergency response plans, closure/postclosure requirements, and financial assurance. 196
In addition, landfills in Louisiana are required to have a leachate control, collection, treatment, and removal system and a slope stability analysis performed by a professional engineer with expertise in geotechnical engineering. 197 Surface impoundments must be designed, constructed, maintained, and operated to prevent overtopping. 198
Complementing Louisiana's Solid Waste Regulations, LDEQ additionally oversees the Louisiana Pollutant Discharge Elimination System ("LPDES") program and further requires air quality permits for any source which emits or has the potential to emit any air contaminant in Louisiana. The LPDES program regulates any potential discharges from PG stack systems to surface waters ofthe state. 199 Given the high precipitation in Louisiana, this robust program serves to safeguard the waters of the state from potential impacts from PG stack systems. Moreover, LDEQ, through its air quality permit program,20 has specifically limited the quantity of atmospheric fluoride emitted from phosphoric acid facilities. 201
4. North Carolina The North Carolina Department of Environmental Quality ("NCDEQ") comprehensively regulates PG stacks through numerous programs designed to protect human health and the environment. Subchapter 02T of the North Carolina Administrative Code, for instance, regulates specified waste management systems, including PG Stacks. NCDEQ must approve PG stacks as
196
Id.; see also 33 La. Admin. Code Pt. VII, 801-803, 1303-1399.
197
33 La. Admin. Code Pt VII, 711.
198
Id. 713.
199
33 La. Admin. Code Pt. IX, 2301, et seq.
200
Id. Pt. III, 301, et seq.
201
Id. 2305.
37
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adequate to protect human health and the environment (including ground and surface waters) after review and permitting of designs, plans and specifications, and installation by a supervised professional engineer.202 These facilities are then subject to permitting requirements and regular inspections by NCDEQ to ensure ongoing compliance with Subchapter 02T and other environmental laws. 203
Mining, groundwater, and air regulations in North Carolina buttress the above waste management rules providing a comprehensive regulatory scheme. Mining permits (which must be periodically renewed) regulate PG management in North Carolina, requiring the owners to provide extensive information to NCDEQ, including a description of the measures to be taken to prevent hazards to local communities and anticipated effects on wildlife (including aquatic life).204 Groundwater protection rules establish compliance, review, and waste boundaries for permitted disposal systems and require monitoring of parameters associated with these systems.205 Ifthere is an exceedance of standards above background, the groundwater program requires initiation of corrective action overseen by NCDEQ.206 Finally, PG stacks are regulated under Title V air permits issued by NCDEQ's Division of Air Quality addressing potential radon emissions from PG stacks. 207
5. Wyoming The State of Wyoming has a number of requirements applicable to PG stacks, including permits for construction of PG stacks, protections for waters of the State, PG stack closure procedures, and air quality standards. The permit for construction of a PG stack requires the permit
202
See 15A N.C. Admin. Code 2T.0101, et seq.
203
See id.
204
See id. 0SA.0101, et seq.
205
See id. 02L.0101, et seq.
206
See id.
207
See id. 02Q.0101, et seq.
38
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application to be sealed by a professional engineer and all plans and specifications must conform to common and accepted engineering practices as determined by the Administrator of the Wyoming Department of Environmental Quality ("WDEQ"). 208 Moreover, the permit application must include a detailed subsurface study to demonstrate the PG stack will adhere to the State's groundwater standards. 209 WDEQ also implements a monitoring program during operation and
closure of a PG stack to ensure adherence to groundwater standards.21 Closure of PG stacks must
be engineered to inhibit future erosion or ponding of surface water, must have a final cover including an infiltration barrier and six inches of topsoil, and revegetation of the surface.211 Finally, WDEQ has two sets of ambient air quality standards for fluoride: one specific to a county where there is a phosphate fertilizer plant and another general standard to protect forage for animal consumption.212
6. The Breadth of Existing State Programs Tailored to Specific Conditions Demonstrates That Additional Regulation Is Unnecessary
For those states with active PG stacks within their borders, laws and regulations already exist to protect the environment (even setting aside applicable federal oversight by EPA). The states already have implemented and refined these programs to account for their own specific environmental concerns within each region. While Petitioners conclude that these regulations are insufficient to protect the environment because the regulations in each state may not specifically apply to PG stacks, this conclusion misses the mark entirely: The state programs summarized above result in detailed monitoring and oversight of PG stacks with respect to waste, air, surface
208
See Wyo. Admin. Code 020.0011.3 5-6.
209
Id. at 17.
210
Id.
211
Id. at 7.
212
Wyo. Admin. Code 020.0002.2 9.
39
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water, and groundwater protections. When combined with existing federal regulations, these state programs provide multi-media protections for health and the environment, making additional federal regulation unnecessary.
Confirming this, Ardaman & Associates, Inc. ("Ardaman"), an engineering firm with substantial expertise in PG stacks, provided its analysis of the modem day design, construction, and operation of PG stacks (included as Attachment A). 213 As noted by Ardaman, the design of a new PG stack or the expansion of an existing stack is a complex undertaking, with substantial state oversight and permitting to protect public health and the environment. Design evaluations include hydrogeological investigations, characterization of the subsurface conditions, evaluating the suitability of the underlying soils for support, preparing detailed design and construction reports to meet state requirements associated with the use of a composite liner and seepage control systems, and laboratory testing of materials.214 Further, based on site-specific conditions, additional engineering evaluations may be performed, including photolinear analysis, subsurface assessment of topographic depressions, microgravity surveys, and seismic reflection surveys, all to ensure the stability of the PG stack.215
Similarly, the construction and operation of PG stacks is a complex process designed to protect human health and the environment and entails many improvements since the 1991 Regulatory Determination. Examples of such improvements include the use of wet rim-ditch material for dike construction to reduce the risk of piping failure, the use of a wide rim-ditch and wide breach to reduce the risks of overtopping, and the use of decant siphons (instead of a decant cut) to transfer process wastewater from the top of a PG stack.216 The operation of a PG stack
213
See Ardaman Technical Memorandum.
214
Id. at 11-12.
215
Id. at 12.
216
Id.
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requires an extensive operating plan, groundwater and, where applicable, surface water monitoring plans (along with periodic monitoring), site inspections, and continually assessing the stack stability.217 In addition, closure and post-closure plans are required, along with the development and periodic updating of financial assurance to perform the required activities.218
B. EPA's MMPI Has Addressed and Will Continue to Address Any Residual Risks Posed by PG Stacks
In evaluating the relief sought in the Petition, EPA should consider fully the history and impact of its own MMPI and other regulatory actions. This history illustrates that the existing laws and regulations provide appropriate regulation of PG and process wastewater operations across the country. There is no question that EPA has, over the past 20 years, devoted substantial enforcement and technical resources to phosphoric acid manufacturing, and has focused on every phosphoric acid manufacturing facility in the United States and the two Bevill-exempt streams that are the subject of the Petition.
EPA's MMPI, for example, has entailed: (1) comprehensive inspections of each phosphoric acid facility; (2) administrative orders requiring, or voluntary agreements to undertake, interim measures to address concerns identified by EPA; (3) a series of comprehensive judicial Consent Decrees, negotiated and approved by EPA and the U.S. Department of Justice ("DOJ") as well as certain states in which the facilities are located, and entered by federal courts after notice and consideration of public comments, setting forth in extraordinary detail the obligations of the covered facilities to adopt measures to enhance protection of human health and the environment;
and (4) entry of RCRA 3013219 and 7003 22 Consent Orders detailing similar environmental
217
Id.
218
Id. at 7 - 8.
219
42 U.S.C. 6934.
220
Id. 6973.
41
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protection enhancements and corrective action measures that are m place at the remammg operating facilities.
The MMPI and other EPA regulatory actions, which are barely mentioned in the Petition, are critically relevant to the consideration of the Petition in a number of ways:
TFI's phosphoric acid-producing members, EPA, and affected state environmental agencies already have devoted enormous resources to addressing the very RCRA issues raised by the Petition. Consent Decrees, RCRA Consent Orders, and/or other federal enforceable orders221 aimed at addressing these issues are in place at every operating facility in the United States. Certain TFI members have also agreed to, or are continuing to negotiate, these Consent Decrees and/or Orders stemming from the MMPI, and TFI's members are implementing these vast and extensive EPA requirements under all relevant enforceable orders.
The existing Consent Decrees are unprecedented in scope, each containing hundreds of pages of detailed requirements, and were the result of an effort led by EPA to combine a series ofuniform standards across facilities and states (referred to as "core injunctive relief' - in large part based on the comprehensive FDEP program summarized above), with particularized requirements that differ based on the circumstances of each facility. Thus, they combine the uniformity of rulemaking with the specificity and flexibility of a negotiated enforcement resolution, even as TFI's members have steadfastly denied that any violation of the RCRA requirements has occurred.
221
See, e.g., United States v. FMC Corp. and JR. Simplot Co., No. 99-296-E-BLW, "Remedial
Design/Remedial Action Consent Decree with Defendant J.R. Simplot Co." (D. Id. 2001); United States v. FMC Corp.
and JR. Simplot Co., No. 99-296-E-BLW, "First Amendment to RD/RA Consent Decree with Defendant J.R. Simplot
Co." (D. Id. 2010).
42
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The requirements of the existing Consent Decrees, RCRA Consent Orders, and other EPA enforcement orders govern significant process modifications, PG stack system liner and closure measures, corrective action and other environmental enhancements tailored to each operating facility and collectively addressing sufficiently the potential risks asserted in the Petition.
In asking federal courts to approve the Consent Decrees, and responding to public comments, EPA has made clear that it believes that the agreements are in the public interest and protective of public health and the environment.
A decision by EPA to commence rulemaking to reconsider the relevant Bevill exemptions now: (i) would undermine the expectations and extraordinary reliance of TFI's members who have spent many years and tremendous resources participating collaboratively in EPA's MMPI negotiation process and meeting the commitments they have agreed to; (ii) would distract from the ongoing effort to finalize Consent Decrees at the remaining facilities currently subject to enforceable EPA Orders pursuant to RCRA and other legal authorities; and (iii) could undermine the Consent Decrees and Consent Orders already entered. 1. The History of the Mineral Processing Initiative Starting in the early 2000's,222 EPA commenced its MMPI to focus special attention on
phosphoric acid manufacturing facilities, and in particular two Bevill-exempt streams: PG and
222
The EPA enforcement focus on mineral processing was already evident in an Enforcement Alert entitled
"Hazardous Waste Management Practices at Mineral Processing Facilities Under Scrutiny by U.S. EPA" issued in
November 2000, https://v,v.w.epa.gov/sites/production/files/2013-09/documcnts/mincral.pdf (last visited Mar. 16,
2021).
43
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process water. In particular, EPA has investigated a total of 20 phosphoric acid facilities in seven
states.223 The effort was summarized last year by an EPA official as follows:
More than a decade ago, EPA began investigating environmental violations within the phosphoric acid mineral processing and fertilizer industry. EPA' s effort has been directed to ensuring compliance with provisions of [RCRA] that provide a limited exclusion from hazardous waste regulation for certain solid wastes produced during the extraction, beneficiation, and processing of ores and minerals, known as "the Bevill exclusion." EPA's investigation has focused on the mixing or commingling of hazardous wastes with other mineral processing wastes that are not regulated as hazardous wastes based on the Bevill exclusion.
EPA's investigation led to EPA's issuance of notices of violation to a number of owners and operators of phosphoric acid and phosphate fertilizer manufacturing facilities concerning those facilities' management of hazardous wastes in gypsum stacks, where EPA found reason to believe that hazardous wastes that are outside the scope ofthe Bevill exclusion have been commingled with wastes that are within the Bevill exclusion -- phosphogypsum and process wastewater. In response to EPA's notices of violations, phosphoric acid manufacturers have disputed that waste streams EPA identified as hazardous are not "process wastewater from phosphoric acid production" excluded from regulation as hazardous wastes under the Bevill exclusion, i.e., the manufacturers contend such wastes are within the Bevill exclusion and are not hazardous wastes. To date, EPA has required through judicial and administrative settlements that 12 phosphate fertilizer facilities complete extensive injunctive relief and bring their operations into compliance with RCRA.
Another of EPA's objectives in pursuing settlements with companies m this industry was to ensure that, if needed, the companies would perform RCRA corrective action to remediate contamination related to past management of wastes in the companies' gypsum stacks. To facilitate this process, EPA issued orders pursuant to Section 3013 of RCRA under which the companies have performed required sampling and analysis of groundwater so that EPA (and/or the relevant state environmental agency) could determine the extent of any contamination and whether corrective action was needed to clean up the contamination.224
EPA's reference to having reached settlements applicable to 12 facilities does not include
the J.R. Simplot Co. Consent Decree entered last year, which would bring the total to 13. The
223
https://archivc.cpa. 6ov/cpapagcs/ncwsroom archivc/ncwsreleascs/7826d l 3c033a Icac8525777a006bfa2
6.html.
224
Declaration of Van E. Housman, Aug. 27, 2020, United States v. JR. Simplot Co. et al., Civil No. 20-CV-
125-F, Docket No. 6-1 (D. Wyo.).
44
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following table showing EPA's summary of its progress on the initiative through 2016 suggests that the total addressed (with the Simplot settlement) 1s now at least 14.225
Cumulative Progress Toward Inspecting and Addressing
Phosphoric Acid Facilities
... . 22 20 20 20 20 20 20 Uofiavceilristiees20
20
~~,):~
~;IX';,~
18
16
.!":!' 14 :..i. 12
u0:1. l.O
fi11dlities ln5p~cted
Goal= 11ddre~j'.i!1II 20 facilities by end of
2014
8
6
4
2
0
Work Done
FY2012
FY2013
FY2014
~Y2015
FY2016
from 2003-
2011
Fiscal Vear
Addressed means that a facilitv i~ subject to 21n ~nfon:eabh!' order Oudicial or adrninistr.atl,..e,) requ,rin2
ccmplian~. or has been inspected and found to have no significant violations.
2. MMPI Consent Decrees and RCRA Consent Orders As a central objective of the MMPI, EPA and DOJ have entered into various Consent Decrees with a number of TFI members covering multiple facilities, and continue to negotiate similar Consent Decrees governing the remaining operating facilities. These Consent Decrees are comprehensive, span hundreds of pages each, and require - among many other things extensive controls and waste management measures, including comprehensive requirements addressing PG stack management, liner installation and maintenance,226 closure and long-term
225
https://arc hivc. cpa.gov/cpa/cnforccmcnt/national-cnforccmcnt-i nitiati vcs-tiscal-ycars-2014-20 l 6-reducin6-
p llution-mincral.html.
226
Among other things, the Consent Decrees require that unlined PG Stack Systems must be closed or must be
lined in compliance with the extensive technical requirements set forth in the Consent Decrees.
45
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care, and financial assurances. Collectively, these Decrees have required or will require the expenditure by TFI's members of hundreds of millions of dollars.
For example, in two Consent Decrees entered between the United States and Mosaic,227 Mosaic agreed to environmental protection projects (including waste management, reduction and reuse programs, PG stack liner, closure and post-closure care measures) that EPA reported would cost $170 million. Mosaic also agreed to financial assurance obligations of $630 million in cash trust funds, as well as a $50 million letter of credit, that would be invested until reaching $1.8 billion. In announcing these settlements, EPA and DOJ explained that they "will ensure the proper treatment, storage, and disposal" of waste at eight Mosaic facilities. 228
The Consent Decrees all use essentially the same template. Among other things: The Consent Decrees set forth extensive "Compliance Requirements" including as to how the covered facilities will be managed to meet the requirements of RCRA and remain within the scope of the Bevill exemptions. The Consent Decrees contain lengthy appendices that address in detail the design, quality assurance of construction, management and operation of the PG stack systems, including a core injunctive relief provision template modeled on state requirements. So long as facilities meet the specified Consent Decree requirements resolving the governments' allegations, EPA agreed the facilities "shall not be required to obtain a
227
https://www.cpa.gov/sitcs/production/filcs/2016-03/documcnts/tlorida-cd.pdf; United States ofAmerica and
Louisiana Department ofEnvironmental Quality v. Mosaic Fertilizer, LLC, Civil Action No. 2:15-cv-04889, Docket
No. 5-1 (E.D. La.).
228
https://arc hi vc. epa. gov/cpa/newsrc lcascs/major-fcrti lizer-produccr-mosaic-ferti lizer-llc-cnsurc-propcr-
hand Ii ng-storagc-and. htm I.
46
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RCRA permit as a Treatment Storage and Disposal Facility" with respect to management of the waste which was the subject of the government's allegations.229 All of the Consent Decrees entered to date have been subject to a public comment period and judicial review before entry. In the case ofthe two Mosaic Decrees, extensive comments were received, a total of 117, including from certain of the Petitioners here who are making many of the same arguments to EPA in the Petition that they unsuccessfully made to EPA in their Consent Decree comments. 230 As part of this process, commenters requested the funding of additional epidemiological and human health studies to assess the risks associated with the management and storage of PG. The proposed Consent Decrees had not required such studies and EPA responded that that was appropriate. In so doing, EPA reaffirmed, less than five years ago (in June 2016), the basis for the 1989 and 1990 Bevill rulemakings. EPA noted that the phosphate industry had already been the subject of "numerous epidemiological studies," which "found no statistical link between the phosphate industry and the studied adverse health effects."231 As EPA explained at the time, these and other studies were "consistent with EPA' s study and determination in the 1989 and 1990 Bevill
229
Each company entering into a Consent Decree did so without making any "admission of law or fact with
respect to the allegations in the Complaint and denies any non-compliance or violation of any law or regulation
identified therein."
23
Comment 89 was submitted on behalf of a group that included the following Petitioners: People for
Protecting Peace River, Center for Biological Diversity, Suncoast Waterkeeper and Sierra Club, Florida. Comment
102 was submitted by Petitioner ManaSota-88. See Comments 89, 102 at United States and Florida Department of
Environmental Protection v. Mosaic Fertilizer, LLC, Civil Action No. 8: 15-cv-02286, Docket No. 17-1 (M.D. Fla.).
231
EPA elaborated on the prior studies: "For example, 1985, 1996 and 2015 studies of phosphate industry
workers found no increased mortality rates from either lung cancer or other diseases when compared to the general
public. Additionally, in 2004, the Florida Department of Health published a study of the community adjacent to a
former phosphate mine and processing facility (Coronet) located in central Florida. That study did not find a
statistically significant increase in the number of observed cancers in the nearby community. A 2007 U.S. Department
of Health and Human Services study also concluded that the former Coronet facility presented 'no apparent health
hazard' after analyzing the threat of exposure to wastewater." United States and Florida Department ofEnvironmental
Protection v. Mosaic Fertilizer, LLC, Civil Action No. 8: 15-cv-02286, Docket No. 17-1, at 8-9 (M.D. Fla.).
47
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rulemakings that process wastewater and phosphogypsum from phosphoric acid production, although high in volume, are low in toxicity. "232
Moreover, in responding to comments on the various Consent Decrees, EPA addressed several key points that further undermine the merits of the Petition. For example, EPA stated:
That the "Consent Decrees . . . include numerous provisions that will strengthen and supplement existing federal and state law requirements, and thus further protect surrounding communities from risks of harm. These include, among others: stringent groundwater monitoring requirements that are tied directly to potential future threats to public health; and comprehensive design and operating requirements for ... PG ... stack systems."
That the Consent Decrees set forth specific "methods and controls for safe management for long-term use of gypstacks, and eventual closure and remediation of the gypstacks at the end of their useful life."
That the Consent Decrees "bolster existing state requirements govemmg how phosphogypsum stack systems are constructed, operated, and closed."
In response to the suggestion that there should be a moratorium on permitting of new expanded gypstacks, EPA stated that the controls required under the Consent Decrees achieve "a long-term solution for safe management of the phosphogypsum stack systems."
That the financial assurance and long-term care requirements "protect human health and the environment," as well as "the public against the financial risk of having to assume the significant costs of proper closure and long-term care of the stack system at the facility."
232
Id.
8488359vl/21436-0028
48
ED_0 18475D_ 00002953-00051
That PG stacks "have been and will continue to be heavily regulated, including with respect to air emissions and surface and groundwater discharges" and that EPA and the state agencies were expressly reserving "their rights under their existing legal authorities to take any action necessary to protect human health, including to abate any immediate hazards should such be identified in the future." The operating phosphoric acid facilities not yet subject to Consent Decrees are in active
negotiations with EPA, DOJ and relevant state environmental agencies similar to those that led to the Consent Decrees already entered. Yet regardless, these remaining operational facilities are already subject to Administrative Orders on Consent under RCRA and/or other legal authorities, which also contain provisions that ensure protection of human health and the environment. Such actions, and ongoing EPA and state oversight of these facilities, further confirm that additional federal regulation of PG stacks is not warranted. Indeed, such additional regulation at this late stage would likely interfere with EPA' s ongoing enforcement initiative and the negotiation and implementation of the various Consent Decrees and RCRA Orders.
3. The Facilities Identified as "Damage" Cases in the Petition Are Covered by Binding Consent Decrees or RCRA Compliance Orders or Are No Longer in Operation
The Petition references specific incidents or so-called "damage" cases at seven facilities: the Mosaic New Wales facility, 233 Mosaic Uncle Sam facility, 234 Mosaic Riverview facility, 235 White Springs Agricultural Chemicals, Inc. facility, 236 Mulberry Phosphates Piney Point
233
Petition at 24, 25.
234
Id. at 29.
235
Id. at 34
236
Id. at 24-25. EPA's investigation and enforcement action concerning this facility was grounded in its
authority to abate operations that "may present" an "imminent and substantial endangerment" to human health or the
environment, RCRA 7003.
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facility, 237 Mississippi Phosphates facility, 238 and the former ExxonMobil facility in Pasadena, Texas.239 However, the Mulberry Phosphates and Mississippi Phosphates facilities both are no longer in operation and are not representative of the remaining facilities currently in operation.240 On the contrary, the remaining four facilities cited by Petitioners (New Wales, Uncle Sam, Riverview, and White Springs) that continue to produce phosphoric acid are covered by binding federal Consent Decrees or RCRA Consent Orders requiring substantial modifications to enhance protection of human health and the environment. And, the former ExxonMobil facility, although operational (but no longer producing phosphate fertilizers), is subject to a RCRA Consent Agreement requiring it to conduct extensive closure and cleanup work on the PG stack system.241
As previously discussed, among other measures, the Consent Decrees and RCRA Consent Orders for operational facilities include enhanced PG stack system design, operation and closure standards, including robust stack and pond liners, capping, financial assurance, groundwater monitoring and corrective action measures where appropriate. Many of the measures industry has agreed to implement under these Consent Decrees and RCRA Orders go well above and beyond current federal and state regulatory standards.
In sum, the damage cases cited by Petitioners in large part antedate the Consent Decrees and RCRA Consent Orders currently in place at the remaining operational facilities. Taken together, these existing Decrees and Orders, and additional forthcoming Decrees and Orders
237
Id. at 30-31, 33.
238
Id. at 31-32, 35.
239
Id. at 33.
240
Mulberry Phosphates filed bankruptcy in 2001, well before EPA's MMPI. The Mississippi Phosphates
facility was inspected as part of EPA's MMPI, but also filed bankruptcy in 2014, prior to entry of a Consent Decree
or RCRA Order adopting robust financial assurance and other environmental protection measures included in the
Consent Decrees and RCRA Orders applicable to the remaining phosphoric acid production facilities currently in
operation. Thus, Mulberry Phosphates and Mississippi Phosphates are not representative of the industry's current
practices.
241
See https://v,,v\v.epa. 6ov/cnforccmcnUab ifos-fcrtilizcr-company-scttlemcnt (last visited Mar. 16, 2021).
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currently under negotiation with EPA and relevant state agencies, specify robust PG stack system design, construction, operation, closure, and post-closure care, and financial assurance requirements, as well as groundwater protection and corrective action provisions. These requirements reflect modem day practices; indeed, many of the measures governed by these Consent Decrees and RCRA Consent Orders are more stringent and comprehensive than the requirements of existing federal and state regulation.
Companies that have agreed to adopt enhanced PG stack system controls under the MMPI have expended significant resources to negotiate tailored measures appropriate to differing conditions at each individual facility, and to design and implement those agreed measures. Changing the requirements now by imposing additional, different and inconsistent requirements would be highly inequitable and inefficient to industry, and an inappropriate use of public resources. By citing to damage cases that in large part predate the settlements and which are not representative of current industry practices, and neglecting to recognize the substantial enhanced measures adopted under the MMPI, Petitioners' assertions are unpersuasive and fail to demonstrate any need, much less a compelling one, for additional federal regulation respecting the management of PG and process wastewater.
C. EPA Recently Evaluated the Risks Associated with PG and Process Wastewater from Phosphoric Acid Production, and Declined to Impose Additional Federal Regulation
Further illustrating the sufficiency of existing federal and state regulation of PG stacks, on two recent occasions EPA evaluated the possible need for financial responsibility requirements for the phosphoric acid mineral processing industry pursuant to CERCLA 108(b), and declined to
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do so both times. 242 In these rulemakings, EPA explicitly evaluated the risks associated with PG and process wastewater from phosphoric acid production in the context of existing federal and state regulations, and industry practices.
In its final actions, EPA concluded that, given the existing regulatory framework, the degree and duration of risk associated with phosphoric acid production did not warrant the imposition of CERCLA financial responsibility requirements to supplement legally binding requirements already in place under existing state standards and federal Consent Decrees and Consent Orders.243 EPA's comprehensive review of these processes, and consideration of comments from industry and non-industry parties (including a number of the Petitioners), confirmed that further regulation is unnecessary.
1. In Its Hardrock Mining Rulemaking, EPA Evaluated, But Did Not Require, Additional Financial Responsibility Requirements for PG and Process Wastewater
EPA's hardrock mining rulemaking evaluated the degree and duration of risk associated with both the mining of phosphate ore (i.e., the extraction and beneficiation of the ore) and the "mineral processing" of the beneficiated phosphate ore. Starting with EPA' s 2009 priority notice, wherein the Agency identified the hardrock mining industry as a priority industry for a CERCLA financial responsibility evaluation, EPA defined the industry to include the extraction, beneficiation, and processing of minerals, including phosphate rock.244
242
42 U.S.C. 9608(b) (requiring EPA to promulgate CERCLA financial responsibility requirements for certain
classes of facilities based on an analysis of the payment history of Superfund for industrial sectors, and considering
the "degree and duration of risk" associated with a sector).
243
83 Fed. Reg. 7556 (Feb. 21, 2018) (Final Action); 85 Fed. Reg. 77,384 (Dec. 2, 2020) (Final Action).
244
74 Fed. Reg. 37,213, 37,214 (Jul. 28, 2009) (Priority Notice) (defining the scope of the industry as "facilities
which extract, beneficiate or process metals ... and non-metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate
rock, and sulfur)") (emphasis added).
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Consistent with the 2009 priority notice's scope of the contemplated hardrock mining rulemaking, EPA stated that its hardrock mining proposed rule "would establish specific financial responsibility requirements applicable to certain classes of mines and associated mineral processing facilities within the hardrock mining industry."245 The hardrock mining proposed rule contained a broad definition of "mineral processing" that included activities "to recover, purify or create a final mineral product ... or a feedstock of sufficient purity that it can then be used in further industrial or manufacturing operations."246
In the hardrock mining rulemaking, EPA extensively evaluated phosphoric acid mineral processing facilities. 247 Similarly, EPA's background documents contained extensive references to phosphoric acid production, waste management practices, and resulting settlements under the MMPI.24s
In its final action, EPA confirmed that its decision not to impose CERCLA financial responsibility on the hardrock mmmg industry included "mineral processing" operations, identifying that for purposes ofthe final action, "hardrock mining" included the definition set forth in the priority notice.249 In support ofthe hardrock mining final action, EPA reexamined purported risks associated with a phosphoric acid mineral processing facility. 250 EPA's evaluation concluded
245
82 Fed. Reg. 3388, 3400 (Jan. 11, 2017) (Proposed Rule) ("In addition, requirements under this proposal
would apply to owners or operators of mineral processing facilities identified in the 2009 priority notice ...."); id. at
3455 ("Any facility that meets the definition of a hardrock mining or mineral processing facility ... would also be
subject to the requirements in this proposed rulemaking.") (emphasis added).
246
Id. at 3504 (proposed 40 C.F.R. 320.62).
247
See, e.g., id. at 3458-59, 3478 & nn. 164 & 167.
248
See, e.g., EPA, "National Enforcement Initiative for Mining and Mineral Processing Summary of Activities
2005 to 2016," at 2-3 (Nov. 15, 2016) (Dkt. EPA-SFUND-2015-0781-0390); EPA, Press Release re: "Mosaic
Fertilizer, LLC Settlement" (Sept. 23, 2016) (Dkt. EPA-SFUND-2015-0781-2332).
249
83 Fed. Reg. at 7556, 7557 n. 3. EPA's methodology to evaluate the "degree and duration ofrisk" posed by
the hardrock mining industry, and its ultimate conclusion that CERCLA financial responsibility was not required, was
upheld by the D.C. Circuit in a case where TFI participated as an intervenor in support of EPA. Idaho Conservation
League, et al. v. EPA, 930 F.3d 494 (D.C. Cir. 2019).
250
EPA, "CERCLA Section 108(b) Hardrock Mining Final Rule -Technical Support Document," at 13 (Dec.
1, 2017) (Dkt. EPA-HQ-SFUND-2015-0781-2832) (discussing the Agrifos phosphoric acid mineral processing
facility).
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that the degree and duration of risk associated with modem hardrock mining, including mineral processing, did not warrant imposition of financial responsibility requirements for this industry given the federal and state regulatory programs regulating these facilities and the industry's modem management practices.251 Further, similar to EPA's acknowledgement in the 1991 Regulatory Determination that CERCLA 106 provides the Agency enforcement mechanisms to effectively respond to emergency situations,252 in its CERCLA 108(b) hardrock mining final action, EPA identified the usefulness of this statutory provision as a rationale for not imposing financial responsibility on the phosphoric acid sector.253
2. Similarly, In Its Chemical Manufacturing Industry Rulemaking, EPA Evaluated, But Did Not Require, Additional Financial Responsibility Requirements for PG and Process Wastewater
Similar to its evaluation of the hardrock mining industry, in its proposed rule evaluating the chemical manufacturing industry, EPA considered just two years ago whether it should require additional financial requirements under CERLCA 108(b) for the chemical manufacturing industry, including phosphoric acid and phosphatic fertilizer manufacturing.254 EPA's evaluation of the degree and duration of risk associated with the chemical manufacturing industry was conservative in its approach, considering a broad range of facilities and measuring each risk consistent with its final action for the hardrock mining industry.
Despite already evaluating the degree and duration of risk associated with phosphoric acid mineral processing in the hardrock mining rulemaking, EPA nonetheless evaluated the industry
251
83 Fed. Reg. at 7556.
252
56 Fed. Reg. at 27,316.
253
83 Fed. Reg. at 7558.
254
85 Fed. Reg. 10,128, 10,134 (Feb. 21, 2019) (Proposed Rule).
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again in its CERCLA 108(b) chemical manufacturing industry proposed rule.255 For example, the proposed rule references state financial responsibility requirements for phosphate fertilizer manufacturing facilities (which actually apply to PG stacks).256 Additionally, the background document discussing state financial responsibility requirements identifies Florida financial assurance requirements for the closure, long-term care, and water management associated with stacks receiving PG and process wastewater.257 EPA's Regulatory Summary Document also contains clear references to regulations applicable solely to phosphoric acid mineral processing facilities. 258
Finally, EPA's documentation regarding enforcement settlements and judgments in the chemical manufacturing industry discusses settlements at phosphoric acid mineral processing facilities under the MMPI. 259 The documentation concludes that the MMPI Consent Decrees and RCRA Consent Orders provide results demonstrating reduced "risk[s] from phosphoric acid facilities to drinking water, rivers, and streams."260
In its final action, EPA concluded that, after exammmg the existing environmental protections and regulations in place and analyzing the Superfund program's experience cleaning up sites in the chemical manufacturing industry, the chemical manufacturing industry operates
255
Id. EPA's evaluation of the chemical manufacturing industry included facilities in North American Industry
Classification System ("NAICS") code 325, which includes "Phosphatic Fertilizer Manufacturing" (NAICS Code
325312). Id. Phosphatic Fertilizer Manufacturing, in tum, includes phosphoric acid manufacturing. See U.S. Census
Bureau Website re: "2017 NAICS Definition for 325312," ==-'----"----'-'----'-'--=-====--:.:....:::..c"----"-=="'-=="'--'-'-'==(last
visited Mar. 16, 2021 ).
256
85 Fed. Reg. at 10,143.
257
EPA, "Review of Existing Financial Responsibility Laws Potentially Applicable to Facilities in the Chemical
Manufacturing Industry," at 5, A-2 (posted Feb. 24, 2020) (Dkt. EPA-HQ-OLEM-2019-0086-1015).
258
EPA, "Summary Report: Federal and State Environmental Regulations and Industry Voluntary Programs in
Place to Address CERCLA Hazardous Substances at Chemical Manufacturing Facilities," at 72 (identifying 40 C.F.R.
Part 60, Subpart T (Standards of Performance for Wet-Process Phosphoric Acid Plants)), 75 (identifying 40 C.F.R.
Part 63, Subpart AA (National Emissions Standards for Hazardous Air Pollutants from Phosphoric Acid
Manufacturing Plants)) (posted Feb. 23, 2020) (Dkt. EPA-HQ-OLEM-2019-0086-1019).
259
See EPA, "Enforcement Court Settlements & Judgments in the Chemical Manufacturing Industry," at 55
(posted Feb. 24, 2020) (Dkt. EPA-HQ-OLEM-2019-0086-1014).
260
Id.
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under a modem regulatory framework that does not present a level of risk that warrants financial responsibility requirements under CERCLA 108(b).261 In response to a comment from TFI on the proposed rule (i.e., that phosphoric acid production should not be included in the chemical manufacturing industry evaluation because it was already evaluated in the hardrock mining rulemaking), EPA stated its evaluation "span[ned the] hardrock mining and chemical manufacturing industries."262 The Agency also responded that it "did not conduct a more detailed evaluation of this issue as it would not impact the Agency's analysis and conclusion to not require CERCLA 108(b) financial responsibility for the Chemical Manufacturing Industry."263
EPA's review ofphosphoric acid mineral processing facilities in its two recent rulemakings has already considered potential risks from PG and process wastewater. EPA's conservative analysis of the types of facilities that generate PG and process wastewater from phosphoric acid production, and its decision that further financial assurance under CERCLA 108(b) is unnecessary, buttresses the conclusion that the additional federal regulation Petitioners request is inappropriate and unnecessary. V. Petitioners' Demand That EPA Prioritize PG and Process Wastewater Under TSCA
6 is Inappropriate and Unfounded TSCA 6264 establishes a carefully calibrated process for EPA to follow in evaluating the potential risks associated with chemical substances listed on the TSCA Chemical Substances Inventory (the TSCA "Inventory").265 Recognizing the Herculean task EPA would face in
261
85 Fed. Reg. at 77,384.
262
See EPA, "Response to Comments Document," at 54 (Nov. 2020) (posted Dec. 1, 2020) (Dkt. EPA-HQ-
OLEM-2019-0086-1086).
263
Id.
264
15 U.S.C. 2605.
265
The TSCA Inventory is a comprehensive list of substances known to have been in commerce in the United
States. See htlps:/l1nr\\.e,;,a.,,ov//sca-i11ve11/or 1/aho11t-lsca-chemical-s11hsla11ce-i11vrnlo ' According to EPA, more
than 86,000 chemical substances are currently listed on the TSCA Inventory.
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evaluating the more than 80,000 chemical substances on the Inventory, Congress directed EPA to promulgate regulations to establish procedures the Agency would follow to prioritize substances for review. 266 The prioritization process involves public participation and can take no shorter than nine months and no longer than one year to complete.267 Under the statute and EPA's implementing regulations, substances that complete the prioritization process set forth in EPA's procedural regulations are designated as either "High Priority" or "Low Priority." If a substance is designated as high-priority, it is immediately placed into risk evaluation - a separate process that must take no longer than three years, with a possible six-month extension.268 Conversely, designation of a substance as low-priority reflects the Agency's determination that a risk evaluation is not warranted at the time of designation.
In addition to directing EPA to promulgate procedural regulations for prioritization, Congress also identified several specific factors EPA must consider in its prioritization determinations. First, Section 6 specifies that the prioritization process should be risk-based and take into account both hazard and potential exposure, including consideration of, among other factors, persistence and bioaccumulation potential.269 In addition, Congress specifically directed EPA in its prioritization determinations to give preference to substances that are listed in the 2014 update to the TSCA Work Plan for Chemical Assessments (the "TSCA Work Plan") and are persistent and bioaccumulative, are known human carcinogens, or have high acute and chronic toxicity. 270
266
15 U.S.C. 2605(b)(l). EPA's prioritization regulations are codified at 40 C.F.R. Part 702.
267
Id. 2605(b)(l)(C).
268
Id. 2605(b)(2) and (3).
269
Id. 2605(b)(l)(A).
270
Id. 2605(b)(2)(D).
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A. Petitioners' Demand Is Not Cognizable Under TSCA 21 Under TSCA 21,271 any person may petition EPA to take certain specific actions under TSCA. In particular, a person may petition EPA to "initiate a proceeding for the issuance, amendment, or repeal of a rule under section[s] [4, 5, or 6] of [TSCA]."272 Petitioners here demand that EPA initiate the prioritization process for PG and process wastewater under TSCA 6; however, the prioritization process is not "the issuance of a rule" under TSCA 6. Rather, prioritization is an assessment that EPA carries out for a substance in accordance with the procedures already established under EPA's existing prioritization regulations. At the end of that assessment, EPA may designate the substance as a low priority.273 Alternatively, if EPA designates the substances as a high priority, the risk evaluation process is initiated. Under the risk evaluation process, rulemaking only occurs if EPA concludes that the substance under evaluation presents an unreasonable risk of injury to health or the environment under the conditions of use prompting the need for a risk management rule under Section 6(a).274 Thus, Petitioners' demand that EPA initiate prioritization for PG and process wastewater is not a petition for a rule under Section 6. Since TSCA 21 only permits petitions to be filed for "the issuance, amendment, or repeal of a rule" under Section 6, the Petitioners' demand to initiate prioritization is not cognizable and must be rejected.
271
Id. 2620.
272
Id. 2620(a) (emphasis added).
273
Id. 2605(B)(l).
274
Id. 2605(c).
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B. PG and Process Wastewater Are Not Eligible for Prioritization Under TSCA 6
The prioritization process established in TSCA 6275 and EPA's implementing regulations276 applies to chemical substances and, where appropriate, categories of chemical substances. As defined in the statute, the term "chemical substance" specifically excludes "any mixture."277 In a recent Agency white paper examining potential approaches to identifying candidate chemicals for prioritization, EPA signaled its intent to select candidate substances for prioritization from the "active" substances on the TSCA Inventory.278 In particular, EPA expressed the view that by concentrating on "active" substances and dividing those substances into different "bins" based on available data, EPA would be able to "focus on chemicals that are most likely to meet the statutory standard of high priority chemicals."279
PG and process wastewater are mixtures of different component substances and, as mixtures, they are not listed as "active" substances on the Inventory. Indeed, because they are mixtures and not chemical substances, PG and process wastewater are not eligible for prioritization under 40 C.F.R. Part 702, since, as the regulations make clear, the prioritization process is intended to apply to chemical substances and not mixtures.280
C. PG and Process Wastewater Do Not Satisfy Key Criteria for Prioritization
Even if PG and process wastewater were eligible for prioritization under Section 6, they do not satisfy key criteria for prioritization and therefore should not be entered into the
275
Id. 2605.
276
40 C.F.R. Part 702.
277
15 U.S.C. 2602(2)(B)(i).
278
EPA, A Working Approach for Identifying Potential Candidate Chemicals for Prioritization (Sept. 27, 2018);
htt s://www.c a. ov/asscssin -and-mana in -chcmicals-under-tsca/identi in -cxistin r-chcmicals- rioritization-
under-tsca. Much of this document focuses on approaches to separating the "active" Inventory into different "bins"
to help enhance the efficiency with which substances on the Inventory could be prioritized under Section 6.
279
Id. at 17.
280
40 C.F.R. 702.1.
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prioritization process at this time. First, as noted above, when TSCA was substantially amended
less than five years ago, Congress specifically directed EPA to give preference in its prioritization
determinations to substances listed in the 2014 update to the TSCA Work Plan. As Congress
noted:
The Committee expects that many, if not all, ofthe Agency's selections for Agency initiated risk evaluations in the first years after enactment will come from the Work Plan and that risk evaluations for Work Plan Chemicals will be completed in the first years. 281
Consistent with this Congressional mandate, EPA, in its prioritization regulations, provides that
"in selecting a candidate for prioritization" EPA will give preference to:
(i) Chemical substances that are listed in the 2014 update to the TSCA Work Plan for Chemical Assessments as having a persistence and bioaccumulation score of3;and
(ii) Chemical substances that are listed in the 2014 update to the TSCA Work Plan for Chemical Assessments that are known human carcinogens and have high acute and chronic toxicity. 282
Neither PG nor process wastewater are listed in the 2014 update to the TSCA Work Plan.
Similarly, the primary component of PG, calcium sulfate dihydrate, is also not listed in the 2014
update to the TSCA Work Plan. Trace chemical components found in PG consist primarily of
elements (metals) associated with sulfate, phosphate, or hydroxyl groups (like metal silicates or fluorosilicates) that are also not listed in the Work Plan.283 Trace components found in process
wastewater, including cadmium, selenium and chromium, are similarly not listed in the Work Plan.284 The fact that none of these constituents is listed in the 2014 update to the TSCA Work
281
H.R. Rep. No. 114-176 at 24 (2015).
282
40 C.F.R. 702.5(c). Notably, EPA's Working Approach for Identifying Potential Candidate Chemicals for
Prioritization, also includes a preference for the selection of chemicals in the Work Plan for prioritization.
283
The primary, significant and "appreciable" components of PG are discussed in EPA's background document
entitled "Potential Uses of Phosphogypsum And Associated Risks - Background Information Document," at 2-6 (May
1992), available at https://v.,vw.epa.gov/sites/production/files/2015-07/docurncnts/0000055v.pdf.
284
The composition of process wastewater is addressed in the TSCA Committee Report at 4.
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Plan should create a strong presumption that PG and process wastewater (and their components) do not warrant prioritization under TSCA 6.
Although Congress intended that "many, if not all" of EPA' s early selections for prioritization would come from the Work Plan,285 the statute makes plain that substances (but not mixtures) that are not part of the Work Plan can still be selected for prioritization under Section 6 if certain criteria are taken into account. To that end, EPA's regulations establish criteria for prioritization of substances (again, but not mixtures) beyond those addressed in the Work Plan. For example, the regulations provide that in selecting candidates for prioritization "it is EPA's general objective to select those chemical substances with the greatest hazard and exposure potential first, considering reasonably available information on the relative hazard and exposure of potential candidates."286 Recently, EPA's Children's Health Protection Advisory Committee ("CHPAC") elaborated further on these criteria by suggesting specific exposure-related factors to be considered in prioritization decisions, including: (i) whether a substance is used in consumer products, particularly those marketed to children; and (ii) whether the substance is used in electronics. 287
Importantly, exposure to PG and process wastewater in the Unites States is very limited. These materials are contained in a limited number of PG stacks located in a handful of states, and they are not used in consumer products, including products marketed to children and are not found in electronics. And while PG has limited commercial use in the United States, process wastewater is used exclusively within the phosphoric acid manufacturing process to utilize the phosphate, other nutrient acid and water values. Thus, critical criteria for prioritization under TSCA 6 are
285
H.R.Rep.No.114-176at24(2015).
286
40 C.F.R. 702.S(a).
287
Children's Health Protection Advisory Committee, Protecting Children's Health Under Amended TSCA:
Chemical Prioritization (Jan. 26, 2021).
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not satisfied by PG and process wastewater, reinforcing the conclusion that prioritization of PG
and process wastewater is not warranted.
VI. The Petition Does Not Justify the Issuance of a Testing Rule Under TSCA 4, Requiring PG and Process Wastewater Manufacturers to Develop Information Under TSCA, the Petitioners bear the burden of establishing that there is insufficient
information about a given chemical to warrant testing; the burden is not on EPA or manufacturers
to rebut such an assertion. Petitioners have not met their statutorily-imposed burden. As EPA has
explained:
TSCA section 21 requires the petitioner, not EPA, to "set forth the facts which it is claimed establish that it is necessary to issue ... a rule under TSCA sections 4, 6, or 8, or an order under TSCA sections 4 or 5(e)". . . . The petitioners must affirmatively demonstrate, through facts, that there is "insufficient information and experience. "288
A petitioner inherently fails to meet this burden of setting forth facts which are necessary to demonstrate that there is "insufficient information" if "upon a cursory review" EPA can "easily
identify existing, reasonably available information not mentioned in the petition" and petitioners
must "provide[] the facts necessary to determine whether there is 'insufficient information or experience"' for each substance in the petition.289 Indeed, "a petitioner is required to provide the
EPA with all of the facts needed to review the petition and reach a decision that is consistent with
the overall statutory scheme," meaning that "it is not unreasonable to think that the petitioner could be tasked with producing substantial information."290 This is a high burden; Petitioners have not
met it.
288
86 Fed. Reg. 6602, 6608 (Jan. 22, 2021) (Petition; Reasons for Agency Response) (emphasis added).
289
Id.
29
Food & Water Watch, Inc. v. United States Envtl. Prat. Agency, No. 17-CV-02162-EMC, 2019 WL 8261655,
at *12 (N.D. Cal. Dec. 30, 2019).
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Petitioners have not identified what studies and data exist and their deficiencies. They have not even specified the testing they believe should be required. Petitioners vaguely allude to studies about "the toxicity, concentration of hazardous constituents at various U.S. PG stacks, exposure, and other health and environmental effects relevant to an unreasonable risk finding."291 Petitioners have thus generically described virtually all possible testing under TSCA. They go on to say that "updated information on population-level exposure risks for radionuclide constituents and radon emissions for phosphogypsum stack systems is necessary" due to a change in population and the number and size of stacks, and that "[u]pdated toxicity information using the Toxicity Characteristic Leach Procedure (TCLP)" should be collected.292 From that confusing statement it is unclear whether these two suggestions are meant to be the totality of the testing request (replacing the earlier laundry list), or whether these are just examples. Even if the generation of population-level exposure risks and toxicity information using the TCLP were the sole requests, Petitioners do not identify testing they believe EPA should require in a Section 4 regulation. The call for an updated population level exposure risk assessment is not a request for testing; and the TCLP test does not provide toxicity information of the kind Petitioners appear to contemplate. The TCLP test is designed to determine whether analytes in a waste stream leach at such a rate as to potentially exceed a pre-determined regulatory level for purposes of regulatory decisions under RCRA, not TSCA. Petitioners have not identified any regulatory levels that they believe would be applicable and useful for such a TCLP test or any other test. Thus, Petitioners have not identified which tests they believe are necessary, and the "tests" to which they primarily point are not, in fact, tests for the topics they identify or are not tests at all.
291
Petition at 40.
2n
Id.
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In fact, even if the burden did not rest on Petitioners, which it does, EPA should not issue a testing rule under TSCA 4 because the facts do not meet the standard for testing. Under TSCA 4(a)(l)(A)(i), EPA must make several findings before it may require testing through a rule.293 Specifically, EPA must find that the manufacture, distribution in commerce, processing, use, or disposal of a chemical substance or mixture "may present an unreasonable risk of injury to health or the environment" that information and experience are insufficient to reasonably determine or predict the effects of the chemical substance or mixture on health or the environment; and that "testing of such substance or mixture with respect to such effects is necessary to develop such information." None of the three required findings can be met here.
First, the data do not support the idea that the manufacture, distribution, processing, use, or disposal of PG or process wastewater "may present an unreasonable risk of injury to health or the environment." In fact, as discussed in Section IV.C, supra, EPA evaluated the risks associated with PG and process wastewater from phosphoric acid production and concluded that the degree and duration of risk associated with these substances did not warrant imposition of additional regulation.
Second, existing information and experience are sufficient to reasonably determine the potential effects of PG and process wastewater on health or the environment. Because PG and process wastewater are mixtures, there are sufficient data on each of the components to determine the effects of PG and process wastewater on human health and the environment. PG manufacturers whose PG or process wastewater is utilized for commercial purposes, such as use in agriculture, regularly submit to EPA under the TSCA chemical data reporting rule information regarding the constituent chemical substances. In fact, such component substances are well-known enough that
293
15 U.S.C. 2603(a)(l)(A)(i).
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Petitioners identified several in their own Petition. Each of these individual substances has been individually studied, so the health and environmental effects of each component are understood. To the extent Petitioners would argue that there is insufficient information on the PG and process wastewater as a whole, this assertion is incorrect. EPA has evaluated data regarding PG and process wastewater, as discussed in Section IV.C, supra. It is unclear what specific information is currently lacking that could add to EPA' s understanding of risks. Existing information negates the need to conduct additional studies on PG or process wastewater.
Finally, testing of PG and process wastewater is not necessary to develop information to understand associated risks. As previously mentioned, there are sufficient data, and EPA has the necessary experience, to understand the potential risks of PG and process wastewater as a whole, as well as each component substance. To the extent Petitioners' concerns relate to the "concentration of hazardous constituents at various U.S. [PG] stacks,"294 such information will vary from stack-to-stack, so none of the requested testing will provide the information Petitioners seek. The constituent substances are generally understood, and such a general understanding has shown that PG and process wastewater do not present risks that require additional data or further analysis, much less regulation.
As should be clear at this juncture, most, if not all, of Petitioners' claims concerning the need for further testing can be addressed by the data already available on the constituents of the mixtures that are called PG and process wastewater. Congress specifically accounted for such a scenario and prohibited requiring testing on a mixture when information on the constituents is sufficient. Congress declared that, in the case of a mixture, EPA cannot issue a regulation to require testing on the mixture's effects on health or the environment if the relevant information
294
Petition at 40.
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can "be reasonably and more efficiently determined or predicted by testing the chemical substances which comprise the mixture."295
Petitioners have failed to demonstrate that testing is appropriate for the mixtures that constitute PG and process wastewater, rather than any specific components of concern. In fact, Petitioners have not addressed the issue at all. Petitioners could not have met such a burden if they tried. There is variability in PG and wastewater from different parts of the country, due to the composition of the minerals mined and then processed in different parts of the country. Thus, testing and any appropriate regulation would need to be limited to the specific components of concern, which may not be universal from stack-to-stack. Consequently, testing on PG and process wastewater as mixtures is not justified.
Taking a more-granular look, testing on the individual components of concern is unwarranted as well. Petitioners have identified the component substances with which they are concerned, and they are all substances that have been listed on the TSCA Inventory for decades and for which there is significant literature and data.296 Additional data are not necessary to determine the effects of the component substances on humans or the environment.
Even if all of the aforementioned deficiencies were resolved in favor of Petitioners, resource constraints and more pressing TSCA priorities make clear that EPA should not undertake a Section 4 rulemaking to require testing of PG and process wastewater. Although EPA has authority under TSCA, under limited circumstances, to require testing relating to a mixture, given the necessity to complete ongoing risk evaluations and to issue risk management rulemakings under Section 6 of TSCA will consume considerable resources in the Agency's TSCA program,
295
15 U.S.C. 2603(a)(l)(B).
296
See Petition at 19 ("Phosphogypsum leachate contains the following toxic constituents listed in Appendix
VIII to 40 C.F .R. 261: arsenic, lead, nickel, cadmium, chromium, silver, antimony, copper, mercury, and thallium").
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office. Accordingly, promulgating a Section 4 test rule is not an appropriate priority under TSCA. Furthermore, and considering the relatively limited number of test rules EPA has issued since TSCA was enacted,297 it would be inappropriate for EPA to dedicate and expend the significant resources that would be required to issue a rule requiring testing of a substance that the TSCA testing prioritization committee has found to be less in need of testing than the substances on the testing list developed by the multi-agency committee whose entire purpose is to determine the substances for which EPA should require the submission of data.298 The Interagency Testing Committee has prioritized other substances, and EPA should not delay its work on these other substances. The Petition does not provide information supporting such a shift in Agency priorities to accommodate the Section 4 test rule Petitioners request. VII. The Petition Does Not Support Promulgation of a Significant New Use Rule
The Petitioners' demand for promulgation of a Significant New Test Rule ("SNUR") under TSCA 5(a)299 cannot be supported under TSCA 21, and even if Petitioners could properly make such a request, EPA cannot support a determination that the use of PG in road construction is a significant new use.
First, the request for a SNUR must inherently fail due to limitations imposed by TSCA 21. Petitioners' request for a SNUR is unlawful under that section and issuance of a SNUR by EPA in response to this petition would be ultra vires. TSCA authorizes EPA to issues SNURs, in the form of regulations, based on determinations that the use of a substance is significant and new.
297
As reflected in 40 C.F.R. Part 799, EPA has issued a total ofless than two dozen test rules since TSCA was
first enacted.
298
15 U.S.C. 2603(e) ("There is established a committee to make recommendations to the Administrator
respecting the chemical substances and mixtures to which the Administrator should give priority consideration for the
development of information... "); Interagency Testing Committee (ITC) Reports, available at
https://v,.;v,w.cpa. gov/asscssi n6-and-mana,1,ing-c hem icals-under-tsca/i ntcrabency-tcsti n6-committec- itc-reports (containing the ITC reports, which do not recommend testing on PG and process wastewater).
299
15 U.S.C. 2604.
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Although a petitioner can request that EPA take certain actions under TSCA 21, issuance of a significant new use rule under TSCA 5(a)300 is not a permissible petition request. To the extent that citizens may petition EPA under TSCA 21 to take action under TSCA 5, such petition must be limited to issuance of orders under TSCA 5(e) or 5().301 In certain circumstances, a TSCA 5(e) or 5(f) order may be a pre-requisite to a SNUR, but these orders and the subsequent SNUR are separate and distinct actions.302 Petitioners have not requested any action under these subsections, so their Petition inherently falls outside the permissible scope.
Even if Petitioners had requested the proposed SNUR by citing subsections (e) or (f), such a request would still fail as invalid and inconsistent with TSCA. Petitioners do not seek an order, the only type of action under Section 5 that Petitioners can request; they seek a rule applicable to all manufacturers. Congress specifically excluded requests for generally-applicable rules under Section 5 from the scope of Section 21 petitions.303 Because Petitioners have not requested action under any Section 5 provision that may be subject to a petition, Petitioners cannot lawfully petition for, and EPA cannot lawfully issue, a TSCA 5(a) SNUR.
Even if these procedural defects were not dispositive, EPA could not issue a SNUR for PG because it is a mixture of chemical substances. Unlike other sections of TSCA, which provide EPA some authority to regulate mixtures, Congress specified that TSCA 5 applies to "chemical substances," not mixtures.304 Thus, EPA cannot regulate PG under a TSCA 5(a) SNUR.
Finally, assuming arguendo that EPA could issue a Section 5(a) SNUR in response to the Petition, such a decision would be inappropriate based on the considerations that support issuing
300
Id. 2604(a).
301
Id. 2620(a) ("Any person may petition the Administrator to initiate a proceeding for the issuance,
amendment, or repeal of ... an order under section 2603 or 2604(e) or (f) of this title.").
302
Id. 2604(f)(4).
303
See id. (permitting petitions relating to rules under other sections ofTSCA, but not 5).
304
Id. 2604.
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SNURs. The first and most-crucial consideration in deciding whether a use is a new use that requires a SNUR is whether the use is "new" at all. As EPA has explained, "[t]o establish a significant new use, EPA must determine that the use is not ongoing."305 Based on the Petition and publicly-available information, EPA has no basis to define a previously-approved use as a new use. As Petitioners, themselves, admit, "On October 20, 2020, the EPA ... approved the use of phosphogypsum in roads. "306 Since EPA' s October 2020, approval, use of PG in road construction has been a lawful use, yet Petitioners do not allege that such use is not ongoing. In light of EPA's prior decision and lacking any reason to believe use has not yet commenced, EPA cannot conclude that use of PG in road construction is a new use, let alone a significant new use.
To the extent use of PG in road construction may be "new," it does not meet the criteria for a "significant" new use, based on a consideration of all factors set out in TSCA 5(a)(2).307 There, Congress laid out that a finding of a significant new use must be based on the following factors:
(A)the projected volume of manufacturing and processing of a chemical substance, (B) the extent to which a use changes the type or form of exposure of human beings
or the environment to a chemical substance, (C) the extent to which a use increases the magnitude and duration of exposure of
human beings or the environment to a chemical substance, and (D)the reasonably anticipated manner and methods of manufacturing, processing,
distribution in commerce, and disposal of a chemical substance.308
305
85 Fed. Reg. 65,782 (Oct. 16, 2020) (Proposed Rule); see e.g., 40 C.F.R. 721.10536(b)(5) (listing ongoing
uses not subject to the SNUR applicable to long-chain perfluoroalkyl carboxylate chemical substances).
306
Petition at 41 (citing 85 Fed. Reg. 66,550 (Oct. 20, 2020) (Notice)).
307
15 U.S.C. 2604(a)(2).
30s
Id.
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All factors advise against a finding of significance of the use of PG in road construction, and weighing the totality of all such factors shows that a finding of significance would be unsupportable.
First, a consideration of the volume manufactured would advise against a finding of a significant new use because use of PG in road construction will not change the amount of PG that is manufactured and that must be managed in some manner. Phosphoric acid manufacturers will not produce less PG, a byproduct of phosphoric acid production, if EPA prohibits one of the few productive uses of the PG. Thus, a consideration of the volume manufactured weighs against a finding of a significant new use. Manner and methods of manufacturing, processing, distribution in, and disposal also do not support the imposition of a SNUR. The manner of manufacture will not change as a result of use in road construction. Additionally, as discussed above, EPA has already concluded that a shift in the processing, distribution, and disposal of PG to include use "in road construction would be at least as protective of public health as disposal of phosphogypsum in stacks."309 Under the conditions EPA has imposed on the use of PG in road construction, such use reduces the potential for contact with surface and groundwater.310 As a result, the manner of manufacturing and disposal does not support the conclusion that use in road construction is a significant new use.
Because Petitioners' request for a SNUR is procedurally impermissible and substantively unsupported, EPA cannot propose such a SNUR.
309
Letter from Andrew Wheeler, EPA Administrator, to Corey Rosenbusch, TFI President and CEO, at 4-5 (Oct.
14, 2020) (Dkt. ID No. EPA-HQ-OAR-2020-0442-0015), included as Attachment B.
310
Id. at 6-7.
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VIII. TSCA 9 Cannot Be Invoked to Justify Regulation of PG or Process Wastewater Under TSCA Petitioners assert that "other federal regulatory programs remain inadequate" to address the
potential risks posed by PG and process wastewater and, invoking TSCA Section 9, they insinuate but do not state directly that, therefore, regulation under TSCA is appropriate.311 This implied but unstated argument is without merit. As discussed previously, adequate authorities under federal law are available, and have been invoked, to regulate the potential risks associated with PG and process wastewater.312 These already-adequate federal authorities are (and have been) supplemented by regulatory action under State law authorities and are buttressed by CERCLA Consent Decrees, MMPI Consent Decrees and/or RCRA Consent Orders to address any risks associated with PG and process wastewater.313 Moreover, as discussed in Section IV.C, supra, EPA has evaluated the risks associated with PG and process wastewater from phosphoric acid production and concluded that the degree and duration of risk associated with these substances did not warrant imposition of additional restrictions. IX. Petitioners' Discussion of So-Called "Feasible Alternatives" is Unsupported and Does
Not Provide a Basis for Rulemaking The Petition closes with a conclusory, single paragraph assertion that "feasible alternatives" to present management practices for PG and process wastewater are available.314 The Petition lists seven such "alternatives," with attempts at supporting citations for only two. The assertion that the industry is somehow ignoring feasible alternatives that would be preferable to the present management practices is baseless and wrong.
311
Petition at 42.
312
See Section IV.A, supra.
313
See Section IV.A, B, supra.
314
Petition at 42-43.
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First, as we have shown, the industry has already implemented new management practices, in response to: (1) the existing federal and state regulatory schemes under which they operate; and (2) the enforcement measures taken by EPA. These new practices have included such things as stack and pond liners, leachate monitoring and collection, advanced water management, enhanced financial assurances obligations and a host of other measures.
Second, ifthere were other and better "feasible alternatives" readily available, the industry, its regulators, and government enforcers would have identified them long ago. The industry has every incentive to reduce its need to rely on impounding PG in stacks that are resource and engineering intensive to design, build and maintain. State regulators have long been looking at ways to advance PG stack design and management. And EPA's enforcement officials have spent years and years seeking out the most protective and feasible alternatives and have incorporated them in the Consent Decrees and Consent Orders that they have been party to.
Third, as an indication of the industry's efforts to reduce reliance on stacks, one has only to look to TFI's successful effort to obtain EPA's authorization for the use of PG, under prescribed limitation and restrictions, in road construction. Of course, rather than welcoming that development that will reduce the need for PG stack expansion, the Petitioners have challenged that practice as well.
Fourth, Petitioners have not shown that any of the alternatives they reference are feasible or appropriate. For example:
The Petition mentions the possibility of cleaning an entire stack with clean water and collecting and treating the leachate.315 But the article cited in the Petition in support ofthis
315
Id. at 42.
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alternative suggests that such an approach is "possible," and certainly does not conclude that it is "feasible." The Petition mentions the possibility of double lining any future PG stack expansions, rather than single lining as would now be required.316 But there is no information provided as to the costs or benefits of such a requirement, and no basis to second-guess the judgment ofstate regulators and EPA enforcement officials that a single lining is appropriate for such expansions. The Petition suggests multiple ways in which the industry could make fundamental changes in their methods of operations.317 These include such things as changing the chemical process uses to make phosphoric acid, changing their supply of phosphate ore, or even, simply making less phosphoric acid. There is no support at all, much less a showing, that any of this would be feasible318, and certainly none that would justify requiring such fundamental changes in how this critical industry operates. The Petition mentions a number of other possible management measures that could be taken, such as the possibility of requiring reverse osmosis treatment for stored process wastewater and stack leachate or the cover of inactive portions of active stacks.319 These are simplistic statements about issues that are addressed at great length in regulations and enforcement agreements. So, for example, while reverse osmosis is in use at certain facilities, requiring it for all operating facilities could undermine industry's ongoing efforts
316
Id.
317
Id. at 42-43.
318
The only support given for the proposal to require that facilities stop using the dihydrate process is an EPA
report that merely recites that a different process is used in Japan and some places in the United States, but most
facilities in the United States use the dihydrate process. Nothing is said about the feasibility, costs and benefits of
switching processes for existing facilities.
319
Petition at 43.
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to recover valuable resources from the process water. And the regulations and agreements have extensive provisions concerning the use of vegetative and other covers. Moreover, once again, no information is provided about the costs and benefits of these approaches, and there is simply no reason to revisit prior government determinations that have already established a comprehensive approach to these very issues. X. Conclusion TFI appreciates EPA's consideration of its Opposition to the Petition. TFI's Opposition conclusively demonstrates that EPA cannot grant the reliefrequested in the Petition, and, therefore, the Petition must be denied. If you have any questions regarding TFI' s Opposition, please contact Ed Thomas by telephone at (202) 515-2714, or by email at ethomas@tfi.org.
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ATTACHMENT A
ARDAMAN & ASSOCIATES, INC., TECHNICAL MEMORANDUM ON PG AND PROCESS WASTEWATER MANAGEMENT (MAR. 26, 2021)
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Ardaman & Associates, Inc.
Geotechriical, Envirorirnental arid Materials Corisultanls
March 26, 2021
TECHNICAL MEMORANDUM ON PHOSPHOGYPSUM AND PROCESS WASTEWATER MANAGEMENT
PURPOSE
The intent of this technical memorandum is to provide a succinct summary of the current regulatory framework and the latest engineering practice that relate to the design, permitting, construction, operation, closure, and post-closure of phosphogypsum stack systems associated with the manufacturing of fertilizers for food production by the phosphate industry in the United States.
Although this technical memorandum focuses on practices and standards governing phosphogypsum stack systems in Florida, where most of the systems in the United States are located, the discussions are also relevant or applicable for phosphogypsum stack systems located in other states, which have essentially adopted standards or requirements similar to those in Florida.
As discussed below, phosphogypsum stack systems are engineered facilities that are subject to rigorous standards and stringent requirements, and are heavily regulated by state environmental agencies.
PHOSPHATE MINING AND PROCESSING
Phosphate, with the chemical symbol "POi-", is an inorganic molecular anion that contains phosphorus, which is a natural element with the chemical symbol "P". Phosphorus is an essential macro nutrient for plants and crops. Phosphate deposits, which occur naturally in soils or rocks and include minerals that contain phosphorus as well as other elements, are mined to manufacture fertilizers to enhance crop yields for food production. Phosphate is also used to produce animal feed supplements.
Phosphate mining in Florida dates back to the 1880s, when wheelbarrows, picks, and shovels were used to mine river-pebble phosphate deposits in the Peace River. In the early 1920s, after diesel engines had become popular, draglines were commonly used to mine land-pebble phosphate deposits, which significantly increased the efficiency and output of the mining operation. In Florida, the land-pebble phosphate deposits occur within a soil matrix layer that lies beneath the sandy overburden soil. The top of the soil matrix layer generally occurs at depths ranging from approximately 15 to 50 feet below land surface. In areas that are considered economical to mine, the soil matrix layer has an average thickness of approximately 10 to 20 feet and consists of approximately equal parts of phosphate deposits, sand, and clay.
8008 S. Orange Avenue (:32809). Posl Office Box 693003 Orlando. Florida 32869-3003 Phone (407) 85!:i-3861) FAX (407) 869-8121 Louisiana: Alexandria. Baton Rouqe Monroe. New Orleans. Shreveport
r'lorida: Bartow. Cocoa. Fort Myers Miarni Orlando Port SL Lucie Sarasota Tallahassee Tampa W. Palm Beach
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In addition to the increased efficiency in the mining operation, the processing of phosphate ore has also improved over time. Processing of phosphate ore involves separation of the phosphate particles from the sand and clay in the soil matrix layer inside a beneficiation plant. In the early years, the mined materials in the soil matrix layer were mechanically separated using a wet screening process that washed the phosphate ore and captured the larger phosphate particles, with the smaller phosphate particles discarded as a waste product along with the sand and clay. The wet screening process became obsolete in the 1930s, when a newly developed flotation process was adopted to allow the recovery of the small, sand-sized, phosphate particles from the washer debris. The flotation process uses a turbulent water system, various reagents, and air bubbles to float the phosphate particles to the water surface where they are skimmed off. Utilization of this process has increased production capacity and product grade. After beneficiation, the clay is pumped to settling areas for storage and dewatering, and the sand is pumped back to the mine pits for reclamation.
After mining and beneficiation, the phosphate particles are reacted with sulfuric acid (with the chemical formula "H2SOl) to produce phosphoric acid (with the chemical formula "H3POl), which is used in manufacturing of water-soluble fertilizers and other phosphate products. The chemical reaction also produces calcium sulfate or gypsum, typically in dihydrate form with the chemical formula "CaSO42H2O", as a byproduct. Typically, the production of one ton of phosphoric acid will yield approximately 5 tons of phosphogypsum.
CHARACTERISTICS OF PHOSPHOGYPSUM AND PROCESS WASTEWATER
Phosphogypsum produced by the phosphate industry is generally similar to natural gypsum except that phosphogypsum contains a low level of radioactivity caused by the naturally occurring radioactive materials (NORM) such as uranium, radium, etc., that exist in phosphate ore.
Process wastewater generated from the manufacturing of fertilizer typically contains dilute phosphoric and fluorosilicic acids. The water is acidic, with a typical pH of 1.5 to 2.0.
PHOSPHOGYPSUM AND PROCESS WASTEWATER MANAGEMENT
Prior to 1989, phosphogypsum was a commercial product that was sold for agricultural use in central and northern Florida, as well as throughout the United States in regions where it was produced. In 1989, Subpart R titled "National Emission Standards for Radon Emissions from Phosphogypsum Stacks" of 40 CFR Part 61 titled "National Emission Standards for Hazardous Air Pollutants" was promulgated to regulate emission standards for radon emissions from phosphogypsum stacks. Specifically, 61.206 titled "Distribution and Use of Phosphogypsum for Other Purposes" of Subpart R states in part as follows: "Phosphogypsum may not be lawfully removed from a stack and distributed or used for any purpose not expressly specified in 61.204 or 61.205 without prior EPA approval." In 1992, Subpart R was revised to permit alternate uses of phosphogypsum for the following purposes: (i) outdoor agricultural uses, (ii) indoor research and development activities, and (iii) other activities that are approved by the United States Environmental Protection Agency (EPA) on a case-by-case basis. Specifically, 61.204 titled "Distribution and Use of Phosphogypsum for Outdoor Agricultural Purposes" permits phosphogypsum to be removed from a stack and distributed for use in agriculture if the average radium-226 concentration at the location where the phosphogypsum is proposed to be removed does not exceed 10 picocuries per gram (pCi/g). Except in northern Florida and some western states, phosphogypsum in the United States typically has a radium-226 level higher than this
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threshold value. Accordingly, phosphogypsum is typically a waste product that has to be stored and managed on-site in phosphogypsum stacks1.
In the United States, the prevailing practice for constructing and raising a phosphogypsum stack employs the wet stacking method. Using this method, phosphogypsum is transported as a slurry with a typical solids content (i.e., dry weight of solids divided by total weight of solids and water) of 15 to 30 percent, and typically stored in a phosphogypsum stack constructed near the chemical processing facility. Two or more slurry pipelines are usually installed to transport the phosphogypsum slurry from the chemical processing facility to the phosphogypsum stack, with one pipeline being active and the other one serving as backup. The process wastewater used for hydraulic transport of phosphogypsum to a phosphogypsum stack and recovered from the decant operations in a phosphogypsum stack is stored on top of the stack or in cooling pond(s), and is eventually re-circulated back to the chemical processing facility for cooling and for producing more phosphogypsum slurry via a return water ditch or a return pipeline. If needed, fresh water from on-site production wells can also be used as make-up water to produce phosphogypsum slurry.
Phosphogypsum stacks are essentially above-ground monofills that hold wastewater contained in the phosphogypsum slurry. A phosphogypsum stack can cover an area ranging from 100 to more than 1,000 acres, and can reach a height of up to 300 feet above natural ground surface.
Up until the mid-1970s, the wet stacking method typically discharged phosphogypsum slurry at a single point into one of two compartments on top of a phosphogypsum stack, with one compartment being used for slurry deposition and the other compartment being idle to allow settling of the phosphogypsum particles, dewatering of the phosphogypsum slurry, and raising of the perimeter dikes. Such a practice was found to be inefficient. Furthermore, with a single-point slurry discharge, the perimeter dike at the low end had the potential to overtop during heavy storm events.
Since the mid-1970s, a more efficient, practical, and safer approach in operating a wet phosphogypsum stack has been to construct and operate an elevated rim ditch along the perimeter of the stack top. The rim ditch is contained between an inner dike and an outer dike, and the water level in the rim ditch is maintained at an elevation higher than the elevation of the ponded water in the operating compartment on top of the stack. Phosphogypsum slurry is discharged into the rim ditch at a single point or at multiple points, and allowed to travel down the sloping rim ditch to distant locations from the discharge point(s). The phosphogypsum deposited in the rim ditch is used for raising of the inner and outer dikes, often without the need for moisture conditioning. As the rim ditch fills with slurry and then gypsum solids, the operator can direct the slurry to open sections of the ditch or into the settling compartment. This is often achieved by sequentially using diversion features at progressively more distant locations from the discharge point(s). By using the rim ditch to direct the phosphogypsum slurry to targeted areas, the slurry discharge point(s) can remain stationary. In such a sedimentary-type deposition, beaches are developed and their extent can be controlled to create either a deep or a shallow pond on top of a phosphogypsum stack, thereby allowing an operator to control the ponded water inventory on top of the stack. More importantly, this practice reduces the risk of piping and overtopping failures and allows the operator to raise the dikes and create emergency storage capacity rapidly.
40 CFR 61.206 stipulates the procedures for distribution and use of phosphogypsum for other purposes. The phosphate industry, through The Fertilizer Institute, filed a request with EPA in 2019 for approval to use phosphogypsum as a component for road construction under certain conditions. This request was approved by EPA on October 14, 2020.
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Phosphogypsum excavated from the rim ditch is used to raise the outer dike using the upstream method of construction, as well as to raise the inner dike or windrow that separates the rim ditch from the operating compartment on top of the phosphogypsum stack. Draglines with a long reach were commonly used in the past along with a wide rim ditch and a narrow inner dike or windrow, but this type of equipment was slow and required high maintenance. Over time, the industry has replaced draglines with hydraulic excavators. The transition to hydraulic excavators has required a trafficable inner dike with a wide dike crest. Even though the quantity of phosphogypsum required for dike construction has increased, construction using hydraulic excavators can proceed at a safer and faster pace.
REGULATORY FRAMEWORK
Florida Experience. Discharges of pollutants into the waters of the United States, including those from phosphogypsum stacks, are regulated by the Federal Clean Water Act of 1972 and state rules. With promulgation of Chapter 17-5202 of the Florida Administrative Code (F.A.C.) titled "Ground Water Classes, Standards, and Exemptions" in 1983, Florida established groundwater quality standards and required groundwater monitoring around phosphogypsum stack systems. Following enactment of Chapter 17-3023, F.A.C. titled "Surface Water Quality Standards" circa 1990, Florida further established surface water quality standards and discharge criteria to surface waters.
Following enactment of Chapter 17-94, F.A.C. titled "Minimum Requirements for Earthen Dams, Phosphate Mining and Processing Operations" in 1972, Florida stipulated minimum requirements for earthen dams used in phosphate mining and beneficiation. With subsequent revisions of this rule in 1999 and 2012, Florida further extended some of the rule requirements to dikes used in phosphogypsum stack systems.
Since 1993, with promulgation of Chapter 62-673, F.A.C. titled "Phosphogypsum Management", Florida has imposed strict regulatory requirements on phosphogypsum stack systems. Those requirements encompass permitting, design, construction, operation, closure, long-term care, and financial assurance. Specifically, Chapter 62-673, F.A.C., comprises the following key sections that regulate the different aspects of a phosphogypsum stack system:
62-673.320 62-673.340 62-673.400 62-673.600 62-673.610 62-673.620 62-673.630 62-673.640 62-673.650
Permitting of Phosphogypsum Stack Systems Phosphogypsum Stack System General Criteria Phosphogypsum Stack System Construction Requirements Closure of Phosphogypsum Stacks Closure Plan Requirements Closure Procedures Long-Term Care Financial Assurance Closure of Unlined Systems
2 Superseded by Chapter 62-520, F.A.C. titled "Ground Water Classes, Standards, and Exemptions" in 2009. 3 Superseded by Chapter 62-302, F.A.C. titled "Surface Water Quality Standards" in 2010. 4 Superseded by Chapter 17-672, F.A.C. titled "Minimum Requirements for Earthen Dams, Phosphate Mining and
Processing Operations" in 1999, and later by Chapter 62-672, F.A.C. titled "Minimum Requirements for Earthen Dams Used in Phosphate Mining and Beneficiation Operations and for Dikes Used in Phosphogypsum Stack System Impoundments" in 2012.
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Paragraph 62-673.300(1 ), F.A.C. states that "No person shall dispose of, or store prior to disposal, any phosphogypsum except within a phosphogypsum stack system permitted by the Department in accordance with this chapter. This provision shall not be construed to prohibit any use or reuse of phosphogypsum not otherwise prohibited by law." Paragraph 62-673.320(1 ), F.A.C. further states that "No phosphogypsum stack system shall be constructed, operated, expanded, modified or closed without an appropriate and currently valid permit issued by the Department in accordance with this chapter. Facilities operating without a permit on 3-25-93 shall, within 180 days, apply for a temporary operating permit from the Department." These provisions essentially subject all phosphogypsum stack systems to regulations in Florida.
The permit application to construct and operate a phosphogypsum stack has to be filled out on the Florida Department of Environmental Protection (FDEP) Form 62-673.900(1) titled "Application for Permit to Construct/Operate a Phosphogypsum Stack System" and submitted to the FDEP Bureau of Mining and Minerals Regulation, Phosphate Management Program. The application must include design drawings, technical specifications, and other supporting information and data prepared by a licensed professional engineer such that FDEP can determine whether the proposed facility meets all applicable regulatory requirements and poses no threat to human health and the environment. The construction permit is incorporated into the National Pollutant Discharge Elimination System (NPDES) permit for industrial wastewater for the facility. After the permit is issued and construction of the phosphogypsum storage area is complete, a third-party licensed professional engineer is required to prepare and submit FDEP Form 62673.900(2) titled "Certification of Construction Completion for a Phosphogypsum Stack System", along with all supporting information and data, to certify that the completed construction meets the intent of the design. These requirements essentially require all phosphogypsum stack systems in Florida to follow standard protocols in design and construction, and to secure state permits upon regulatory review and approval.
Most importantly, Chapter 62-673, F.A.C. mandates the use of and stipulates the design standards for composite liner (i.e., a two-liner system that consists of a geosynthetic component and a soil component) and seepage control systems for all new phosphogypsum stacks and cooling ponds in Florida.
The first geomembrane-lined phosphogypsum stack in the United States was constructed at the Simplot Rock Springs Facility in Wyoming in 1986. The first geomembrane-lined phosphogypsum stack system constructed in Florida was the Phase I Expansion at the Mosaic (formerly IMC) New Wales Facility, which underwent design, permitting, and construction from 1988 to 1992, and was the model used for development of the technical requirements and standards contained in Chapter 62-673, F.A.C. The first phosphogypsum stack closure in Florida was at the Mosaic (formerly Cargill) Riverview Facility in 1989, which was the model used for development of the closure requirements and standards contained in Chapter 62-673, F.A.C.
One of the first geomembrane-lined phosphogypsum stacks that was designed and constructed under Chapters 62-672 and 62-673, F.A.C., was at the Mosaic Green Bay Facility in Florida. This phosphogypsum stack was constructed in 2000 and was provided with an inverted composite liner that consists of a 60-mil thick high-density polyethylene (HOPE) liner overlain by a 24-inch thick compacted phosphogypsum cover with a saturated permeability or hydraulic conductivity of less than 1.0x10-4 cm/sec. This phosphogypsum stack was constructed on top of reclaimed land backfilled with sand tailings (i.e., a permeable foundation). Monitoring wells that were installed around the perimeter of this lined stack have not detected any groundwater impacts associated with leakage of process wastewater through the liner.
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Other States. Most of the regulatory requirements and case histories referenced above are specific to Florida because the majority of the phosphogypsum stacks in the United States are located in Florida. Nevertheless, the Florida practices have been adopted in design, construction, and operation of phosphogypsum stack systems outside Florida, and have influenced rulemaking and regulations in other states. Idaho has recently passed legislation on phosphogypsum stack design that incorporates elements of the Florida requirements. It should further be noted that consent decrees executed between EPA and various fertilizer companies have incorporated language that originated from the Florida rule requirements on phosphogypsum stack systems. The consent decrees have also imposed training requirements on Resource Conservation and Recovery Act (RCRA) regulations for employees and contractors.
DESIGN REQUIREMENTS
Prior to promulgation of Chapter 62-673, F.A.C., phosphogypsum stack systems typically incorporated in situ clay liners to control vertical seepage and seepage collection ditches to control lateral seepage. Following enactment of Chapter 62-673, F.A.C. in 1993, phosphogypsum stack systems are required to comply with minimum design standards for constructed liners and seepage control systems, as well as for liquid containment and conveyance systems.
Rule 62-673.400, F.A.C., requires all phosphogypsum stacks and cooling ponds in Florida to have composite liner and seepage control systems. The composite liner must consist of an HOPE geomembrane liner with a minimum thickness of 60 mils, and either a compacted soil liner with a minimum thickness of 18 inches and a maximum permeability or hydraulic conductivity of 1x10-7 cm/sec beneath the HOPE geomembrane liner, or a compacted phosphogypsum cover with a minimum thickness of 24 inches and a maximum permeability or hydraulic conductivity of 1x104 cm/sec above the geomembrane liner. Both composite liner options provide equivalent protection to the environment.
Rule 62-673.400, F.A.C., requires all seepage control systems to comply with the following requirements:
A perimeter underdrain system must be provided to maintain stability of the phosphogypsum stack slope.
Perimeter drainage conveyances used in the seepage control system must consist of either: (i) covered or uncovered ditches that are lined continuously with the phosphogypsum stack liner, or (ii) collection pipes that are chemically compatible with the process wastewater.
All toe drain or seepage collection systems must be constructed within the lined system.
For most facilities, the current practice is to have the phosphogypsum stack perimeter surrounded by a lined decant water/runoff collection ditch that also serves as a lined seepage collection ditch.
Rule 62-673.400, F.A.C., further requires all liquid containment and conveyance systems to comply with the following requirements:
Composite liners must be provided for all liquid containments and open conveyances used for phosphogypsum slurry transport, process wastewater containment, and process wastewater return.
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The Fertilizer Institute
File Number 21-13-0012
-7-
Pump and pIpIng systems used for transport of phosphogypsum slurry or process wastewater that cross surface waters must be double-contained with chemically compatible materials in a manner that assures that all liquids are contained in the event of a pipe leak or failure.
CLOSURE REQUIREMENTS
The closure requirements under Chapter 62-673, F.A.C., apply to all phosphogypsum stack systems, except for those had already been closed or were required to be closed under an FDEP permit or pursuant to a consent order that was in effect before March 25, 1993.
A closure permit application, general plans and schedule for closure, stack configuration at closure, a water management plan during closure, and an estimate of closure costs are required by Chapter 62-673, F.A.C. Specifically, the rule requires the submittals of and specifies the requirements for the following documents: (i) general and area information report; (ii) groundwater monitoring plan, (iii) assessment of effectiveness of the existing phosphogypsum stack system design and operation, (iv) closure design plan, (v) closure construction quality assurance plan, and (vi) closure operation plan. These submittals are required to be certified by a third-party licensed professional engineer.
The closure design plan must provide engineering drawings, procedures during closing of a phosphogypsum stack system, and monitoring and maintenance protocols during the long-term care period after closure. Furthermore, the closure design plan must also address: (i) the type of process wastewater seepage control system proposed to prevent process wastewater seepage from causing violations of water quality standards beyond the approved zone of discharge for the phosphogypsum stack system, (ii) compliance with groundwater protection requirements, and (iii) the proposed method of stormwater control.
Under Chapter 62-673, F.A.C., a phosphogypsum stack is required to have a final cover placed over the entire stack surface for closure. The final cover may consist of geomembrane, soil, or amended soil or phosphogypsum. The top gradient of a final cover must be designed to prevent ponding and to minimize erosion. The final cover for the stack top is required to have a minimum 18-inch thick barrier soil layer that is overlain by an 18-inch thick layer of soil or amended phosphogypsum that can sustain a vegetation cover to control erosion. For unlined phosphogypsum stacks, the barrier layer is required to have a maximum permeability or hydraulic conductivity of 1x10-7 cm/sec. For lined stacks, the barrier layer is required to have a maximum permeability or hydraulic conductivity of 1x10-5 cm/sec. If less permeable soils are used, the thickness of the barrier layer may be decreased to 12 inches, provided that infiltration is minimized to an equivalent degree. A geomembrane may be used as an alternative to the low-permeability soil barrier if it is designed to preclude rainfall infiltration into the phosphogypsum stack and is protected by a soil cover with a minimum thickness of 24 inches.
LONG-TERM CARE REQUIREMENTS
Pursuant to Rules 62-673.600 to 62-673.620, F.A.C., the owner or operator of a phosphogypsum stack system is responsible for monitoring and maintenance of the facility in accordance with an approved closure plan for a period of 50 years after closure. Before the expiration of the longterm care period, FDEP may extend the time period if the closure design or closure operation plan is found to be ineffective, subject to some circumstances that may lengthen or shorten that period.
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The Fertilizer Institute
File Number 21-13-0012
-8-
FINANCIAL ASSURANCE REQUIREMENTS
Under Rule 62-673.640, F.A.C., as a condition for issuance of a permit to construct, operate, expand, modify, or close a phosphogypsum stack system, the owner or operator of a phosphogypsum stack system is required to provide proof of financial assurance for closure of the system. The owner or operator must estimate and report separately the costs of terminal closure, including costs associated with closing, long-term care, and water management for the phosphogypsum stack system, based on the phosphogypsum stack system configuration at the end of its useful life. The annual long-term care cost must be multiplied by 50 years to establish a total long-term care cost. All cost estimates must be reviewed, signed, and sealed by a thirdparty licensed professional engineer.
EARTHEN DIKE REQUIREMENTS
Perimeter earthen dikes are considered part of the phosphogypsum stack systems and are required to meet all applicable requirements in Chapter 62-672, F.A.C., including requirements for site investigation and soil testing, stability analysis, minimum factor of safety, freeboard, and the hydraulic capacities of conveyance ditches, pumps, pipes, and hydraulic structures. In addition, construction materials and methods, certification of construction completion, and routine dike inspection and maintenance are also stipulated in Chapter 62-672, F.A.C.
OPERATING REQUIREMENTS
The minimum standards for raising a phosphogypsum stack and the minimum requirements for decanting process wastewater from the top of a phosphogypsum stack are stipulated in Rules 62672. 750 and 62-672.760, F.A.C., respectively. Rule 62-672.780, F.A.C., further requires the submittal of a phosphogypsum stack system operation plan and prescribes the plan content to include the methods for raising and operating the phosphogypsum stack, the descriptions of phosphogypsum used in dike construction, the procedures for decanting process wastewater, the emergency measures to be taken in the event of mechanical failure of a pump or a power failure, etc. The operation plan has to be approved by an engineer that is experienced in construction and operation of phosphogypsum stacks.
The operation plan for a phosphogypsum stack system must include an evaluation of the adequacy of a site-specific water management plan based on extreme rainfall events and a 5year water balance analysis using October 1 as the starting date. The water balance analysis, which needs to consider the rates of all water inputs and outputs, any manufacturing production changes, any changes in process watershed area, etc., has to be verified by a third-party licensed professional engineer. In addition, the water balance calculations and water management plan have to be updated annually to reflect any changes in watershed area, storm surge, and projected water balance, and submitted to FDEP by February 1 of each year. The water management plan has to list specific actions, including minimum process wastewater consumption and transfer rates, that need to be implemented when certain "triggers" are exceeded in the cooling pond system. Additionally, the plan has to list any actions that ought to be implemented before the "triggers" are exceeded in the cooling pond system, when such actions are deemed necessary based on results of the 5-year water balance analysis.
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The Fertilizer Institute
File Number 21-13-0012
-9-
Paragraph 62-672.780(9), F.A.C., specifically requires using either one of the following extreme rainfall quantities as inputs in the 5-year water balance analysis:
The 100-year September rainfall occurring during the 100-year annual rainfall, and multiyear rainfall events that have an equivalent probability for not being exceeded during the 5year period as that of the 100-year annual rainfall event.
A total rainfall of 300 inches over a 5-year period in accordance with the following scenarios:
Rainfall (inches)
Scenario
Year1
Year2
Year3
Year4
Year5
Total
1
76
60
56
56
52
300
2
60
76
56
56
52
300
3
56
60
76
56
52
300
4
52
56
60
76
56
300
5
52
56
56
60
76
300
The water balance analysis must indicate whether the system storage will be able to achieve the following water balance targets:
Storage to accommodate16.25 inches of rainfall runoff on June 1 of any year. Storage to accommodate 12 inches of rainfall runoff on October 1 of any year.
Storage to keep impoundment water levels below the maximum design water levels at any time.
If the water balance for a phosphogypsum stack system fails to meet the above water balance targets, the facility owner or operator will be required to provided reasonable assurance that additional process wastewater consumption or management protocols are readily available and can be implemented to maintain the above water balance targets.
As part of the water management plan, an "action plan trigger" that corresponds to the storage volume or operating water level required to contain the rainfall quantity from a storm event generating 12 inches of rainfall in 24 hours (i.e., a storm event with less than 1 percent annual probability of exceedance) must be established. If the "action plan trigger" is exceeded for 72 consecutive hours, the facility owner or operator is required to notify FDEP followed by weekly reporting, and to present a site-specific action plan for process water inventory management and/or consumption.
In accordance with Paragraph 62-672.600(1 )(c), F.A.C., all perimeter earthen dikes in a phosphogypsum stack system are required to be operated so as to maintain the design freeboard unless temporary incursions into the freeboard are demonstrated to be safe. The design freeboard of an above-grade perimeter earthen dike must not be less than 5 feet unless a design freeboard of less than 5 feet can be justified based on results of seepage and stability analyses, and wave run-up analyses. In any event, the design freeboard of an above-grade perimeter earthen dike is not allowed to be less than 3 feet.
ED_0 18475D_ 00002953-00087
The Fertilizer Institute
File Number 21-13-0012
-10-
INSPECTION AND MAINTENANCE REQUIREMENTS
In accordance with Rule 62-672.770, F.A.C., all phosphogypsum stacks in Florida are required to be inspected and maintained regularly to ensure their integrity and performance. Representatives of FDEP may request to be present during any of the required inspections by the facility owner or operator and may inspect starter dikes or gypsum dikes at any reasonable time. Furthermore, all inspection documents must be retained for a period of at least three years and must be made available to FDEP upon request.
Before process wastewater is allowed to be introduced a newly constructed phosphogypsum stack system, a third-party licensed professional engineer must inspect and certify the construction based on his or her inspection and results of field and laboratory testing performed during construction. After a phosphogypsum stack system is put into operation, it is further subject to the following routine inspection and maintenance requirements:
Any critical conditions, as listed under Rule 62-672.770(6), F.A.C., are required to be inspected daily until corrective measures have been successfully implemented.
Stack slopes, collection ditches, and drain outlets are required to be inspected weekly.
Flow from drain outlets are required to be checked quarterly.
Total areal water coverage on top of the phosphogypsum stack is required to be estimated monthly.
Total water inventory on top of the phosphogypsum stack is required to be estimated annually.
The phosphogypsum stack is required to be inspected by a third-party licensed professional engineer annually.
Any deficiencies observed, recommendations provided, and corrective measures taken must be properly documented in the annual inspection report.
If corrective measures cannot be completed by the time of the annual inspection report submittal, follow-up inspections must be conducted by the third-party licensed professional engineer on a quarterly basis, along with appropriate documentation, until the corrective measures have been successfully implemented.
Under Rule 62-672.770(6), F.A.C., any of the following items is considered a critical condition:
Concentrated seepage on the stack slope, at the toe of slope, or beyond the toe of slope with active signs of piping at the point of seepage.
Evidence of slope instability, including sloughing, bulging, or heaving of the stack slope or near the toe of slope.
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The Fertilizer Institute
File Number 21-13-0012
-11-
Lateral movement or subsidence of the stack slope or crest.
Formation of non-shrinkage cracks or enlargement of wide cracks on the stack slope or crest.
Observed or suspected damage to the liner system.
Drains discharging turbid water.
Concentrated seepage in the vicinity of a decant pipe.
If a critical condition is confirmed, the owner or operator is required to notify FDEP immediately, and to prepare a written report to document the critical condition and to propose corrective actions within seven days.
CONTINGENCY PLAN REQUIREMENTS
In accordance with Rule 62-672.850, F.A.C., the owner or operator of a phosphogypsum stack system is required to prepare a contingency plan and update it annually to address unplanned releases of process wastewater. The elements of such a plan must address the applicable elements of the National Response Team's Integrated Contingency Plan format.
TRAINING REQUIREMENTS
The owner or operator of a phosphogypsum stack system is required to provide annual training in inspection, operations, and contingency plan requirements to appropriate personnel.
ENGINEERING PRACTICE
In conjunction with the changes or updates in regulations, the engineering practice associated with the planning, design, construction, and operation of a phosphogypsum stack system has advanced over the years. The current engineering practice associated with construction of a new phosphogypsum stack or expansion of an existing stack often includes the following efforts to ensure compliance with applicable regulatory requirements and a phosphogypsum stack system that is protective of human health and the environment:
Performance of a hydrogeological investigation for the project area.
Characterization of the subsurface conditions at the project site by performance of geophysical surveys, drilling of boreholes, performance of cone soundings, installation of piezometers, recovery of soil and rock samples, field testing of the in-situ soils and aquifers, and laboratory testing of the recovered soil and rock samples.
Performance of engineering analyses to evaluate the suitability of the site for construction and operation of a phosphogypsum stack system, and the competency of the foundation materials for supporting a composite-lined phosphogypsum stack.
Development of engineering reports, detailed design drawings, technical specifications, and construction quality assurance plan.
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The Fertilizer Institute
File Number 21-13-0012
-12-
Performance offield observation and testing during construction.
Performance of laboratory testing of materials before and during construction.
Preparation of as-built report and certification of construction at completion.
The following engineering efforts will continue throughout the active life and into closure of an existing phosphogypsum stack or a new stack after construction:
Development and update of an operation plan.
Development and update of a water management plan.
Development and update of closure and post-closure care plans.
Development of a contingency plan.
Development of groundwater and surface water monitoring plans.
Assistance in development and update of financial responsibility.
Performance of regular and annual site inspections.
Monitoring of groundwater and surface water quality.
Monitoring and evaluation of stack stability, movement, and deformation.
It should be noted that engineering practice has improved and will continue to improve with time, as new circumstances arise, new knowledge is gained, new technologies emerge, and new ideas and solutions are conceived. It should further be noted that the engineering and design efforts for certain sites and phosphogypsum stack systems often go above and beyond what are required by current rules and regulations, and what are normally considered acceptable as standard engineering practice. Most notably, site characterization has evolved from a visual reconnaissance of a potential site to a detailed engineering study that often includes sinkhole frequency analysis, photolinear analysis, subsurface assessment of topographic depressions, subsurface evaluation of photolinear intersections, microgravity survey, seismic reflection survey, soil and rock drilling, piezometer installation, etc. Any potential issues identified during the site characterization study are addressed, and design features or elements are often incorporated to safeguard the stack and to allow performance monitoring. On recent projects, these design features have included foundation drainage system, foundation piezometer monitoring system, micro-seismic foundation monitoring systems, groundwater monitoring, etc. For water management, recent engineering efforts have included water balance updates to account for extreme storm events, utilization of water treatment technologies such as reverse-osmosis, double-lime treatment, enhanced evaporation, deep well injection, etc., to reduce water inventory. Phosphogypsum stack operation techniques have also advanced over the years, including the use of wet pulverized rim-ditch material for dike construction to reduce the risk of piping failure, the use of a wide rim-ditch and wide beach to reduce the risks of overtopping and wave runup, the use of decant siphons instead of decant cut to remove process wastewater from the top of a phosphogypsum stack, etc.
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The Fertilizer Institute
File Number 21-13-0012
-13-
SUMMARY AND CONCLUSION
Phosphogypsum management has evolved from unplanned and unregulated deposition of phosphogypsum and process wastewater in open mine cuts and on uncharacterized lands, often without much engineering input, into a very sophisticated and well-regulated activity with a high level of site characterization, engineering, and design efforts to ensure that a phosphogypsum stack system complies with all applicable regulatory requirements and is protective of human health and the environment.
It is our professional opinion that the current regulations are adequate for management of phosphogypsum and process wastewater in the phosphate industry. It is also our professional opinion that, with compliance of the current regulatory requirements and implementation of sound engineering practice tailored for site-specific conditions, a phosphogypsum stack system is p tective of mathealth and the environ
rancis heung, P. . Principal Engineer q3/26/21 Florida License No. 36382"'--
Mohamad A-hawaree, P.E. Senior Consultant
This item has been electronically signed and sealed by Francis K. Cheung on the date adjacent to the seal using a SHA authentication code.
Printed copies of this document are not considered signed and sealed and the SHA authentication code must be verified on any electronic copies.
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ATTACHMENT B
LETTER FROM ANDREW WHEELER, EPA ADMINISTRATOR, TO COREY ROSENBUSCH, TFI PRESIDENT AND CEO (OCT. 14, 2020) (DKT. ID NO. EPA-HQ-OAR-2020-0442-0015)
8488359vl/21436-0028
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
October 14, 2020
THE ADMINISTRATOR
Mr. Corey Rosenbusch President and Chief Executive Officer The Fertilizer Institute 425 Third Street, SW, Suite 950 Washington, D.C. 20024
Dear Mr. Rosenbusch:
The Fertilizer Institute, on behalf of its members that own or operate phosphogypsum stacks, has asked the U.S. Environmental Protection Agency to approve, under 40 C.F.R. 61.206, the removal of PG from required stacks for use in government road construction projects. As discussed below, the EPA grants the request subject to certain conditions.
Background
On October 15, 2019, TFI submitted its initial "Request for Approval of Additional Uses of Phosphogypsum Pursuant to 40 C.F.R. 61.206," requesting that the EPA approve the use of PG in road construction. Subsequently, on April 7, 2020, TFI submitted, on behalf of its members that own or operate PG stacks, a revised request: "Revised Request for Approval of Additional Uses of Phosphogypsum Pursuant to 40 C.F.R. 61.206: Use in Road Construction Projects Authorized by Federal, State and Local Departments of Transportation or Public Works" (hereinafter the "Revised Request"). In evaluating TFI' s submittals, the EPA generally has focused on the revised request, which we understand to be the most recent, complete version of TFI's request. The EPA has, however, evaluated TFI' s request in light of all the materials submitted, including information submitted in connection with the initial request, as well as information subsequently submitted. The Revised Request asks the EPA to approve the use of PG in certain road construction projects:
A determination by EPA, pursuant to 40 C.F.R. 61.206, that PG containing up to an average of 35 picocuries per gram [pCi/g] may be used in road base, paving, and various combinations of road base and paving in Government Roadway Projects that meet the commitments of this petition and are:
1. Authorized by federal, state and local Departments of Transportation (DOT) or Public Works (PW), and
ED_018475D_ 00002953-00093
2. Conducted as part of a government road project using appropriate, generally accepted road construction standards and specifications such as American Society for Testing and Materials (ASTM), Federal Highway Administration (FHWA), federal or state DOT standards and specifications, or standards developed or approved in consultation with the appropriate regulatory DOT or PW authorities.
Revised Request at 23-24.
TFI submitted or resubmitted a number of materials with the Revised Request, including miscellaneous federal and state road construction specifications and requirements; a Summary of the Risk Assessment (previously submitted by TFI); a Radiological Risk Assessment in Support of Petition for Beneficial Use of Phosphogypsum prepared by Arcadis Canada Inc. on behalf of TFI (previously submitted by TFI); a technical memorandum prepared by Exponent on behalf of TFI relating to a chemical risk screening to evaluate potential risks associated with metals/metalloids in PG; responses - apparently prepared by Arcadis Canada Inc. on behalf ofTFI
to various questions and comments from the EPA; a discussion by TFI of the results of sampling and radiological testing of samples of PG from 10 stacks in four states; an economic analysis by the Policy Navigation Group, on behalf of TFI, to estimate potential regulatory cost savings associated with using PG in road construction; information on the location of certain PG stacks in Florida, Louisiana, Wyoming and Idaho; a list of materials cited in the Revised Request and other items submitted by TFI. These submissions are identified in TFI's Revised Request as Attachment A and Appendices 1 through 8, respectively. Revised Request at 2-3 and Attachment A and Appendices 1-8.
A significant part of the Revised Request and related information submitted by TFI relates to TFI's assessment of the risks associated with the use of PG in road construction. TFI evaluated the risks under various scenarios, including risks to road construction workers, truck drivers transporting PG, road users, utility workers performing work on utilities at or under roads constructed with PG and residents living near roads constructed with PG. TFI assessed risk based on certain identified assumptions about the amount of PG used in road construction projects and on the amount of radium-226 in the PG used in road construction. With the assumptions used in TFI's risk assessment, TFI's calculated risks for the reasonably maximally exposed individual were no more than 0.5 in 10,000, less than the 3 in 10,000 risk that TFI maintains the EPA uses as the risk of the PG if left in the stack. See, for example, Revised Request, at 16 (Table 1). TFI' s risk assessment concluded that the risk of using PG in road construction is low and using PG in road construction would be at least as protective as keeping PG in stacks.
The Revised Request notes the requirements of 40 C.F.R 61.206, including the information that a request for approval of other uses of PG (other than keeping the PG in stacks) must contain. See, for example, Revised Request at 24-25. The Revised Request asserts that it has provided sufficient information for the EPA to determine whether the proposed use would be at least as protective as disposal of PG in stacks, suggesting that it has provided the inforn1ation required by 40 C.F.R 61.206(b)(l), (2), and (6)-(9). Revised Request at 50, footnote 123. The Revised Request essentially acknowledges that it has not provided the information required by 40 C.F.R 6 l.206(b)(3 )-(5) and (10) but suggests that the EPA approval may be "conditioned upon receipt" of such information. Id.
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The Revised Request includes discussion of various other considerations that TFI argues weigh in favor of supporting or allowing uses of PG, such as use in road construction, rather than simply requiring that PG be kept in stacks. Among these considerations are the following contentions: there has been significant growth in the industry and resulting significant increases in PG material generated that the EPA did not anticipate when generally requiring that PG be kept in stacks; the number and size of PG stacks have increased, as well as the costs to manage and maintain the stacks; other countries do not strictly require that PG be kept in stacks and more readily allow PG to be used for other purposes; and allowing other uses to be made of PG is consistent with the EPA's interest in "beneficial uses" of materials and with general EPA policies encouraging recycling.
Discussion
The EPA's Clean Air Act regulations at 40 C.F.R. Part 61, Subpart R, address concerns about radon emissions from PG. Subpart R generally applies to owners or operators of PG stacks and to "each person who owns, sells, distributes, or otherwise uses any quantity of phosphogypsum." 40 C.F.R. 61.200. The basic requirement of Subpart R is that PG must be placed in stacks and may not be removed from stacks, except "as expressly provided." 40 C.F.R 61.202. Subpart R provides three sets of exceptions under which PG may be removed from stacks: PG may be removed from stacks and used "in outdoor agricultural research and development and agricultural field use" under certain circumstances (40 C.F.R 61.204); PG may be removed from stacks and used "in indoor research and development activities" under certain circumstances (40 C.F.R 61.205); and, upon request, the EPA may approve the removal of PG from stacks and the use of PG for "other purposes" (40 C.F.R 61.206). Relying on this "other purpose" approval authority, the Revised Request asks the EPA to approve the removal of PG from stacks for use in government road construction.
As the Revised Request acknowledges, a request for approval of the use of PG for other purposes must contain certain information, including information about the specific location(s) where the PG will be used. 40 C.F.R 6l .206(b)(1)-(10). The procedure also requires that a request be "signed and dated by a corporate officer or public official in charge of the facility." 40 C.F.R 61.206(b)(10). A request must include, for example, the location - including mailing address - of each "facility" where any use, handling or processing of PG will take place. 40 C.F.R 61.206(b)(3), (4). The Revised Request has provided the locations of PG stacks owned or operated by TFI member companies, locations where at least some of the use, handling or processing of the PG to be used in road construction may occur. The Revised Request has not, however, provided any specific location information where the ultimate requested use - road construction - will take place. In addition, to the extent that there may be intermediary locations (such as processing facilities or construction yards) between a PG stack and a road under construction with PG, the Revised Request has not identified any such intermediary locations. A request under 40 C.F.R 61.206 for approval of other use of PG also must include information on the quantity of PG to be used by each "facility." The Revised Request provided information about the percentage of PG likely to be used in either roadbed or pavement but has not provided information on the quantity of PG to be used in each road construction project.
3
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The Revised Request has provided considerable information about the anticipated use of PG in road construction. The Revised Request has, for example, provided information about the types of roads that may be constructed using PG, how PG may be used and the road construction process. The Revised Request has provided information about the proposed average concentration of radium-226 in the PG to be used. Critically, the Revised Request assessed and estimated risks associated with the use of PG in road construction.
The agency may approve a request to use PG for some "other purpose" if the proposed distribution or use is at least as protective of public health, in the short and long term, as disposal of PG in a stack. 40 C.F.R 61.206(c). In the event the agency approves a request to remove PG from stacks and use PG for other purposes, ce11ain prescribed requirements must be met, including requirements set out in 40 C.F.R. 61.206(d) and 61.209. These include requirements on the owner or operator of a stack from which PG is removed to determine radium-226 concentrations; on stack owners or operators and on PG sellers or resellers, distributors and end users to ensure proper preparation and maintenance of certification documents; and on end users to prepare and maintain various records. 40 C.F.R 61.206(d) and 61.209. In addition, the EPA has the authority to impose additional terms and conditions. 40 C.F.R 61.206(e).
Although the Revised Request has not provided complete information about the specific locations where roads will be built using PG and has not identified the specific quantity of PG to be used in road construction, the lengthy, detailed information provided by the Revised Request about using PG in road construction and the thorough risk assessment is sufficient information for the agency to determine whether use of PG in road construction is at least as protective as disposal in a stack, at least under the circumstances and conditions described in the Revised Request and reflected in the risk assessment. In light of the information provided by TFI, the nature of the request and the conditions identified below, the agency concludes that the additional information required as part of a request under 40 C.F.R 61.206(b) - especially information on specific address locations where the PG may be used - is not essential to making the determination of whether the proposed use of PG would be at least as protective of public health as stacking.
In evaluating risks associated with using PG in road construction, the Revised Request used an average radium-226 concentration of 27 pCi/g. Revised Request at 20 and 51. (The Revised Request also extrapolated that, even if the average radium-226 was as high as 148 pCi/g, the use of PG in road construction would be still be sufficiently protective of public health, and the Revised Request requested a "concentration limit" - that is, the limit on the level of radium-226 that may be in PG used in road construction - of 35 pCi/g. See, for example, Revised Request at 28.) The risk assessment was also based on assumptions that, when PG is used in road bed material, it would comprise no more than 50 percent of the road bed material, by weight (the other material would be "soil"), and, when used in road surface material, PG would comprise no more than 2.25 percent, by weight, of the surface pavement. Revised Request at 19. As noted above, the Revised Request evaluated risks from the standpoint of various exposure scenarios, including exposure of: persons engaged in road construction or transpo11ation of PG (truck drivers); nearby residents (residing no closer than 50 feet from the road); and utility workers. At the EPA's request, the Revised Request also addressed risks to persons living on abandoned, reused or reclaimed roads (the "reclaimer scenario"). Revised Request at 22-23. Under all these scenarios, the Revised Request, as calculated in the TFI risk assessment, indicated that the risks associated with using PG in road construction
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would be significantly less than a lifetime risk of fatal cancer from radon emissions of 3 in 10,000 and that using PG in road construction would be at least as protective of public health as disposal of PG in stacks. Id.
As initially promulgated, Subpart R required "stacking" and did not authorize alternative uses of PG. In 1992, the EPA amended Subpart R to categorically authorize use of PG for agricultural or research and development purposes under certain circumstances and to establish a procedure to request approval of other uses of PG. See 57 Fed. Reg. 23305 (June 3, 1992). At that time, the EPA considered also categorically authorizing the use of PG in road construction, but the EPA decided not to do so because it concluded that "the use of phosphogypsum in road construction presents an unacceptable level of risk to public health." Id. That determination largely was based on a concern about the risks to people living in a house constructed on land where roads built using PG once existed. The EPA did not necessarily foreclose any or all use of PG in road construction, but simply declined, at that time, to categorically authorize - as for agricultural or research and development uses - use of PG in road construction.
The EPA agrees that for purposes of assessing whether other uses of PG will be at least as protective as disposing of PG in stacks or a mine (and consistent with the agency's overall risk management policies), the radiation risk associated with phosphogypsum stacks (or disposing of PG in mines) may be numerically interpreted as a lifetime risk of excess mortality no greater than 3 in 10,000 (3 x 10-4) for any member of the public. The EPA's review of the Revised Request's risk assessment concludes that the use of PG in road construction, when conducted in a manner consistent with the methods and scenarios described in TFI's application and under the conditions stated herein, will not create risks in excess of this threshold.
Because the risks associated with the "reclaimer scenario" previously were of particular concern to the EPA, the EPA asked TFI to address those risks in its analysis, and the Revised Request specifically addressed that scenario. Although the Revised Request regarded such a scenario as "extreme" and "unlikely," it, nonetheless, examined the risk associated with the scenario and concluded that the risk is low and that using PG in road construction still would be at least as protective as stacking. While the TFI risk assessment indicates the risk to the reclaimer could be as protective as leaving the PG in the stack, the EPA has questioned some of the modeling assumptions used by TFI to generate the estimate for the reclaimer. TFI' s risk assessment assumed, for example: the PG concentration under a home would be less than that of the road base; there would be a layer of clean soil between the PG and slab of the house; and there would be a vapor barrier. We do not believe that these assumptions can be relied upon to limit potential risks to a future residential reuser of an abandoned road constructed with PG. The EPA has, however, reevaluated the use of PG in road construction in light of the new information and analysis in the Revised Request and now concludes that the risks associated with the "reclaimer scenario" can be addressed with conditions associated with possible future reuse of roads constructed with PG (as noted below).
In accordance with the discussion, above, and subject to certain qualifications and conditions (stated below), the EPA determines that the Revised Request adequately demonstrates that the use of PG in road construction is at least as protective of public health, in the short and long term, as disposal of PG in stacks, and, subject to the same qualifications and conditions, PG
5
ED_018475D_ 00002953-00097
may be removed from stacks and used in government road construction, as requested by TFI. Accordingly, subject to the following conditions, PG may be used in government road projects authorized by federal, state and local departments of transportation or public works, and conducted as part of a government road project using appropriate, generally accepted road construction standards and specifications such as ASTM, FHWA, federal or state DOT standards and specifications or standards developed or approved in consultation with the appropriate regulatory DOT or PW authorities. See Revised Request at 23-24.
This approval to use PG in road construction does not authorize the removal of any PG from any stacks or the use ofany PG for road construction unless and until the information required by the "Initial Conditions," below, is provided to the EPA. After such information is provided to the EPA, PG may be removed from stacks and used in road construction, provided that the conditions expressed in "Other Conditions," below, continue to be met.
Initial Conditions
Prior to the distribution and/or use of PG for any government road project, the owner or operator of the stack from which PG is to be distributed or the governmental entity responsible for building and maintaining the road (the "end user"), as appropriate, must submit the following information to the agency, in writing, to the attention of the Director, Radiation Protection Division, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Mail Code 6608T, Washington, D.C. 20460, and by email to radiation.questions@epa.gov:
a) Identification of the project and of the responsible government agency, including an authorized point of contact and complete mailing address;
b) Geospatial information describing the location and extent of the road construction project using PG and the physical address or geospatial coordinates of any facility where intermediate handling or processing of the PG will take place. This information may be provided as map coordinates or computer files compatible with geospatial software (e.g..kml, .gpx, .shp);
c) The total quantity of PG expected to be used in each project, the source of PG (company and stack) and the average concentration of radium-226 in the PG to be used;
d) A description of the measures which will be taken to prevent the uncontrolled release of PG into the environment during transportation, handling and construction; and
e) Written confirmation that the road construction project (inclusive of supporting contractors) will comply with the following conditions set forth in this approval, signed and dated by the public official responsible for the road construction project.
Other Conditions
In accordance with 40 C.F.R 61.206(d)(l) and 40 C.F.R 61.207, the owner or operator of a stack from which PG is removed to be used in road construction must determine annually the average radium-226 concentration at the location in the stack from which the PG is removed.
6
ED_018475D_ 00002953-00098
In accordance with 40 C.F.R 61.206(d)(2) and 40 C.F.R 61.208, the owner or operator of a stack from which PG is removed to be used in road construction and any subsequent distributor, retailer or reseller, shall prepare, make available and provide, and retain appropriate certification documentation and any subsequent purchaser or transferee of PG shall receive and retain appropriate certification.
In accordance with 40 C.F.R 61.206(d)(3) and 40 C.F.R 61.209, each stack owner or operator and end user facility must maintain appropriate records.
In accordance with the circumstances and qualifications associated with the Revised Request and, especially, the risk assessment performed in connection with the Revised Request, as well as the agency's authority under 40 C.F.R 61.206(e) to impose terms or conditions:
In addition to other generally applicable engineering specifications, PG may only be used in government road construction (no private road building) of paved roads (no unpaved roads) and the road design must fall within the following limits:
a) Average radium-226 content of PG to be used in road base or pavement must not exceed 35 pCi/g;
b) Pavement may contain no more than 2.25 percent PG by weight; c) Road base may contain no more than 50 percent PG by weight; d) Road base containing PG may consist of one lift of up to 25 cm depth and not
extend beyond paved areas of the road; and e) A minimum 50-foot setback is required from the edge of the road to inhabited
structures.
Roads constructed with PG may not be abandoned (or otherwise permanently cease to be used as a road) and used for other non-road purposes or uses, including the construction of structures on such former roads.
Any PG that is unused in the road construction or removed as part of road maintenance and not reincorporated into the road base must be returned to the stack.
Records required by 40 C.F.R 61.209(c) must be maintained by the end user facility (i.e. government agency) for the life of the road. The government agency shall make those records available for public review.
Prior to use of PG in a road project, the responsible government agency shall provide public notice that the planned road will use PG. This may occur as part of public outreach processes associated with the road project and must include an opportunity for the public to review road plans and risk assessment materials.
Workers involved in road construction shall be informed that PG contains elevated levels of naturally occurring radionuclides and instructed in proper industrial hygiene.
7
ED_018475D_ 00002953-00099
Any use of PG not consistent with the limitations set forth in this approval shall be construed as unauthorized distribution of PG and may constitute a violation of or noncompliance with 40 C.F.R. Part 61, Subpart R. This approval is pursuant to Subpart R promulgated under the authority of the Clean Air Act. This approval does not relieve TFI, phosphogypsum stack owners or operators or resellers, retailers, distributors or end users or other entities handling, processing or using PG of responsibility to comply with other applicable laws and regulations.
If your staff has further questions, please reach out to Lee Ann B. Veal, Director of the Radiation Protection Division, at veal.lee@epa.gov or (202) 343-9448.
Sincerely,
8
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essage
McCall, Ill, Duke K. [duke.mccall@morganlewis.com] 4/9/2025 1:07:22 PM Cook, Steven [cook.steven@epa.gov] Hilosky, Nick [Hilosky.Nick@epa.gov]; Ruiz, Maryanne [ruiz.maryanne@epa.gov]; McGahren, John Liohn.mcgahren@morganlewis.com]; Williams, Laura [laura.williams@morganlewis.com] ubject:Re: SSP and RCAP Deregulatory Priorities
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Steven:
Thank you very much. We appreciate your consideration of these issues.
Best regards,
Duke
From: Cook, Steven <cook.steven@epa.gov> Sent: Wednesday, April 9, 2025 8:36 AM To: McCall, 111, Duke K.<duke.mccall@morganlewis.com> Cc: Hilosky, Nick <Hilosky.Nick@epa.gov>; Ruiz, Maryanne <ruiz.maryanne@epa.gov>; McGahren, John <john.mcgahren@morganlewis.com>; Williams, Laura <laura.williams@morganlewis.com> Subject: RE: SSP and RCAP Deregulatory Priorities
[EXTERNAL EMAIL] Duke-
Appreciate you reaching out on these important issues. It will take a bit of time to consider the issues raised in the attachments. I will have Nick look for some time in early May for an additional discussion on the specific items raised in your email.
Thanks.
Steven Cook Deputy Assistant Administrator Office of Land and Emergency Management U.S. Environmental Protection Agency Email:===--'--=='""'-"'-~"-:;;,::_:_ Phone: 202-564-7038
ED_018475O_00002964-00001
From: McCall, 111, Duke K.<duke.mccall@morganlewis.com> Sent: Tuesday, April 8, 2025 6:18 PM To: Cook, Steven <cook.steven@epa.gov> Cc: Hilosky, Nick <Hilosky.Nick@epa.gov>; Ruiz, Maryanne <ruiz.maryanne@epa.gov>; McGahren, John <john.mcgahren@morganlewis.com>; Williams, Laura <laura.williams@morganlewis.com> Subject: SSP and RCAP Deregulatory Priorities
I
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Steven:
On behalf of the membership of the Superfund Settlement Project (SSP), I want to express our gratitude for your willingness to meet with SSP in June to discuss our ideas on how to improve the effectiveness of the Superfund program. We also are looking forward to the Senate EPW committee hearing on Improving Future Management of the Superfund Program and hope that hearing will provide additional fodder for discussion.
In the interim, we hope you might consider engaging with SSP and its sister association, the RCRA Corrective Action Project (RCAP), on two discrete issues that we view as advancing the Administrator's Powering the Great American Comeback Initiative and the Administration's broader deregulatory efforts. First, as you no doubt are aware, the Biden EPA issued controversial "Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities" (Lead Guidance) in January 2024, without providing an opportunity for public comment. In doing so, the Agency (i) essentially imposed what amounts to regulatory requirements without providing the regulated community the ability to raise important legal, technical, and implementation concerns with the Lead Guidance, (ii) failed to account for the substantial economic costs that will result from the Lead Guidance (which SSP and RCAP estimate to be between $6.5 and $34 billion annually), and (iii) deprived itself of the opportunity to provide more clear direction on how to apply the Lead Guidance to site-specific evaluations. A copy SSP and RCAP's extensive comments on the Lead Guidance is attached.
Another issue on which SSP and RCAP submitted extensive comments and which SSP and RCAP respectfully submit the Agency should reconsider is the draft IRIS Toxicological Review oflnorganic Arsenic. As explained in SSP and RCAP's comments on the draft IRIS Toxicological Review oflnorganic Arsenic, a copy of which also is attached, the Toxicological Review lacked clear documentation and transparency regarding the methods used making it difficult to evaluate the accuracy of the analyses and conclusions.
We understand that the Agency is seeking to advance competing priorities. We submit that the revisiting the Lead Guidance and reconsidering the IRIS Toxicological Review oflnorganic Arsenic should be among those priorities. We would welcome an opportunity to discuss our concerns with you in more detail.
Best regards,
Duke
Duke K. McCall III
Morgan, lewis & Bockius LLP
1111 Pennsylvania Avenue, NW I Washington, DC 20004-2541 Direct: +1.202.373.6607 I Main: +1.202.739.3000 I Fax: +1.202.739.3001 Assistant: Nimia T. Romero-Aranibar I +1.202.739.5683 I nimia.romeroaranibarrnmor
==~~~==~=~
.morganlewis.com
anlewis.com
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ED_018475D_00002964-00002
we process in accordance with applicable data protection laws and our::....:...;:...:....::.:'-=-'-....::....:::...::..:..::=::.....::.::.;:.=:.....:.....:....:::....:..:..:=-=- If you are not the intended recipient, you may not review, copy, or distribute this message. If you have received this email in error, please contact the sender immediately and delete all copies from your system.
ED_018475D_00002964-00003
essage
Noe, Paul
[Paul_Noe@afandpa.org]
4/8/2025 9:32:11 PM
Busterud, John
[Busterud.John@epa.gov]; Cook,
Steven [cook.steven@epa.gov];
Breen, Barry
[Breen.Barry@epa.gov]
C:
Bradner, Kai
[Kai_Bradner@afandpa.org];
Levine, Jesse
[Jesse_Levine@afandpa.org];
Holm, Stewart
[Stewart_Holm@afandpa.org];
Ruiz, Maryanne
[ruiz.maryanne@epa.gov];
Hilosky, Nick
[Hilosky.Nick@epa.gov];
Valentin, Zad
[Valentin.Zad@epa.gov]; Homra,
Katherine
[Katherine_Homra@afandpa.org]
RE: Materials for AF&PA Meeting
with EPA/OLEM Wed, April 9,
11:45am
ttachments:O. AF&PA Combined EPA
Slides040925_final.pdf; Flawed
Rules Violating EOs
AF&PA040325.pdf
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Dear John et al. As you know, our meeting with you tomorrow has been moved and consolidated with other offices on Wednesday, April 9 from 1lam-12:30pm in EPA North (Room 4045). Attached are copies of our revised consolidated slides we plan to use on Wednesday, as well as an analysis of how our rules of greatest concern (including air rules) violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs. We have a strong showing of about 30 attendees who have expertise in how pulp, paper and wood products mills are affected by regulation. We look forward to seeing you. If you have any questions, please let us know. Thank you, Paul
Paul Noe
ED_018475D_ 00002968-00001
Vice President, Public Policy Paul_N oe@afandpa.org Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
From: Noe, Paul
Sent: Friday, April 4, 2025 2:48 PM
To: Busterud.John@epa.gov; cook.steven@epa.gov; Breen.Barry@epa.gov Cc: Bradner, Kai <Kai_Bradner@afandpa.org>; Levine, Jesse <Jesse_Levine@afandpa.org>; Holm, Stewart <Stewart_Holm@afandpa.org>; ruiz.maryanne@epa.gov; hilosky.nick@epa.gov; Valetin.Zad@epa.gov
Subject: Materials for AF&PA Meeting with EPA/OLEM Wed, April 9, 11:45am
Dear John et al:
Our members are very much looking forward to meeting with you and the EPA/OLEM team on Wednesday, April 9 at 11 :45am in EPA South, Room 3146. We have a strong showing of about two dozen attendees who have expertise in how pulp, paper and wood products mills are affected by regulation. Attached are copies of our slides we plan to use, as well as an analysis of how our rules of greatest concern violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs.
As you will see, our slides focus on: (1) the CERCLA Listing of PFOA/PFOA, and (2) an ongoing analysis of the Loper Bright regulatory framework (including a technical case study of the CERCLA Listing, PFAS MCL, and PM NAAQS). We also have included in an Appendix to the slides some supplemental background material related to the CERCLA listing and the beneficial land application of paper mill residuals.
Zad: If there will be any other EPA attendees at the meeting, I would appreciate it if you could forward these materials to them.
If you have any questions in the meanwhile, please let us know.
Thank you for the opportunity to meet with you.
Best regards,
Paul
Paul Noe Vice President, Public Policy Paul Noc(il:afandpa.or ~ Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
ED_0 18475D_ 00002968-00002
ED_0 18475D_ 00002968-00003
essage
McHale, Caitlin [cmchale@nma.org] 2/14/2025 10:44:38 PM Cook, Steven [cook.steven@epa.gov]; Breen, Barry [Breen.Barry@epa.gov] Industry Group Request for Withdrawal of EPA's Interim Framework for Advancing Consideration of Cumulative Impacts ttachments:lndustry Letter_Withdrawal EPA Interim Framework for Advancing Consideration of Cumulative lmpacts_214-25.pdf
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Hi Mr. Cook and Mr. Breen,
Hope all is well. Attached please find a letter from a group of trade associations urging EPA to withdraw its Interim Framework for Advancing Consideration of Cumulative Impacts. We appreciate your consideration of our request, especially as the current comment deadline is next Wednesday, Feb. 19. We welcome the opportunity to discuss further with you and your teams. Please let me know if you have any questions or need more information.
Thank you so much and have a good weekend, Caitlin
National Mining Association
Caitlin McHale Associate General Counsel National Mining Association 101 Constitution Ave. NW, Suite 500 East Washington, D.C. 20001 Cell/Text: (703) 593-8543 Desk: (202) 463-2646
ED_018475O_00002973-00001
Submitted via email and www.regulations.gov
February 14, 2025
Mr. Steven Cook Deputy Assistant Administrator Office of Land and Emergency Management U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460
Re: Request for Withdrawal of EPA's Interim Framework for Advancing Consideration of Cumulative Impacts; Docket ID No. EPA-HQ-OLEM-2024-0360.
Dear Mr. Cook:
The undersigned trade associations respectfully urge the U.S. Environmental Protection Agency (EPA) to withdraw its Interim Framework for Advancing Consideration of Cumulative Impacts (Interim Framework). 1
Our associations represent a diverse cross-section of America's agriculture, mining, construction, transportation, manufacturing, infrastructure, waste and recycling sectors. Our members are vital to building a thriving national economy and are essential to achieving the nation's critical infrastructure, manufacturing, supply chain, transportation, and energy goals. We understand EPA's interim framework was intended to provide guidance on how EPA program offices could incorporate analysis and consideration of cumulative impacts in agency decisions. Our members regularly obtain federal permits from EPA and operate in compliance with EPA regulations. We therefore have a significant interest in the development of the interim framework.
EPA should withdraw and reconsider the interim framework to align with the President's recent executive actions. The "Regulatory Freeze Pending Review" Presidential Memorandum instructed federal agencies to refrain from issuing "any rule in any manner. .. until a department or agency head appointed or designated by the President. .. reviews and approves the rule."2 The Executive Order defines "rule" broadly to include not only the definitions of "rule" in the Administrative Procedure Act and "regulatory action" in Executive Order 12898, but also "guidance documents" as defined in Executive Order 13891. The order is clearly intended to pause ongoing regulatory actions initiated by the previous administration so that new agency leadership has an opportunity to review these actions to ensure alignment with the current administration's priorities. EPA developed the interim framework during the previous administration and proposed it for public comment on Nov. 21, 2024. It is therefore a prime candidate for withdrawal and reconsideration.
1 89 Fed. Reg. 92,125 (Nov. 21, 2024). 2 "Regulatory Freeze Pending Review," 90 Fed. Reg. 8,249 (Jan. 20, 2025).
1
ED_018475O_00002974-00001
Additionally, many of the referenced documents in the interim framework, such as Executive Order 14096 and EPA's 2022 and 2023 Equity Action Plans, are either no longer in effect or no longer publicly available. Therefore, it is difficult to provide meaningful comments on the interim framework. We welcome the opportunity to work with EPA on regulatory and permitting reforms that support environmental protection, encourage community engagement, and allow critical projects to move forward. We appreciate EPA's consideration of our request and look forward to discussing this further with your team. Please contact Caitlin McHale at ..:;.;;_;_;_;;_;;_;_=c..c:;~;_c;_;_~~ or (202) 463-2646 if you need more information or have any questions. Sincerely, American Coke and Coal Chemicals Institute American Dairy Coalition American Farm Bureau Federation National Asphalt Pavement Association National Mining Association National Oilseed Processors Association National Ready Mixed Concrete Association National Waste & Recycling Association Portland Cement Association The Aluminum Association CC: Mr. Barry Breen, Principal Deputy Assistant Administrator
2
ED_018475D_00002974-00002
Williams, Laura [laura.williams@morganlewis.com] 3/11/2025 12:50:26 PM Cook, Steven [cook.steven@epa.gov]; Hilosky, Nick [Hilosky.Nick@epa.gov]; Ruiz, Maryanne [ruiz.maryanne@epa.gov] McGahren, John Liohn.mcgahren@morganlewis.com]; McCall, Ill, Duke K. [duke.mccall@morganlewis.com] ubject:RE: SSP - Availability for May/June Member Meeting
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Thank you, Steven. We look forward to meeting with you.
Nick, Maryanne, I'll email you separately to work out the logistics.
Laura Williams
Pronouns: She/Her/Hers lewis & Bockius LLP
1000 Louisiana Street, Suite 4000 I Houston, TX 77002-5005 Direct: +1.713.890.5199 I Main: +1.713.890.5000 I Fax: +1.713.890.5001
1717 Main Street, Suite 3200 I Dallas, TX 75201-7347 Direct: I Main: + 1.214.466.4000 I Fax: + 1.214.466.4001 laura.williams@morganlewis.com I www.morganlewis.com
From: Cook, Steven <cook.steven@epa.gov> Sent: Monday, March 10, 2025 7:35 PM To: Williams, Laura <laura.williams@morganlewis.com>; Hilosky, Nick <Hilosky.Nick@epa.gov>; Ruiz, Maryanne <ruiz.maryanne@epa.gov> Cc: McGahren, John <john.mcgahren@morganlewis.com>; McCall, 111, Duke K.<duke.mccall@morganlewis.com> Subject: Re: SSP - Availability for May/June Member Meeting
[EXTERNAL EMAIL] Laura -
Thanks for the invite. Discussions with your group is always intriguing.
Please work with Nick/Maryanne on finding a date.
Steven
Get Outlook for iOS
ED_018475O_00002976-00001
From: Williams, Laura <laura.williams@morganlewis.com> Sent: Monday, March 10, 2025 7:52 PM To: Cook, Steven <cook.steven@epa.gov> Cc: McGahren, John <iohn.mcgahren@morganlewis.com>; McCall, 111, Duke K. <duke.mccall@morganlewis.com> Subject: SSP -Availability for May/June Member Meeting
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Steve,
I am reaching out on behalf of the Superfund Settlements Project to see if you would be able to join us for the next SSP member meeting. We have not yet selected a date, but are targeting a Thursday in May or June at our DC office. Please let me know if there is a date that would work for you - I know SSP members have enjoyed engaging with you at past meetings, and look forward to doing so again.
Thank you, Laura
Laura Williams
Pronouns: She/Her/Hers
lewis & Bockius LLP
1000 Louisiana Street, Suite 4000 I Houston, TX 77002-5005 Direct: +1.713.890.5199 I Main: +1.713.890.5000 I Fax: +1.713.890.5001
1717 Main Street, Suite 3200 I Dallas, TX 75201-7347
Direct: I Main: + 1.214.466.4000 I Fax: + 1.214.466.4001
w.morganlewis.com
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ED_018475D_00002976-00002
essage
Noe, Paul [Paul_Noe@afandpa.org] 4/4/2025 7:46:16 PM Hilosky, Nick [Hilosky.Nick@epa.gov]; Busterud, John [Busterud.John@epa.gov]; Cook, Steven [cook.steven@epa.gov]; Breen, Barry [Breen.Barry@epa.gov] C: Bradner, Kai [Kai_Bradner@afandpa.org]; Levine, Jesse [Jesse_Levine@afandpa.org]; Holm, Stewart [Stewart_Holm@afandpa.org]; Ruiz, Maryanne [ruiz.maryanne@epa.gov]; Valetin.Zad@epa.gov ubject:RE: Materials for AF&PA Meeting with EPA/OLEM Wed, April 9, 11:45am
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Thanks very much, Nick. Kai can help ensure our members are updated if you'd like to change the location.
Have a good weekend.
Best,
Paul
Paul Noe Vice President, Public Policy Paul_N oe@afandpa.org Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
From: Hilosky, Nick <Hilosky.Nick@epa.gov>
Sent: Friday, April 4, 2025 3:43 PM
To: Noe, Paul <Paul_Noe@afandpa.org>; Busterud, John <Busterud.John@epa.gov>; Cook, Steven <cook.steven@epa.gov>; Breen, Barry <Breen.Barry@epa.gov> Cc: Bradner, Kai <Kai_Bradner@afandpa.org>; Levine, Jesse <Jesse_Levine@afandpa.org>; Holm, Stewart <Stewart_Holm@afandpa.org>; Ruiz, Maryanne <ruiz.maryanne@epa.gov>; Valetin.Zad@epa.gov
Subject: RE: Materials for AF&PA Meeting with EPA/OLEM Wed, April 9, 11:45am
ED_018475O_00002979-00001
. This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.
Hi Paul, Just to clarify and so there is no confusion next week, we are actually in EPA West, Room 3146. However, given the large number of attendees we are looking for a larger room - so location may change. For the time being, I have updated the invite with the current location information. In addition, thank you for the materials ...we will share those with our attendees.
Thanks, Nick
Nicholas J. Hilosky
Chief of Staff
Office of Land and Emergency Management
Phone: 202-566-1942 Email: Hilosky.nick@epa.gov
From: Noe, Paul <Paul Noe@afandpa.org> Sent: Friday, April 4, 2025 2:48 PM To: Busterud, John <Busterud.John@e_p_~:R_Q~>; Cook, Steven <cook.steven@~E.:.g_g_\/_>; Breen, Barry <Breen.Bar y@_~~_,.g_g_y_> Cc: Bradner, Kai <Kai Bradner@afandpa.org>; Levine, Jesse <Jesse Levine@afandpa.org>; Holm, Stewart <Stewart Holm afand a.or >; Ruiz, Maryanne <ruiz.maryanne@_~_p_~:R_Q~>; Hilosky, Nick <Hilosky.Nick@~E.:.g_g_\/_>; Valeti n.Zad@epi!,_g_Q_\I_ Subject: Materials for AF&PA Meeting with EPA/OLEM Wed, April 9, 11:45am
I
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Dear John et al:
Our members are very much looking forward to meeting with you and the EPA/OLEM team on Wednesday, April 9 at 11 :45am in EPA South, Room 3146. We have a strong showing of about two dozen attendees who have expertise in how pulp, paper and wood products mills are affected by regulation. Attached are copies of our slides we plan to use, as well as an analysis of how our rules of greatest concern violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs.
As you will see, our slides focus on: (1) the CERCLA Listing of PFOA/PFOA, and (2) an ongoing analysis of the Loper Bright regulatory framework (including a technical case study of the CERCLA Listing, PFAS MCL, and PM NAAQS). We also have included in an Appendix to the slides some supplemental background material related to the CERCLA listing and the beneficial land application of paper mill residuals.
Zad: If there will be any other EPA attendees at the meeting, I would appreciate it if you could forward these materials to them.
If you have any questions in the meanwhile, please let us know.
Thank you for the opportunity to meet with you.
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Best regards, Paul Paul Noe Vice President, Public Policy Paul Noc(il:afandpa.or ~ Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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McCall, Ill, Duke K.
[duke.mccall@morganlewis.com]
4/8/2025 10:18:27 PM
Cook, Steven [cook.steven@epa.gov]
Hilosky, Nick
[Hilosky.Nick@epa.gov]; Ruiz,
Maryanne
[ruiz.maryanne@epa.gov];
McGahren, John
Liohn.mcgahren@morganlewis.com];
Williams, Laura
[laura.williams@morganlewis.com]
ubject:
SSP and RCAP Deregulatory Priorities
ttachments:Final Comments on Updated Lead
Soil Guidance.pdf; 24-05-16 PNG Soil
Lead Guidance Analysis.pdf;
Final_Ramboll Res Soil Pb Guide
Comments 9May2024.pdf;
Ramboll_lnorganic Arsenic
Comments_12.15.2023.pdf; SSP
RCAP IRIS Inorganic Arsenic BMD
Modeling Comments.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Steven:
On behalf of the membership of the Superfund Settlement Project (SSP), I want to express our gratitude for your willingness to meet with SSP in June to discuss our ideas on how to improve the effectiveness of the Superfund program. We also are looking forward to the Senate EPW committee hearing on Improving Future Management of the Superfund Program and hope that hearing will provide additional fodder for discussion.
In the interim, we hope you might consider engaging with SSP and its sister association, the RCRA Corrective Action Project (RCAP), on two discrete issues that we view as advancing the Administrator's Powering the Great American Comeback Initiative and the Administration's broader deregulatory efforts. First, as you no doubt are aware, the Biden EPA issued controversial "Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities" (Lead Guidance) in January 2024, without providing an opportunity for public comment. In doing so, the Agency (i) essentially imposed what amounts to regulatory requirements without providing the regulated community the ability to raise important legal, technical, and implementation concerns with the Lead Guidance, (ii) failed to account for the substantial economic costs that will result from the Lead Guidance (which SSP and RCAP estimate to be between $6.5 and $34 billion annually), and (iii) deprived itself of the opportunity to provide more clear direction on how to apply the Lead Guidance to site-specific evaluations. A copy SSP and RCAP's extensive comments on the Lead Guidance is attached.
Another issue on which SSP and RCAP submitted extensive comments and which SSP and RCAP respectfully submit the Agency should reconsider is the draft IRIS Toxicological Review oflnorganic Arsenic. As explained in SSP and RCAP's comments on the draft IRIS Toxicological Review oflnorganic Arsenic, a copy of which also is attached, the Toxicological Review lacked clear documentation and transparency regarding the methods used making it difficult to evaluate the accuracy of the analyses and conclusions.
We understand that the Agency is seeking to advance competing priorities. We submit that the revisiting the Lead Guidance and reconsidering the IRIS Toxicological Review oflnorganic Arsenic should be among those priorities. We would welcome an opportunity to discuss our concerns with you in more detail.
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Best regards, Duke
Duke K. McCall III Morgan, lewis & Bockius LLP
1111 Pennsylvania Avenue, NW I Washington, DC 20004-2541 Direct: +1.202.373.6607 I Main: +1.202.739.3000 I Fax: +1.202.739.3001 Assistant: Nimia T. Romero-Aranibar I +1.202.739.5683 I nimia.romeroaranibarrnmor duke.mccall rnmor anlewis.com I www.morganlewis.com
anlewis.com
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ED_0 18475D_ 00002983-00002
May 16, 2024
VIA FEDERAL eRULEMAKING PORTAL
U.S. Environmental Protection Agency Office of Land and Emergency Management 1200 Pennsylvania Ave. NW Washington, DC 20460
Re: Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities - Docket No. EPA-HO-OLEM-2023-0644
Dear Ms. Lowery and Ms. Burgess:
Thank you for the opportunity to provide comments on the "Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities" (the "Guidance'') issued by the U.S. Environmental Protection Agency ("EPA") on January 17, 2024. The undersigned organizations include the Superfund Settlements Project ("SSP"), 1 the RCRA Corrective Action Project ("RCAP"), 2 the National Mining Association,3 and the American Petroleum Institute. 4 These organizations represent hundreds of major companies from many different sectors of American industry with
The SSP is an association of major companies from many different sectors of American industry. It was organized in 1986 to help improve the effectiveness of the Superfund program by encouraging settlements and program policies so as to achieve site closure with minimum delay and expense. Since its formation, the SSP has provided constructive input to EPA and other federal agencies on critical policy issues affecting the cleanup of contaminated sites; SSP representatives also have testified before Congress on many of these issues. 2 RCAP is an association of major companies from many different sectors of American industry. RCAP was organized in 1988 following EPA's first corrective action regulatory proposals with the goal of encouraging cleanup standards and procedures that achieve environmental benefits in a manner that is both risk-based and cost-effective. Since its formation, RCAP has provided constructive input to EPA, Congress, and other regulatory agencies on critical policy issues affecting the cleanup of contaminated sites. 3 The National Mining Association ("NMA") is the only national trade organization that serves as the voice of the U.S. mining industry and the hundreds of thousands of American workers it employs before Congress, the federal agencies, the judiciary and the media, advocating for public policies that will help America fully and responsibly utilize its vast natural resources. The NMA has a membership of more than 280 companies and organizations involved in every aspect of mining, from producers and equipment manufacturers to service providers. America's mining industry supplies the essential materials necessary for nearly every sector of our economy - from technology and healthcare to energy, transportation, infrastructure and national security. We work to ensure America has secure and reliable supply chains, abundant and affordable energy, and the American-sourced materials necessary for U.S. manufacturing, national security and economic security, all delivered under world-leading environmental, safety and labor standards. 4 The API is a national trade association representing member companies involved in all aspects of the oil and gas industry, including exploration, production, refining, transportation, distribution, and marketing of petroleum and petroleum products.
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significant experience remediating lead in soil.
Executive Summary
Cleanup of lead in soils is a complex task for communities, companies, and families as they contend with public health, environmental and resource challenges, and should be based on the best science and actual risk. Below, and as supported by the attachments, we offer our comments that support revisions to the Guidance based on the most up-to-date science, EPA's statutory authority, and the impact of site-specific exposures, as well as suggestions for implementation of the Guidance. We also are providing economic comments that demonstrate the significant economic cost of the Guidance that far exceeds EPA's economic assessment.
Specifically:
By not seeking public comment prior to issuing the Guidance as final and immediately effective, EPA has essentially imposed what amounts to a regulatory requirement without considering important legal, technical, and implementation concerns. At the very minimum, EPA should prepare a response to comments provided by the public on the Guidance, potentially by way of an implementation memorandum addressing the issues below, including identification of clearer factors to help define how the Guidance, which is largely focused on Regional Screening Levels ("RSLs''), may or may not affect cleanups that are underway with established cleanup standards as well as completed sites.
The default assumptions used by EPA in the Integrated Exposure Uptake Biokinetic ('IEUBK") model to set the Regional Removal Management Level ("RML") and RSLs in the Guidance are outdated and inconsistent with other EPA programs, resulting in the RML and RSLs being far lower than needed to achieve the desired target blood lead levels. EPA should revise the RML and RSLs in the Guidance using the IEUBK inputs described in Appendix Band should endorse updating modeling with updated and/or site-specific input parameters.
Using national statistical trends and datasets, including the Centers for Disease Control and Prevention's ("CDC's") reference value for childhood blood lead levels and those identified in EPA's Supplemental Framework to the Guidance, results in overly conservative action levels and numerous implementation issues. Site-specific information regarding exposure and risk is necessary for appropriate and accurate site-specific decision-making. EPA should provide additional guidance on the use of site-specific evaluations when applying the Guidance to a site. A site-specific evaluation should be mandatory, in particular, prior to reopening completed response actions.
The imposition of two RSLs is confusing, unsupportable, and exceeds statutory authority under the Comprehensive Environmental Response, Compensation and Liability Act ('CERCLA") and the Resource Conservation and Recovery Act ("RCRA"). The lower RSL essentially double-counts sources unrelated to the CERCLA or RCRA release since the IEUBK model accounts for human health risks posed by other sources of lead. Further, the implementation issues are unworkable: for example, it appears that sites may be reopened based on the potential, but not actual, existence of other sources of lead; neighboring properties may be treated differently. EPA should eliminate the multi-source RSL of 100 ppm. If EPA retains the multi-source RSL, it should re-run the IEUBK model zeroing out inputs accounting for other sources of lead and revise the RSL accordingly.
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Because the Guidance sets screening levels at artificially low levels, EPA and responsible parties will be incurring substantial costs to assess lead at numerous properties where removal of soil will have little to no impact on blood lead levels. EPA should provide guidance on using actual blood lead data versus using the screening levels as well as guidance on developing cleanup standards.
EPA should develop a practicable, scientifically defensible policy regarding how to assess natural and anthropogenic background concentrations of lead in soil.
Given the enormous number of sites that will be impacted by the Guidance, EPA needs to address implementation issues reasonably and rationally given limited resources. EPA should identify and prioritize sites where there is actual exposure and risk, address sites in a manner that will allow limited resources to be used efficiently and develop incentives for responsible parties to address sources outside EPA's statutory authority to achieve risk reduction most effectively. Stakeholder input, particularly from those actually performing the response actions, should be weighed heavily.
EPA's economic assessment of the Guidance does not account for significant costs that will result from the Guidance, calling into question the economic basis supporting EPA's decision and the actual cost to communities, governments, and responsible parties. EPA should revise its economic assessment to address these additional costs.
I.
EPA Should Revise the Guidance to Incorporate the Most Up-to-Date Science,
Base Need for Cleanup on Site-Specific Exposure, and Work Within Statutory
Authority
A.
The default assumptions for the IEUBK model must reflect the most up-to-date science.
Several of the assumptions used by EPA in the IEUBK model to derive the RSLs are outdated, overly conservative, and inconsistent with those used by other EPA programs. Appendix B demonstrates that when using assumptions that more accurately reflect current scientific knowledge and are consistent with assumptions used by EPA in other programs, the RSLs set by the Guidance are far lower than needed to achieve the desired target blood lead levels. The RSLs should be adjusted to, at the lowest, 435 ppm for soil impacted by a single source of lead and 253 ppm for soil impacted by multiple sources.
Cleanup of lead in soils is a complex task for communities, companies, and families as they contend with public health, environmental, and funding challenges, and should be based on the best science and actual risk. Not updating the input assumptions to use more current study data will result in additional evaluation of potential lead risk in soil via RSL exceedance that, in many cases, will not be a concern, thus wasting valuable resources. By setting the screening levels at levels unsupported by the best science, enormous costs will be incurred without corresponding health benefits. We recommend that EPA revise its guidance consistent with the comments provided in Appendix B.
B.
Use of the CDC Reference Value makes screening and cleanup levels a moving target;
national statistical trends should not govern site-specific decisions.
The new RML and RSLs in the Guidance are based on the CDC's reference value for childhood blood lead levels. The directions in the Guidance for developing Preliminary Remediation Goals ("PRGs") and cleanup levels for lead also rely on the CDC's reference value. Using the
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geographically unrelated statistical-based CDC reference value, however, makes the RMLs, RSLs, and PRGs a moving target without consideration of site-specific information on actual exposure and risk.
Since 1976, national childhood blood lead levels have steadily declined. 5 EPA credits this trend to the elimination of leaded gasoline, lead-based paints, lead solder in food and drink packaging, and lead in plumbing systems. 6 EPA's Lead Strategy, however, acknowledges that there are still significant sources of lead exposure to children, especially in older housing with lead-based paint and lead service lines.7 As these sources are mitigated as part of EPA's Lead Strategy, the national declining trend in childhood blood lead levels is expected to continue. In addition, CDC is likely to adjust its reference value in the future when it conducts its periodic reviews of national childhood blood lead data. The CDC analyzes childhood blood lead data every four years from the most recent four years of national data to determine whether its reference value should be updated. Because EPA uses the CDC's statistical-based reference value as the target for its RMLs, RSLs, PRGs, and risk-based cleanup levels, those levels are likely to continue to change as often as every four years. This approach makes the RMLs, RSLs, PRGs, and cleanup levels for residential lead properties a perpetually moving target, creating significant uncertainty about whether a cleanup today will be acceptable to EPA several years later-a result that makes little sense since a cleanup that has been deemed protective on a site-specific basis should not be reopened because of national-level aggregate statistical trends in child blood lead data that are not tied to exposure and risk at any particular site. In its comments on the Lead Strategy, the Colorado Department of Public Health and Environment recognized this risk and urged EPA to provide guidance on how previously remediated sites should be handled "in light of a shifting target for lead cleanup."8 Reevaluating residential properties repeatedly based on national statistical trends is not an efficient use of remedial resources. It could also foster mistrust by residential property owners because their property, which was once cleaned up to "safe levels," becomes no longer safe and needs to be addressed again (and again). Rather than targeting the CDC reference value, which is based on statistical trends, EPA should evaluate the release to soil at issue and whether and to what extent it is contributing to increased child blood lead levels, if any. If adequate childhood blood lead data exists for the community where the site is located, that data should be considered when evaluating whether new or additional remedial action is needed. Without relevant, accurate, and reliable sitespecific data indicating actual risk, substantial effort, and funds will be spent without corresponding benefit and with a diversion from other projects where benefit could be realized. Aggregate
See U.S. EPA, "Biomonitoring - Lead," available at https:/lwww.epa.gov/americaschildrenenvironment/biomonitorinq-lead (showing a 96 percent decrease in the median concentration of lead in the blood level of children between the ages of 1 and 5); U. S. EPA, "Report on the Environment: Blood Lead Level" available at https:/lcfpub.epa.gov/roe/indicator.cfm?i=63.
6 U.S. EPA, EPA Strategy to Reduce Lead Exposures and Disparities in U.S. Communities at 11 (Oct. 2022) ("Lead Strategy"), available at https:/lwww.epa.gov/system/files/documents/2022-11/Lead%20Strategy 1. pdf.
7 Id.
8 Letter from Shaun McGrath, Environmental Health and Protection Services Director, Colorado Department of Public Health and Environment, to EPA Docket ID: EPA-HQ-OLEM-2021-0762 (Feb. 28, 2022), available at https:/lwww.regulations.gov/comment/EPA-HO-OLEM-20210762-0022.
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national statistical data should not drive a requirement for investigation or other response action when site-specific data show that the current level is protective.
This approach was advanced in comments on the Lead Strategy by the Oklahoma Department of Environmental Quality, which stated that evaluation of blood lead levels and identification of leadbased paint should precede any decision to reopen a site. 9 Moreover, the Environmental Protection Network states, "It is generally a question of whether to remediate additional lead-contaminated properties rather than previously remediated ones. Remedy reviews by and large show that the remediated properties present little to no exposure risk."10 EPA should revise the Guidance to address reopening sites based on site-specific data demonstrating actual risk rather than RSLs developed based on national statistical trends.
C.
By revising RSLs downward based on the presence of other potential lead sources, the
Guidance exceeds EPA's statutory authority under CERCLA and RCRA and poses
unacceptable implementation challenges.
Responses under CERCLA may be taken only to address releases or threatened releases from a facility to the environment of hazardous substances or of pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare. 11 Furthermore, CERCLA response actions are expressly prohibited to respond to a release or threat of release of a naturally occurring substance in its unaltered form; from products which are part of the structure of, and result in exposure within, residential buildings or other structures; or into public or private drinking water supplies due to deterioration of the system through ordinary use. 12 Similarly, corrective action under RCRA is limited to addressing releases into the environment from facilities that treat, store or dispose of hazardous wastes. 13
EPA acknowledges in its Questions and Answers (Q&A) to the Guidance that CERCLA limits EPA's ability to address lead from lead-based paints, leaded gasoline, and lead service lines. 14 However,
9 Letter from Scott A. Thompson, Executive Director, Oklahoma Department of Environmental Quality, to EPA Docket ID: EPA-HQ-OLEM-2021-0762 (March 2, 2022), available at https:/lwww. regulations.gov/comment/EPA-HO-OLEM- 2021-0762-0325.
10 Environmental Protection Network, Comments on EPA's draft Strategy to Reduce Lead Exposures and Disparities in U.S. Communities Docket Number: EPA-HQ-OLEM-2021-0762 (March 8, 2022), available at https:/lwww.regulations.gov/comment/EPA-HO-OLEM-20210762-0029.
11 42 u.s.c. 9604.
12 42 U.S.C. 9604(c).
13 42 U.S.C. 6924(u) and (v); 42 U.S.C. 6928(h).
14 See OLEM Residential Soil Lead Guidance, Questions and Answers, Question #3 (on file with authors). EPA has not published this document on its website. See also e.g. 42 U.S.C. 9604 (a)(3)(B) ("The President shall not provide of a removal or remedial action under this section in response to a release or threatened release ... from products which are part of the structure of, and result in exposure within, residential buildings or business or community structures[.]" EPA explains in the Q&A: "Because lead-based paint is part of your building's structure, the Superfund program is prevented from addressing it." EPA also refers to leaded
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if these sources are present at a property being considered for soil remediation, the Guidance reduces the RSL to 100 parts per million (ppm) and lowers the lead target for PRGs and cleanup levels from 5.0 ug/dL to 3.5 ug/dl. Requiring a more stringent RSL, PRG, and cleanup level based on lead sources unrelated to the CERCLA or RCRA release results in actions being required under CERCLA or RCRA to address exposure that EPA acknowledges it does not have authority to address. Furthermore, it is not necessary because, as discussed in Appendix B, the IEUBK model already takes into consideration human health risks posed by other sources of lead.
Beyond exceeding its statutory authority, EPA's approach is unworkable in several ways. EPA makes an arbitrary adjustment to the reference level based purely on the existence of a potential source of lead, whether there is any evidence of a release or impact from that potential source. For example, if a property has a lead service line, the Guidance would impose a more stringent RSL for that property without showing that the service line actually impacted the soils being remediated or that the service line has impacted the residents. This approach is likely to greatly increase the burden associated with conducting a CERCLA or RCRA remedial action at residential properties, even in cases where the potential non-CERCLA/RCRA sources do not themselves increase risk at all. Such burdens are not solely of concern to the responsible parties implementing the response action, as too aggressive an approach to sites that pose a marginal risk will divert agency and responsible party attention and resources away from other sites presenting greater risk. Rather than address this issue through a rough, arbitrary adjustment to the screening level that appears to have no quantitative justification, this concern should be dealt with on a site-specific basis in the context of risk assessments performed for a particular site that is tailored to the particular conditions of that response action with strict adherence to the bounds of statutory authority.
Furthermore, it would be difficult to implement different RSLs, PRGs, and cleanup levels dependent on single or multiple sources of lead. EPA recommends that the EPA Regions use national data sets and site-specific sources to determine whether there are single or multiple sources. 15 However, the information in national data sets is often too general for determining whether a specific property has single or multiple sources. For example, a national data set may identify the potential for lead-based paint based on the age of housing in a residential area. However, the national data sets do not account for changes to the housing that may have mitigated lead-based paint.
In its Supplemental Framework to the Guidance, EPA indicates that the EPA Regions may apply a single RSL, PRG, or cleanup level to an entire site based on its national data sets. This direction does not account for variations among individual residential properties within the site. For example, properties that have only a single source of lead may still be subject to the lower multisource RSL, PRG, or cleanup level because the site falls within a community identified in a national data set. This approach is overly burdensome and does not account for actual lead exposure conditions on a property. National data sets still need to be validated and should be used only when site-specific data cannot be generated.
The only accurate way to determine whether a residential property has single or multiple sources of lead is to assess the property for potential sources of lead. A party performing soil remediation
gasoline and paint as contributing to background levels of lead that cannot be addressed by Superfund. See Q&A, Question #25. 15 U.S. EPA, Supplemental Framework: Selecting a Remedial Screening Level for Residential Soil Lead, available at https://semspub.epa.gov/work/HO/100003397.pdf.
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would need to investigate each potentially affected property for natural and anthropogenic sources of lead (e.g., paint sampling, water service line assessment, and leaded gasoline sampling near roadways) in order to determine what standard applies to that property. Some properties may have a single source, while other neighboring properties may have multiple sources. The Guidance provides no direction on how to investigate a property for sources of lead, which is apparently pivotal to what PRG and cleanup level applies even as these sources are not an appropriate target for CERCLA or RCRA responses.
Another implementation concern with the Guidance is how it would be used to determine whether to expand the areal scope of a CERCLA or RCRA site. If a site currently only covers a portion of a residential community, the Guidance would require an evaluation of whether the boundaries of the site should be expanded based on a lower RSL. If some properties outside the current boundaries have multiple sources and others do not, properties could be added on a piecemeal basis. Furthermore, some of the expansion of a site would be based solely on a 100 ppm RSL due to nonCERCLA/RCRA releases. This will result in significant uncertainty on how to establish a site boundary. It could also render determinations of site-specific anthropogenic background difficult or impossible to make-a particularly important consideration since EPA is proposing an approach that might drive cleanup levels for lead to background at many urban sites. Employing the Guidance would require evaluation of properties where background would essentially be the "source" that requires the use of the lower RSL. Responsible parties would incur enormous costs evaluating that property only then for the cleanup level to be set at background which may have been the "source" causing the exceedance in the first place. The lower the RSL and the closer it is to anthropogenic background, the more difficult it will be to establish a scientifically sound approach to defining the boundaries of a particular site.Thus, this may lead to complications that could delay the already challenging process of bringing urban residential CERCLA/RCRA sites to completion.
If EPA continues to base its RSL on the CDC reference value, we recommend EPA revise the Guidance to include a single scientifically defensible RSL that would apply to newly discovered sites. As discussed above, for existing sites undergoing re-evaluation, we urge EPA to revise the Guidance to require site-specific determination of actual risk and an evaluation of background before going down the complicated and arbitrary path that will result from the implementation of the current Guidance.
II. EPA Underestimates the Social Costs of the Guidance
EPA's economic assessment (EA) fails to provide an accurate social cost estimate. First, EPA does not include all sites that will be affected by this Guidance, instead arbitrarily basing its cost estimate on three limited categories of CERCLA sites. As explained in an economic analysis completed by Policy Navigation Group (PNG), provided in Appendix C, EPA should have included Brownfields and other non-NPL CERCLA sites that are in EPA's active inventory. EPA has the data to include the active CERCLA sites, brownfields, and federal facility sites. By using an estimate of "zero" for these sites, EPA is not using the best available information and including the full universe of sites affected by this guidance. PNG's analysis shows that the more accurate number of affected properties is approximately 608,400 as compared to EPA's midpoint estimate of 469,165 properties. Accordingly, PNG's analysis estimates that EPA underestimated affected properties by a minimum of 30 percent. By failing to include these key categories, EPA's analysis significantly understates the costs associated with this Guidance.
Second, EPA underestimates the remediation cost of each site by omitting oversight costs EPA charges private parties, the transaction costs private parties incur to assign liability and to manage
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the cleanup, and other construction management costs. EPA's partial analysis of social costs estimates range from an annualized amount (at three percent) of $190 million to $580 million per year, with a midpoint range of $240 million to $470 million annually. PNG's analysis estimates annualized social costs (at three percent) are between $6,500 million and $34,000 million per year ($6.5 billion per year to $34 billion per year).
By not accurately accounting for costs, EPA has failed to follow its own economic analysis guidance, its requirements for analysis under statutes, and best economic practices and requirements under the Office of Management and Budget's Circular A-4. In addition, the Small Business Regulatory Enforcement Fairness Act requires that EPA evaluate the impacts on small entities and the alternatives that could accomplish the same objectives. EPA should clarify whether it has considered such effects on small businesses and other organizations and propose options and flexibility for implementation. PNG's analysis further emphasizes that EPA should have subjected this Guidance to public comment prior to issuance.
III. The Guidance Should Be Implemented in a Practical Manner that Balances Resources While Addressing Risk
A.
EPA must develop a background policy that reflects realistic, natural, and anthropogenic
lead levels.
The Guidance states that a lead cleanup level should not be set below natural or anthropogenic background. However, establishing background for lead is difficult because lead is widely dispersed in soil and background can be from a variety of sources. For example, a site may have varying natural concentrations of lead in soil due to different geologies within the site. Also, residential properties within a site may have varying anthropogenic sources of lead that cannot be addressed under CERCLA or RCRA (e.g., leaded gasoline, lead-based paint, lead service lines). Indeed, even within a single property, natural and anthropogenic sources may vary. It often becomes impossible to speciate the sources of lead to separate what is background and what was contributed by the release driving the need for remedial action. This likely will result in multiple and varied background-based cleanup levels for lead that are property-specific.
EPA should provide additional guidance on establishing background concentrations of lead for sites involving multiple residential properties with varying sources of lead. Indeed, in its comments on the Lead Strategy, the Colorado Department of Health and Environment emphasized the need to develop such a policy. 16 In doing so, we suggest EPA focus on a realistic, rather than a conservative, evaluation of background to help ensure the ability to meet the cleanup goals.
Appendix B demonstrates that anthropogenic soil levels will exceed the new RSLs for any community with older housing. As shown by the U.S. Department of Housing and Urban Development (HUD 2021), the U.S. average soil lead concentration for homes built prior to 1940 is 405 mg/kg, more than double the single-source RSL. Appendix B provides a suggested method for using the HUD data to derive site-specific anthropogenic soil lead values based on house age distribution.
16 Letter from Shaun McGrath, Environmental Health and Protection Services Director, Colorado Department of Public Health and Environment, to EPA Docket ID: EPA-HQ-OLEM-2021-0762 (February 28, 2022), available at https://www.regulations.gov/comment/EPA-HO-OLEM-20210762-0022.
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B.
EPA must provide guidance when previously remediated properties will need to be subject
to additional remediation.
The Q&A associated with the Guidance states that, generally, a residential yard previously cleaned
up will not need additional cleanup. However, the Guidance does not identify those circumstances when a residential yard may be identified as needing additional cleanup. Failure to address the myriad issues related to the hundreds of thousands of properties that have been previously remediated and may be subject to re-evaluation fails to provide fair notice to responsible parties and property owners.
As an initial issue, the depth of soil that exceeds a new cleanup level may not be known because the prior extent of contamination investigation targeted a higher level. EPA has provided no guidance on when responsible parties would be required to open an entirely new remedial investigation. One EPA Region stated that companies should follow current orders as written. Another EPA Region signaled that it would be likely that responsible parties will have to redo work required to be done this year under orders negotiated prior to this Guidance. This is the kind of implementation challenge that EPA should have considered and addressed thoroughly before issuing this Guidance with an immediate effective date and must be addressed now.
The Guidance also does not address the situation where "clean" fill approved by EPA or other agencies for use during the prior cleanup exceeds the new cleanup level. For example, our members are in the process of implementing EPA remediation orders requiring the use of backfill that is, for example, less than 100 ppm, yet previously complied with EPA orders that permitted backfill with higher lead concentrations. EPA has provided no guidance on whether companies will need to reassess all those yards where the backfill was more than 100 ppm and even whether companies will need to address the backfill itself. Complicating these issues further is that local fill may contain lead above a new cleanup level, particularly in highly urbanized communities or in communities where there are naturally occurring higher concentrations of lead in soil.
The Guidance further does not address whether new engineering and institutional controls will be required at residential properties previously cleaned up when the deeper soil capped by the clean fill exceeds the new RSL or a new cleanup level. The use of engineering and institutional controls on residential properties can be difficult to implement and enforce because homeowners (especially subsequent owners) usually do not want their property burdened with such controls and may not understand the procedures required to comply with the engineering and/or institutional control.
Consistent with the discussion above, we recommend EPA assess previously remediated properties based on site-specific risk rather than a one-size-fits-all approach based on national data sets. We further recommend that EPA acknowledge the reality of the scarcity of backfill that can meet the standards anticipated by the Guidance and the prior definitions of "clean" backfill, which adds difficulties to present remediation efforts. Furthermore, backfill specifications need to reflect regional background levels.
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C.
EPA should re-evaluate previously remediated properties based on site-specific data,
including community childhood blood lead data rather than national data sets.
As EPA explains, the RSLs, PRGs, and cleanup levels are driven by the CDC's childhood lead blood reference value and are intended to ensure, through modeling, that prolonged exposure to contaminated soil will not cause more than five percent of children's blood to exceed the CDC value. Most communities already have actual blood lead testing for children that shows that the community's childhood blood levels are below the CDC's reference value. The Guidance does not address how actual childhood blood lead data should be used when evaluating whether a site that includes residential properties needs to be remediated or reevaluated. At a minimum, the Guidance should be revised to state that remediated sites should not be reopened based solely on the new RSLs, PRGs, or cleanup levels unless available childhood blood lead levels or other data clearly indicate the earlier cleanup is no longer adequately protective. 17
D.
The Guidance should be revised to account for the availability of resources for sampling,
remediation, and restoration.
Hundreds of thousands of residential properties have been remediated for lead over the past 40 years. EPA estimates in its Economic Assessment of the Guidance that almost a half million residential properties will need to be addressed under the Guidance. 18 This estimate does not account for state-led and voluntary remediation projects. The EPA Regions are encouraged in the Guidance to address these properties as part of their periodic reviews of sites (e.g., a five-year review for CERCLA sites). If the Guidance is implemented using the RSLs developed from the CDC reference value, many of these periodic reviews are likely to result in a determination that additional remedial action may be necessary. Residential property owners are going to expect immediate follow-up. However, there are not enough resources available in the United States to remediate that many properties in a short period of time.
For example, EPA anticipates that there will be strain on the supply of clean fill in some communities. Further, there are a limited number of remediation contractors qualified to perform large-scale residential yard cleanups. The Guidance provides little direction on how these sites will be prioritized and how to manage the public's expectations of getting their residential properties addressed promptly. Further, reopening already-cleaned sites on the basis of the new reference level-particularly where blood lead data shows the remedy to be protective-is likely to delay action at not-yet-investigated sites where lead levels may be higher because of the deployment of limited resources elsewhere.
E.
Given the state of resources, EPA should develop policies that will better use existing
resources while appropriately addressing exposure.
As stated above, resources to implement the Guidance will be stretched. EPA should think creatively to address exposure and risk in a manner that will allow those resources to be used in the most efficient manner. Footnote 7 in the Guidance states that "EPA's Federal Facilities Restoration and Reuse Office (FFRRO) works with EPA regions and other federal agencies to
17 See Letter from Scott A. Thompson, Executive Director, Oklahoma Department of Environmental Quality, to EPA Docket ID: EPA-HQ-OLEM-2021-0762 (March 2, 2022), available at https://www.requlations.gov/comment/EPA-HO-OLEM-2021-0762-0325.
18 EPA Economic Assessment, Jan. 2024, Exhibits ES.7 & 4.4 (midpoint count).
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May 16, 2024 Page 11
develop creative, cost-effective solutions to environmental challenges at Federal Facility Superfund Sites." EPA should apply this same creativity and focus on cost-effective solutions to private-party sites.
As set forth in Appendix B, we advocate for both the RSLs and site-specific cleanup levels being applied to the average concentrations for a residential yard and should not be considered as notto-exceeded levels. EPA should provide additional guidance to ensure consistency in the application of the RSLs and site-specific cleanup levels.
When evaluating whether additional remediation is necessary under the Guidance, EPA should also recognize the benefit of existing covers in reducing exposure. EPA has, in fact, noted that even a sod cover reduces exposure effectively.
EPA should also consider soil amendments that can be used to reduce lead bioavailability. To that end, we recommend EPA fast track feasibility studies on amendments, such as provisions for the use of jarosite, which can be used as an alternative to achieve lower action levels with less impact on property owners.
F.
EPA should incentivize cooperating parties to achieve risk reduction in the most efficient
manner.
Sources of lead exposure other than soils subject to cleanup under CERCLA or RCRA generally have greater impacts on blood lead levels than what can be addressed through remediation. Indeed, EPA has long recognized that addressing other sources of lead exposure may have a significantly greater beneficial impact than addressing contaminated soil that would be subject to remediation under CERCLA or RCRA. 19 The Guidance should provide for the case where a cooperating party agrees to conduct activities beyond the statutory scope of CERCLA or RCRA. EPA should incentivize such action by allowing the benefits of that work to be reflected in the soil cleanup standards and/or remedy selection. Additional incentives, such as not requiring payment of oversight costs or posting of financial assurance for the work being done outside of CERCLA and RCRA authority as well as reduction in oversight costs or financial assurance requirements for other elements of the selected remedy, should also be considered. Incentives should bear a proportional relationship to the cost of the work and the benefits to the community. In the end, this approach could have significantly greater health benefits to the residents and help preserve scarce resources for either new or previously remediated sites.
IV. EPA Should Have Accepted Public Comment Before Finalizing this Guidance with an Immediate Effective Date
The undersigned organizations are very disappointed that EPA issued the Guidance as final and immediately effective without an opportunity for public comment. Accepting "feedback from the public which may be considered in any future updates to the guidance" is a poor substitute for robust stakeholder input, particularly when EPA refused to address certain comments submitted on its draft Lead Strategy. In particular, SSP and RCAP submitted technical comments in connection
19 See EPA, Revised Interim Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities, OSWER Directive #9355.4-12, at 8 (August 1994), available at https://semspub.epa.gov/work/HQ/175347.pdf.
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with the draft Lead Strategy. 20 Yet, EPA did not respond to these comments. Instead, EPA stated generically in the final Lead Strategy, "Comments the Agency did not respond to generally applied to policy issues outside the purview of research or detailed research issues that were not appropriate for inclusion in a broad strategy document."21
Now, EPA has issued this final and immediately effective specific Guidance without first seeking and addressing public comments. Accordingly, EPA has lost opportunities to provide more clear direction to both its own regions and the parties that perform cleanups by learning from and responding to comments regarding highly relevant technical concerns and implementation challenges associated with this Guidance. EPA's failure to address previously submitted comments as EPA finalized this Guidance is indefensible, resulting in a demonstrable absence of clarity in the Guidance. If responding to comments was not appropriate for the Lead Strategy, EPA should have implemented a meaningful public comment opportunity prior to finalizing the Guidance.
We are hopeful, however, that EPA will now fully consider public input, respond to those comments, and revise the Guidance as appropriate. At the very minimum, EPA should prepare a response to comments provided by the public on the Guidance, potentially by way of an implementation memorandum addressing the issues discussed, including more clear direction on how the Guidance may or may not affect cleanups that are underway or complete and specifically stating that it is scientifically valid and acceptable to update the IEUBK modeling with updated and/or site-specific input parameters.
Sincerely,
Superfund Settlements Project RCRA Corrective Action Project National Mining Association American Petroleum Institute
20 SSP & RCAP Comments, Draft EPA Strategy to Reduce Lead Exposures and Disparities in U.S. Communities, to EPA Docket ID: EPA-HQ-OLEM-2021-0762 (Mar. 16, 2022), available at https:/lwww.regulations.gov/comment/EPA-HO-OLEM-2021-0762-0321. These comments are attached as Appendix A. The NMA, SSP, and RCAP also shared these comments and other supporting documentation with the Office of Management and Budget's Office of Information and Regulatory Affairs during an Executive Order 12,866 meeting on Aug. 14, 2023. See Meeting 2050-ZA17, available at https:/lwww.reqinfo.gov/public/do/viewE012866Meetinq?viewRule=true&rin=2050ZA1 ?&meetingId =215223&acronym =2050-EPA/OLEM.
21 Lead Strategy at 52.
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ECONOMIC ANALYSIS OF EPA's UPDATED SOIL LEAD GUIDANCE FOR SITES UNDER CERCLA AND RCRA AUTHORITIES
Submitted by: Policy Navigation Group
April 2024
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EXECUTIVE SUMMARY
The National Mining Association, the Superfund Settlements Project, the RCRA Corrective Action Project, the American Petroleum Institute, and the U.S. Chamber of Commerce asked Policy Navigation Group (PNG) to prepare a partial economic analysis of the U.S. Environmental Protection Agency's (EPA) updated soil lead guidance for Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) sites and Resource Conservation and Recovery Act (RCRA) corrective action (CA) facilities. PNG focused on providing a more accurate social cost estimate than those presented in EPA's economic assessment (EA).
The updated guidance will require soil screening at lead sites under CERCLA and RCRA to a level of 200 parts per million (ppm). Some remedial sites with an additional source of lead will also be subject to a 100-ppm screening level. In its EA, EPA creates a social cost estimate based on incremental costs incurred from additional remediation at existing sites and at additional lead-contaminated sites that will be discovered during, and limited to, an initial 10-year period.
There are two major problems with EPA's analysis that underestimate the social costs. First, EPA does not include all sites that will be affected by this guidance. Second, EPA underestimates the additional remediation cost of each site.
For its cost estimation, EPA's universe of sites that will be potentially affected by the updated guidance is limited to only three categories of CERCLA sites: National Priorities List (NPL) sites; deleted sites; and new (future) sites. Through this approach EPA omits three major groups of CERCLA sites: brownfields, federal cleanup sites, and other non-NPL CERLCA sites that are in EPA's active inventory. There are an estimated 120 to 1,400 additional active inventory sites with lead likely to be in the soil. While EPA argues that brownfields would only be affected by a change to EPA's lead screening levels if states voluntarily change their standard to match OLEM's updated standard, this claim ignores that fact that, whether directly or indirectly, EPA must approve brownfield cleanups and will consider this guidance in that approval process. Given the magnitude of brownfields in the U.S. (approximately 450,000), EPA should develop an estimate of social costs for potentially impacted brownfield sites.
EPA underestimates the cleanup costs per site because EPA does not include the oversight costs EPA charges private parties, the transaction costs private parties have to assign liability and to manage the cleanup, and other construction management costs.
Table ES.1 presents more accurate social cost estimate. EPA's partial analysis of social costs range from an annualized amount (at three percent) of $190 million to $580 million per year,
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with a midpoint range of $240 million to $470 million annually. Our analysis shows that the more accurate number of affected properties is approximately 608,000. The annualized social costs at three percent are between $6,500 million and $34,000 million per year ($6.5 billion per year to $34 billion per year).
Table ES.1: Estimated Social Costs
Annualized (2% Discount Rate)
25,000
8,000
43,000
Annualized (7% Discount Rate)
10,000
3,500
17,000
EPA has the data to include the active CERCLA sites, brownfields, and federal facility sites. By using an estimate of "zero" for these sites, EPA is not using the best available information for the sites affected by this guidance. By not accurately accounting for costs, EPA has failed to follow its own economic analysis guidance, its requirements for analysis under statutes, and best economic practices and requirements under the Office of Management and Budget's Circular A-4. 1 As Circular A-4 states:
At the same time, the fact that benefits and costs often are uncertain, or difficult to monetize or quantify, does not necessarily make them minor, and low-probability but high-impact effects may be important to assess (whether or not those effects can be quantified or monetized). Analytic priority should be given to those additional benefits and costs that are important enough to potentially change the rank ordering of the main alternatives in the analysis. 2
1 U.S. Office of Management and Budget, "Circular A-4: Regulatory Analysis," November 9, 2023. 2 A-4, pg. 28
ii
ED_O18475D_00002985-00003
TABLE OF CONTENTS
I.
Introduction ............................................................................. 1
1.
Summary of EPA's Action .................................................................... 1
2.
Scope of Analysis ............................................................................. 1
3.
EPA's Methodology ........................................................................... 2
4.
Timing Assumptions .......................................................................... 3
5.
EPA's Estimated Social Costs ............................................................... 4
II.
Underestimation of Social Costs in EPA's Economic Assessment .............. 5
1.
Number of Affected Cleanup Sites ......................................................... 5
Overview of CERCLA Sites ................................................................... 9
Additional Quantitative Estimate ......................................................... 10
Additional New Sites ........................................................................ 16
Other Additional Sites EPA Should Include ............................................... 16
2.
The Cleanup Costs per Site ................................................................. 20
Cost Categories .............................................................................. 20
Ill.
Revised Social Cost Estimates ....................................................... 23
IV. State Distribution of Costs ........................................................... 24
V.
Conclusion .............................................................................. 26
iii
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INDEX OF TABLES Table 1: EPA's Size Categories for CERCLA Sites ....................................................... 2 Table 2: Cost-related Uncertainties in EPA's EA ....................................................... 3 Table 3: EPA's Estimated Incremental Remediation Costs and Benefits, 60-Year Timeframe ... 4 Table 4: Summary of EPA's Targeted Data Collection Variables for CERCLA Sites ................ 6 Table 5: EPA's Universe of Sites Potentially Affected by the Updated Guidance ................. 9 Table 6: NPL Sample Data for RLS by State ........................................................... 12 Table 7: Universe of Affected CERCLA Sites ........................................................... 15 Table 8: Universe of Residential Properties ........................................................... 15 Table 9: Proportions of Key Demographics in the Total Near-Site Brownfields Population and the Total U.S. Population(%) ............................................................................ 19 Table 10: Estimated Social Costs ........................................................................ 23 Table 11. States' Estimate Remedial Action Cost Share ............................................. 25
iv
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INDEX OF FIGURES Figure 1: CERCLA Sites .................................................................................... 10
V
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I.
INTRODUCTION
1. Summary of EPA's Action
On January 17, 2024, the U.S. Environmental Protection Agency's (EPA) Office of Land and Emergency Management (OLEM) published its Updated Residential Soil Lead Guidance for Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Sites and Resource Conservation and Recovery Act (RCRA) Corrective Action (CA) Facilities. 3 The new guidance updates the regional screening level (RSL), which is a screening tool used to help identify and to define areas that may need further evaluation for remediation, cleanup, and removal actions. The revisions specifically lower the RSL for lead in soil at residential properties from 400 parts per million (ppm) to 200 ppm. For remedial actions, if there are other sources of lead exposure (e.g. lead air emissions, lead water service lines, or leadbased paint), EPA recommends screening a site's soil levels at a concentration of 100 ppm.
2. Scope of Analysis
This analysis provides more accurate social cost estimates than those contained in EPA's Economic Assessment (EA). This analysis is not a comprehensive evaluation of social costs or a comprehensive critique of EPA's methodology. A comprehensive analysis was not possible due to EPA's lack of transparency into its estimates. For many key assumptions, EPA relies on internal staff estimates that are not provided in the docket. Therefore, it is impossible to validate EPA's data or approach independently.
The analysis concentrates its efforts on sites and social cost categories that EPA did not include in the economic analysis. For certain estimates, we draw upon EPA's economic analysis for data and for approaches. We do so for expediency and for ease of comparison with EPA's values. However, we urge EPA to release additional information so that its estimates can be independently reproduced.
The scope of this analysis does not include any review of the EA's social benefit estimate. Benefit estimates from the EA given in this report are for comparison purposes only.
3 Environmental Protection Agency, "Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities" (Office of Land and Emergency Management, January 17, 2024).
1
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EPA's EA estimates incremental costs to remediate properties with soil lead levels above the levels in the updated guidance due to CERCLA or RCRA remediation sites. 4 The updated guidance will require soil screening at lead sites under CERCLA and RCRA to a level of 200 ppm, with some sites with an additional source of lead also subject to a 100-ppm screening level. EPA presents a low-cost scenario (screening level of 200 ppm at all sites), high-cost scenario (screening level of 200 ppm at all CERCLA Removal and RCRA CA sites, and 100 ppm at all Remedial CERCLA sites), and a midpoint scenario (midpoint cost estimate between the lower cost and higher cost scenarios).
The guidance will lead to additional remediation costs under each of the three scenarios. These costs will be incurred at three types of sites: existing sites, new sites, and sites previously deleted that now will require additional remediation. Existing sites that are not already using a 200-ppm screening level will require expanded screening and may identify additional areas that require remediation. Costs will also result from the discovery of newly identified, lead-contaminated sites that will be remediated under CERCLA. EPA assumes that costs for these unidentified sites will be about the same as current lead-contaminated, residential CERCLA remedial sites. Finally, EPA includes sites classified as no further remedial action planned (NFRAP), since they will require re-examination and potentially additional cleanup.
EPA then categorizes these three site types into three size categories summarized in Table 1.
Table 1: EPA's Size Categories for CERCLA Sites
Medium
Generally former mines, mineral processing facilities, or large-scale manufacturing facilities. Typically, large sites have extensive residential contamination as well as largescale industrial contamination.
Some sites include contaminated residential properties that number in the thousands, and/or large areas of contaminated land with anticipated uses that include recreation or agriculture.
$10 M - $100 M
Generally mineral processing and large-scale manufacturing sites. In addition to industrial site contamination, they are characterized by large numbers of contaminated residential properties, sometimes numbering in the hundreds.
4 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," January 2024, ES-4-ES-5.
2
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More heterogeneous with a range of industries and a variable, but smaller number of residential properties contaminated.
EPA further acknowledges a range of uncertainties for both social costs and social benefits assessments in its EA. The following table summarizes the cost-related uncertainties, EPA's characterization of their direction of potential biases, and EPA's estimate of the relative magnitude of effect. This report will highlight how EPA has understated certain uncertainties, methodological biases, and data gaps.
Table 2: Cost-related Uncertainties in EPA's EA5
Cost data for PRP-lead sites are incomplete and uncertain Cost estimates provided by the Region are assumed to be in $2021 dollars Future changes in costs in real terms are uncertain. How EPA will cleanup the site (i.e., removal or remedial). Current PRP sites may later be designated as Fund-lead. Cost data for RCRA CA sites are extrapolated from CERCLA sites. Potential health impacts of remedial activities are unquantified Except for Region 4, lack of cost data to assess and remediate properties with unknown contamination levels.
? Unclear
1' Overestimate
1' Overestimate ,,a.. Underestimate ? Unclear
In its projections of remediation activities and associated costs, as well as the benefits from exposure reductions, the EA uses an analytic time frame of 60 years. 6 EPA acknowledges that there is significant variation in the duration of cleanup activities which may cause remediation to extend beyond the 60-year analytical time frame. The EA's timing assumption relies on an extraordinarily rapid implementation schedule for this guidance. From Exhibit 2-
5 Environmental Protection Agency, ES-5-ES-6. 6 Environmental Protection Agency, ES-5-ES-6.
3
ED_0 18475D_ 00002985-00009
2, EPA expects nearly $700 million in additional soil remediation in 2024 and more than $500 million by 2027. It is almost impossible for EPA to spur $700 million of additional cleanup activity in 2024 since many states and EPA Regions are still evaluating the guidance and its implications. In general, that rate would increase Superfund annual cleanup activity by 1/3 or more in the near-term, depending on the rate of Potentially Responsible Party (PRP) cleanup activity. 7 EPA does not have the staff to oversee this rate of program expansion. Even in 2082, cleanup is occurring at a pace of $200 million (in today's dollars) a year. Since most of those cleanups will be Fund-lead, that amount is 1/3 more than (or 1/3 of) the historic level of appropriations for remedial action in CERCLA. 8 It is implausible that EPA will divert more than 1/3 of its current remedial action spending toward soil lead sites. As the EA notes, the assumed timeline for the social costs and social benefits is "highly uncertain" with "many properties may not be addressed within the assumed 60-year period. " 9 The EA's timing assumption increases the net present value of the social benefits in an unrealistic manner. If cleanups proceed at a pace consistent with recent years, the lagged benefits would also begin later. It is also more likely that cleanup costs would proceed not in a rapid exponential experience and then decay, but at a reasonable steady rate over many decades, the experience of the RCRA and CERCLA programs for the past 25 years. In this analysis we distribute the additional site cleanup costs over a 60-year period to be consistent with the EA, recognizing that this pace of activity is highly unlikely to occur.
Table 3 summarizes EPA's estimated costs. EPA estimates that between 170,973 - 767,356 incremental properties may be affected, with a midpoint estimate of 469,165. The total undiscounted costs, based on the midpoint, is estimated to be between $19 billion and $37 billion. Table 3: EPA's Estimated Incremental Remediation Costs and Benefits, 60-Year Timeframe
7 Environmental Protection Agency, "Superfund Enforcement FY 2023 Annual Results," 2023, https: / /www.epa.gov/enforcement/superfund-enforcement-fy-2023-annual-results. 8 U.S. Government Accountability Office, "Superfund: Trends in Federal Funding and Cleanup of EPA's Nonfederal National Priorities List Sites," September 2015, https: / /www.gao.gov/assets/gao-15812. pdf. 9 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," 2-10.
4
ED_O18475D_00002985-0001 0
Incremental Costs ($Million)
Total Costs (undiscounted)
Annualized - 3% discount rate
$190- $370
Annualized - 7% discount rate
$290 - $580
$240 - $470
IL
UNDERESTIMATION OF SOCIAL COSTS IN EPA'S ECONOMIC ASSESSMENT
As discussed above, EPA underestimates the number of remediation sites and the remediation costs per site. Each of these issues are discussed in more detail in this section.
1. Number of Affected Cleanup Sites
The universe of sites potentially affected by the updated guidance, according to EPA's EA is the following:
includes all sites (or portions of sites) that have soil lead as a contaminant of concern requiring cleanup to residential levels. This includes sites and portions of sites that have already completed remediation activities but may undergo re-examination and potentially additional remediation to ensure that CULs [cleanup levels] are consistent with the updated guidance. 10
These sites include these categories:
CERCLA Sites. These RSL sites are on the National Priorities List (NPL), are removalonly sites, and are Superfund Alternative Approach (SAA) sites.
RCRA CA Sites. EPA evaluated ongoing lead-driven remediation of RCRA-permitted facilities with off-site, soil lead corrective action requirements.
10 Environmental Protection Agency, 3-2.
5
ED_018475D_00002985-00011
NFRAP Sites. To identify these sites, EPA used sampling data based on the Laboratory Information Management System (LIMS) database for Region 7 and the Contract Laboratory Program (CLP) data for all other regions.
Complex Expansion Sites. These RCRA and CERCLA sites are expected to experience a sizeable expansion of boundaries under the updated guidance.
New Future NPL Sites. As noted earlier in this report, EPA assumes the discovery of new lead sites will continue over the next 10-year period (but not beyond) and follow the rate of discovery of the past 10 years. EPA recognizes that their "estimate is highly uncertain" as the "future may not be reflective of historical data," but does not provide further explanation for the assumption that new lead in soil site discovery will stop after 10 years. 11
To identify the universe of NPL sites, EPA collected data for four site categories: ongoing fund-lead sites; closed fund-lead sites; ongoing PRP-lead sites; and closed PRP-lead sites. EPA's data collection involved surveying EPA regional Superfund program staff to identify known CERCLA sites with residential soil lead contamination in each EPA region. EPA's survey focused on 34 variables to characterize sites, though "many of the variables were not directly used to calculate costs" (see Table 4). 12 As EPA mentions in two footnotes, regional staff provided limited data on the number of additional properties that would require remediation under the updated guidance and the associated cost for only some PRP-lead sites. 13 EPA reviewed additional data from the Superfund Enterprise Management System (SEMS) to add missing datapoints for the following variables (but not for cost estimates): EPA ID, site size, federal facility status, NPL/RO/SAA status, start and completion dates, current CULs and screening levels (SLs), site coordinates, and source of lead.
Table 4: Summary of EPA's Targeted Data Collection Variables for CERCLA Sites
General information on the site: name, ID, operable unit (OU), OU description, Region, federal facility status, type of action, and NPL/RO/SAA status; Current remediation status of the site: Record of Decision (ROD) date, start date, and closure date; Site size based on the following criteria:
o Large sites, with total soil lead remediation costs anticipated to be $100 million or higher;
o Medium sites, with total soil lead remediation costs anticipated to be between $10 million and $100 million; and,
o Small sites, with total soil lead remediation costs anticipated to be less than $10 million.
11 Environmental Protection Agency, 3-6. 12 Environmental Protection Agency, 3-5. 13 Environmental Protection Agency, 3-10, 4-4.
6
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Ongoing FundLead Sites
The soil lead screening level currently in use;
The soil lead CUL currently in use;
The number of residential properties remaining to be remediated, and the
associated cost under current CULs;
The revised CULs anticipated under the updated guidance;
The number of additional properties that would require remediation under the
updated guidance, and the associated cost;
The type of action at the site (i.e. removal or remedial action);
Natural and anthropogenic background levels;
Whether there is available clean fill above 100 ppm;
The primary source of lead contamination;
Whether the site footprint would expand under the updated guidance and
whether cost estimates account for this expansion;
The percent of properties containing a residence at a site;
Number of properties outside of the current boundary; and,
Whether the cleanup or revised cleanup will be driven by applicable or relevant
and appropriate requirement (ARAR).
Closed Fund-Lead i
Sites
:
j
I
;
l .
.
. Ongoing PRP.... Lead Sites
. . .
,,,~
",,,,,_,w,
The soil lead screening level that was
The soil lead CUL that was used;
The completion date for soil lead cleanup;
Whether or not the site would likely reopen for additional cleanup activity due
to the updated guidance;
The revised CULs anticipated under the updated guidance;
At sites that might be expected to reopen, the number of additional properties
that would likely require remediation under the updated guidance, and the
associated costs;
The type of action at the site (i.e., removal or remedial action);
Natural and anthropogenic background levels;
Natural Soil background;
Whether there is available clean fill above 100 ppm;
The primary source oflead contamination;
Whether the site footprint would expand under the updated guidance and
whether cost estimates account for this expansion; and,
Whether revised cleanup will be driven by ARAR.
The soil lead CUL currently in use; The revised soil lead CUL anticipated under the updated guidance; The anticipated time to complete residential remediation under current CULs;
The type of action at the site (i.e., removal or remedial action); The number of additional properties that would require remediation under the updated guidance, and the associated cost; Natural and anthropogenic background levels; The primary source of lead contamination; and, Whether the cleanup or revised cleanup will be driven by ARAR.
Closed PRP-Lead :
Sites
The soil CUL that was used; The completion date for soil lead cleanup;
7
ED_018475D_ 00002985-00013
Whether or not the site would likely reopen for additional cleanup activity due to the updated guidance; The number of additional properties that would require remediation under the updated guidance, and the associated cost; The revised CUL that they would expect to use; The type of action at the site (i.e., removal or remedial action); Natural and anthropogenic background levels; Natural background soil concentration; The primary source oflead contamination; Whether revised cleanup will be driven by ARAR; and, Whether funding would come from PRP if reopened.
EPA excludes certain sites from its data collection effort that are assumed to not be affected by the updated guidance based on two criteria:
Soil lead remediation is not the primary driver of remediation costs. EPA provides an example of a site where the arsenic cleanup level requires a more costly remediation that addresses both lead and arsenic. Contamination is related to an industrial site where residential use and exposure is not anticipated. The following table summarizes EPA's universe of potentially affected NPL sites, according to size category and removal/remedial status. EPA estimates 381 sites may require response action under an updated CUL under a screening level of 100 ppm for remedial action and a screening level of 200 ppm for removal actions. This estimate is comprised of an estimated 268 existing or historical NPL sites and 113 future NPL sites that may need additional remediation under the updated guidance.
8
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Table 5: EPA's Universe of Sites Potentially Affected by the Updated Guidance
Ongoing
15
9
16
dosect 9zT
5
17
28
45
45
207
PRP-
23
22
Lead
----" ~ - ,_,,,,, "
Ongoing
7 j
!
Closed
16
10
7
19
31
40
71
70
251
2
18
28
18
46
45
Future
-'
14
CERCLA
Sites
Total
443
381
Overview of CERCL.A Sites
EPA's approach misses groups of sites subject to CERCLA jurisdiction. Figure 1 illustrates a comprehensive universe of all sites under CERCLA jurisdiction. The triangle in the center of Figure 1shows the three levels of non-Federal CERCLA sites that are described in more detail in this section. While Federally-owned sites fall broadly within these categories, the categories have different names. The largest group of sites are brownfields, followed by sites on the active inventory, and at the top of the triangle are sites on the National Priorities List. To the left of the triangle are new sites that are discovered over time and are subject to CERCLA. To the right are sites deleted from these categories and NFRAP sites.
9 ED_ 0 184 7 5D _ 00002985-00015
Figure 1: CERCLA Sites
NPL
CERCLA
Active Sites
Brownfields
111111111.
EPA's analysis focuses on three categories from the entire CERCLA universe in Figure 1: new, NPL, and deleted NPL sites. EPA omits the two largest groups: brownfields and other non-NPL CERCLA active inventory sites. By failing to include these site categories, EPA's analysis dramatically understates the costs associated with the new guidance. In this section, we estimate the entire universe of sites that will more accurately be affected by the new guidance.
Additional Quantitative Estimate
Active Sites and Active Inventory Sites
Active sites include the NPL and active inventory sites, thousands of sites for which EPA believes there is significant release of hazardous substances, but lacks the resources, a viable PRP, or staff to evaluate. EPA plans to consider site assessment, removal, remedial, enforcement, cost recovery, or oversight activities under the Superfund program at active inventory sites. 14 In this section of the report, we provide estimates of NPL and non-NPL active sites as well as estimated number of residential properties that will be affected by the updated guidance.
14 Environmental Protection Agency, "Superfund Glossary," n.d.
10 ED_0 18475D_ 00002985-00016
NPL Sites
EPA's Superfund Enterprise Management System (SEMS) database provides searchable data on NPL sites. 15 The NPL sites used in this analysis is retrieved from the SEMS database, filtering by "Active" under site status, "Currently on the NPL" under NPL or Superfund Alternative Approach (SAA) Status, "LEAD (7439-92-1 )" under Contaminant Name or Chemical Abstracts Service (CAS) number, and "Soil" under Contaminant Media. We further add additional sites that have lead contaminants in other solid media (e.g. sludge, debris, buildings/structures, and residuals). We include these sites since debris, sludge, and building material often mixes with soil and migrates to nearby soils. These sites will at least be evaluated to determine if additional remediation is required. This screening results in 642 sites across 48 states (Mississippi and North Dakota do not appear to have lead sites) and the District of Columbia (DC).
We take a nationally-representative sample of these 642 NPL sites by examining 25 percent of the sites in each state (e.g., New Jersey has the highest count of 72 sites and therefore has the highest count in our sample at 18). For states that have one site (25 percent of which would round to zero), we include those sites in the sample to ensure all states with lead sites are included. Our sample ultimately includes 171 sites (approximately 27 percent of the 642 NPL sites). We then screen each site in the sample for residential status to determine, for each state, a percentage of sites that are residential lead sites (RLS). We apply these percentages to the total lead solid media NPL sites that are likely RLS (see Table 6).
To assess whether a site is residential, we use EPA's definition for residential sites:
any areas where children have unrestricted access to lead contaminated soil which include, but are not limited to, properties containing single- and multi-family dwellings, apartment complexes, vacant lots in residential areas, schools, day-care centers, community centers, playgrounds, parks and other recreational areas and green ways. 16
We visit each location's Superfund Site page on EPA's website, which provides background information, the site's address, cleanup activities, and other site documents and data. 17 For some sites, EPA mentions nearby residential areas or residential contamination. When this description was not available, we searched for a satellite view of the location on Google Maps to determine whether properties that fit or meet EPA's definition are within an approximately one-mile radius. 18
15 Environmental Protection Agency, "Superfund Enterprise Management System," n.d., https: / / cumulis.epa.gov/supercpad/CurSites/srchsites.cfm. 16 Environmental Protection Agency, "Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities." 17 Environmental Protection Agency, "Superfund," n.d., https://www.epa.gov/superfund. 18 Google Maps, "Map of the U.S.," accessed March 6, 2024, https://maps.google.com/.
11
ED_0 18475D_ 00002985-00017
Table 6: NPL Sample Data for RLS by State
FL
35
9
7
2
78%
27
CA
35
9
6
3
67%
23
IL
29
7
5
2
71%
21
Ml
24
5
83%
20
TX
21
5
5
0
100%
21
NC
16
4
2
2
50%
8
VA
3
IN
17
4
4
0
100%
17
MO
co
14
5
4
80%
11
17
3
3
100%
17
11
SC
10
3
3
0
100%
10
GA
9
2
2
0
100%
9
AL
7
2
2
0
100%
7
if
8
2
2
0
100%
8
2
7
NH
9
2
2
0
100%
9
RI
7
2
2
0
100%
7
UT
7
6
2
0
2
0%
0
7
12
ED_ 0 184 7 5D _ 00002985-00018
VT WV AK
,o
KY
LA
OR
NM
DC
SD WV Total
5
0
6
4
6
2
3
0
5
0
3
642
171
130
0%
0
0
100%
4
100%T
50%
3
0%
0
0%
0
0
100%
3
1
0
100%
100%
41
76%
492
NPL Deleted Sites
EPA acknowledges that sites removed from the NPL may be reopened as a result of the updated guidance. We download data on sites deleted from the final NPL and filtered for lead soil sites. 19 Of the 171 sites, we assume 130 will be RLS based on the percentage rate of sites we determine to be RLS from the sampled NPL data (see Table 6).
CERCLA Active Inventory Sites
19 Environmental Protection Agency, "All Current Deleted NPL Sites (FOIA 5)," February 29, 2024, https://www.epa.gov/superfund/superfund-data-and-reports.
13
ED_ 0 184 7 5D _ 00002985-00019
For non-NPL active inventory sites, we download two sets of Superfund data reports. The first contains NPL and non-NPL sites with potential smelting-related operations. 20 This dataset includes contaminant of concern information and can be filtered for lead sites. Based on this first dataset, we count a minimum of 139 non-NPL active sites that EPA should include in its analysis. This count underestimates lead sites by excluding active inventory sites that did not have smelting-related operations. The second dataset is the full active site inventory. 21 After excluding sites that have been deferred to RCRA, have been determined to require no site assessment, or are being handled as part of another site, we count 7,281 total active sites. Unfortunately, this dataset does not include contaminant information. Thus, we rely again on the percentage rate of sites we determine to be RLS from the sampled NPL data and assume approximately 2,673 active sites will be affected by the updated guidance.
CERCLA NPL and Non-NPL Active Sites
20 Environmental Protection Agency, "Sites with Potential Smelting-Related Operations (FOIA 1), " February 29, 2024, https: / /www.epa.gov/superfund/superfund-data-and-reports. 21 Environmental Protection Agency, "Active Site Inventory (List 8R Active)," February 29, 2024, 8, https://www.epa.gov/superfund/superfund-data-and-reports.
14
ED_0 18475D_ 00002985-00020
Table 7 summarizes the universe of affected sites from our assessments of NPL, deleted NPL, and non-NPL active inventory. Total sites across these categories range from 761 to 3,295. Based on a midpoint for the CERCLA active inventory sites estimated range, the total sites are estimated at 2,028.
15 ED_ 0 184 7 5D _ 00002985-00021
Table 7: Universe of Affected CERCLA Sites
NPL Deleted Sites
130
Non-NPL Active Sites
Sum
761
3,295
2,028
NPL and Active Site Affected Properties
Not all surrounding residential properties will require cleanup. For cleanup cost calculations, we assume an average of 300 properties per site based on EPA's assumptions in the EA. 22 The total number of properties is computed by adding the properties estimated to be around the NPL sites, the NPL deleted sites, and then either the lower, higher, or midpoint estimate of the non-NPL active inventory sites.
Table 8: Universe of Residential Properties
NPL Sites
NPL Deleted Sites
Cleanup Costs Analysis
Total
Cleanup Costs Analysis
39,000
608,400
22 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," 4-8.
16
ED_0 18475D_ 00002985-00022
Additional New Sites
EPA assumed 12 new sites per year on average for the first ten years and then zero new sites annually afterwards. EPA claims that there is too much uncertainty to estimate beyond 10 years. EPA incorrectly claims, and inconsistently considers, uncertainty. By choosing a value for new sites of zero in years 11 and beyond, EPA simply picks another point estimate. Both 12 and zero are both discrete numbers - point estimates of the uncertain number of future sites. Uncertainty should be considered in the analysis not by using a point estimate, but by using a range or a distribution of potential future values. By using a point estimate of zero, EPA's value is less probable to be the real number than its point estimate for the first ten years since the latter is based on EPA recent experience. We use EPA's point estimate for the first ten years for the entire period of the analysis. We note that EPA has ample data to characterize the uncertainty in the annual number of new sites. EPA has over 40 years of data for the CERCLA program and could generate the distribution of new CERCLA sites added to the active inventory each year.
Other Additional Sites EPA Should Include
EPA further excluded two categories of sites that EPA should (and can) quantitatively assess the incremental social costs of this guidance. Due to limited data sources, we are unable to provide quantitative estimates of how many brownfield sites and federal sites - e.g. military housing and Base Realignment and Closure (BRAC) sites - will be impacted. The following qualitative discussion underlines the probable magnitude of these impacts to highlight how EPA's exclusions lead to a significant underestimate of the guidance's social costs.
Brownfields
A brownfield is a property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. 23 In its EA, EPA assumes that federal standards involving lead remediation do not directly affect brownfields and that costs from a new lead CUL will only occur at brownfields sites if states decide to change their standards. Thus EPA claims the incremental
23 Environmental Protection Agency, "General Brownfields Guidelines on All Appropriate Inquiries," April 2023.
17
ED_ 0 184 7 5D _ 00002985-00023
cost is not directly attributable to this action. 24 EPA argues that brownfields would only be affected by a change to EPA's lead screening levels if states voluntarily change their standard to match OLEM's updated standard.
EPA appears to confuse its practical implementation of CERCLA from its legal authority. Except for limited exemptions, all sites with releases of hazardous substances are subject to CERCLA. As EPA states:
Other properties may be "brownfields" - properties where expansion, redevelopment, or reuse may be complicated by the presence (or potential presence) of contamination. The level of contamination may vary and generally, brownfields sites are lower risk than Superfund sites. Often, the federal government is not involved in cleanups at brownfield sites. Rather, state and tribal response programs play a significant role in cleaning up and helping to revitalize these sites. 25
By using state resources, EPA can better administer the vast number of sites subject to federal authority under CERCLA. EPA explains the practical advantages and the clear retention of its authority under CERCLA:
Beginning in the 1990s, the EPA increased its partnership with states to address the cleanup of brownfields and to strengthen and build state program capacity. As part of that effort, the EPA entered into MOAs [memoranda of agreement] with individual states to encourage the assessment and cleanup of brownfields under state oversight. MOAs can be valuable mechanisms to support and strengthen efforts to achieve protective cleanups under state oversight. The purpose of the MOAs is to foster more effective and efficient working relationships between an EPA Region and an individual state regarding the use of its state response program. MOAs are nonbinding documents that promote coordination and clarify the general roles and responsibilities and provide the EPA's recognition of the state's capabilities. MOAs typically include a general statement of the EPA's enforcement intentions regarding certain sites cleaned up under the oversight of a state response program. An MOA, or the absence of an MOA, does not alter EPA's or a state's legal authority. 26
In other words, while states as a practical matter oversee many brownfield cleanups, EPA ultimately has the authority to enforce CERCLA requirements (and applicable cleanup guidance) at sites with state oversight. EPA's role as the ultimate regulatory authority is apparent when organizations seek "comfort letters" from EPA concerning brownfield properties. EPA's recent policies and sample letters show the range of possible EPA
24 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," 3-12. 25 Environmental Protection Agency, "The Revitalization Handbook: Addressing Liability Concerns at Contaminated Properties," August 2022, 6, https:/ /www.epa.gov/system/files/documents/202208/revitalization-handbook-final-2022_2. pdf. 26 Environmental Protection Agency, 18.
18
ED_0 18475D_ 00002985-00024
responses. 27 All these letters start from the basis that these sites are subject to federal oversight; states cannot grant parties "comfort" from CERCLA. Therefore, whether states adopt EPA's guidance or not, EPA ultimately decides whether brownfield sites are sufficiently remediated. Consider the scenario where a party is considering purchasing a site to convert to residential use that has a soil lead level of 300 ppm and that the state determines does not need additional remediation. If the prospective buyer seeks a comfort level from EPA, will EPA allow this site to escape cleanup action while EPA is requiring other sites to clean up to 100 ppm? By assuming no additional costs to CERCLA brownfield sites, EPA essentially would tolerate different cleanup levels across CERCLA sites. Since EPA's guidance does not explicitly allow this outcome, EPA should include the additional cleanup costs for all non-NPL sites subject to CERCLA jurisdiction. EPA's argument also understates the influence its guidance documents have on state policies. State agencies often look to federal authoritative documents to inform public health and environmental policy decisions. To assert that the guidance will not directly affect brownfields because states are not required to change their standards also ignores the potential magnitude of affected populations. While quantifying a precise number of affected brownfields may face several uncertainties, EPA can posit some assumptions and explore different scenarios that highlight different possible levels of social costs. The U.S. has an estimated 400,000-500,000 brownfields. 28 Approximately 35.1 million people live within a half mile of a brownfield site, 70.4 million people live within one mile, and 160.5 million people live within three miles of a brownfield site. 29 The table below provides demographic data of populations living near brownfield sites. Put succinctly, there are many brownfields some of which will have lead in soil in residential areas. It is very likely that the guidance will cause additional remediation at some, if not a majority, of applicable brownfield sites.
27 Environmental Protection Agency, "Transmittal of the 2019 Policy on the Issuance of Superfund Comfort/Status Letters," August 21, 2019, https: / /www.epa.gov/sites/ default/files/201908/documents/comfort-status-ltr-2019-mem_0. pdf. 28 Environmental Protection Agency, "Brownfields," February 12, 2024, https:/ /www.epa.gov/brownfields/about. 29 Environmental Protection Agency, "Population Surrounding 34,305 Brownfields Sites" (Office of Land and Emergency Management, July 2023).
19
ED_ 0 184 7 5D _ 00002985-00025
Table 9: Proportions of Key Demographics in the Total Near-Site Brownfields Population and the Total U.S. Population (%)
Below Poverty Level
Linguistically Isolated !
I
Less Than a High School Education
19.8 15.5
18.1 14.7
14.8
12.7
6.0
12.7
11.2
Although the EA excludes the costs at federal facilities subject to CERCLA or RCRA, the additional cleanup costs at these sites should be included. In the EA, EPA states: "The costs associated with the cleaning up federal facility sites are paid for by the federal government. It is possible that there would be transfer costs not accounted for in this EA. " 30 One interpretation of this language is that the expansion of federal cleanups is not a social cost but a transfer. If that is the correct interpretation of this language, the analysis is incorrect. Cleaning up a site requires real resources - labor, equipment, clean fill, and many other goods and services. Diverting these resources to soil cleanup is a social cost. For benefit-cost analysis who pays for these costs - private parties or the federal government - is irrelevant. Moreover, any claim that federal facility costs are transfers is inconsistent with the analysis of Fund expenditures on additional cleanup. The Fund is a federal resource funded by dedicated and general tax revenue. Funding a cleanup from the Superfund is also a financial transfer; EPA properly estimates the social costs of Fund-lead cleanups.
At a minimum, the best estimate the social costs of additional remediation at federal facilities is not zero, the effective value the EA uses. For example, the Department of Defense (DoD) has nearly 35,000 cleanup sites in its active inventory. 31 It seems plausible that some number of these sites have soil lead cleanups, are located in residential areas, and are affected by this guidance.
30 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," 3-8. 31 Office of the Under Secretary of Defense for Acquisition and Sustainment, "Defense Environmental Programs Annual Report to Congress for Fiscal Year 2022," October 2023.
20
ED_0 184 75D_ 00002985-00026
2. The Cleanup Costs per Site
Cost Categories
EPA's Approach
EPA's approach to estimate the costs associated with the updated guidance at CERCLA sites lacks transparency and fails to follow best practices. EPA relies on cost and site characterization data for an undisclosed portion of CERCLA sites that are remediated through federal Superfund resources (i.e. fund-lead sites). 32 Based on this sample, EPA calculates average site costs and extrapolates these costs to the rest of the universe. EPA does not disclose the criteria or approach used to select the portion of sites by which cost averages were estimated, the cost categories that were included, or its assumption that cost averages are applicable to all sites. EPA selected these sites from a larger sample of 132 sites, excluding 30 sites from the average because they "either lacked known cost data or were viewed as outliers. " 33 EPA does not provide any data to justify excluding these sites from its computed averages.
EPA calculates an average per-site incremental cost of $4 million for small and medium fundlead CERCLA sites based on cost data retrieved for a subset of 102 sites. In the EA, EPA further applies a fixed percentage to its remediation cost estimate to account for site preparation, site investigation, permit approvals, and other project costs. This approach underestimates these costs for small sites. For many of these costs, there is a fixed cost portion that is independent of the project size. For example, an inspector must spend the same time to travel to a small site as a large site. Although developing a project management, construction management, and health and safety plan may be less complex for a small site, there are core elements that must be considered in each plan. Therefore, for smaller sites, these management costs do rise proportionately only after a minimum of fixed costs. This relationship can also be modeled as a larger proportionate amount to the total remediation costs for small sites than for medium and larger sites.
From EPA's EA Exhibit 4-2, the average incremental cleanup costs per property for small sites are between $0.03 million and $0.05 million. From project cost estimates at other sites, we compute that project management and construction management costs would be more equivalent to 30 percent of a $0.03 million remediation effort. Instead of EPA's value of 15 percent, we use 30 percent for small sites.
32 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," sec. 4.2. 33 Environmental Protection Agency, 4-6.
21
ED_ 0 184 7 5D _ 00002985-00027
Omitted Oversight Costs
EPA charges private parties for its oversight costs when a private party carries out cleanup activities. EPA's charges include the costs of other federal agencies like the Department of Justice (DOJ), the Department of Health and Human Services (HHS), and some state oversight costs. These costs are substantial; the DOJ routinely submits repayment requests to EPA of more than $18 million per year. 34 These expenditures are social costs since they are resources like labor that are committed to oversight of these new/expanded cleanups and are not available to other activities. Some project cost estimates in public documents use 10 percent of the remedy cost as EPA's oversight costs. 35 We increase PRP cleanup costs by adding 10 percent to remedy costs for EPA (and other agency) oversight costs.
Omitted PRP Transaction Costs
When PRPs manage a cleanup, there are costs to identify other PRPs, negotiate responsibilities and payments, respond to EPA and other government agencies, and manage the remedial activity. Identifying PRPs, litigation, and project oversight are transaction costs and flow from CERCLA's liability scheme, EPA's regulations, and EPA's enforcement policies. For active NPL sites, the incremental costs due to this guidance may be small relative to the on-going, overall cleanup projects. However, many sites do not have active PRP management. For example, for deleted sites, PRP committees may have disbanded or be operating with only minimal resources. Active inventory sites often do not have identified responsible parties.
The RAND Corporation in 1993 published a study of cleanup cost estimates and transaction costs for 18 CERCLA sites. 36 RAND obtained spending data from private companies as they carried out litigation, filed insurance claims, and negotiated with other responsible parties. This study remains the largest and most complete study of the costs of CERCLA's liability system and program administration. The study found that transaction costs added an amount equal to 19 percent of the remedial action, with a lower bound of 15 percent and an upper bound of 24 percent. We apply a factor of 1.19 to the cleanup cost estimates for PRP-lead cleanups to account for transaction costs.
34 U.S. Department of Justice, "Environment and Natural Sources Division FY 2022 Accomplishment Report," April 2023, https: / /www.justice.gov/ d9/2023-06/fy22-accomplishments-report.pdf. 35 See for example: URS Corporation, "Final Feasibility Study, Casmalia Resources Superfund Site Appendix E - Cost Spreadsheets" (Casmalia, CA, n.d. ), https://www.waterboards.ca. gov/ rwqcb3/water_issues/ programs/stormwater/ docs/lid /Casmalia_Sup erfund_Site / Final%20Feasibility%20Study/ Appendices/Appendix%20E/Appendix%20E%20Complete. pdf. 36 Lloyd Dixon, Deborah Drezner, and James Hammitt, "Private-Sector Cleanup Expenditures and Transaction Costs at 18 Superfund Sites" (RAND Corporation, 1993).
22
ED_0 18475D_ 00002985-00028
Numerous costs are associated with managing cleanup projects. EPA should cost out these activities and ensure the Agency does not underestimate costs. Project managers need to map site utilities prior to construction. Initial site setups also include temporary soil erosion control installations and dust prevention technologies (e.g. dust control and dust monitoring equipment). EPA should also account for hazardous waste disposal costs for a sizable fraction of soils. 37 Hazardous waste management costs include waste characterization sampling (e.g. lead testing, ignitability, corrosivity, and reactivity), loading at staging areas, and off-site transportation and disposal. EPA's methodology assumes preconstruction cost categories can be uniformly assumed to be 15 percent of construction costs for all sites. EPA's approach underestimates site costs for small sites. There are fixed costs that may be 15 percent for some sites, but account for larger cost percentages for smaller sites. Setting up site utilities, designing projects, mobilizing and demobilizing equipment at the site, sediment control and dust prevention equipment, permitting processes, and public outreach all present substantial fixed costs that can often account for 30 percent of total project costs (twice EPA's assumption).
Baseline
We begin by determining the annual rate by which EPA has moved sites off the active inventory. We compare the current active sites inventory with a version collecting in 2021. We find that 112 sites from the 2021 inventory are no longer on the current active site inventory and divide this by three years to reach an average annual rate of 37 sites that are removed from the active inventory. We estimate the average probability that in any given year a site is remediated is the annual rate (37) divided by total active sites (7,281), which gives us 0.51 percent. Thus, we estimate that the annual number of lead sites that are removed from the active inventory each year will be approximately 14.
Post-Guidance
37 Environmental Protection Agency, "Questions About the Disposal of Lead Contaminated Items," Wastes - Hazardous Waste - Treatment, Storage & Disposal (TSD), n.d.
23
ED_0 18475D_ 00002985-00029
It can be assumed that, following the guidance, EPA will place higher priority on RLS. Thus, we assume that the estimated removal of 14 sites per year doubles during the first 10 years and returns to the baseline pace thereafter.
Table 10 presents a more accurate estimate of social costs. EPA's partial analysis of social costs estimates range from an annualized amount (at three percent) of $190 million to $580 million per year, with a midpoint range of $240 million to $470 million annually. From Exhibit 4.4, EPA presents a midpoint estimate of 469,165 affected properties that will experience incremental costs under the updated guidance. 38 Our analysis shows that the more accurate number of affected properties is approximately 608,400. The annualized social costs at three percent are between $6,500 million and $34,000 million per year ($6.5 billion per year to $34 billion per year). Table 10: Estimated Social Costs
Annualized (2% Discount Rate) Annualized (7% Discount Rate)
25,000
zo;oooT
10,000
8,000 3,500
43,000 17,000
There are some limitations to our estimates. Due to limited data sources, we rely on certain assumptions that may lead to either under- and overestimations in each category of the estimated universe of affected sites and properties. We determine the number of potentiallyaffected NPL sites and properties through a nationally-representative sample that includes
38 Environmental Protection Agency, "2024 Economic Assessment Updated Soil Lead Guidance for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," 4-23.
24
ED_0 18475D_ 00002985-00030
approximately 27 percent of lead-contaminated NPL sites. A comprehensive assessment of all NPL sites may yield different results. We also assume the number of sites deleted from the NPL that will likely be reopened and affected under the updated guidance reflects the rate of NPL sites that we estimate will meet EPA's definition of a RLS. We further rely on this estimated RLS rate to determine the upper-bound estimate of likely active inventory sites that will be affected. It is unclear whether our assumption for either deleted NPL sites or active inventory sites lead to under- or overestimations. Furthermore, we are unable to include brownfield sites and federal sites (e.g. BRAC and military sites). This omission, in particular, leads to a significant underestimation of total social costs. Our approach to estimate the complete cleanup costs associated with the updated guidance also has some limitations. For omitted PRP transaction costs, we rely on the best available study by RAND. Past costs may not reflect current conditions and, thus, it is unclear whether RAN D's 1993 publication remain accurate. Unfortunately, there are no other more recent studies of equal scale to RAND's 1993 publication that measure current PRP transaction costs. In addition, it is likely that the cleanup costs we use understate near- and long-term future costs due to the supply constraints. The updated guidance will have labor force and supply chain impacts. Remediation requires specialized labor. Under EPA's updated guidance, thousands of sites nationwide will require remediation. A sudden increase in demand for equipment and labor will place a strain on supply chains and the labor force. A wide range of municipalities and diverse sectors that rely on this supply chain will ultimately bear the additional costs associated with increased scarcity in the labor force and in capital equipment.
CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) require states to share the costs of Fund-financed remedial actions for sites listed on the NPL. 39 For facilities publicly operated at the time of the disposal of hazardous substances,
states are required to pay 50 percent, or greater as determined by EPA, of the cost of Fund-
financed response actions. 4 For other facilities, except federal, states are required to pay 10 percent of remedial action costs. States can pay their cost share in cash, in-kind services, or by applying credit granted by EPA.
Based on our sample of 171 NPL sites, we assessed that 12 (i.e. seven percent) are publiclyowned waste management sites. Thus, apply the 50 percent cost share to seven percent of total estimated Fund-lead costs at NPL sites and active inventory sites. We apply a 10 percent
39 Environmental Protection Agency, "State Cost Share Payment Options," December 2018. 40 40 CFR 300.510 (1994).
25
ED_0 18475D_ 00002985-00031
cost share at the remaining estimated costs. Table 11 presents each state's estimated remedial action cost share. New Jersey has the greatest cost share over the 60 year period, $230 million. Florida, California, Pennsylvania, and New York also have significant cost share obligations.
Table 11. States' Estimate Remedial Action Cost Share
FL
130
PA
130
CA
110
NY
130 i
IL
100
100
100
TX
100
OH
NC
40
VA
70
IN
MO
co
50
MD
WI
80
MT
50
SC
50
TN
40
GA
40
KS
40
AL
30
40
IA
30
NH
40
ME
30
RI
30
UT
30
26
ED_0 18475D_ 00002985-00032
WV
30
ID
20
KY
10
NE
20
MN
HI
10
NM
10
DC
NV
SD
In its estimation of social costs of remediation activities associated with updated soil screening levels, EPA presents a low cost scenario (screening level of 200 ppm at all sites), high cost scenario (screening level of 200 ppm at all CERCLA Removal and RCRA CA sites, and 100 ppm at all Remedial CERCLA sites), and a midpoint scenario (midpoint cost estimate between the lower cost and higher cost scenarios). We assess EPA's analysis and assumptions and identify two major flaws that lead to substantial underestimation. First, EPA does not include all sites that will be affected under the updated guidance. Second, EPA's per-site remediation costs are underestimated.
EPA limits the universe of potentially affected sites to three types of CERCLA sites: NPL sites; deleted sites; and new sites over a 10-year period. EPA's omission of brownfields, active CERCLA sites, and federal facility sites from the universe amounts to a failure to follow best economic practices. We present an alternative universe of affected sites that shows EPA's underestimates affected properties by a minimum 30 percent. Compared to EPA's partial analysis that estimates a total of 469,165 properties potentially affected under the guidance, we estimate 608,000 properties and highlight that this still understates impacts because our analysis did not have enough data to include the expected vast number of brownfields that should be included in EPA's assessment.
EPA underestimates remediation costs for sites by excluding the oversight costs charged to private parties, the transaction costs private parties have to assign liability and to manage the cleanup, and other construction management costs. EPA relies on cost averages and site characterization data for a sample of CERCLA sites collected from regional staff. EPA does not disclose the approach used for selecting the portion of sites by which cost averages were extrapolated to the rest of the universe, including smaller sites whose pre-construction costs are likely significantly larger than EPA's averages and assumptions imply. Specifically, based
27
ED_0 18475D_ 00002985-00033
on project cost estimates at other sites, we determine that project management and construction management costs would be more equivalent to 30 percent of remediation efforts, twice that of EPA's assumed value of 15 percent. Under the CERCLA statute, states are required to share the costs of Fund-lead remediation activity for sites on the NPL. States' share of these costs range from 50 percent (or greater) for facilities publicly operated at the time of the hazardous substance's disposal to 10 percent for other facilities. We assess the expected cost share by states over the 60 year period and estimate $730 million in cost share obligations for the top five states alone: New Jersey, Florida, California, Pennsylvania, and New York. For the top ten states, the cost share obligations amount to $1.2 billion. By not accurately accounting for costs, EPA has failed to follow its own economic analysis guidance, its requirements for analysis under statutes, and best economic practices and requirements under the Office of Management and Budget's Circular A-4. 41 EPA has over 40 years of data for the CERCLA program and could generate a full universe of potentially affected sites that should include active CERCLA sites, brownfields, and federal facility sites. EPA can and should also develop accurate and complete cost estimates that include oversight costs, PRP project management costs, and transaction costs.
41 Environmental Protection Agency, "Guidelines for Preparing Economic Analyses," December 17, 2010; U.S. Office of Management and Budget, "Circular A-4: Regulatory Analysis."
28
ED_ 0 184 7 5D _ 00002985-00034
REFERENCES
40 CFR 300.510 (1994). Dixon, Lloyd, Deborah Drezner, and James Hammitt. "Private-Sector Cleanup Expenditures
and Transaction Costs at 18 Superfund Sites." RAND Corporation, 1993. Environmental Protection Agency. "2024 Economic Assessment Updated Soil Lead Guidance
for Sites and Facilities Being Addressed Under CERCLA and RCRA Authorities," January 2024. ---. "Active Site Inventory (List BR Active)," February 29, 2024. https:/ /www.epa.gov/superfund/superfund-data-and-reports. ---. "All Current Deleted NPL Sites (FOIA 5)," February 29, 2024. https:/ /www.epa.gov/superfund/superfund-data-and-reports. ---. "Brownfields," February 12, 2024. https://www.epa.gov/brownfields/about. ---. "General Brownfields Guidelines on All Appropriate Inquiries," April 2023. ---. "Guidelines for Preparing Economic Analyses," December 17, 2010. ---. "Population Surrounding 34,305 Brownfields Sites." Office of Land and Emergency Management, July 2023. ---. "Questions About the Disposal of Lead Contaminated Items." Wastes - Hazardous Waste - Treatment, Storage & Disposal (TSD), n.d. ---. "Sites with Potential Smelting-Related Operations (FOIA 1), " February 29, 2024. https:/ /www.epa.gov/superfund/superfund-data-and-reports. ---. "State Cost Share Payment Options," December 2018. ---. "Superfund," n.d. https://www.epa.gov/superfund. ---. "Superfund Enforcement FY 2023 Annual Results," 2023. https: / /www.epa.gov/enforcement/superfund-enforcement-fy-2023-annual-results. ---. "Superfund Enterprise Management System," n.d. https:/ /cumulis.epa.gov/supercpad/CurSites/srchsites.cfm. ---. "Superfund Glossary," n.d. ---. "The Revitalization Handbook: Addressing Liability Concerns at Contaminated Properties," August 2022. https://www.epa.gov/system/files/documents/202208/ revitalization-handbook-final-2022_2. pdf. ---. "Transmittal of the 2019 Policy on the Issuance of Superfund Comfort/Status Letters," August 21, 2019. https://www.epa.gov/sites/default/files/201908/documents/comfort-status-ltr-2019-mem_0. pdf. ---. "Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities." Office of Land and Emergency Management, January 17, 2024. Google Maps. "Map of the U.S." Accessed March 6, 2024. https://maps.google.com/. Office of the Under Secretary of Defense for Acquisition and Sustainment. "Defense Environmental Programs Annual Report to Congress for Fiscal Year 2022," October 2023.
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URS Corporation. "Final Feasibility Study, Casmalia Resources Superfund Site - Appendix E Cost Spreadsheets." Casmalia, CA, n.d. https://www.waterboards.ca.gov/rwqcb3/water_issues/programs/stormwater/ docs/li d/Casmalia_Superfund_Site/Final%20Feasibility%20Study/ Appendices/Appendix%20E/A ppendix%20E%20Complete. pdf.
U.S. Department of Justice. "Environment and Natural Sources Division FY 2022 Accomplishment Report," April 2023. https://www.justice.gov/d9/2023-06/fy22accomplishments-report. pdf.
U.S. Government Accountability Office. "Superfund: Trends in Federal Funding and Cleanup of EPA's Nonfederal National Priorities List Sites," September 2015. https://www.gao.gov/assets/gao-15-812.pdf.
U.S. Office of Management and Budget. "Circular A-4: Regulatory Analysis," November 9, 2023.
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Pre pa red By:
Ramboll Americas Engineering Solutions
Date:
May 9, 2024
ENVIRONMENT & HEALTH
TECHNICAL COMMENTS ON JANUARY 2024 USEPA UPDATED RESIDENTIAL SOIL LEAD GUIDANCE
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Technical Comments on January 2024 USEPA Updated Residential Soil Lead Guidance
1. Introduction ................................................................................................................... 1 2. The Updated Soil Guidance Should Integrate Recent Research ....................................... 3 2.1 Background Dietary Lead Intakes Should Be Consistent with Those Used by USEPA In Other National Rulemaking Efforts for Lead ................................................................................ 3 2.1.1 Conclusions and Recommendation ................................................................................. 7 2.2 Recent Studies Support Lower Soil Ingestion Rates for Use in IEUBK ..................................... 8 2.2.1 Conclusions and Recommendations ................................................................................ 9 2.3 The MSD Used in the IEUBK Model Should be 0.4 or Less ..................................................... 9 2.3.1 Critique of Studies Relied Upon to Derive the Default 0.7 MSD .......................................... 10 2.3.2 Summary of Recent Studies That Provide More Reliable MSDs ........................................... 12 2.3.3 US EPA Has Used a Soil-Dust Coefficient of 0.48 in Other Lead Evaluations .......................... 14 2. 3.4 Conclusions and Recommendations ...............................................................................14 2.4 US EPA Should Acknowledge Uncertainties in Geometric Standard Deviation ........................... 15 2.5 Impact of IEUBK Parameters on Soil Lead Concentrations Meeting 5 and 3.5 g/dL Blood Lead Targets ........................................................................................................................16 3. Other Lead Sources Should be Deleted As IEUBK Inputs For Target BLL of 3.5 1,.1g/dL .................................................................................................................................. 17 4. Clean-Up Levels Should Be Applied On An Exposure Unit-Wide Basis ........................... 19 5. Clearer Guidance Must Be Provided On Anthropogenic Background ............................. 21 5.1 Anthropogenic Background Must Be Considered at All Sites ................................................. 21 5.2 HUD (2021) Data Can Be Used to Calculate Anthropogenic Background When Site-Specific Anthropogenic Background Cannot be Estimated .......................................................................22 6. References.................................................................................................................... 25
Contents
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Table 1. Dietary Lead Intakes from IEUBK v 2.0, Zartarian et al. (2017), and Spungen (2019) .......... 4 Table 2. Basis of Dietary Lead Intake Derivation from OLEM IEUBK v 2.0, Zartarian et al. (2017), and Spungen (2019) ................................................................................................... 6 Table 3. Soil Lead Concentrations Meeting 5 and 3.5 g/dL Blood Lead Targets Accounting for Updated Dietary Lead Intakes .................................................................................................. 7 Table 4. Comparison of Soil+Dust Ingestion Rates Used in IEUBK Model with Ozkaynak et al. (2022) ................................................................................................................................. 8 Table 5. Soil-Dust Relationships for Lead (Brattin and Griffin 2011) ............................................. 13 Table 6. Linear Regression Soil-Dust Relationships for Lead (Tu et al. 2020) .................................. 14 Table 7. Soil Lead Concentrations Meeting 5 and 3.5 g/dL Blood Lead Targets .............................. 16 Table 8. Updated Soil Lead Concentrations Accounting for Adjustment of IEUBK Model when 3.5 g/dL Blood Lead Target Applied .............................................................................................18 Table 9. Application of a 200 mg/kg Clean-up Goal on an Exposure Unit-wide Basis ........................ 20 Table 10. Percent Housing Units (HU) with Bare Soil Lead Greater Than 200 and 400 mg/kg AHHS Il ...............................................................................................................................24 Table 11. Bare Soil Lead Concentrations (mg/kg) - AHHS Il ........................................................ 24
Contents
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AHHS: BLL: BTV: CDC: CERCLA: FDA: GSD: GOF: HUD: IEUBK: IRL: KM: LOD: LOQ: MSD: NCI: NHANES: ND: NPL: OFAS: OLEM: RCRA: RSL: SHEDS: TDS: UCL: UPL: USEPA: UTL: g/dL: g/m3:
D
American Healthy Homes Survey blood lead level background threshold value Centers for Disease Control Comprehensive Environmental Response, Compensation, and Liability Act U.S. Food and Drug Administration geometric standard deviation goodness-of-fit test U.S. Department of Housing and Urban Development Integrated Exposure Uptake Biokinetic interim reference level Kaplan-Meier analysis limit of detection limit of quantitation mass soil-to-dust transfer factor National Cancer Institute National Health and Nutrition Examination Survey non-detect National Priority List Office of Food Additive Safety Office of Land & Emergency Management Resource Conservation and Recovery Act regional screening level Stochastic Human Exposure and Dose Simulation Model Total Diet Study upper confidence limit of the mean concentration upper prediction limit United States Environmental Protection Agency upper tolerance limit micrograms per deciliter micrograms per cubic meter
Acronyms and Abbreviations
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m: mg/kg: mm:
micrometers milligram per kilogram millimeter
Acronyms and Abbreviations
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1. INTRODUCTION
The U.S. Environmental Protection Agency (USEPA) Office of Land & Emergency Management (OLEM) recently issued updated guidance addressing lead in residential soils at Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) sites and Resource Conservation and Recovery Act (RCRA) corrective action facilities (USEPA 2024a). The guidance, Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities, 1 released on January 17, 2024 (previous USEPA soil lead guidance was issued in 1994), results in lower regional screening levels (RSLs) for lead (Pb) in residential soils and therefore increases the number of residential properties where the level of soil lead contamination may be high enough to warrant further investigation at new sites, at open active sites, and at sites that have previously undergone remediation and closure. The Guidance directs regions to conduct further site-specific evaluations in these situations to identify local exposure levels and achievable cleanup levels. Additionally, the new guidance may impact both current and future land-use decisions and remediation costs.
Several of the assumptions used by OLEM in the Integrated Exposure Uptake Biokinetic (IEUBK) model to derive the RSLs are outdated, overly conservative, and inconsistent with those used by other USEPA programs. It is our opinion that the calculated RSLs are far lower than needed to achieve the desired target blood lead levels. In this memorandum, we present alternate assumptions that more accurately reflect current scientific knowledge and are more consistent with assumptions used by USEPA in other lead programs. Notably, the use of these alternate assumptions yields an RSL of 435 milligrams per kilogram (mg/kg) for a target blood lead level of 5 micrograms per deciliter (g/dl) and an RSL of 253 mg/kg for a target blood lead level of 3.5 g/dl, far higher than the RSLs of 200 and 100 mg/kg, respectively, in the new guidance. We believe that these alternate RSLs will achieve the level of health protection sought by USEPA.
We also provide comments on the future application of cleanup levels derived based on the new blood lead targets, as well as suggestions for how to derive anthropogenic background levels for sites. Both the RSLs and site-specific cleanup levels should be applied to the average concentrations for an exposure unit such as a residential property and should not be considered as not-to-exceed levels. OLEM should provide additional guidance to ensure consistency in the application of the RS Ls and sitespecific cleanup levels. The OLEM guidance also notes that cleanup levels will not be set below natural or anthropogenic background. We provide comments showing that anthropogenic soil levels will exceed the new RSLs for any community that has older housing. As shown by the U.S. Department of Housing and Urban Development (HUD; 2021), the U.S. average soil lead concentration for homes built prior to 1940 is 405 mg/kg, more than double the single source RSL. We provide an example of how national datasets, such as the data from HUD, could be used to derive site-specific anthropogenic soil lead values based on house age distribution at sites where site-specific natural or anthropogenic background lead concentrations cannot be determined.
OLEM's updated residential soil lead guidance is likely to result in substantial environmental assessment and remediation activities and costs. While the update on protective blood lead levels (BLLs) is important to protect human health, it is critical that the IEUBK model be updated to reflect the latest science, issues with the lower blood lead target (3.5 g/dl) be adequately addressed, methods for characterizing anthropogenic background be provided, and implementation strategies be
1t}t!g;_://www.epa.gov/system/files/documents/2024-01/olem-residential-lead-soil- ~uidance-2024 si ~ned 508. pdf
Introduction
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expanded to accommodate achievable remediation strategies while still meeting remedial or corrective action goals.
Introduction
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2. THE UPDATED SOIL GUIDANCE SHOULD INTEGRATE RECENT RESEARCH
For the revised guidance, OLEM uses the IEUBK model to generate RSLs for lead in soil based on a blood lead target of 5 g/dL when only one source of lead has been identified at a site or 3.5 g/dL when multiple sources have been identified. As described above, OLEM has used several out-of-date input parameters that result in RSLs far lower than needed to achieve the target blood lead levels. These input parameters should be updated to reflect the most recent science. In the following sections, we comment on the current background dietary lead intakes, soil ingestion, and mass soilto-dust transfer factor (MSD) parameters included in the IEUBK model and provide suggestions for updating these parameters based on recent peer-reviewed scientific publications. Updating these parameters is consistent with USEPA's Lead Strategy, which states that, "EPA expects that this strategy will be updated to ensure that we continue to engage with stakeholders, to rely on the best available science." (USEPA 2022a, pg. 13). Despite OLEM's acknowledgement of the importance of using "Best Available Science and Data" OLEM actually fails to do so by ignoring the more recent studies described in the comments. We urge OLEM to take action to correct these deficiencies promptly.
2.1
Background Dietary Lead Intakes Should Be Consistent with Those Used by
USEPA In Other National Rulemaking Efforts for Lead
The background lead dietary intake values for U.S. children incorporated in the IEUBK model, version 2.0 and used by OLEM to derive the revised RSLs are much higher than recent dietary intakes estimated by the U.S. Food and Drug Administration (FDA; Spungen 2019) and USEPA's Office of Research and Development (Zartarian et al. 2017). The dietary lead intakes used in the IEUBK v 2.0 and those in recent studies (Zartarian et al 2017, Spungen 2019) are summarized in Table 1. The Zartarian et al. (2017) values are particularly helpful because dietary lead intakes are provided for the same age ranges used in IEUBK. The more recent Spungen (2019) dietary intakes are for broader age ranges (1-3 years and 4-6 years) and are even lower.
The difference in the dietary intakes is driven primarily by higher food consumption rates assumed by OLEM with potential compounding of the overestimates by OLEM's use of half the limit of detection (LOD) for non-detected results. Additionally, the Zartarian et al. (2017) and Spungen (2019) analyses are based on more recent data and are more fully documented. USEPA has used the Zartarian et al. (2017) dietary intakes to support other national rulemaking efforts for lead, specifically the proposed Lead and Copper Rule revisions (USEPA 2023a) and the reconsideration of the dust-lead hazard standards and dust-lead post-abatement clearance levels (USEPA 2023b). Applying different background dietary lead intakes in the IEUBK model at residential soil lead sites is inconsistent on USEPA's part, misrepresents background lead exposures, and ultimately leads to the calculation of lower soil lead screening levels than are needed to protect public health. The IEUBK dietary lead values are inconsistent with current, best available scientific data.
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Table 1. Dietary Lead Intakes from IEUBK v 2.0, Zartarian et al. (2017), and Spungen (2019)
0 to <12
2.66
0.65
NA
12 to <24
5.03
2.00
24 to <36 5.21 2.85 1.7
36 to <48
5.38
2.98
48 to <60
5.64
3.00
60 to <72 6.04 3.31 2.0
72 to <84
5.95
3.29
Notes: a To calculate the hybrid mean, values less than the limit of detection (LOD) were set to zero if there were no
detections from 2009-16; otherwise, values less than the LOD were set to 0.5 * LOD, consistent with Zartarian
et al. (2017) approach. IEUBK = Integrated Exposure Uptake Biokinetic; NA = not analyzed
The OLEM memorandum Estimation of Dietary Lead Exposure: Update to the Default Values for the Integrated Exposure Uptake Biokinetic Model for Lead in U.S. Children describes the dietary lead intake values used in version 2 of the IEUBK model, (USEPA OLEM DIRECTIVE 9200.1-149). The OLEM memo does not provide adequate rationale for adjustment in the dietary intakes. Specifically, a detailed description of how the food consumption data from the National Health and Nutrition Examination Survey (NHANES) and food concentration data from the FDA Total Diet Study (TDS) was used to determine the input data for the National Cancer Institute (NCI) method is needed to better understand the dietary intake estimate. OLEM did not use the most recent NHANES and TDS data. OLEM, Zartarian, et al. (2017), and Spungen (2019) all rely on food consumption data from NHANES and food concentration data from the TDS, but Spungen (2019) and Zartarian et al. (2017) use more recent data than OLEM (Table 2).
The treatment of non-detected results in the TDS data also impacts the results. OLEM's analysis set all data less than the LOD to one-half the LOD. This approach incorrectly increases the assumed lead intake for foods where lead was not detected in the product in any of the years of TDS data used. Both Zartarian et al. (2017) and Spungen (2019) evaluate three different methods for the treatment of non-detects. Zartarian et al. (2017) observed over-prediction with half LOD for all non-detects; under-prediction with zero for all non-detects; and good model evaluation using a 'hybrid' approach from Xue et al. (2010). In the hybrid approach, foods that were never detected in the TDS data are set to zero, otherwise values less than the LOD with at least one detection are set to one-half the LOD. The hybrid approach is consistent with guidance in the FDA document entitled Guidance for Industry: Estimating Dietary Intake of Substances in Food (FDA 2018), which discusses the use of undetected analytical results in dietary analyses stating:
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The concentrations of constituents in foods will generally fall on a distribution curve. The values falling below an analytical LOD are typically reported as "non-detects." Concentrations of zero, one half the LOD, the LOD, the LOQ [limit of quantitation], or some other derived distribution of values have been reported as non-detects.[12] [Office of Food Additive Safety] OFAS has used all of these options, selecting the most appropriate in each case on the basis of the quality and quantity of data available. To gauge the effect of the selection of a non-detect value on an intake assessment, the intake estimate may be performed twice: once using zero as the non-detect level to determine the low end of the estimate range and again using the LOD as the non-detect level to determine the high end of the estimate range. The spread in this range is useful as a guide in assessing the importance of non-detect concentration values for a given intake estimate. [Bracketed text added to quote]
Moreover, in the 2022 FDA TDS FY2018-FY2020 Report Supplement: Summary of Analytical Results Tables where a constituent is never detected, all remaining statistics are identified as not available or not applicable (i.e., N/A) or non-detect (ND) and the reporting limit is provided (e.g., see arsenic in whole milk on page 1). This would indicate that statistical analysis of these data was not applicable. It is reasonable to assume that where a food is well studied and lead was never detected, it should not be included in a summary at half the detection limit.
The USEPA (2022b) ProUCL version 5.2 software for calculating the upper confidence limit (UCL) on the mean concentration for use in risk assessment also stresses the importance of not relying on onehalf of the detection limit in analysis of non-detect data stating specifically:
"9.14.1 Avoid the Use of the DL/2 Substitution Method to Compute UCL95
Based upon the results of the report by Singh, Maichle, and Lee (2006), it is recommended to avoid the use of the DL/2 substitution method when performing a GOF [goodness of fit] test, and when computing the summary statistics and various other limits (e.g., UCL, UPL [upper prediction limit], UTL [upper tolerance limit]) often used to estimate the EPC [exposure point concentration] terms and BTVs [background threshold values]. Until recently, the substitution method has been the most commonly used method for computing various statistics of interest for data sets which include NDs. The main reason for this has been the lack of the availability of the other rigorous methods and associated software programs that can be used to estimate the various environmental parameters of interest. Today, several methods (e.g., using KM [Kaplan-Meier] estimates) with better performance, including the Chebyshev inequality and bootstrap methods, are available for computing the upper limits of interest. Several of those parametric and nonparametric methods are available in ProUCL 4.0 and higher versions. The DL/2 method is included in ProUCL for historical reasons as it had been the most commonly used and recommended method until recently (EPA 2006b)." [Bracketed text added to quote]
The use of more robust analytical methods in the USEPA ProUCL software lends further weight to the use of a hybrid approach in considering non-detect data in analysis of lead in the diet.
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Table 2. Basis of Dietary Lead Intake Derivation from OLEM IEUBK v 2.0, Zartarian et al. (2017), and Spungen (2019)
OLEM IEUBK v 2.0 Zartarian et al. (2017)
2003 - 2006 2009 - 2014
1995 - 2005 2007 - 2013
All values < LOD set to 0.5 * LOD
Hybrid approach: Foods that were never detected in TDS data set to
zero, values < LOD with at least one
detection were set to 0.5 * LOD
Spungen (2019)
2009 - 2014
2014 - 2016
Hybrid approach: Foods that were
never detected in TDS data set to
zero, values < LOD with at least one
detection were set to 0.5 * LOD
Notes: For values shown in Table 1.
FDA = U.S. Food and Drug Administration; IEUBK = Integrated Exposure Uptake Biokinetic; LOD = limit of detection; NHANES = National Health and Nutrition Examination Survey; OLEM = USEPA Office of Land and
Emergency Management; TDS = Total Diet Study
Zartarian et al. (2017) used the Stochastic Human Exposure and Dose Simulation (SHEDS) model for multimedia, multi-pathway chemicals (SHEDS-Multimedia), a physiologically based probabilistic Monte Carlo exposure model that can simulate aggregate or cumulative exposures over time via dietary and residential routes for a variety of multimedia environmental chemicals using real-world data (i.e., human activity diaries, measured concentration data, exposure factors) for model inputs. This method also uses the regression equations derived from the IEUBK model as part of the process. The approach described by Zartarian et al. (2017) has a number of advantages over the OLEM analysis:
Use of more current data: NHANES 2009-2014, TDS 2007-2013
Verification: It compares the estimations made to the measured data from NHANES
Treatment of non-detect results: Use of a hybrid approach, which properly updates prior 0.5 *
LOD default
Transparency: All the code and data used to derive the information in this publication are available on the USEPA's website2
FDA's analysis (Spungen 2019) relies on TDS data from 2014 - 2016 and produces even lower dietary intakes than Zartarian et al., suggesting dietary lead intakes continue to decline. In addition to mean intakes, Spungen also produces 90th percentile intakes, which range from 2.6 to 3.1 g/day when the hybrid approach is used. These values are similar to the geometric mean estimates from Zartarian et al. (2017). OLEM's dietary lead intakes exceed all of the estimates produced by Spungen (2019), including the 90th percentile upper bound estimate (where non-detects set to LOD, range of 4.4. to
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4.8 g/day). Also of note, in 2022, the FDA updated the interim reference level (IRL) for lead in food to 2.2 g/day for young children (0-6 years). In the IRL publication, FDA scientists (Flannery and Middleton 2022) cite the work of Spungen (2019), Carrington et al. (2019), and Parker et al. (2022) which report mean dietary lead intakes in young U.S. children below the IRL. They also note the work of Wong et al. (2022), which estimated lead exposure from foods to be 0.11 g/kg body weight/day for a 1-year-old child (11.1 kg body weight), corresponding to an intake of 1.2 g/day, increasing to 2. 7 g/day when water ingestion is included.
The number of food types found to be a consistent source of lead (i.e., lead was detected in 100% of the food types) were similar between 2014-2016 and 2018-2020. In 2014-2016, the FDA reported 18/268 (7%) food items having lead concentrations at or above the LOD in every sample. In 20182020, lead was at or above the LOD in 24/307 (8%) types of food. Nevertheless, lead concentration data from the 2018-2020 TDS suggest lead concentrations in foods continue to decline. In the 20142016 TDS, the FDA reported lead levels at or above the LOD in 799/2,923 (27%) of samples. This number was roughly half as much in 2018-2020, where the FDA detected lead in 475/3,276 (14%) samples. 3 Additionally, lead was detected at least once in 173/268 (65%) food items sampled in the FDA's 2014-2016 TDS, compared to 113/307 (37%) samples in the FDA's 2018-2020 study.
2.1.1 Conclusions and Recommendation
Considering the FDA's recent analyses, the current IEUBK dietary intakes used by OLEM overestimate background dietary lead exposures in young children. The Zartarian et al. (2017) dietary intake values may still overestimate dietary intakes but would provide a more reasonable yet conservative estimate of background diet in the IEUBK model. Impacts to the soil lead RSLs meeting the 5 and 3.5 g/dl blood lead targets when the Zartarian et al. (2017) and Spungen (2019) intakes are used, with all other model inputs being equal, are shown in Table 3.
Table 3. Soil Lead Concentrations Meeting 5 and 3.5 g/dL Blood Lead Targets Accounting for Updated Dietary Lead Intakes
5
200
272
294
3.5
100
157
179
Notes: RSL = regional screening level
In keeping with USEPA's commitment to use the best science, at a minimum, OLEM should immediately adopt the Zartarian et al. (2017) dietary lead intake estimates for use of the IEUBK model in deriving soil lead RSLs consistent with use of these updated data in the proposed Lead and Copper Rule revisions (USEPA 2023a), recognizing that FDA (Spungen 2019) recommends even lower dietary intakes. USEPA should also carefully review the newest lead concentration data from the 2018-
-'In the 2014-2016 TDS FDA analyze<j leacl content in a total of 2,923 samples across 268 food types. The 2018-2020 TDS included 3,276 samples from 307 different types of foods.
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2020 TDS that suggest lead concentrations in foods continue to decline and incorporate an updated analysis into all applications of the IEUBK model in the near future.
2.2 Recent Studies Support Lower Soil Ingestion Rates for Use in IEUBK In IEUBK v2, the OLEM updated the soil+dust ingestion rates based on an analysis of soil, indoor dust, and blood lead concentration data from the Bunker Hill Superfund Site (von Lindern et al 2016). However, more recent analyses by USEPA scientists considering soil and dust intake (Ozkaynak et al. 2022) and cumulative lead exposure (Zartarian et al. 2017; 2023) suggest that central tendency intakes of soil and dust by young children may be lower than the von Lindern et al. (2016) estimates for the youngest age groups. Table 4 summarizes the central tendency soil+dust ingestion rates used in IEUBK v2 and from Ozkaynak et al. (2022).
Table 4. Comparison of Soil+Dust Ingestion Rates Used in IEUBK Model with Ozkaynak et al. (2022)
1-<2
94
48
2-<3
67
52
3-<4
63
59
4-<5
67
59
5-<6
52
59
Notes: a Mean values for 'dust plus soil ingestion' in Table 2 of Ozkaynak et al. (2022). IEUBK = Integrated Exposure Uptake Biokinetic
Ozkaynak et al. (2022) use the Stochastic Human Exposure and Dose Simulation Soil and Dust (SHEDS-Soil/Dust) model to estimate soil and dust ingestion rates. The SHEDS-Soil/Dust model predicts soil and dust ingestion by pathway, source type, population group, geographic location, and other factors, which offers a better characterization of exposures relevant to health risk assessments (Ozkaynak et al 2011). It incorporates information on children's activity and behavioral patterns (i.e., activities that add soil/dust to hands and those that remove soil/dust from hands), which can be used to more accurately estimate separate ingestion rates for outdoor soil and indoor dust. For example, Ozkaynak et al. (2022) included modifications in their model to account for pacifier-related dust exposures and blanket use.
Ozkaynak et al. (2022) present mean and standard deviation values for soil+dust ingestion for 7 categories within the age group of Oto <6 years: 0 to <1 month, 1 to <3 months, 3 to <6 months, 6 months to <1 year, 1 to <2 years, 2 to <3 years, and 3 to <6 years. IEUBK includes individual soil ingestion rates for 3 to <4 years, 4 to <5 years, and 5 to <6 years, so having only one rate representing 3 to <6 years adds potential uncertainty. However, the Ozkaynak et al. (2022) estimate for 3 to <6 years (59 milligrams per day [mg/day]) is similar to the von Lindern et al. (2016) rates for this age group (52 to 67 mg/day). The larger differences lie in the younger age groups, especially the 1 to <2-year age range, where the von Lindern et al. (2016) rates are nearly two times as high. Ozkaynak et al. (2022) suggest that differences in their soil ingestion rates compared to von Lindern
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et al. (2016) may result from several factors including the von Lindern et al. study being conducted using maximum seasonal blood lead concentrations, smaller sample sizes used for young children, and the geographic focus of von Lindern et al. (2016) at a former lead Superfund site.
Zartarian et al. (2017; 2023) use the SHEDS model coupled with IEUBK to assess relationships between lead in environmental media and children's blood lead levels. Zartarian et al. (2017) found that using the von Lindern et al. (2016) soil+dust ingestion rates for 1 to <2-year-olds caused their model to overestimate background blood lead levels for U.S. children (from the National Health and Nutrition Examination Survey). Because of this issue, Zartarian et al. (2017) opted to use soil ingestion rates from Ozkaynak et al. (2011) in their model. Ozkaynak et al. (2022) is an update to the 2011 study. Zartarian et al. (2023) used the soil+dust ingestion rates from Ozkaynak et al. (2022) in their modeling analysis, noting their selected model inputs 'provide the most accurate representation of what children are exposed to at a national scale.' Of note, they also evaluated soil ingestion rates from von Lindern et al. (2016) and the USEPA Exposure Factors Handbook update (2017) but opted not to use these values. Considering this research by other USEPA offices, the Ozkaynak et al. (2022) soil ingestion rates more accurately represent soil ingestion than the current soil ingestion rates in the IEUBK model.
2.2.1 Conclusions and Recommendations
In keeping with USEPA's commitment to use the best science, at a minimum, OLEM should immediately adopt the Ozkaynak et al. (2022) soil ingestion estimates in the IEUBK model for use in deriving soil lead RSLs. The Ozkaynak et al. (2022) values have been validated by other USEPA scientists (Zartarian et al. 2023) in lead exposure assessment studies. The USEPA should continue to monitor the literature to assess if further changes in the soil ingestion estimates are needed.
2.3 The MSD Used in the IEUBK Model Should be 0.4 or Less
Soil ingestion rates used to estimate exposure typically are assumed to include combined intake from soil and indoor dust; however, data on indoor dust metal concentrations are rarely available. For that reason, assumptions must be made about the concentration of soil-derived metals in indoor dust. USEPA derived a factor to account for soil track-in from yard soils, referred to as MSD. An MSD of 0.7 has been used for the past 25 years as the default assumption in the IEUBK model used to estimate blood lead levels in children (USEPA 1998). More recent studies indicate that the IEUBK default MSD markedly overestimates the influence of yard soil on indoor dust metal concentrations. Use of a more representative MSD results in much higher RSLs.
In 1991, researchers from the University of Canterbury in New Zealand summarize a series of studies and estimate that the fraction of metals in dust attributable to soil is 33% to 44% (e.g., an MSD would be 0.33 to 0.44) (Fergusson and Kim (1991). Based on a multi-element analysis of soil-to-dust ratios from the literature (including their own studies) for metals without indoor sources, Fergusson and Kim (1991) report a ratio of 0.44 (standard deviation 0.06) for nine elements (Hf, Th, Sc, Sm, Ce, La, V, Al and K)4 , and a ratio of 0.33 (standard deviation 0.09) for Mn, Fe, La, Sm, Hf, Th, V, Al, Sc and Ce5 . A particular strength of the studies summarized by Fergusson and Kim is that they also examined the role of outdoor street dust on indoor dust. Most studies conducted since these studies assess metals that have indoor, as well as outdoor sources, and thus require analyses that attempt to discern the
4 The elements, listed in order: Hyc1rogen fluoride, thorium, scandium, samarium, cerium, lanthanum, vanadium, aluminum, and potassium. 5 The elements, listed in order: Manganese, iron, lanthanum, :;amarium, hydrogen fluoride, thorium, vanadium, aluminum, and cerium.
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relative influence of indoor and outdoor sources. In the sections below, we provide a critique of the studies used to derive an MSD default of 0.7, summarize recent studies of similar sites that provide more reliable MSDs, and finally, address a methodological question about sample sieve size.
2.3.1 Critique of Studies Relied Upon to Derive the Default 0.7 MSD
To support the current MSD default of 0. 7 used for the past 25 years, US EPA interpreted data from four studies of mining and smelting communities as indicating that 70% of dust was attributable to soil (USEPA 1994a). Significant limitations in the studies relied upon by USEPA may have contributed to overestimates of soil track-in from yards and the associated MSD. The MSDs derived by USEPA (1994a) were 0.85 (0.81 and 0.89) for the East Helena, Montana smelter site; 0.70 (0.68, 0.72) for the Midvale, CO smelter site; 0.26 for the historic mining town of Butte, Montana; and 0.09 for Kellogg, Idaho. USEPA does not provide information on the datasets used to derive the MSDs for these sites such as sample size, dates collected, depth of soil samples, nature, and location of dust samples, and if the samples were bulk or were sieved. They also do not explain the statistical method they used to calculate the 0.70 value (USEPA 1994a). One of the most crucial questions regarding the datasets is whether smelters were operating at the time the studies were conducted. When a large air source such as a smelter is operating, the impact of ongoing particulate fallout from the air releases on outdoor surface dust is likely to have significantly increased the MSD because track-in would be influenced by much higher concentrations of metals in (more recently deposited) outdoor surface dust that would not be captured in soil concentration data. In addition, metal-containing airborne dust may infiltrate the houses directly through windows, doors, and other openings. We have been able to glean information about site conditions and methods for one of these datasets by reviewing historical documents.
The highest MSD reported by USEPA was for the East Helena smelter (0.85). In contrast, in 2011 a USEPA scientist and consultant reported an MSD for the E. Helena site of 0.25 (Brattin and Griffin 2011). This smelter closed in 2001 and was actively operating through the mid-1990s (USEPA East Helena Site). The soil and dust samples were collected by the Centers for Disease Control and Prevention (CDC) while the smelter was operating as part of a 1983 exposure study that included 396 children living in three areas at varying distances from the smelter (CDC 1986), with Area 1 being directly adjacent to the smelter and Area 3 being farthest from the smelter. During the study, air lead concentrations over a three-month period were 3 micrograms per cubic meter (g/m3) or greater at four stations in Area 1, 0.3 to 2 g/m 3 at three stations in Area 2, and 0.2 g/m 3 in Area 3. The current default air concentration assumed by USEPA in the IEUBK model is 0.1 g/m3, meaning that the East Helena air concentrations during the CDC study were 3 to 30 times higher than those currently assumed by USEPA in the two areas closest to the smelter. These data suggest that outdoor dust concentrations may also have been elevated compared with soil concentrations.
USEPA suggests that soil-to-dust coefficients may decrease over time at sites where major sources of soil lead deposition are no longer active (USEPA 1994a). Three factors at East Helena may have contributed to the very high MSD estimate of 0.85 that would not be applicable today, including high lead in airborne dust that could infiltrate houses directly, higher lead in outdoor dust as compared with yard soil, as well as sources of soil around the community with very high metal concentrations from smelting wastes that could be tracked into homes by residents.
This overestimate may have been further magnified by the sampling method used. Indoor dust was collected from vacuum cleaner bags. CDC (1986) reports collecting 179 grab samples of vacuum cleaner dust. Vacuum bags will reflect all areas of a house that have been vacuumed, regardless of
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the amount of time people spend in each area. Vacuum cleaner dust samples are likely to overrepresent entryways that accumulate the most tracked-in soil and may result in overestimation of the metal concentrations in areas of the house where children play. Current recommended dust sampling protocols specify indoor dust sampling should be conducted in defined areas within residences using a high-volume vacuum method. Geometric mean lead concentrations in the East Helena vacuum-bag samples were reported to be twice the concentrations in yard soil samples for Areas 1 and 2, while in Area 3 vacuum-bag lead levels were reported to be more than four times the yard soil levels. These findings could reflect indoor sources of lead or could reflect the track-in of outdoor dust with concentrations much higher than yard soil concentrations. Nevertheless, it is not clear from this information how USEPA derived an MSD of 0.85 for this site. It is noteworthy that the CDC (1986) found that in a fully parameterized regression model, soil lead was not a significant contributor to blood lead levels. It is also worth noting that initial IEUBK model validation efforts by USEPA used the CDC East Helena exposure study dataset (Hogan et al. 1998). All of these factors indicate that the Brattin and Griffin (2011) MSD estimate for E. Helena of 0.25 is more applicable for sites that are not operating smelters.
The decrease in MSDs that occurs over time after major sources of soil lead deposition are no longer active may also be a factor in the reported decline in the MSD estimate for the Midvale Slag site. The 446-acre Midvale Slag site is located in Midvale City and Murray City, Utah. Five lead and copper smelters operated at the site between 1871 and 1971 (USEPA Midvale Slag Site).
While USEPA's 1994 MSD estimate was 0.7 for Midvale, Brattin and Griffin (2011) report MSD values of 0.04 and 0.09 for Midvale Slag Operable Units 1 and 2, respectively. We were not able to find the sample dates associated with the data used by USEPA (1994a). Brattin and Griffin relied on data reported by ISSI (1998) after substantial remediation had been completed, suggesting that as smelter fallout impacts decline and the highest areas of contamination are cleaned up, apparent soil track-in values also will decline.
In contrast, in Butte, where smelting began in the 1800s and ended with World War II (mining continued to the present), estimated MSDs have remained more stable over time. USEPA (1994a) reported an MSD of 0.26, and Brattin and Griffin (2011) reported a value of 0.20. As described below, we have also analyzed these data using a different method of identifying outliers and derived an MSD of 0.14.
Review of historical documents provided other insights applicable to understanding methodological issues associated with earlier MSD estimates. In a 1998 publication (Hogan et al. 1998) USEPA researchers describe a comparison of the IEUBK model blood lead outputs with results of a 1991 multisite study of lead exposure and blood lead in three historical smelter communities: Palmerton, Pennsylvania, Madison County, Illinois, and Jasper County, Missouri (which includes Galena, Kansas) (ATSDR 1995). The methods used in this study were more consistent with methods used in more recent exposure studies to obtain representative yard surface soil concentrations and indoor dust samples collected from defined areas within residences using a vacuum sampler designed for dust sampling. However, some significant differences in the locations of dust samples across the studies may have affected their reliability for exposure assessment and IEUBK model validation. According to Hogan et al. (1998) the Palmerton, Pennsylvania and Madison County, Illinois composites included dust collected from entries, which is also included in the ASTM Method D-5438; however, the Madison County samples included dust from window wells and sills. Lead concentrations in windowsills are typically much higher than concentrations on floors when lead-based paint and other exterior lead
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contamination is present, and these samples would not be representative of soil track-in. Thus, dust samples from this study would not be useful for validating the soil-to-dust coefficient in the IEUBK model. Windowsills were not included in the dust samples from the other sites.
2.3.2 Summary of Recent Studies That Provide More Reliable MSDs Since 1994, a number of investigations of lead-contaminated sites have included paired yard soil and indoor dust samples from multiple residences. In contrast to the older studies described above, sampling protocols used in the studies included in Brattin and Griffin (2011), USEPA (2016), and Tu et al. (2020) are more likely to produce representative estimates of soil track-in. In these studies, indoor dust was generally collected with a sampling vacuum over one square meter area in three living areas within a residence, most commonly entries, living rooms, kitchens, and bedrooms. Soil samples were generally surface soil samples (usually, 0 to 1 inch or 0 to 2 inches) collected as composites from multiple yard components such as front yard, back yard, gardens, play areas, and drip lines. None of these sites were active smelters, and most had no recent history of smelting or mining. For many of the sites, some remediation of the most contaminated areas within the community had already begun, limiting the potential for higher concentration soil from outside the yard to be tracked in. Thus, these studies comply with USEPA guidance for house dust and residential soil sampling (USEPA 2008) and are more applicable to the general public than the studies relied on for the 0.7 MSD.
Brattin and Griffin (2011), a USEPA consultant and Region 8 toxicologist, report MSDs for lead ranging from 0.04 to 0.34 for nine paired soil and dust datasets from sites with historical mining and smelting activity in the U.S. Rocky Mountain region (Table 5). An additional MSD of 0.36 was reported for the Colorado Smelter Superfund Site in Pueblo based on analysis of 102 data pairs (USEPA 2016).
The findings of Brattin and Griffin (2011) and USEPA (2016) have been confirmed by a more recent analysis by Ramboll scientists of residential yard soil and indoor dust datasets from eight communities near historical mining, smelting, and refining operations (Tu et al. 2020). Regression analyses were used to derive slopes that represent MSDs for each site. The treatment of outliers was a significant methodological factor affecting the slope of the regressions. Covariates that could affect soil track-in, such as the amount of bare soil in the yard or having pets, were examined by multivariate regression analysis when available. MSDs for ordinary linear regression models with a good to moderate fit range from 0.14 to 0.47 for lead (Table 6).
Substantial variability is expected among soils at residences due to both physical characteristics of each property and the ways in which residents interact with their home. Survey data providing information on various factors affecting soil track-in helps to refine MSD estimates. For three of the datasets, covariate data were available that improved model fit by multivariate or stratified linear regression analysis. The results of this study are consistent with prior studies suggesting that MSDs for lead are generally 0.4 or less.
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Table 5. Soil-Dust Relationships for Lead (Brattin and Griffin 2011)
Walkerville, MT
196
192
0.20 (0,13-0,26)C
280 (197-363)C
Leadville, CO
200
196
0.14 (0.11-0.17)
565 (491-639)
East Helena, MT
30
29
0.25 (0.12-0.39)
181 (74-288)
Eureka, UT
55
54
0.14 (0.07-0.20)
467 (329-606)
Midvale, UT
40
40
0.04 (-0.13-0.21)
289 (210-368)
Midvale, UT
90
88
0.09 (-0.01-0.20)
139 (123-156)
Murray, UT
22
21
0.19 (0.03-0.36)
174 (39-309)
Sandy, UT
165
161
0.12 (0.09-0.14)
122 (93-151)
Denver, CO
74
72b
0.34 (0.17-0.51)
150 (91-210)
Notes: a Outliers characterized as values 3 standard deviation of the mean were excluded. b Second outlier emerged after repeating the outlier analysis excluding the first outlier. c Values in parentheses represent the 95% confidence intervals around the mean. MSD = mass soil-to-dust transfer factor
0.14 0.35 0.35 0.23 0.01 0.03 0.24 0.37 0.18
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Table 6. Linear Regression Soil-Dust Relationships for Lead (Tu et al. 2020)
Anaconda, MT
34
34
0.43 (0.25, 0.61)
52 (-41.0, 146)
0.43
Bartlesville, OK
59
57
0.47 (0.38, 0.56)
115 (74.5, 155)
0.678
Bingham Creek, UT
716
648
0.34 (0.31, 0.36)
(83.1, 91.3)
0.496
Black Eagle, MT
30
29
0.29 (0.15, 0.43)
49 (-6.83, 106)
0.397
Walkerville, MT
196
181
0.14 (0.11, 0.18)
266 (224, 307)
0.264
Pueblo, CO
102
93
0.36 (0.25, 0.47)
27 (-8.5, 62.4)
0.320
Notes: a Outliers characterized as values 3 standard deviation of the mean were excluded. The process was repeated on the datasets until no more outliers were identified. b Lower and upper 95%ile confidence limits are shown in parenthesis.
2.3.3 USEPA Has Used a Soil-Dust Coefficient of 0.48 in Other Lead Evaluations
USEPA's Office of Research and Development (Zartarian et al. 2017, Zartarian et al. 2023) used 0.48 as the lead dust-soil correlation coefficient based on data from the American Healthy Homes Survey I (AHHS I; HUD 2011). 6 The soil and dust data from HUD (2011) were used as the soil and dust concentrations in Zartarian et al. 2017. According to the supplemental material, the authors initially used the default IEUBK MSD of 0.7 to estimate dust concentrations based on HUD (2011) soil lead concentrations but opted not to use the 0.7 MSD in their final analysis following peer consult. The authors provide the following information on the derivation of the 0.48 soil-dust coefficient, "The data were stratified and weighted by house age pre-and post-1950, and a correlation coefficient of 0.48 between dust and soil [lead] concentrations was assigned in SHEDS based on the HUD/AHHS data" (Zartarian et al. 2017, pg. SS). As described in Section 1.1, the Zartarian et al. (2017) analysis was used to support two national rulemaking efforts for lead.
2.3.4 Conclusions and Recommendations
Taken together, the body of research conducted since 1994 provides powerful evidence for using a much lower MSD than the poorly documented and supported 0. 7 default value. The default value is
"Zartarian et al. (2023) states they usecl a dust-soil leacl coefficient of 0.5 basec1 on data from the National Human Exposure Assessment Survey (NHEXAS, citing Clayton et al. ( 1999). We believe this citation to be an error because Clayton et al. ( 1999) does not provide a dust--soil lead coefficient.
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not based on any statistical analysis or comprehensive review of the literature and other relevant data. In addition, now-available evidence strongly indicates that the historical data relied upon to derive the default were not collected using methods consistent with those currently recommended by USEPA for collecting dust data. In contrast, the best available science supports an MSD no higher than 0.4. In keeping with USEPA's commitment to use the best science, at a minimum, OLEM should immediately adopt a default MSD no higher than 0.4 in deriving the RSLs.
2.4 USEPA Should Acknowledge Uncertainties in Geometric Standard Deviation The probabilistic feature of IEUBK allows estimates that "represent the median values for a lognormal distribution of values that would occur in a population that was subject to fixed lead concentrations in the input media (soil, dust, air, water) equal to those input to the model" (NRC 2005). A key assumption in using the IEUBK for remedial decisions is the application of the geometric standard deviation (GSD) to identify the 95th percentile of the predicted blood lead distribution which is used to set soil cleanup levels.
Blood lead data are generally found to be lognormally distributed. Such data include both environmental variability and biological variability. As noted by USEPA, use of the IEUBK to identify soil cleanup levels should be based on a geometric standard deviation (GSD) that includes only the biological variation, such as individual behaviors and toxicokinetics variation among individuals. The default GSD of 1.6 is stated to represent the biological variability, while a GSD for combined variability for environmental and biological variability is thought to be approximately 1.9 (Zartarian et al. 2017).
The current IEUBK default GSD is based on a 1994 analysis (USEPA 1994a) that may be out of date, and no recent studies appear to have identified a population with sufficiently uniform exposures to provide an update or verification of the 1994 biological GSD derivation. The method suggested by USEPA (1994a) to stratify the blood lead data by soil concentration misses the point that most elevated BLLs are caused by sources other than soil and house dust. Many such sources are identified when home evaluations are conducted for children with elevated BLLs. These additional sources are likely to be driving the lognormal distributions commonly noted for blood lead datasets. It is noteworthy that a blood lead dataset for the community of La Oroya in Peru was found to have a normal distribution (Integral 2005). One dominant source affected this community, producing extremely elevated BLLs and very few other sources were identified. This raises the possibility that biological variation in BLLs may not always be log normally distributed.
As noted by the National Research Council (2005): "The standard deviation (or geometric standard deviation [GSD]) of the log normal distribution was derived based on observations of exposed populations of children. EPA (1994) stated that the default value of the GSD is based on analyses at Midvale, Utah; Baltimore, Maryland; and Butte, Montana. The analyses are not available for review" (NRC 2005). OLEM should acknowledge the assumed precision around any hypothetical "community" and their (assumed lognormally distributed) blood lead measurements is an input in the IEUBK model that has not been validated.
Furthermore, OLEM should transparently describe the impacts of the significant uncertainty in the assumed biological GSD of 1.6. The impact of uncertainty is greatest at the upper end of the distribution. One way for USEPA to address the uncertainty in the GSD would be to reduce the risk target from no more than a 95% chance of an individual exceeding the blood lead target, to no more than a 90% chance of exceeding the blood lead target. For example, applying a risk target of no more than a 90% chance of exceeding a blood lead target in the IEUBK model results in a calculated soil
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lead concentration of 273 mg/kg associated with the 5 g/dl blood lead target (as opposed to soil lead concentration of 200 mg/kg based on a 95% chance of exceeding the target), and a soil lead concentration of 135 mg/kg associated with the 3.5 g/dl blood lead target (as opposed to soil lead concentration of 85 mg/kg). Alternatively, presenting cleanup levels based on several such assumptions would allow the uncertainty to be quantified.
2.5 Impact of IEUBK Parameters on Soil Lead Concentrations Meeting 5 and 3.5 1,1g/dL Blood Lead Targets
Individually and together, the recommended updates to background dietary lead intake, soil ingestion, and soil-to-dust transfer have significant impacts on the soil lead concentrations calculated by IEUBK to meet the 5 and 3.5 g/dl blood lead targets (Table 7). The update to dietary intake has the largest individual impact to soil lead concentration goals for both the 5 and 3.5 g/dl blood lead targets. Of note, updates to soil ingestion and soil-to-dust transfer have little individual impact on the soil lead concentration meeting the 3.5 g/dl blood lead target, indicating that other background sources of lead dominate lead exposure at this target. The influence of soil increases when background dietary intakes are decreased. When all three parameters are updated, a soil lead concentration of 435 mg/kg meets the 5 g/dl blood lead target, and a soil lead concentration of 253 mg/kg meets the 3.5 g/dl blood lead target. If the risk target was adjusted to no more than a 90 percent chance of exceeding the target blood lead level (recognizing the likelihood that the biological GSD is overestimated), these soil concentrations would be significantly higher. Specifically, a cleanup level of 552 mg/kg is likely to ensure blood lead levels of individual children do not exceed 5 g/dl and a cleanup level of 331 mg/kg is likely to ensure blood lead levels of individual children do not exceed 3.5 g/dl.
Table 7. Soil Lead Concentrations Meeting 5 and 3.5 11g/dL Blood Lead Targets
5
200
272
257
249
435
3.5
100
157
111
106
253
Notes: a From Zartarian et al. (2017) b From Ozkaynak et al. (2022) c From Tu et al. (2020) IEUBK = Integrated Exposure Uptake Biokinetic; RSL = regional screening level
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3. OTHER LEAD SOURCES SHOULD BE DELETED AS IEUBK INPUTS FOR TARGET BLL OF 3.5 g/dl
The updated OLEM residential soil lead guidance recommends that an alternate blood lead target of 3.5 g/dL be used if an additional source of lead is identified (USEPA 2024a). Additional sources of lead provided as examples in the guidance include lead water service lines, lead-based paint, and nonattainment areas where air lead concentrations exceed National Ambient Air Quality Standards. USEPA's attempt to provide extra protection to communities vulnerable to multiple sources of lead exposure via more stringent control on soil lead concentrations is an inaccurate, ineffective and inefficient approach. Further reductions in soil lead concentrations, alone, will not measurably reduce blood lead levels and control of other sources is needed to reduce blood lead levels. As such, reducing the target blood lead level in the IEUBK model is not an effective means of controlling lead exposures. The alternate blood lead target is problematic in several ways.
First, the recommendation of two different blood lead targets is confusing and will be difficult to communicate to communities. Having two blood lead targets makes it difficult for risk assessors to justify either one. Second, the use of an alternate target blood lead level (BLL) of 3.5 g/dL is not necessary when the IEUBK model already has functionality to account for other sources of lead exposure, including air, water, and lead-based paint. The IEUBK model is designed to include sitespecific air and water lead concentrations when these data are available. Lead-based paint can also be included in the model via the multiple source analysis menu or alternate source intake menu, though quantifying specific lead exposures via lead-based paint is less straightforward. The specific lead exposure menus in IEUBK should be adjusted to account for site-specific exposures rather than relying on a lower blood lead target to account for these exposures. Third, the RSL based on a target BLL of 3.5 g/dL is 100 mg/kg, which will likely be below anthropogenic background in many communities with lead-based paint exposure. This is discussed further in Section 4. Also of note, the IEUBK model has not been validated at a target BLL of 3.5 g/dL.
If USEPA continues to recommend application of the lower blood lead target for communities with additional lead exposures, then additional lead exposure pathways, including dietary intake, should be zeroed out in the model to account for the lower blood lead target. In other words, the target blood lead should apply only to soil exposures. This concept is discussed in USEPA's Superfund Residential Lead Sites Handbook (2024b) overview of preliminary remediation goals, which states "Any consideration to take a CERCLA response action at a residence that factors in the increased risk from sources other than outdoor soil needs to be a site-specific risk management determination taking into consideration CERCLA statutory limitations on response." Table 8 shows the influence of zeroing out IEUBK exposure pathways that account for other sources of lead exposure on the soil lead concentration calculated by IEUBK that meets the 3.5 g/dL blood lead target. Soil lead concentrations calculated incorporating updated soil ingestion and MSD discussed in Section 1 are also provided for reference.
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Table 8. Updated Soil Lead Concentrations Accounting for Adjustment of IEUBK Model when 3.5 g/dL Blood Lead Target Applied
IEUBK default
100
100
230
254
Using Ozkaynak et al. (2022) soil NA 154 159 369 405 ingestion, 0.4 MSD
Notes: a IEUBK calculates a soil lead concentration of 97 mg/kg. The RSL of 100 mg/kg meeting the 3.5 g/dl blood lead target recommended in USEPA (2024a) is rounded up from 85 mg/kg calculated by IEUBK. b IEUBK calculates a soil lead concentration of 98 mg/kg. The RSL of 100 mg/kg meeting the 3.5 g/dl blood lead target recommended in USEPA (2024a) is rounded up from 85 mg/kg calculated by IEUBK.
IEUBK = integrated exposure uptake biokinetic model; MSD= mass soil-to-dust transfer factor; NA= not analyzed; RSL = regional screening level
We also note that use of a lower blood lead target may not achieve improved measures of lead health effects. Van Landingham et al. (2020) have shown that epidemiology study results used to demonstrate low-dose ( <5 g/dl) effects of lead exposure are influenced by uncontrolled confounding by multiple variables and call into question the conclusions of earlier analyses indicating that adverse effects are evident at these lower doses.
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4. CLEAN-UP LEVELS SHOULD BE APPLIED ON AN EXPOSURE UNIT-WIDE BASIS
Clean-up levels meeting blood lead targets should be applied on an exposure unit-wide basis. USEPA's Superfund Residential Lead Sites Handbook (2024b) states the exposure unit is, " ...generally determined by the receptor and exposure scenario in the geographic area in which individuals are randomly exposed to a contaminated medium for some relevant exposure duration (i.e., receptors have an equal probability of being anywhere in an exposure unit over the exposure duration)" (USEPA 2024b, pg. 50). At many residential sites, the residential property is the exposure unit. The original soil lead guidance documents (USEPA 1994b; 1998) recommend the individual residence be used as the primary exposure unit of concern. The 2024 guidance does not update this recommendation. Clean-up levels based on the lower blood lead targets should similarly be applied on a property-wide basis (as opposed to individual component-level basis, such as for a front yard, back yard, side yard, or individual sub-components of a property).
Application of clean-up levels on an exposure unit-wide basis allows for more efficient remediation while still meeting remediation goals and is consistent with the way people are exposed to lead in residential soil. As described in USEPA's Superfund Residential Lead Sites Handbook (2024b), lead concentrations across all sampled components (e.g., sub-components or sub-exposure areas of a property) are averaged and compared to the clean-up goal. Activity or area-weighting can be applied when appropriate (USEPA 2024b). If the exposure unit-wide average concentration exceeds the cleanup level, the component (sub-area) with the highest lead concentration is selected for remediation. Then, the exposure unit-wide average is recalculated using the backfill concentration for the remediated component. If the exposure unit-wide average still exceeds the clean-up level, the component with the next highest soil lead concentration is selected for remediation. The process repeats until the exposure unit-wide average no longer exceeds the clean-up level.
This approach, often in combination with a 'not to exceed' level, is part of the selected remedy in the Record of Decision for several National Priority List (NPL) sites, including the Colorado Smelter (Region 8) and ACM Smelter and Refinery Operable Unit 1 (Region 8). At these sites, the residential property is defined as the exposure unit. Residential components exceeding a not-to-exceed level (a higher concentration than the property-wide clean-up level) are targeted for remediation, and additional components are remediated as needed until the property-wide clean-up level is achieved.
A few examples of the impact of applying exposure unit-wide clean-up goals are illustrated in Table 9. Assuming a clean-up goal of 200 mg/kg and backfill concentration of 40 mg/kg, the number of properties and individual property components requiring remediation is vastly reduced when clean-up goals are applied on an exposure unit-wide basis while achieving appropriate risk reduction.
Clean-Up Levels Should Be Applied
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Table 9. Application of a 200 mg/kg Clean-up Goal on an Exposure Unit-wide Basis
Property 173
NA - no
A
NA - no
remediation
140
176
remediation
required
required
216
Property 262
262
B
110
227
110
137
307*
Property 99.3
99.3
C
155
155
224
224
176
176
224
214
224
174
247
247
397*
205
205
197
197
Notes: Individual components (sub-areas) with lead concentrations greater than 200 mg/kg are shaded. Component with highest lead concentration slated for remediation identified with an asterisk (*).
a Simple averaging applied across components. b Assumes a backfill concentration of 40 mg/kg. NA = not analyzed
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5. CLEARER GUIDANCE MUST BE PROVIDED ON ANTHROPOGENIC BACKGROUND
OLEM's recommendation to lower the residential soil lead RSLs and apply lower blood lead targets will make characterization of anthropogenic background a key factor at many residential clean-up sites. According to USEPA (2024a), "Consistent with the Role of Background in the CERCLA Cleanup Program [USEPA 2002], cleanup levels should not be set at values below natural or anthropogenic background. When the IEUBK-derived cleanup level is lower than site-specific background, the cleanup level should be set at background" (USEPA 2024a, pg. 7). For many sites, anthropogenic and site sources are comingled, making it difficult to distinguish anthropogenic impacts from site source impacts. In this section, we provide an approach to using data from the HUD residential soil lead surveys combined with site-specific house age data to generate site-specific anthropogenic background estimates.
5.1
Anthropogenic Background Must Be Considered at All Sites
It is well documented that the historical uses of leaded gasoline and lead-based paints have contributed significantly to soil lead concentrations in many areas across the United States. Soil near roadways, older housing structures (particularly pre-1940s buildings), and older urban areas where these two factors are often combined have been documented to have high soil lead concentrations that far exceed natural background and the new RSLs (ATSDR 2020). Many residential soil lead NPL sites are located in such areas.
The updated residential soil lead guidance states that if an additional source of lead is identified, such as lead-based paint, an RSL of 100 mg/kg based on a blood lead target of 3.5 g/dl should be applied. However, in areas where older housing structures are prevalent, anthropogenic soil lead background is likely to be well above 100, 200, and even 400 mg/kg.
Characterizing site-specific anthropogenic background at NPL sites is a challenge. The updated guidance states that site-specific soil lead background should," ... include consideration of the conceptual site model, natural geological lead sources for the locality, and historical/current anthropogenic activities unrelated to site releases of lead" (USEPA 2024a, pg.7). However, at many residential soil lead sites, it is challenging and resource intensive to characterize anthropogenic lead activities unrelated to the site because the entire residential area falls within the site-impacted boundary.
At present, USEPA Region 4 appears to be the only USEPA region that has characterized anthropogenic lead background for urban soils. USEPA Region 4 (2018) conducted an urban background study for lead and other metals in multiple Region 4 cities with the goals of 1) developing a robust, regional dataset representative of anthropogenic background, and 2) developing a data collection and analysis process that can be consistently applied in Region 4 states and other interested USEPA regions (USEPA 2018). While of interest, this regional approach may not offer sufficient density for determining anthropogenic background for a particular site. Region 4's sampling was completely on public properties and may not adequately represent residential properties where anthropogenic sources may be different (e.g., lead-based paint is more likely to be present on a residential property than a public property).
Clearer Guidance Must Be Provided
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5.2
HUD (2021) Data Can Be Used to Calculate Anthropogenic Background
When Site-Specific Anthropogenic Background Cannot be Estimated
The HUD 2011 and 2021 American Healthy Homes Surveys (AHHS I and II) provide a rich dataset of residential soil lead concentrations in residential areas across the United States segregated by house age, region, and other demographic factors. These datasets capture background lead sources that contribute to soil lead concentrations around the U.S., particularly lead-based paint, but presumably also contributions from historical leaded gasoline, natural geology, etc. where relevant. At sites where site-specific anthropogenic background datasets cannot be generated, residential soil lead data from HUD may be able to be used to generate anthropogenic background estimates based on the distribution of house ages in the affected neighborhoods. The HUD American Healthy Homes Survey II (AHHS II) sampled 703 housing units for lead from March 2018 to June 2019 (HUD 2021). Of these, 595 housing units were sampled for soil and 393 included bare soil. 7 Housing units were sampled in regions across the U.S. designated as either Northeast, Midwest, South, or West. As described in Appendix A of the AHHS II, at each dwelling unit a maximum of 6 composite soil samples were collected to a inch depth ideally from bare soil (HUD 2017). Composite soil samples were collected from four different locations at each at dwelling unit: the main entry, foundation/dripline, mid-yard area, and play areas. To analyze for lead, soil was later dried at room temperature, sieved to <2 millimeters (mm), sub-sampled, then sent to USEPA for laboratory analysis.
The HUD sampling approach is similar to residential soil lead sampling programs under CERCLA. Both use composite sampling of multiple components on the residential property to account for soil lead concentrations at a residence. Both sample soil at depths relevant for human exposure (surface soil). Additionally, both programs sieve the soil samples, although HUD sieved to the <2 mm particle size fraction whereas USEPA currently recommends sieving to <150 micrometers (m) at residential soil lead sites (USEPA 2016b). If HUD had sieved to <150 m, soil lead concentrations would likely be higher. 8 Thus, the HUD (2021) results potentially underestimate soil lead concentrations analyzed in accordance with the USEPA residential soil handbook (USEPA 2024b).
The percent of housing units with bare soil lead greater than 200 and 400 mg/kg by region and construction year is shown in Table 10. HUD (2021) does not present this information for soil lead greater than 100 mg/kg, but the percentage of housing units exceeding 100 mg/kg would be even higher. The HUD (2021) data suggest that a significant portion of housing units in the United States exceed the updated RSLs, and even the old RSL of 400 mg/kg. The percent exceeding RSLs varies by region and house construction year. For example, 29. 7% of all homes in the Northeast are estimated to have soil lead above 200 mg/kg, compared with 6.5% in the South. Of note, over 65% of homes constructed before 1940 across the United States are estimated to have soil lead greater than 200 mg/kg and over 45% have soil lead greater than 400 mg/kg.
Summary statistics presented in AHHS II for lead in bare soil by construction year are summarized in Table 11. This information can be used to generate distributions needed for background soil datasets. Notably, for houses built prior to 1940, the median soil lead concentration is 239 mg/kg and the 90th percentile is 841 mg/kg. Whenever a residential neighborhood has many older homes, the anthropogenic background will exceed the RSLs. We recommend deriving site-specific expected anthropogenic background by using these data to generate distributions. For example, if a community
7 rIUD (2021) provides summary statistics for bare soil most consistently throughout the report, so statistics for bare soil areas are presented here.
8 Juhasz et al. (2011) found soil lead concentrations increased as particle sizes decreased in an analysis of lead in four soil particle size fractions (<2 mm, <250 m, <100 m, and <50 m).
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has 50% of homes built before 1940 and 50% built between 1940 and 1959, the expected mean concentration would be 246 mg/kg (i.e., the average of 405 and 87 mg/kg). The 90th percentile would be 511 mg/kg. Clearly, the anthropogenic background for such a site exceeds the RSLs, and use of this data informs meaningful and reasonable site assessment and risk management decision-making.
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Table 10. Percent Housing Units (HU) with Bare Soil Lead Greater Than 200 and 400 mg/kg AHHS II
Region
Northeast
29.7%
20.1%
58
Midwest
28.0%
16.7%
106
South
6.5%
4.2%
149
West
9.6%
6.9%
80
House Construction Year
1978-2017
5.0%
3.6%
134
1960-1977
5.2%
4.2%
118
1940-1959
22.1%
8.2%
89
Before 1940
65.5%
46.4%
52
Notes: Values from HUD "American Health Homes Survey II - Lead Findings" Tables 7-10 and 7-11 HU = housing unit
Table 11. Bare Soil Lead Concentrations (mg/kg) AHHS II
1978-2017
41
15
56
134
1960-1977
51
26
84
118
1940-1959
87
49
181
89
Before 1940
405
239
841
52
Notes: Values from HUD "American Health Homes Survey II - Lead Findings" Tables 7-2 and 7-9 HU = housing unit
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6. REFERENCES
ATSDR. 1995. Multisite Lead and Cadmium Exposure Study with Biological Markers Incorporated. Atlanta: Agency for Toxic Substances and Disease Registry).
ATSDR. 2020. Toxicological Profile for Lead. https://wwwn.cdc.qov/ SP/ oxProfiles/ oxProfiles.aspx?id=96&tid=22
Brattin, W., and Griffin, S. 2011. Evaluation of the Contribution of Lead in Soil to Lead in Dust at Superfund Sites. Human and Ecological Risk Assessment: An International Journal, 17(1), 236244. httr s://doi.orq/10.10H0/10H07039.2011.53Hf-i3H
CDC. 1986. East Helena, Montana, Child Lead Study, Summer 1983. Participating agencies: Lewis and Clark County Health Department, Montana Health and Environmental Sciences, Centers for Disease Control. Final report, July.
Fergusson, J. E., and Kim, N. D. 1991. Trace elements in street and house dusts: sources and speciation. Science of The Total Environment, 100, 125-150. https://doi.orq/10.1016/00489697(91)90376-P
Flannery, B. M., and Middleton, K. B. 2022. Updated interim reference levels for dietary lead to support FDA's Closer to Zero action plan. Regulatory Toxicology and Pharmacology, 133, 105202. https://doi.orq/10.1016/j.yrtph .2022.105202
Food and Drug Administration 2018. Guidance for Industry: Estimating Dietary Intake of Substances in Food. Available at: httr s://www.fda.gov/regulatnry-information/search-fda-quidancedocuments/quidance-indw,try-estimatinq-dieta y-intake-substances-food Current as of 9/20/2018
Food and Drug Administration. 2022. FDA Total Diet Study (TDS) FY2018-FY2020 Report Supplement: Summary of Analytical Results. Available at: https://www.fda.gov/media/159751/download?attachment
Hogan, K., Marcus, A., Smith, R., and White, P. 1998. Integrated exposure uptake biokinetic model for lead in children: empirical comparisons with epidemiologic data. Environmental Health Perspectives, 106(Suppl 6), 1557-1567.
HUD. 2011, April. American Healthy Homes Survey - Lead and Arsenic Findings
httr s://www.hud.gov/!;ites/documents/AHHS REPORT.PDF
HUD. 2017, October 24. American Healthy Homes Survey II - Appendix A. https://omb. report/icr/201705-2539-001/doc/78683801
HUD. 2021, October 29. American Healthy Homes Survey II - Lead Findings. httr s://www.hud.gov/!;ites/dfiles/HH/documents/AHHS%20II Lead_Findinqs Rer ort Final 29oct2 l.pdf
Integral Consulting. 2005. Human Health Risk Assessment Report, La Oroya Metallurgical Complex. Mercer Island, WA: Prepared for Doe Run Peru, December 2, 2005.
Juhasz, A., Weber, J., and Smith, E. 2011. Impact of soil particle size and bioaccessibility on children and adult lead exposure in peri-urban contaminated soils. Journal of Hazardous Materials, 186(23), 1870-1879. IJU.P~,:j/doi.or J/10.1016/j.jllazrnat.2010.12.095 National Research Council. 2005. "6 Human Health Risk Assessment: Lead Exposure and Uptake - Use of the IEUBK Model."
References
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Superfund and Mining Megasites: Lessons from the Coeur d'Alene River Basin. Washington, DC: The National Academies Press. doi: 10.17226/11359. Pages 235-236.
Ozkaynak, H., Glen, G., Cohen, J., Hubbard, H., Thomas, K., Phillips, L., and Tulve, N. 2022. Model based prediction of age-specific soil and dust ingestion rates for children. Journal of Exposure Science & Environmental Epidemiology, 32(3), 472-480. httr s://doi.org/10.1038/s41370-02100406-5
Ozkaynak, H., Xue, J., Zartarian, V. G., Glen, G., and Smith, L. 2011. Modeled estimates of soil and dust ingestion rates for children. Risk Analysis: An Official Publication of the Society for Risk Analysis, 31(4), 592-608. httr s://doi.org/10.1111/j.1539-6924.2010.01524.x
Spungen, J. H. 2019. Children's exposures to lead and cadmium: FDA total diet study 2014-16. Food Additives & Contaminants: Part A, 36(6), 893-903. httr s://doi .org/10.1080/19440049.2019.1595170
Tu, J. W., Fuller, W., Feldpausch, A. M., Van Landingham, C., and Schoof, R. A. 2020. Objective ranges of soil-to-dust transfer coefficients for lead-impacted sites. Environmental Research, 184, 109349. httr s://doi .org/10. l0lfi/j.envres.2020.109349
USEPA. East Helena Site. n.d. Retrieved March 6, 2024, from httr s: //cu mu lis. epa. gov/supercpad/SiteProfiles/index. cfm ?fuseaction =second. Clean up&id = 08003 7 7t! bkground
USEPA. OLEM DIRECTIVE 9200.1-149. Estimation of Dietary Lead Exposure: Update to the Default Values for the Integrated Exposure Uptake Biokinetic Model for Lead in U.S. Children. httr s://semsr ub.er a.gov/work/HQ/400706.pdf
USEPA. Midvale Slag Site. n.d. Retrieved March 6, 2024, from https: //cu mu lis. epa. gov/supercpad/SiteProfiles/index. cfm ?fuseaction =second. Clean up&id = 080064
1
USEPA. 1994a. Guidance Manual for the IEUBK Model for Lead in Children. PB93-963510, OSWER #9285. 7-15-1. httr s://www .er a.gov/!;uperfuncl/lead-!,uperfund-!,ites-!;oftware-and-w,er!,.rr1anuals
USEPA. 1994b. Memorandum: OSWER Directive: Revised Interim Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities. https://semspub.epa.gov/work/H J/175347.pdf
USEPA. 1998. Clarification to the 1994 Revised Interim Soil Lead Guidance for CERCLA sites and RCRA Corrective Action Facilities. httrs://www.era.gov/!;ites/default/files/documents/pbpolic:'i,_DQf
USEPA. 2008. Guidance for the Sampling and Analysis of Lead in Indoor Residential Dust for Use in the Integrated Exposure Uptake Biokinetic (IEUBK) Model.
USEPA. 2016a. Memorandum Subject: Evaluation of the Contribution of Outdoor Lead in Soil to Indoor Lead in Dust at Colorado Smelter Superfund Site. Denver, CO.
USEPA. 2016b. OLEM Directive 9200.1-128 Recommendations for Sieving Soil and Dust Samples at Lead Sites for Assessment of Incidental Ingestion. Washington, D.C.
USEPA. 2002. Role of Background in the CERCLA Cleanup Program. OSWER 9285.6-07P. Washington, D.C.
USEPA. 2022a. EPA Strategy to Reduce Lead Exposure and Disparities in U.S. Communities. https://www.era.gov/system/files/documents/2022-11/Lead%20Strate JY l .pdf
References
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USEPA 2022b. ProUCL Version 5.2.0 User Guide Statistical Software for Environmental Applications for Data Sets with and without Nondetect Observations. Available at: https://www.epa.gov/landresearch/proucl-software
US EPA. 2023. https ://www.epa.gov/system/files/documents/2023-11/proposed-lcri pre-pub-version11 29 23.pdf
USEPA. 2024a. Updated Residential Soil Lead Guidance for CERCLA Sites and RCRA Corrective Action Facilities. httr s://www.epa.gov/system/files/documents/2024-01/olem-residential-lead-soilguidance-2024_signed_50H. pdf
USEPA. 2024b. Superfund Residential Lead Sites Handbook. Office of Superfund Remediation and Technology Innovation. Superfund Residential Lead Sites Handbook
USEPA Region 4. 2018. EPA Tools and Resources Webinar: Urban Background Study. Tim Frederick and Sydney Chan. httr s://www.epa.gov/!;ites/default/files/201H01/documents/urban background_ord presentation .pdf
Van Landingham, C., Fuller, W., and Schoof, R.A. 2020. The effect of confounding variables in studies of lead exposure and IQ. Critical Reviews in Toxicology 50:9, 815-825. DOI: 10.1080/10408444.2020.1842851
von Lindern, I., Spalinger, S., Stifelman, M. L., Stanek, L. W., and Bartrem, C. 2016. Estimating Children's Soil/Dust Ingestion Rates through Retrospective Analyses of Blood Lead Biomonitoring from the Bunker Hill Superfund Site in Idaho. Environmental Health Perspectives, 124(9), 14621470. httr s://doi.org/10.1289/ehp.1510144
Zartarian, V. G., Xue, J., Gibb-Snyder, E., Frank, J. J., Tornero-Velez, R., and Stanek, L. W. 2023. Children's lead exposure in the U.S.: Application of a national-scale, probabilistic aggregate model with a focus on residential soil and dust lead (Pb) scenarios. Science of The Total Environment, 905, 167132. httr s://doi.org/10.l0Hi/j.scitotenv.2023.167132
Zartarian, V., Xue, J., Tornero-Velez, R., and Brown, J. 2017. Children's Lead Exposure: A Multimedia Modeling Analysis to Guide Public Health Decision-Making. Environmental Health Perspectives, 125(9), 097009. htt_p!,://doi.or J/10.1289/EHP1605
References
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Prepared for
Superfund Settlement Projects (SSP) RCRA Corrective Action Project (RCAP)
Document type
Report
Date
December 2023
Comments on the External Review Dra of the IRIS Toxicological
. Review of Inorganic rsen1c
Bright ideas. Sustainable chang<i.
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Contents
1.
Introduction and Overview
2
2.
Cornrnenti; on Overall Documentation
4
3.
Cornrnenti; by Topic and Charge Quei;tioni, for the USEPA Peer
Review
5
4.
References
19
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This document provides comments on the science considered and technical methods and approaches applied in the development of the United States Environmental Protection Agency (USEPA) Integrated Risk Information System's (IRIS) External Review Draft of the Toxicological Review of Inorganic Arsenic (Toxicological Review; USEPA 2023a) and the associated Supplemental Information (USEPA 2023b). In addition to the release of the Toxicological Review for public comment, USEPA is seeking a scientific peer review and has developed draft charge questions for this peer review (USEPA 2023c). These charge questions highlight scientific issues, as well as methods and approaches, in the Toxicological Review where USEPA is specifically requesting comments. The comments provided in the following sections are organized based on the topics and charge questions developed by USEPA for the peer review (USEPA 2023c). While all of the charge questions were considered, a comment or response has only been provided for those charge questions where critical comments/significant points were needed. While the comments set forth in the following pages identify numerous deficiencies with the Draft Toxicological Review, a 60day comment period for a highly technical analysis supported by voluminous (and poorly organized) documentation is not adequate. The comment period should have been extended as requested by numerous stakeholders.
Below is a brief overview of the main findings of the review. With respect to the methods used by the USEPA (2023a, 2023b):
Reproducing USEPA's (2023a, 2023b) analyses and conclusions is difficult due to lack of clear documentation and information regarding the transparency of the methods used This assessment may not be compliant with requirements of the Data Quality Act.
USEPA (2023a) cited the original OHAT (NTP 2013) risk of bias evaluation process as the basis for the USEPA Handbook. There have been updates to the OHAT risk of bias evaluation process (NTP 2019). The new developments in evaluating study quality and risk of bias should be applied in the USEPA (2023a, 2023b) assessment.
USEPA's reliance solely on epidemiology evidence for drawing hazard conclusions in USEPA (2023a) is inconsistent with the IRIS Handbook, which states that evidence integration includes evidence from animal and mechanistic data (USEPA Handbook reference).
With respect to the dose-response assessment:
It is difficult to comprehend how the agency extensively considered mechanistic evidence to inform decisions about the anticipated shape of the inorganic arsenic (iAs) doseresponse relationship when only one mechanistic study related to the inherent biological dose-response relationship of iAs was cited in the Agency document (Clewell et al. 2007). In fact, this publication was an early progress report on mechanistic dose-response studies being conducted in collaboration with USEPA scientists that served as the basis for further studies, which have since been published, but were not considered in the Toxicological Review (Kenyon et al. 2008, Gentry et al. 2010, Clewell et al. 2011, Yager et al. 2013, Gentry et al. 2014a, 2014b, Efremenko et al. 2015, Clewell et al. 2018, Efremenko et al. 2021).
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USEPA (2023a) has ignored abundant mechanistic evidence supporting a MOA that indicates a threshold exists for iAs carcinogenicity, an issue which has been raised in a previous review (NRC, 2013). The previous review argued that epidemiological analyses should not be used for extrapolation below the exposure associated with increased cancer incidence in the studies. Therefore, it is remarkable USEPA (2023a; 2023b) relied solely on epidemiological data for modeling the dose-response curve.
The Draft Toxicological Review states that "Although USEPA's modeling approach in this assessment does not assume linearity, the model slope at low doses is sufficiently linear (after visual inspection) for the derivation of a CSF". (USEPA, 2023a, p. 4-21)_There is no information presented as to whether any other methods were used to determine if the model is sufficiently linear. Figure 4- 7 does not provide the citations for the source of the data points e.g., which studies provide each data point. This is a crucial deficiency in the Draft Toxicological Review.
The use of summarized data points (e.g., figures 4-7 and 4-9) seriously calls into question the ability of the analysis to reflect the small portion of the data that is in the range of the likely threshold for the carcinogenicity of iAs (below 0.2 g/kg-d). At the least, the model predictions should be overlaid with the actual data, rather than just the summarized values, to provide visual evidence of the appropriateness of the model assumptions. Whether the true dose-response at low exposures is distorted by the undocumented methodology or modeling approaches used by the USEPA (2023a, 2023b) cannot be determined at this time.
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The overall documentation for the draft Toxicological Review is lacking and specifically with the documentation of the quantitative analyses. The description of the meta-regression analyses conducted are not well explained or organized in a manner that can be easily followed. The quantitative methods used lack sufficient details, resulting in a lack of transparency, that make it difficult for an expert in the field to evaluate the accuracy of the results. For transparency, the documentation should have included all input and output files associated with the modeling, rather than in references to information external from the documentation. Multiple external references, such as Excel spreadsheets, are referred to in the draft Toxicological Review as support for the analyses conducted. Many of these external references are indicated to be available in the HERO database; however, the hyperlinks supplied in these instances take the reviewer to the main entry point for the USEPA HERO database and not to the specific reference. The HERO database for the Arsenic Hazard ID project page provides a list of more than 72,000 documents and a search for specific Excel file names (e.g. Meliker2010_CES-27 Ln_ugperday-0808-22.xlsx) or more general searches for .xlsx file extensions do not result in locating the files referenced in the Toxicological Review. Table 1 provides a list of information that is missing from the draft Toxicological Review (USEPA 2023a) and associated Supplemental Information (USEPA 2023b) and could not be located by searching other sources or links provided, including the HERO database. Further, there are references in USEPA (2023a) to sections in the Supplemental Information (USEPA 2023b) that do not appear to exist. Examples include references in USEPA (2023a) to:
Appendix C.1.2.1.6 - Page 4-17, line 13 (file page 180) Appendix C.1.2.2.6 - Page 4-26, line 8 (file page 189) and Page 4- 43, line 33 (file page
206) Appendix C.1.2.2.5 - Page 4-34, line 14 (file page 197) Without clear documentation and information regarding the transparency of the methods used in USEPA (2023a, 2023b) it is difficult to evaluate the accuracy of the analyses and conclusions in USEPA (2023a, 2023b) and this assessment may not be compliant with requirements of the Data Quality Act.
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3, Comments by Topic and Charge Questions for the USEPA Peer Review
Systematic Review Methods and Documentation
1. The IRIS Toxicological Review of Inorganic Arsenic describes and applies a systematic review protocol for identifying and screening pertinent studies. The protocol is described in brief detail in Section 1.5.1 (literature Searching and Screening) and in full detail in Appendix A (Updated Problem Formulation and Protocol for Inorganic Arsenic IRIS Assessment). If applicable, please identify additional peer-reviewed studies of inorganic arsenic that the assessment should incorporate.
Response: Section 1.6, page 1-6 of USEPA (2023a) states "...[E]pidemiological evidence is the focus of this assessment given the abundance of epidemiological evidence and preference for using human data over animal data when available (NRC 2013); (NASEM 2019). " However, a major concern with the reliance only on epidemiological literature in the Draft Toxicological Review is that there is no effort to assess the adequacy of the epidemiological evidence for characterizing the dose-response in a way that is consistent with the mode of action (MOA) for the toxicity and carcinogenicity of iAs. This is important for multiple endpoints considered by USEPA (2023a); however, this deficiency is particularly important in the case of cancer endpoints, where a nonlinear mode of action has been delineated based on the results of several studies that were not considered in the Toxicological Review, including:
Gentry et al. 2010 Clewell et al. 2011 Yager et al. 2013 Gentry et al. 2014a, 2014b, Clewell et al. 2018, Efremenko et al. 2015, 2021
Further, USEPA (2023a) states... "With respect to the animal data, most adult laboratory animal models appear to be less susceptible to inorganic arsenic than humans when comparative information is available (Lynch et al. 2017a); (Lynch et al. 2017b); (Vahter 1994); (Vahter and Norin 1980). " If epidemiological evidence remains the only focus of this assessment, performing an adequate integration of animal, epidemiological and mechanistic information to support a scientifically plausible dose-response assessment will be impossible. One example of an integration of animal, epidemiological and mechanistic information is provided in Tsuji et al (2019), an analysis performed for the Texas Commission on Environmental Quality (TCEQ) as a follow-on to the Lynch et al. (2017a, 2017b) study, which, similar to the Agency's analysis of inorganic arsenic (USPA 2023a), did not incorporate the available mechanistic MOA evidence into their epidemiological meta-analysis.
Based on USEPA's guidance for developing IRIS assessments (USEPA 2022), "evidence integration combines animal and human evidence synthesis judgments while also considering information on the human relevance of findings in animal evidence, coherence across evidence streams ("crossstream coherence"), information on susceptible populations or lifestages, understanding of biological plausibility and MOA, and potentially other critical inferences (e.g., read-across analyses) that can draw on mechanistic and other supplemental evidence." Therefore, USEPA's reliance only on epidemiology evidence in USEPA (2023a) and using animal and mechanistic evidence as potential supplemental material, is inconsistent with the IRIS Handbook. NRC (2014) has explicitly stated that evidence integration is typically performed considering human, animal, and mechanistic evidence. Consideration of only epidemiological studies may also eliminate
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studies that may be critical in characterizing the shape of the dose-response curve at low concentrations, considering that epidemiological studies of low exposure concentrations frequently show risks that are not distinguishable from null for a variety of reasons (for example, differences in inter-individual variability in diseases or related to physiological processes that affect internal doses).
Multiple literature searches have been conducted for the Toxicological Review over the span of a decade. The search strategies for these literature searches do not appear to be well documented or updated for each iteration of the Toxicological Review, making it very difficult to understand why certain studies were not included or considered. USEPA states that literature searches and updates were completed between 2012 and 2019; and following prioritization of the six select outcomes, another literature search was conducted in 2022.
According to the PECO criteria (Table 1-2, p. 1-7), "Health outcomes of interest, based on hazard judgment, relative risk over the background exposure (RR8), and potential use for benefit-costs analysis by program offices, include bladder cancer, lung cancer, diseases of the circulatory system (DCS), diabetes, pregnancy and birth outcomes, and neurodevelopmental effects". USEPA (2023a) states that following the prioritization of the six select outcomes, an additional literature search was conducted in 2022. It is unclear if the literature search keywords that were applied in 2013, 2016, and 2019 were also used for the 2022 updated search or if new or limited keywords focusing only on the six selected outcomes were used in 2022. Articles focusing on other outcomes of potential interest could have been missed if the most recent searches were only targeting the six outcomes of interest.
Literature search strategies were provided in the USEPA 2019 iAs protocol update (Appendix 8, Table 8-1) and USEPA 2023 iAs protocol update (Appendix 8, Table 8-1) and in both tables, it states searches were conducted in January and December of 2013 and in December of 2016. If additional searches were conducted for the subsequent updates of the Toxicological Review in the years 2019 and 2022, these dates should have been updated in the tables. The reader should not have to go back to previous drafts of the Toxicological Review to see the literature search strategies and key words. A complete history of the literature search strategy and keywords used for each iteration of the literature searches should be presented transparently in the most recent draft of the assessment.
In section 1. 6.1 on page 1-8, USEPA (2023a) indicated several types of studies that did not meet the PECO criteria could have potentially contained relevant supplemental materials and could become critically important to the assessment. USEPA (2023a) notes that these materials, which may include epidemiological studies on health outcomes other than those listed in the PECO statement, animal toxicity studies, meta-analyses, studies that do not meet PECO inclusion criteria but include health effects relevant to the PECO, kinetic studies, and exposure assessments may need to be evaluated and summarized at the individual study level. If these types of studies are identified and considered supplemental and critical, the PECO statement should be updated, and additional literature searches should be conducted to identify any similar data that may not have been identified during the initial literature search.
It should also be noted that the references to "Section 1.5.1 (Literature Searching and Screening) and in full detail in Appendix A (Updated Problem Formulation and Protocol for Inorganic Arsenic IRIS Assessment)" in the charge questions (USPEA 2023c) are incorrect. The correct Section is 1.6.1 for Literature Searching and Screening and Appendix 8 for the Updated Problem Formulation and Protocol for Inorganic Arsenic IRIS Assessment.
2. As recommended in the 2019 NASEM review of the Inorganic Arsenic protocol, bladder cancer and lung cancer were accepted as hazards and only considered for the ability to update dose-response analyses. Similarly, the following health
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outcomes were included for evaluation of both hazard and, as appropriate, doseresponse analyses: diseases of the circulatory system, diabetes, pregnancy outcomes, and developmental neurotoxicity. For these latter health effects, the Toxicological Review provides an overview of individual study evaluations, and the results of those evaluations are made available in the Health Assessment Workplace Collaborative linked here HAWC. Note that a "HAWC FAQ for assessment readers" document, linked here (scroll to the bottom of the page, and the document is available for download under "attachments"), is intended to help the reviewer navigate this on-line resource.
a. Please comment on whether the study confidence conclusions for the Inorganic Arsenic studies are scientifically justified and clearly described, considering the important methodological features of the assessed outcomes. Please indicate any study confidence conclusions that are not justified and explain any alternative study evaluation decisions.
Response: According to Section 1.6.2 on page 1-9, the risk of bias for each study was evaluated across seven domains using a tool adapted from the OHAT approach proposed in 2013 (NTP 2013) with arsenic-specific clarification as needed. However, the OHAT approach proposed in 2013 has been updated since the original arsenic protocol was completed. Additionally, USEPA 's IRIS and TSCA programs have developed protocols for determining risk of bias and data quality. Therefore, over a decade of consideration and updates to the original OHAT (2013) risk of bias evaluation process has been applied and new approaches in evaluating study quality and risk of bias have been developed and should be applied in the USEPA (2023a, 2023b) assessment.
b. Results from individual inorganic arsenic studies are presented and synthesized in the health outcomes sections. Please comment on whether the presentation and analysis of study results are clear, appropriate, and effective to allow for scientifically supported syntheses of the findings across sets of studies.
Response: It is unclear if data extraction was performed on the data identified in the most recent literature searches conducted in 2022. In Section 1.6.3, USEPA (2023a) indicates data extraction and content management was initially carried out using ICF's DRAGON and Litstream before subsequent migration to HAWC in 2021. USEPA (2023a) also notes studies concluded to be uninformative were not considered further and did not undergo data extraction. Figure 2.2 of USEPA (2023a) indicates 169 studies from the most recent search conducted in 2022 were considered relevant following full text screening. However, a search of the study quality and risk of bias spreadsheets accessed through a link provided in the Toxicological Review (USEPA 2023a) indicated no studies published from 2019 to 2022 were considered for quality assessment. It appears that none of the 169 studies identified in 2022 were considered "informative" and included in data extraction and there was not adequate time during the 60 day timeframe for comments to fully review and conduct risk of bias evaluations to verify the relevancy of these studies.
Noncancer Hazard Identification
3. For each health effect prioritized for hazard identification in the assessment based on the protocol for inorganic arsenic and outlined below, please comment on whether the available epidemiological data (the primary focus of these analyses based on recommendations from the NASEM) have been clearly and appropriately synthesized to describe the strengths and limitations. Please also comment on whether the weight-of-evidence decisions for hazard identification are scientifically justified and clearly described, and appropriately consider health effects in
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susceptible subpopulations or lifestages (e.g. children) to the extent possible, given the available data.
Response: The presentation of the data in the Draft Toxicological Review makes it difficult to assess whether the "evidence demonstrates" or "evidence indicates" hazard assessments are scientifically justifiable.
The forest plot visualizations are difficult to interpret easily because the exposure comparisons (e.g., cumulative arsenic in drinking water, average arsenic drinking water) and units (e.g., ppb, ppb-years, g/L, g/L years, g/L/kg-day) differ widely (or are not necessarily identified in the forest plots). All exposure comparisons from a single study are grouped together on a forest plot. A more helpful approach would be to group the comparisons for the same exposure metric on the same forest plot (for example, group the results that used cumulative exposure on a plot for comparisons and group the risks for the different studies that used average daily exposure on a plot). It would be helpful to have more figures with comparable exposure units (e.g., all cumulative exposure results from different studies in one visualization, with ppb-years converted appropriately to ug/L-years, and average concentrations (with ppb converted to g/L) in another visualization).
a. For diseases of the circulatory system, the Toxicological Review
concludes the currently available evidence demonstrates that inorganic arsenic causes cardiovascular effects in humans given sufficient exposure conditions. This conclusion is based on studies of humans that assessed exposure levels of <10 g/l to 930 g/l showing increased ischemic heart disease and hypertension, as well as related cardiovascular disease endpoints of atherosclerosis and repolarization abnormalities (e.g. QT prolongation).
Response: In the hazard assessment for DCS, it would be helpful to lay out the proposed biological pathway by which inorganic arsenic exposure causes cardiovascular effects in humans. Presumably, the development of atherosclerosis and hypertension precede the increased incidence (or mortality) of ischemic heart disease. The development of hypertension may also increase the incidence or mortality of stroke. Prolonged QT interval suggests electrolyte disturbances. Perhaps there is a relationship with atrial fibrillation, or other electrical disturbances of the heart. Factors affecting electrical disturbances may differ from factors affecting the development of atherosclerosis. A clearer evaluation of the mechanistic data and the pathway from iAs exposure to clinical effects and population-level effects could support (or be used to argue against) the evidence synthesis.
Figure 3-3 of USEPA (2023a) states that 171 studies of DCS were identified: 84 were determined to be of medium or high confidence, 29 were of low confidence or uninformative, and 48 were identified post-2019. For these latter 48 studies, the USEPA did not consider them as part of the hazard assessment for DCS because the hazard was established. Did the USEPA rely solely on the NRC (2013) report for the establishment of the hazard, i.e., "evidence demonstrates''? If it did, why did it include a full review of epidemiological studies until 2019? On the other hand, if the USEPA reviewed all studies until 2019 and concluded that the "evidence demonstrates'~ that evidence is being peer-reviewed for the first time with this draft Toxicological Review. If the latter is the case, it is not clear why the post-2019 studies were not considered as part of the hazard assessment. Also, the USEPA (2023a) states that none of the 48 studies post-2019 were relevant for meta-regression. The 48 studies identified post-2019 represent 28% of the 171 studies, a large proportion. Did none of the post-2019 studies have information that pertained to low exposure? There may still be relevant qualitative information in these studies even if none of them were relevant for meta-regression analysis. Some examples of the 48 studies that were
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excluded and may be relevant (based on a review of abstracts include): cardiovascular disease mortality (Xu et al. 2020; Kuo et al. 2022; Al-Forkan et al. 2021; Nigra et al. 2021; among others) and hypertension (Desai et al. 2021; Liu et al. 2022; Rahmann et al. 2022; Kaufman et al. 2021).
There were 27 studies of incidence of or mortality from CVD/IHD, all of which received an overall confidence rating of "probably low risk of bias" or "definitely low risk of bias" (Figure 3-4 Study evaluation ratings for references, p. 3-8). Two of the most critical elements in the risk of bias domains are related to the exposure characterization and confounding. Of these 27 studies, 12 studies were rated as having probably high risk of bias related to confounding. Separately, 13 studies were rated as having probably high risk of bias related to exposure characterization. There was no information in HAWC to justify the overall ratings of "probably low risk of bias." Importantly, what are the most potential sources of bias in these studies? USEPA (2023a) should provide the most important sources of bias in the text. Which confounders were considered, and which confounders were adjusted for in the analyses? Which studies are /ow-exposure studies and which studies are high-exposure studies?
The NRC (2013) report described the "key considerations for the IRIS assessment" for cardiovascular disease (but not necessarily all DCS):
In evaluating the causal relationship between arsenic exposure and cardiovascular diseases, however, USEPA should address potential uncertainties resulting from differences between the study population and the general population. Animal data and data that reveal potential modes of action demonstrate sensitivity of the cardiovascular system to arsenic exposures relevant to humans and support identification of modes of action. That can be useful for supporting causality in the epidemiologic studies, help to identify sensitive populations, and inform the dose-response analysis. (NRC 2013, p. 31)
Below are some issues related to the evidence judgment ("evidence demonstrates") that iAs causes DCS (p. 3-46, Table 3-2, p.3-48):
The key finding for cardiovascular disease/IHD incidence and mortality, reported in the evidence profile table (Table 3-2), relates to low exposure studies:
Large, prospective cohort studies support exposure-dependent associations of relatively low exposures to iAs in drinking water ( <100 g/L). (USEPA 2023a, p. 348).
It would be helpful to cite the large prospective cohort studies in the table. These studies cannot be easily determined based on the information presented in the forest plots and study evaluation ratings (risk of bias summary figures). Case-control studies and cohort studies are described in the narrative together under a heading "case-control and cohort studies" (p. 3-9).
Regarding the factors included in Table 3-2 of USEPA (2023a) that increase or decrease certainty, these factors do not appear to address this key finding specifically.
The USEPA states "most studies are medium or high confidence" as a factor that increases the certainty of the key finding. Is this referring to the "large prospective studies" in the key finding? Or is it referring to the entire body of human studies? The USEPA also reported "Consistency - across study types, including cross-sectional, and ecological "natural experiments;" across populations including U.S., Bangladesh, China, Taiwan, and Mexico" increases certainty in the key finding. The results are not presented according to study type in the forest plots. The forest plots should group the studies by study design. In addition, "Consistency" in the direction or magnitude of the overall risk estimates cannot easily be evaluated because it is not easy to identify which studies (and how many) are cross-sectional studies, which studies (and how many) are cohort studies,
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which studies (and how many) are case-control studies, and which studies are natural experiments. The results of all studies are presented in forest plots.
The USEPA stated that a "Large or concerning magnitude of effect - large odds ratios in some studies" increased the certainty.
Which studies reported large odds ratios? What is the magnitude of a "large" odds ratio? Are the odds ratios of similar magnitude to other estimates of relative risk? Odds ratios may be overestimated when the disease is not a rare disease.
The USEPA reported that "Dose-response gradient - observed in many studies" increased the certainty of the evidence in the key finding. Again, is this related specifically to the key finding, i.e., "large prospective cohort studies" and "relatively low exposures to iAs in drinking water.''?
Which studies identified a dose-response gradient and at what concentrations? The forest plots include studies of different measurement units (e.g., ppb, g/mL) and different exposure metrics (cumulative exposure, average exposure). This makes the results difficult to compare. Which studies did not identify a dose-response gradient and what were the differences between the studies that did and the studies that did not? (For example, did certain studies adjust for different confounders)? The ORD Handbook suggests grouping studies by study design.
There are two issues related to dose-response gradients for the noncancer hazard identification: 1) the biological gradient should be considered as one of modified Hill considerations for the hazard identification (as a factor that increases the certainty of the evidence), and 2) can the existing epidemiological data be used for dose-response for purposes of the risk assessment? It is reasonable that the biologic gradient can be demonstrated in the hazard identification (issue 1); however, there must still be an assessment of whether the existing epidemiological data can be used for purposes of the dose-response assessment. USEPA (2023a) claims the epidemiological can be used for dose-response and uses a meta-regression for a dose-response meta-analysis. The limitations of this are discussed in the charge questions related to the meta-regression.
With respect to "Coherence with findings for related endpoints" as a factor that increases the certainty:
Hypertension is discussed as its own endpoint in the same table (Table 3-2 of USEPA, 2023a). The evidence synthesis judgment for hypertension was described as "robust"; however, robust evidence does not seem consistent with the key finding for hypertension: "Some, but not all, well-designed cohort studies report positive associations. Results are sensitive to the choice of exposure metric." b. For diabetes, the Toxicological Review concludes the currently available evidence demonstrates that inorganic arsenic causes diabetes in humans given sufficient exposure conditions. This conclusion is based on studies of humans that assessed exposure levels of <150 1,.1g/L to >150 1,.1g/L showing increased incidence of diabetes mellitus (Type 1 and Type 2 diabetes).
Response: Similar to the issues raised for CVD/IHD, when did the USEPA judge that the "evidence demonstrates" a causal relationship? Studies published after 2019 were not considered because the USEPA stated that the hazard judgment ("evidence demonstrates") had been established. Furthermore, the new literature would not inform the hazard judgment (see USEPA Figures 3-3, 3-21). The NRC (2013) report provided a recommendation to prioritize diabetes as an endpoint to assess but did not itself conclude that diabetes was causally associated with iAs. Of the 112 epidemiological studies of diabetes, 41 were identified post-2019 and USEPA (2023a) indicated that for these studies "hazard established and not suitable for meta-regression" (Figure 3-21, p. 3-51). In other words, USEPA (2023a) claims that more than one-third of the studies
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were not considered for the hazard assessment and did not have useful data for the metaregression. Even if these studies did not have quantitative dose-response data, these studies may still have important information that informs the dose-response and the overall evidence regarding low exposures. Do any of these studies provide data that conclude that the risk of diabetes was not increased at low exposure concentrations even if the quantitative data were not suitable for meta-regression?
c. For pregnancy and birth outcomes, the Toxicological Review concludes the currently available evidence indicates that inorganic arsenic likely causes pregnancy and birth effects in humans given sufficient exposure conditions. This moderate epidemiology evidence generally supports a weaker hazard judgment, although the specific judgment reached is more heavily influenced by other lines of evidence than when there is robust epidemiological evidence. Although there is notable uncertainty in this judgment without reviewing the other lines of evidence (out of scope for this assessment), it is reasonable to judge that the available evidence indicates that pregnancy and birth effects are likely caused by iAs exposure, given sufficient exposure conditions. This conclusion is based on studies of humans that assessed exposure levels of <100 g/l to >100 g/l showing decreased fetal and post-natal growth or length of gestation.
Response: For pregnancy and birth outcomes, the post-2019 studies were excluded based on "lack of hazard and/or dose-response utility'~ although USEPA (2023a) reported that these studies underwent assessment for risk of bias. This "lack of hazard and/or dose-response utility" statement is confusing, and it is unclear how these studies contributed to the evidence. Of the 102 studies of pregnancy and birth outcomes, 68 were described as medium or high confidence studies, 22 as low confidence or uninformative, and 12 were identified as post-2019 and tagged as having "lack of hazard and/or dose-response utility" (Figure 3-26, p. 3-68).
Of the 13 studies that evaluated fetal and infant mortality (Figure 3-27), all were given an overall confidence rating of probably low risk of bias and/or definitely low risk of bias. The different domains assessed should not be weighted equally. Of particular importance are those domains related to exposure characterization and confounding. In this example (Figure 3-27), 7 studies were rated "probably high risk of bias" for exposure characterization; 2 studies were rated "probably high risk of bias" for confounding or effect modification that was not accounted for in the design or analysis; and 5 studies were rated "probably high risk of bias" for confounding that was not assessed consistently across groups using reliable measures. Separately, the study by Myers et al. (2010) was identified as having a "probably high risk of bias" for six domains (comparison group, confounding, adjusting for other exposures, consistent assessment of confounding, exposure characterization, and outcome characterization) of the total 11 domains. The overall justification for a confidence rating of "probably low risk of bias" should be justified for these studies. There is no additional information in HAWC that justifies the overall confidence ratings. It would be helpful to identify the most important sources of bias for the body of literature and describe how the studies addressed them.
d. For neurodevelopmental effects, the Toxicological Review concludes the currently available evidence indicates that inorganic arsenic likely causes neurodevelopmental effects in humans given sufficient exposure conditions. This moderate epidemiology evidence generally supports a weaker hazard judgment, although the specific judgment reached is more heavily influenced by other lines of evidence than when there is robust epidemiological evidence. Although there is notable uncertainty in this judgment without reviewing the other lines of evidence (out of scope for this assessment), it is
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reasonable to judge that the available evidence indicates that neurodevelopmental effects are likely caused by iAs exposure, given sufficient exposure conditions. This conclusion is based on studies of humans that assessed exposure levels of <100 1,.1g/L showing cognitive and behavioral deficits in children and adolescents.
Response: For neurodevelopmental effects, the post-2019 studies were excluded based on "lack of hazard and/or dose-response utility'~ although the USEPA reported that these studies underwent assessment for risk of bias. This "lack of hazard and/or dose-response utility" statement is confusing. Figure 3-28 describes 72 studies of neurodevelopmental effects (primarily cognitive effects) of which 52 were studies of medium or high confidence, 17 were of low confidence or uninformative, and 3 were identified post-2019. Justification for the overall confidence ratings were not provided in HAWC. Ratings of "probably high risk of bias" for some of these domains are more important than other domains and the likely impacts should be addressed in the overall confidence rating.
Meta-Regression Analysis
4. USEPA performed meta-regression (MR) analyses on bladder cancer, lung cancer, diseases of the circulatory system (DCS), and diabetes and presents the results of these analyses in Section 4.3. a. Please comment on whether the application of a MR analysis and methods used to select studies for the MRs are clearly described and scientifically justified. If there are additional publicly available studies that warrant consideration as the basis of these analyses, please identify those studies, and outline the rationale for including them in the assessment.
Response: The USEPA uses Bayesian meta-regression to conduct a dose-response analysis of the epidemiological data for both cancer and noncancer endpoints, so this response provides general comments on the overall approach, using specifics for individual endpoints where needed. Bayesian meta-regression is a powerful approach for analyzing multiple studies, but it is highly susceptible to unintended bias associated with the selection of dose-response models and the definition of quasi-informative prior distributions for model parameters.
The dose-response model used in the meta-regression for lung and kidney cancer is a multiplicative exponential model that is mathematically incapable of describing the threshold dose-response expected for iAs carcinogenicity from the MOA evidence and would tend to force the relationship at low doses to appear linear. Therefore, the meta-regression method (including the selection of the exponential model) is not scientifically justified.
In addition, due to the unavoidable impact of exposure error in the studies, the observed doseresponse can differ significantly from the true dose response, with a tendency toward linearization of the apparent dose-response (Crump 2005, Rhomberg et al. 2011).
The Bayesian meta-regression analysis by Shao et al. (2021), which is criticized in the draft Toxicological Review, considered the use of a logistic model similar to USEPA 's, but determined that it was inappropriate for use in the case of iAs due to its incompatibility with the threshold dose-response expected based on the MOA for iAs carcinogenicity. USEPA's use of a logistic model calls into question the biological plausibility of their dose-response predictions in the lowdose region that is more relevant to human exposures. The key advantage of the Hill model is that it avoids loss of information in the /ow-dose region due to the influence of the preponderance of data at higher concentrations.
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The dose-response modeling for individual outcomes in USEPA (2023a, 2023b) is limited to metaregression analyses and is conducted using data solely from epidemiological studies, and there is no effort to assess the adequacy of the epidemiological evidence for characterizing the doseresponse in a way that is consistent with the mode of action (MOA) for the toxicity and carcinogenicity of iAs. This deficiency is particularly important in the case of cancer endpoints, where a nonlinear mode of action has been delineated based on the results of several studies noted previously (Gentry et al. 2010, Clewell et al. 2011, Yager et al. 2013, Gentry et al. 2014a, 2014b, Clewell et al. 2018, Efremenko et al. 2021). Therefore, the only valid approach for determining the /ow-dose behavior of the carcinogenic effects of iAs observed in epidemiological studies is the consideration of dose-response data from in vitro studies with human cells.
The lack of consideration of these data in the dose-response modeling is all the more remarkable because the challenge that the agency has faced in previous risk assessments for iAs was concern that the agency was ignoring the abundant mechanistic evidence indicating that because of the threshold nature of the MOA for iAs carcinogenicity, epidemiological analyses could not be used for extrapolation below the exposures associated with increased cancer incidence in the studies. As the available mechanistic studies demonstrate, the mode of action for the carcinogenicity of iAs involves disruption of cellular signaling by the ability of iAs and its metabolites to bind avidly to vicinal dithiols in key cellular signaling proteins, leading to disruption of inflammatory and oxidative stress signaling and, at sufficiently high concentrations (above 20-50 ppb in drinking water), inhibition of the cell's DNA damage response. This inhibition of DNA damage repair, overlaid on a background of co-exposure to mutagenic chemicals or radiation in the environment, underlies the observed co-carcinogenicity of iAs in the skin, lung and bladder.
This failure of USEPA (2023a, 2023b) to consider MOA data may relate to the fact that in the iAs IRIS Protocol USEPA conducted a case study using idiopathic bladder cancer and concluded that MOA analyses were not more suitable than the epidemiological studies for reaching conclusions about the shape of the dose-response curve in the /ow-dose region. This is a remarkable finding, given that for many years there has been strong evidence from mechanistic studies that the doseresponse for the carcinogenicity is highly nonlinear (Snow et al. 2005, Kitchin and Wallace, 2008), with a threshold for carcinogenicity from drinking water exposures on the order of 20-50 ppb (Gentry et al. 2014b, Tsuji et al. 2019). On the other hand, this conclusion by the agency is unfortunately consistent with their previous risk assessments for chemicals with a nonlinear cancer MOA, including formaldehyde and dioxin, in which they have ignored or disputed MOA evidence in order to support their preference for a linear, no threshold /ow-dose extrapolation (Clewell et al. 2019), despite NAS recommendations to apply dose-response approaches more consistent with the evidence for a nonlinear MOA for these chemicals.
The focus on probabilistic analyses of epidemiological data ignores the crucial MOA evidence from mechanistic studies that the effects of inorganic arsenic result from chemical interactions with thiols in key cellular signaling proteins, disrupting control of oxidative stress, inflammation, DNA repair and replication, not from mutagenicity (Snow et al. 2005, Kitchin and Wallace, 2008, Clewell et al. 2018, Tsuji et al. 2019, Efremenko et al. 2021). Therefore, data in the range of observation of increased incidence (above 20 ppb in drinking water) is not informative for the dose-response at lower exposures.
The Agency states (Toxicological Review, p. 1-6) that "Mechanistic evidence has also been extensively considered during the course of preparing this assessment, especially in the context of addressing differences in anticipated response among humans (e.g., between children and adults) and to inform decisions about the anticipated shape of the dose-response relationship. Ultimately, the epidemiological evidence was comprehensive and sufficient to inform these judgments." However, it is difficult to comprehend how the agency extensively considered mechanistic evidence to inform decisions about the anticipated shape of the iAs dose-response
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relationship when only one mechanistic study related to the inherent biological dose-response relationship of iAs was cited in the Agency document (Clewell et al. 2007). In fact, this publication was an early progress report on mechanistic dose-response studies being conducted in collaboration with USEPA scientists that served as the basis for further studies, which have since been published, but were not considered in the Toxicological Review (Kenyon et al. 2008, Gentry et al. 2010, Clewell et al. 2011, Yager et al. 2013, Gentry et al. 2014a, 2014b, Efremenko et al. 2015, Clewell et al. 2018, Efremenko et al. 2021).
The conclusions reached regarding /ow-dose behavior can be very dependent upon the epidemiological studies used to evaluate the dose-response in the low concentration region. Several epidemiological studies that have measured arsenic concentrations in drinking water at low concentrations and evaluated cancer endpoints are not included in the current draft Toxicological Review as part of the meta regression analyses (Guo et al. 1997; Chiou et al. 2001; Lewis et al. 1999; Karagas et al. 2004; Lamm et al. 2004; Han et al. 2009; Baastrup et al. 2008).
IRIS draft report page 4-21 (physical page 164) text states that "Although USEPA's modeling approach in this assessment does not assume linearity, the model slope at low doses is sufficiently linear (after visual inspection) for the derivation of a CSF". Was any other method used to determine if the model is sufficiently linear? Figure 4-7 does not provide the source of the data points e.g. (which studies provide each data point). This is a crucial deficiency in the draft Toxicological Review. The extensive summarization of data indicated by the symbols in Figures 47 and 4-9 seriously calls into question the ability of the analysis to reflect the small portion of the data that is in the range of the likely threshold for the carcinogenicity of iAs (below 0.2 g/kg-d). At the least, the model predictions should be overlaid with the actual data, rather than just the summarized values, to provide visual evidence of the appropriateness of the model assumptions.
The use of summarized data-points in these figures reflects the opacity of the entire document. It is simply not possible for an expert in the field to determine the extent to which the methodology used by the USEPA (2023a, 2023b), which is essentially undocumented at this time, could distort the true dose-response at low exposures.
General issues with meta-regressions should be discussed in USEPA (2023a, 2023b) (Rothman et al. 2008; Greenland 1987; Greenland and Longnecker 1992): e.g., aggregation bias, meaning associations between average (grouped) subject characteristics and the pooled exposure effect may not reflect a true association between individual subject-level characteristics and the exposure effect. There are also issues when the number of studies is small, as with diabetes (four studies) and ischemic heart disease and cardiovascular disease incidence. Furthermore, the studies of diabetes appeared to group type 1 and type 2 diabetes, which is another example of aggregation bias. Type 1 and type 2 diabetes are likely to have different (and distinct) biological pathways to disease and anticipated modes of action. Type 1 diabetes is mediated via
autoimmune responses that destroy f3 cells and insulin producing cells in the pancreas (potentially triggered by a virus). Although Type 2 diabetes is also characterized by f3 cell apoptosis, cell
death occurs due to glucose intolerance, insulin resistance and reduced insulin secretion (Paschou et al. 2018; Giwa et al. 2020; Galicia-Garcia et al. 2020; Cnop et al. 2005).
In general, there is an inadequate description of tests of the underlying assumptions regarding the analyses and whether any assumptions were violated and what the implications are for the results if assumptions do not hold. There are many references to Allen et al. (2020a, 2020b) for further description of the methods; however, the methods should be specifically stated in the documentation. This lack of adequate description of methods in USEPA (2023a, 2023b) results in it being unclear exactly how the meta-regression analyses were performed. The input and output files for the Stan modeling should be provided so this information could be ascertained. In addition, on page C-98 (file page 154) it states that an alternative Bayesian meta-regression was
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performed and is available in the references available from the USEPA HERO database; however, as with other external references, no files are provided, so this information is not available.
b. Please comment on whether the modeling approaches for the MR analyses, including calculation of effective counts, estimation of iAs intake values that account for background oral and dietary exposures, and hierarchical Bayesian methods to estimate pooled slopes of the relationship between extra risk and dose, are scientifically justified and clearly described.
Response: Equations provided in Appendix C to explain the process of producing effective counts are incomplete leaving it up to the reader to derive the necessary equations from the given equations to check the process. Although again it is stated in the text that spreadsheets are provided that automate the process (USEPA 2023a, 2023b), no direct links to spreadsheets are given in the document, no spreadsheets were provided within the docket, and the links provided in the document takes the reader to the general page for USEPA HERO database. A search of the HERO database did not identify any excel spreadsheets or files with the names provided in the Draft Toxicological Review. It should be more evident how effective counts were calculated (e.g., more straightforward presentation of relevant equations, sample calculations, etc.) and the justification provided for how those effective counts account for potential confounders (e.g., weight) affecting one group over the other.
The method used in the meta-regression analysis to calculate effective counts constrains the confidence intervals so that they match the reported adjusted results. This is a different approach than Greenland and Longnecker (1992), which is cited in the draft Toxicological Review. The rationale provided by Allen et al. (2020a) is: "to preserve the original group characteristics to the extent possible - adjusting counts to derive effective data that might have been collected had the covariate levels remained the same as in the referent group." However, this ignores potential issues with the referent group that can arise in categorical analysis of case-control studies. Rothman et al. (2008) states "The dependency of relative risks on background (unexposed) risks cannot be examined among case-control studies, because the latter usually do not provide information on background risks." Because this is a novel approach to deriving a "common" doseresponse, it would be helpful to see differences between effective count adjustments using Greenland and Longnecker (1992) as well as making a comparison to conventional dose-response assessment (i.e., evaluating dose-response from the highest quality studies by identifying a POD and noting the limitations. If there are striking differences between "high exposure" and "low exposure" studies, this also suggests a nonlinear mode of action that supports a more biologically-based (and not statistically-based) dose-response.
The combination or pooling of slope factors, as described in footnote c to table ES-1 of USEPA (2023a), are conducted using a method that assumes that a normal distribution defines the relationship between Benchmark Doses (BMDs) and the lower bound on the Benchmark Doses (BMDLx). The documentation does state that this is conducted on an assumption of normality; however, but no justification or additional information about validity of that assumption is given or the impact of this assumption of the results. This should be provided. Some additional questions around the meta-regression analyses include:
What is the justification for transforming published iAs exposure categories into a continuous measure, particularly when there is a significant discrepancy in statistically significant outcomes between various studies? (For example, most studies for bladder cancer in Table C-19 indicate lack of statistical significance (i.e., RR/OR 95% CI includes 1) until higher exposure categories, so derivation of such small outcome values requires explicit statement of assumptions. Are hierarchal or non-hierarchal plots used for filling in RR/OR values in Table C-20?
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Are there any other model types that could have been tested? Please do a better job documenting dose conversions. There are referenced sections that
don't exist (Section 5.3 in Appendix A), and all of the factors/variables underlying the dose conversion should be available for each study. The calculation of extra risk is dependent upon the lifetable analysis; however, the lifetables referenced appear to be missing. 7. USEPA calculated a non-cancer RfD based on candidate values for each individual noncancer health outcome considered for dose-response analyses and presents the results of these analyses in Sections 4.6.
a. For pregnancy outcomes, decreased birth weight was selected for benchmark dose modeling and the study-reported linear regression slope was used to estimate an organ-specific candidate BMDLOS value of 0.21 1,.1g/kg-day. Please comment on whether this approach is scientifically justified and clearly described.
Page ES-4: Footnote bin Table ES-2 states that the US median dietary background dose used in estimating the BMDLos is 0.02 g/kg-day - but the calculation reported in footnote b does not match the 0.210 estimate reported. If calculated from the BMDLos from the RfD, using the UFc, it
appears the BMDLos reported should be 0.23 (rounded from 17.3 * 0.012 + 0.02 = 0.2276) as
that is the only dose which would give the reported RfD in Table ES-2 for pregnant women of 0.077 (e.g., 0.23/3 = 0.766).
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Table 1. References to Excel files or Spreadsheets not provided in documentation or with link to only HERO Database not specific files
Location of reference
Page
Description
Filename
Draft Toxicological Review (USEPA 2023a)
184 - page 4-21
meta-regression models and lifetable spreadsheets
Not provided
190 - page 4-27
meta-regression models and lifetable spreadsheets
Not provided
205 - Page 4-42
meta-regression models and lifetable spreadsheets
Not provided
212 - Page 4-50, footnote in table 4-12
Supplemental Files (US EPA 2023b)
59 - Page C-3
Meta-regression models and lifetable spreadsheets used to derive the values in the table
A simple likelihood maximization routine, implemented with an Excel spreadsheet (see Supplemental Material) is missing.
Not provided Not provided
63 - page C-7 64 - Page C-8 64 - page C-8 67 - page C-11 67 - page C-11 73 - page C-17 77 - page C-21 83 - page C-27
see "LOG NORMAL" vs. "ORIGINAL" results, Main tab, Meliker2010_CE5-Ln_ugperday08-08-22.xlsx, Supplemental Material, bladder cancer intake uncertainty folder, EPA 29 HERO database)
conversion factor validation spreadsheet available
from a link within the EPA inorganic arsenic HERO project database
"LOGNORMAL" vs. "ORIGINAL" results, Main tab, Chen_2010_NE_Taiwan_bladder08-10-22.xlsx, Supplemental Material, bladder cancer intake uncertainty folder, EPA HERO database
"LOGNORMAL" vs. "ORIGINAL" results, Main tab, Chen_2010_NE_Taiwan_bladder08-10-22.xlsx, Supplemental Material, bladder cancer intake uncertainty folder, EPA HERO database
see "LOG NORMAL" vs. "ORIGINAL" results, Main tab, Meliker2010_CE5-Ln_ugperday08-08-22.xlsx, Supplemental Material, bladder cancer intake uncertainty folder, EPA 29 HERO database)
automated in a spreadsheet provided in the Supplemental Material
The adjustments of counts for both casecontrol and cohort studies, and of expected values for incidence rate cohort studies, have been automated in an Excel spreadsheet (see Supplementary Material).
Spreadsheets that were developed to implement the approach are provided in Excel files that are included in the supplemental Material available from the EPA HERO database
Meliker2010_CE5Ln_ugperday-08-0822.xlsx
Not provided
Chen_2010_NE_Taiwan - bladder-08-10-22 .xlsx
Chen_2010_NE_Taiwan - bladder-08-10-22 .xlsx
Meliker2010_CE5Ln_ugperday-08-0822.xlsx Not provided
Not provided
Not provided
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Table 1. References to Excel files or Spreadsheets not provided in documentation or with link to only HERO Database not specific files
Location of reference
Page
Description
Filename
113 - page C-57 footnote of Table C-18
Conversion Factor Validation spreadsheet for justifications for individual exposure factors
Not provided
139 - page C-83 footnote of Table C-28
Conversion Factor Validation spreadsheet for justifications for individual exposure factors
Not provided
160 - page C-104 in footnote of Table C-30
Conversion Factor Validation spreadsheet for justifications for individual exposure factors
Not provided
177 - page C-121 in footnote for Table C-44
Conversion Factor Validation spreadsheet for justifications for individual exposure factors
Not provided
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Al-Forkan, M; Wali, FB; Khaleda, L; Alam, MJ; Chowdhury, RH; Datta, A; Rahman, MZ; Hosain, N; Maruf, MF; Chowdhury, MAQ; Hasan, NKM, M; Shawon, II; Raqib, R. (2021). Association of arsenic-induced cardiovascular disease susceptibility with genetic polymorphisms. Sci Rep 11: 6263. http://dx.doi.org/10 .1038/s41598-021-85780-8.
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Allen B, Shao K, Hobbie K, Mendez W, Jr, Lee JS, Cote I, Druwe I, Gift JS, Davis JA. 2020b. Bayesian 30 hierarchical dose-response meta-analysis of epidemiological studies: Modeling and target 31 population prediction methods. Environment International, 145: 106111. doi: 10.1016/j.envint.2020.106111.
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Clewell HJ III, Thomas RS, Kenyon EM, Hughes MF, Adair BM, Gentry PR, Yager JW. 2011. Concentration- and time-dependent genomic changes in the mouse urinary bladder following exposure to arsenate in drinking water for up to 12 weeks. Toxicological Sciences, 123(2): 421432. doi: 10.1093/toxsci/kfr199.
Clewell HJ III, Yager JW, Greene TB, Gentry PR. 2018. Application of the adverse outcome pathway (AOP) approach to inform mode of action (MOA): A case study with inorganic arsenic. Journal of Toxicology and Environmental Health, Part A, 81(18): 893-912. doi: 10.1080/15287394.2018.1500326.
Clewell RA, Thompson CM, Clewell HJ, III. 2019. Dose-dependence of chemical carcinogenicity: Biological mechanisms for thresholds and implications for risk assessment. Chemico-Biological Interactions, 301: 112-127. doi: 10.1016/j.cbi.2019.01.025.
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Crump, KS. 2005. The effect of random error in exposure measurement upon the shape of the exposure response. Dose-Response 3 :456-464. doi: 10. 2203/dose-response. 003. 04.002.
Desai G, Niu Z, Luo W, Frndak S, Shaver AL, Kordas K. Low-level exposure to lead, mercury, arsenic, and cadmium, and blood pressure among 8-17-year-old participants of the 2009-2016 National Health and Nutrition Examination Survey. Environ Res. 2021 Jun;197:111086. doi: 10.1016/j.envres.2021.111086. Epub 2021 Mar 27. PMID: 33781774; PMCID: PMC8211235.
Efremenko AY, Seagrave J, Clewell HJ III, Van Landingham C, Gentry PR, Yager JW. 2015. Evaluation of gene expression changes in human primary lung epithelial cells following 24-hr
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exposures to inorganic arsenic and its methylated metabolites and to arsenic trioxide. Environmental and Molecular Mutagenesis, 565(5): 477-490. doi: 10.1002/em.21937.
Efremenko A, Balbuena P, Clewell RA, Black M, Pluta L, Andersen ME, Gentry PR, Yager JW, Clewell HJ III. 2021. Time-dependent genomic response in primary human uroepithelial cells exposed to arsenite for up to 60 days. Toxicology, 461: 152893. doi: 10.1016/j.tox.2021.152893.
Galicia-Carcia U, Benito-Vicente A, Jebari S, Larrea-Sebal A, Siddigi H, Uribe KB, Ostolaza H, Martin C. 2020. Pathophysiology of type 2 diabetes mellitus. Int J Mol Sci. 2020 Sep; 21(17): 627 5. doi: ===L:J-'-L-'--'-=--=-'-'---'---"'--=---'-=
Gentry PR, McDonald TB, Sullivan DE, Shipp AM, Yager JW, Clewell HJ III. 2010. Analysis of genomic dose-response information on arsenic to inform key events in a mode of action for carcinogenicity. Environmental and Molecular Mutagenesis, 51: 1-14. doi: 10.1002/em.20505.
Gentry PR, Clewell HJ III, Greene TB, Franzen AC, Yager JW. 2014a. The impact of recent advances in research on arsenic cancer risk assessment. Regulatory Toxicology and Pharmacology, 69: 91-104. doi: 10.1016/j.yrtph.2014.02.006.
Gentry PR, Yager JW, Clewell RA, Clewell HJ III. 2014b. Use of mode of action data to inform a dose-response assessment for bladder cancer following exposure to inorganic arsenic. Toxicology In Vitro, 28(7): 1196-1205. doi: 10.1016/j.tiv.2014.05.011.
Greenland S. 1987. Quantitative methods in the review of epidemiologic literature. Epidemiologic Reviews, 9: 1-30. doi: 10.1093/oxfordjournals.epirev.a036298.
Greenland S, Longnecker MP. 1992. Methods for trend estimation from summarized doseresponse data, with applications to meta-analysis. American Journal of Epidemiology, 135: 13011309. doi: 10.1093/oxfordjournals.aje.a116237.
Guo HR, Chiang H, Hu H, Lipsitz SR, Monson RR. 1997. Arsenic in drinking water and incidence of urinary cancers. Epidemiology, 8( 5): 545-550. doi: 10 .1097/00001648-199709000-00012.
Han Y, Weissfeld JL, Davis DL, Talbott EO. 2009. Arsenic levels in ground water and cancer incidence in Idaho: an ecologic study. International Archives of Occupational and Environmental Health, 82: 843-849. doi: 10.1007/s00420-008-0362-9.
Karagas MR, Tosteson TD, Morris JS, Demidenko E, Mott LA, Heany J, Schned A. 2004. Incidence of transitional cell carcinoma of the bladder and arsenic exposure in New Hampshire. Cancer Causes Control, 15: 465-472. doi: 10.1023/B:CACO.0000036452.55199.a3.
Kenyon EM, Hughes MF, Adair BM, Highfill JH, Crecelius EA, Clewell HJ, and Yager JW. 2008. Tissue distribution and urinary excretion of inorganic arsenic and its methylated metabolites in C57BL6 mice following subchronic exposure to arsenate in drinking water. Toxicology and Applied Pharmacology, 232(3): 448-455. doi: 10.1016/j.taap.2008.07.018.
Kitchin KT, Wallace K. 2008. The role of protein binding of trivalent arsenicals in arsenic carcinogenesis and toxicity. Journal of Inorganic Biochemistry, 102(3): 532-539. doi: 10.1016/j.jinorgbio.2007 .10.021.
Kuo, CC; Howard, BV; Umans, JG; Gribble, MO; Best, LG; Francesconi, KA; Goessler, W; Lee, E; Guallar, E; Navas-Acien, A. (2015). Arsenic exposure, arsenic metabolism, and incident diabetes in the strong heart study. Diabetes Care 38: 620-627. http://dx.doi.org/10.2337/dc14-1641.
Lamm SH, Engel A, Kruse MB, Feinleib M, Byrd DM, Lai S, Wilson R. 2004. Arsenic in drinking water and bladder cancer mortality in the United States: an analysis based on 133 U.S. counties and 30 years of observation. Journal of Occupational and Environmental Medicine, 46(3): 298306. doi: 10.1097/01.jom.0000116801.67556.8f.
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Lewis DR, Southwick JW, Ouellet-Hellstrom R, Rench J, Calderon RL. 1999. Drinking water arsenic in Utah: a cohort mortality study. Environmental Health Perspectives, 107(5): 359-365. doi: 10.1289/ehp. 99107359.
Liu M, Li M, Guo W, Zhao L, Yang H, Yu J, Liu L, Fang Q, Lai X, Yang L, Zhu K, Dai W, Mei W, Zhang X. Co-exposure to priority-controlled metals mixture and blood pressure in Chinese children from two panel studies. Environ Pollut. 2022 Aug 1;306: 119388. doi: 10.1016/j.envpol.2022.119388. Epub 2022 May 6. PMID: 35526645.
Lynch HN, Zu K, Kennedy EM, Lam T, Liu X, Pizzurro DM, Loftus CT, Rhomberg LR. 2017a. Quantitative assessment of lung and bladder cancer risk and oral exposure to inorganic arsenic: Meta-regression analyses of epidemiological data. Environment International, 106: 178-206. doi: 10.1016/j.envint.2017 .04.008.
Lynch HN, Zu K, Kennedy EM, Lam T, Liu X, Pizzurro DM, Loftus CT, Rhomberg LR. 2017b. Corrigendum to "Quantitative assessment of lung and bladder cancer risk and oral exposure to inorganic arsenic: Meta-regression analyses of epidemiological data". Environment International, 109:195-196. doi: 10.1016/j.envint.2017.10.004.
Myers SL, Lobdell DT, Liu Z, Xia Y, Ren H, Li Y, Kwok RK, Mumford JL, Mendola P. 2010. Maternal drinking water arsenic exposure and perinatal outcomes in Inner Mongolia, China. Journal of Epidemiology and Community Health, 64(4): 325-329. doi: 10.1136/jech.2008.084392. (As cited in USEPA 2023a)
NASEM. 2019. Review of EPA's updated problem formulation and protocol for the inorganic arsenic IRIS assessment. National Academies of Sciences, Engineering, and Medicine. Washington, DC: The National Academies Press. httr ://dx.doi.orq/10.1722fi/2555H.
Nigra, AE; Moon, KA; Jones, MR; Sanchez, TR; Navas-Acien, A. (2021). Urinary arsenic and heart disease mortality in NHANES 2003-2014. Environ Res 200: 111387. http://dx.doi.org/10.1016/j.envres.2021.111387.
NRC. 2013. Critical aspects of EPA's IRIS assessment of inorganic arsenic: Interim report. National Research Council. Washington, DC: The National Academies Press. Available at: httr s://nap.nationalacademies.orq/cataloq/18594,critical-asr ects-of-er as-iris-assessment-ofinorqanic-arsenic-interim
NRC. 2014. Review of EPA's Integrated Risk Information System (IRIS) Process. National Research Council. Washington, DC: The National Academies Press. https://doi .org/10 .17226/18764.
NTP. 2013. Draft OHAT approach for systematic review and evidence integration for literaturebased health assessments - February 2013. National Toxicology Program, National Institute of Environmental Health Sciences, National Institutes of Health. Available at: httr ://ntp.niehs.nih.qov/ntr /ohat/evaluationr rocess/draftohatar proach februa y2013.[ df
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Xu, F; Chen, X, u; Zhang, H; Fan, Y; Song, Y, aP; Lv, J; Xie, Y; Huang, Y; Chen, D; Wang, H, ua; Xu, D, ex. (2022). Association between gestational arsenic exposure and intrauterine growth restriction: the role of folate content. Environ Sci Pollut Res Int 29: 89652-89661. http://dx.doi.org/10.1007/sl 1356-022-21961-w.
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Yager JW, Thomas RS, Gentry PR, Pluta L, Efremenko A, Black M, Arnold LL, McKim JM, Wilga P, Gill G, Choe K-Y, Clewell HJ III. 2013. Evaluation of gene expression changes in human primary uroepithelial cells following 24 hour exposures to inorganic arsenic and its methylated metabolites. Environmental and Molecular Mutagenesis, 54: 82-98. doi: 10.1002/em.21749.
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Pre pa red for
Superfund Settlement Project (SSP) RCRA Corrective Action Project (RCAP)
Document type
Report
Date
January 2024
0 ents nth
del ode and
esults f r the ra
xic I gical
Vie
Inorganic rsen1c
ling
I I
Bright ideas. Sustainable chang<i.
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Contents
1.
Introduction and Overview
2
2.
(~eneral Cornrnenti;
2
3.
Cornrnenti; by Topic
4
3.1
Study Selection
4
3.2
BMD Code Comments
4
3.3
BMD Data Files and Modeling
7
3.3.1
Bladder Cancer Files
7
3.3.2
Diabetes
10
3.3.3
Lung Cancer
10
4.
References
11
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This document provides comments on the Benchmark Dose (BMD) model code and BMD modeling results used in the development of the United States Environmental Protection Agency (USEPA) Integrated Risk Information System's (IRIS) External Review Draft of the Toxicological Review of Inorganic Arsenic (Toxicological Review; USEPA 2023a) and the associated Supplemental Information (USEPA 2023b). USEPA released the BMD model code and BMD modeling results provided for the draft IRIS Toxicological Review of Inorganic Arsenic on December 29, 2023 for public comment, with the comment period ending January 16, 2024. While the comments set forth in the following pages identify numerous deficiencies in the BMD model code and BMD modeling results, it does not represent a comprehensive review of all of the modeling conducted for all of the endpoints considered for dose-response modeling in the Toxicological Review. A 15-day comment period for a highly technical analysis supported by voluminous documentation in the absence of instructions on the step-by-step processes for running the models is not adequate; therefore, this review provides specific comments on those cancer and noncancer endpoints the reviewers were able to evaluate within the comment period. Overall, we found the modeling poorly documented, with inconsistencies between information in the modeling files and the documentation provided in the Toxicological Review (USEPA 2023a) and the associated Supplemental Information (USEPA 2023b). Most troubling, the US EPA appears to have made the decision not to include a number of figures in the Toxicological Review (2023a), which they had already generated, that would have provided a much more informative presentation of the fit of the modeling to the individual studies for each endpoint. A critical deficiency that we previously noted in the Toxicological Review (2023a) was that the comparisons of model predictions for extra risk with study results in Figures 4- 7 through 4-13 only used "summarized" study data, which the model appears to fit exactly. However, we were able to find R code in the BMD modeling materials that generates plots showing the comparison of model prediction of relative risk with individual study results for every endpoint (see example in section 3.2, below). These comparisons should be included in the Toxicological Review (2023a) to provide a more transparent assessment. The complexity of the meta-regression analysis precludes any independent quantitative evaluation within the timeframe of the SAB review, but these newly discovered plots demonstrate that there is significant uncertainty in risks estimated by the agency's dose-response modeling that is not transparently presented in the Toxicological Review. These uncertainties are also reflected in the disparity between the risk estimates obtained by USEPA (2023) with estimates obtained under different modeling assumptions (Shao et al. 2021), as was discussed in our previous comments. Unfortunately, the necessary files to investigate the model sensitivity analyses conducted by the USEPA (2023a) are still not available (see next section). In particular, it is not possible to determine whether the USEPA considered any modeling options where studies of extremely high exposures, which would be uninformative regarding the carcinogenicity of inorganic arsenic at the much lower concentrations of concern for the IRIS assessment, were excluded. Given the strong evidence that the dose-response for the carcinogenicity of arsenic is nonlinear, this would be a reasonable option for the cancer endpoints.
The documentation and methods used to identify studies and data for inclusion in Bayesian meta-regression dose-response analyses are lacking in transparency. While the methods for study and data selection are presented in the Systematic Review Protocol
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(USEPA 2023c), it is impossible to follow the decision process through the Systematic Review (USEPA 2023a), Systematic Review Supplemental Data (USEPA 2023b), and the BMD data files. Methods used to convert data for use in the regression are complex and convoluted. It takes multiple spreadsheets to understand what was used for each set of doses and the parameters used to perform the Monte Carlo conversions. This makes it impossible to review all the endpoints in the files given in the time allotted for public comment. Data are missing, for example the spreadsheet for calculating effective counts mentioned on page C-17 of the Supplemental document (USEPA 2023b) is not provided. It appears that calculations for effective counts are conducted in code in R, but the code is difficult to follow and not well documented. Organization of the files provided is given without a mapping to show how they interconnect and where information is located. In addition, the number of significant digits past the decimal differs from one file to another, and also in the tables presented in the supplemental material. This adds difficulty in duplicating the final values from the modeling. Other general items that make it difficult to quickly evaluate the modeling conducted and verify the results include:
o The studies are not in alphabetic order in the R input files. o Variation in reporting standard deviations directly or as 3xSD. o Most of the references to YASALW.xla are to specific sites on the USEPA drives
and must be changed, as the reviewer of the files would be unable to access USEPA drives; however, no instructions were provided to achieve this in the absence of accessing the USEPA drives. There appears to be little attention to detail with results incorrectly reported for some of the studies in the tables in the supplemental file. For example, in the values reported in Table C-38 which include the beta values (Mean, Standard error of the mean, mean standard deviation and 2.50%, 25%, 50%,75%, and 97.5%) reported for Pan et al. 2013 (study #4) in the output file are a repeat of the Grau Perez (2007) beta and do not match the values reported for study 4 in the file Full_output Diabetes mle.csv, which appears to contain the results that were reported in Table C-37. In the Supplemental section C2.2 Neurocognitive Effects Exposure-Response Modeling Results and specifically on supplemental page C-188 it is stated that" ... USEPA conducted dose response analyses for only two studies (Wasserman et al., 2014; Wasserman et al., 2004) for which the authors provided raw data on exposures, outcomes, and covariates". However, no files were provided in the modeling files provided by the USEPA on the modeling of the neurocognitive effects.
Regarding the dose-response modeling approach, the Toxicological Review (2023a) indicates that "a sensitivity analysis using a more complex double Hill model that allows for negative response estimates was conducted to verify the reasonableness of this assumption (see Appendix C, Section C.1.1 Sensitivity Analysis of Possible Non-monotonic Dose-Response Relationships)." In the supplemental section, Sensitivity Analysis of Possible Non-monotonic Dose-Response Relationships, the use of fractional polynomial models and "double Hill" models are discussed, and tables of results are provided. In addition, the supplemental file states "each subset of the fractional polynomial model group has its own pair of Rand Stan programs to implement it." However, these files were not provided by the USEPA. Without these additional files, it is difficult to ascertain exactly what data was used in evaluating these alternate models or how complete the analysis of alternate models was.
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3.1 Study Selection Page 4-5 of USEPA (2023a) states that, "To promote consistency and to document the meta-regression data set selection, at least 2 reviewers evaluated studies according to the above considerations and provided qualitative ratings for each element and provided an overall rating (good/criteria met, fair, poor/criteria not met) for each criterion, with a brief description of the basis for the choice. Reviewers then discussed the ratings and resolved differences or refined concerns. To help focus the discussions, the number of study limitations for each study were tabulated, and studies with the most markdowns were further examined for suitability." o The decisions of the reviewers' evaluations of each study should be presented in the supplemental data and data files. A review of the file iAs_study_selection_fordose_response_Jan2021.xlsx indicates some information that appears to correspond to the evaluation of each of the studies for inclusion in qualitative and quantitative analysis. However, to follow the decision process in this file, more details are needed to understand and transparently document the reviewer's decision making process and the overall results in regard to studies that were selected and studies that were eliminated from consideration for qualitative and quantitative analyses. According to the Systematic Review Protocol (USEPA 2023c), epidemiologic studies containing exposure- or dose-response data were subject to risk-of-bias (RoB) evaluations to assess aspects of internal validity of study findings based on study design and conduct for hazard identification. According to USEPA (2023a), medium or high confidence studies with exposure or dose response data were considered for dose response. The studies evaluated for risk of bias for diabetes are presented in Figures 3-22 and 3-23. However, not all of the studies that are presented in Figures 3-22 and 3-23 considered medium- or high-confidence studies are presented in the file iAs_study_selection_fordose_response_Jan2021.xlsx. Therefore, it seems that not all studies that underwent risk of bias evaluation and received a medium- or high-confidence rating were considered for qualitative analysis. o Overall, a transparent method for mapping each study's progress through risk of bias and confidence evaluations to consideration and decisions regarding inclusion in the qualitative evaluations is needed.
3.2 BMD Code Comments R Script Comments (File: MR hier all 10-5-2022-AL.R): 1. A few discrepancies were noted between the input data (mle doses-Baris Unlagged-mg_FitDrop.csv) and what is in the supplement: a. Chen et al. (2010) dose is 21.6 in data from the code, but 18.2 is reported in Table C19 b. Highest dose for Steinmaus et al. (2013) is missing in the data provided in the code c. Highest dose for Lin et al. (2018) is missing in the data provided in the code 2. Lines 213-258: Setting up and running Stan model a. What is PY_ref? -All of the data variables and parameters should have at least a brief description/definition in the Stan code if not in the R code as well
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
b. Where does b_sigma_scale (=5) come from? c. Note that max_treedepth and adapt_delta have been set to be higher
than normal. This isn't necessarily an issue, but could indicate problems with model identifiability, etc. This should be discussed in the supplement since setting to default max_treedepth and adapt_delta results in low ESS/n_eff. d. Consider including some visual diagnostics in the supplement to support the Stan run: httr s://mc-stan.orq/bayesplot/articles/visual-mcmcdiaqnostics.html 3. Lines 414-446: Plot across studies a. Defining values
i. Ref_dose_overall: This seems to be the background exposure, but the value is 0.071429 (ug/kg-day?) which is the background from
Allen et al. but not the dose suggested in the EPA report of 0.0365
ug/kg-day (e.g. Subtext for Table ES-1 page 16). Please explain this discrepancy, ii. astar.all: Please describe this quantity. What is it, and why was a value of -0.5 chosen? And why does that same value apply for all endpoints? b. Plots This summary plot of RR/OR vs. Dose (first figure below, generated in the R code) does not appear in the document or supplement, and it is unclear why it would be omitted. It demonstrates the variability of the studies around the overall model fit and seems particularly important at doses ::;; 1 g/kg-day (second figure below) which the authors focus on in other plots. How do the values for these plots then get translated into the extra risk values (e.g. for Figure 4-7)? Where is the code to do so? Why are those plots not generated as part of the R code?
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
Bladder Cancer (Data\Bladder Cancer\MLE Meta-Regressions-Post Interagency Review\mle-fit drop\ DR_combined_BC FitDrop - new bsigma.png)
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4. Overall comment: There is really no reason for the analyses to be as disjointed as they are, and the lack of clear file structure, documentation, or analysis flow (there should at minimum be a diagram explaining this) indicates poor computational analysis practice which would not meet the bare minimum for publication much less for a regulatory guidance document.
6/11
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
3.3 BMD Data Files and Modeling 3.3.1 Bladder Cancer Files The file BladderCancer\MLE Meta-Regressions-Post Interagency Review\mle-fit drop\ Full_output.txt seems to contain the pooled results given in Table C-20 (USPEA 2023b) Summary of bladder cancer Bayesian analysis output using MLE dose estimates. It is unclear how all of the output maps to Table C-20 (USEPA 2023b). Below are comparisons made with the Intake Uncertainties files for Bladder Cancer and the Conversion Factor Validation Spreadsheet_v4.xlsx as well as the input files for the MLE Meta Regression using the mle-fit drop input and output file.
Baris et al. 2016 Age mean and SD used in workbook but not given in Table C-18, but used in simulation calculations. Units for LE in Table C-18 are g/L but in the Baris et al. workbook and in the Conversion Factor Validation Spreadsheet_v4.xlsx on the Baris et al. 2016 worksheet units are reported as g/day. Conversion Factor Validation Spreadsheet_v4.xlsx indicates on the Baris et al. 2016 worksheet that Solver was used for average age, but it appears that a weighted average (both cases and total weighted averages give a value of 65 when rounded). Why are the cases and controls by dose group not listed in the workbook? They can only be found in the input file for R Cases and controls in input files do not match Table C-19 - neither raw counts nor effective counts - but the dose values for analysis are the same. Control counts listed on Main!C22-C27 do not match the R input files.
Bates et al. 1995 Age mean and SD used in workbook are not given in Table C-18, but used in simulation calculations. Units for LE in Table C-18 are g/L but in the Baris et al. workbook and in the Conversion Factor Validation Spreadsheet_v4.xlsx on the Bates et al. 1995 worksheet units are reported as g/day. Why are the controls by dose group given in the Bates workbook but the cases are not listed?
Bates et al. 2004 Age is not used directly in Monte Carlo calculations of Bates et al. 2004, it is used only to determine factor f, so the equation given in Table C-18 is wrong. Why are the controls by dose group given in the Bates workbook but the cases are not listed?
Chang et al. 2016 No explanation or justification for determining percent males versus females used in estimating the gender specific Urinary creatinine/kg-day is provided. Table C-19 provides effective counts, but no raw counts. However, the R input file includes raw values and the Effective counts output from R show the matching effective counts.
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
Chen et al. 2010 Conversion Factor Validation Spreadsheet_v4.xlsx Chen 2010 worksheet reports Dietary intake (ug/kg-day) as 0.65 0.33, which is what is used in the Chen et al. workbook, Table C-18 reports it as 65 3.33. Equation given in Table C-18 does not match what was included in the Chen et al. 2010 intake uncertainty workbook, which does not use age or BW in the calculations directly but does use RDWE - Reported avg duration of well exposure (yrs) Average age at diagnosis - points to a table at right in workbook for avg start and end ages. Start age is calculated based on the mid-point of 10 year ranges in columns L to M rows 5 to 9 (age range and count) but this table is not present in any form in Chen et al. 2010 intake uncertainty workbook. The end age is the average age calculated plus the average years of follow up. Since the average years of follow up is provided in the Chen et al. 2010 intake uncertainty workbook with a standard deviation (3.6), why is a single point used for the age at diagnosis, which is used to calculate the most likely value for the Beta Pert distribution off. This makes the calculation off less certain. Conversion Factor Validation Spreadsheet_v4.xlsx on the Chen et al. 2010 worksheet refers to a Hsieh 2008 for the duration of exposure. Not sure which of two Hsieh (2008a orb) references are being referred to that are provided in the Toxicological Review (USEPA 2023a). There are multiple citations of the Taiwanese Exposure Handbook (or just Taiwanese Handbook) in the Conversion Factor Validation Spreadsheet_v4.xlsx, with - no reference provided for this document in either the main (USEPA 2023a) or supplemental file (USEPA 2023b). The highlighted values in the copy of Table C-3 below are as given in Chen_2010_NE_Taiwan_bladder-08-10-22.xlsx. However, it should be noted that the reported MLE is larger than the 95th percentile. Also, the yellow highlighted value has an incorrect placement of comma. Cases and effective counts are only supplied in the input and output R files.
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
Table C-3. MLE, low and high MCMC dose estimates for three different WCR and RDWE distribution assumptionsa
Exposure ranges (1,.1g/L)
Most Likely (MLE; 1,.1g/kg-d) Log- Normal Uniform normal
Low
csth percentile 1,.1g/kg-d)
Log- Normal Uniform normal
High (95th percentile 1,.1g/kg-d)
Log- Normal Uniform normal
Meliker et al. 2010
0-10
0.103 0.109
0.106
0.101 0.100
0.099
0.110 0.116
0.112
10-100
0.145 0.145
0.152
0.136 0.124
0.142
0.154 0.154
0.162
100-1,000
0.455 0.450
0.457
0.333 0.266
0.336
0.723 0.729
0.706
Chen et al. 2010b
0-400
0.830 0.835
0.771
0.810 0.804
0.753
0.851 0.897
0.788
400-1,000
1.106 1.275
0.928
1.078 1.013
0.908
1.136 1.325
0.949
1,000-500
2.042 2.463
1.460
1.956 1.800
1.418
2.120 2.753
1.503
5,000-10,000 4.646 13.561 2.942
4.402 3.551
2.820
4.912 6.973
3.072
10,000100,0000
21.595 22.264 12.685 18.196 15.074 10.634 26.152 37.053 15.284
a Dose estimates obtained from "NORMAL", "UNIFORM" and "LOGNORMAL" results, Main tab, Meliker2010_CE5- Ln_ugperday08-08-22.xlsx and Chen_2010_NE_Taiwan_bladder-08-10-22.xlsx, Supplemental Material, bladder cancer "Intake Uncertainty... " folder, EPA HERO database).
Huang et al 2018 No explanation or justification for determining percent males versus females used in estimating the gender specific Urinary creatinine/kg-day. Table C-19 provides effective counts but no raw counts. However, the R input file includes raw values and the Effective counts output from R show the matching effective counts.
Lin et al. 2018 No explanation or justification is provided for determining percent males versus females used in estimating the gender specific Urinary creatinine/kg-day. Table C-19 provides effective counts but no raw counts. However, the R input file has raw values and the Effective counts output from R show the matching effective counts.
Meliker et al 2010 - no specific comments
Steinmaus et al. 2003 - no specific comments
Steinmaus et al. 2013 The Conversion Factor Validation Spreadsheet_v4,xlsx WCR (Water consumption rate (L/day)) includes a value of 1.7 0.9 which matches the Steinmaus et al. 2013 workbook. However, Table C-18 reports a value of 1.7 0.09.
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
Wu et al. 2013 No explanation or justification is provided for determining percent males versus females used in estimating the gender specific Urinary creatinine/kg-day
3.3.2 Diabetes Using examples from what appears to be the MLE modeling for Diabetes in directory Diabetes\MLE MR-Post IAR-No Rangel-Moreno2022\mle, below are comments on issues with the uncertainty workbooks, input files, and correlation between output files and summary tables in the supplemental document (USEPA 2023b).
Coronado Gonzalez 2007 No explanation or justification for determining percent males versus females used in estimating the gender specific Urinary creatinine/kg-day.
Pan et al. 2013 Intake Uncertainty worksheets defines DI - Dietary intake (ug/kg-day) (see below) as having a mean of 1.44 and 3xSD of 1, but there is no reference or code to indicate the source for these values.
Grau Perez 2007 No explanation or justification is provided for determining percent males versus females used in estimating the gender specific Urinary creatinine/kg-day. Control or cohort numbers are not mentioned in Table C-37 but are supplied in the R input file. These values should be supplied in the documentation of the Toxicological Review, not buried within modeling files.
James et al. 2013 Control or cohort numbers are not mentioned in Table C-37 but are supplied in the R input file.
3.3.3 Lung Cancer Using examples from the MLE modeling for Lungs in directory Lung\MLE Meta-Regressions-Post Interagency Review\Doses-MLE, below are comments on issues with the uncertainty workbooks, input files, and correlation between output files and summary tables in the supplemental document.
Argos et al. (2014) No explanation or justification was provided for determining percent males versus females used in estimating the gender specific Urinary creatinine/kgday.
Garcia-Esquinas et al. (2013) Results for beta in Table C-30 do not match the beta values in the Final output.txt.
Chen et al. (2010a) The mean value for DI is calculated in the workbook but no justification for SD is provided?
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Ram boll - Comments on the BMD Model Code and Modeling Results for the Draft IRIS Toxicological Review Inorganic Arsenic
The Taiwanese handbook again is mentioned as a source in this workbook, but no citation is provided in the IRIS Assessment documentation USEPA (2023a, 2023b).
Dauphine et al. (2013) - no specific comments
D'Ippoliti et al. (2015) Males & D'Ippoliti et al. (2015) Females Only one uncertainty workbook and one spreadsheet is provided in the Conversion Factor Validation Spreadsheet_v4.xlsx. In the R input file, dosing information is the same for both genders; however, the cases and number of controls differ.
Ferreccio et al. (2000) - no specific comments
Mostafa et al. (2008) Smokers & Mostafa et al. (2008) Non-Smokers Two different uncertainty workbooks are provided, but only one spreadsheet is included in the Conversion Factor Validation Spreadsheet_v4.xlsx worksheet which is mislabeled as Mostafa 2009. The difference in two workbooks is that the Smoker worksheet (Mostafa_2009_DW_Smoke-02-10-21.xlsx) has a 3xSD value of 3.3 for LE - Low (e.g. tap water) exposure (ug/L) and nonsmoker workbook (Mostafa_2009_DW_NSmoke-02-10-21.xlsx) has a value of 9.9 for the 3xSD for LE. The Conversion Factor Validation Spreadsheet_v4.xlsx worksheet for Mostafa 2009 lists a mean and std for LE as 2.5 3.3. Table C-28 in the supplemental document (USEPA 2023b) lists LE for both smokers and non-smokers as 2.5 3.3. This difference makes some minor difference in the doses - which are reported with enough significant digits to see the differences in the R input file.
Steinmaus et al. (2013) - no specific comments
USEPA. 2023a. IRIS Toxicological Review of Inorganic Arsenic [CASRN 7440-38-2]. United States Environmental Protection Agency, Integrated Risk Information System, Center for Public Health and Environmental Assessment, Office of Research and Development. Washington, DC. EPA/635/R-23/166a. USEPA. 2023b. IRIS Toxicological Review of Inorganic Arsenic Supplemental Information [CASRN 78-30-44]. United States Environmental Protection Agency, Integrated Risk Information System, Center for Public Health and Environmental Assessment, Office of Research and Development. Washington, DC. EPA/635/R-23/166b. USEPA. 2023c. Updated Problem Formulation and Protocol for the Inorganic Arsenic IRIS Assessment [CASRN 7440-38-2]. Supplemental Information - Appendix A. United States Environmental Protection Agency, Integrated Risk Information System, Center for Public Health and Environmental Assessment, Office of Research and Development. EPA/635/R-23/166b.
All remaining references cited are provided in USEPA (2023a, 2023b), with the exception of those that are noted to be missing.
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essage
Lindsey Jubel [lijubel@tesla.com] 2/3/2025 10:18:45 PM Cook, Steven [cook.steven@epa.gov]; Jennifer Wu [chiawu@tesla.com] Laurie Shelby [lshelby@tesla.com]; John Poakeart Lipoakeart@tesla.com]; Ian Langtry [ilangtry@tesla.com]; Will Roberts [wroberts@tesla.com]; Cynthia Krieger [ckrieger@tesla.com] ubject:Re: Moved up 30 minutes- EPA request for household hazardous waste lay down area - LA
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Hi Steven,
Nice to meet you today. Jenn and I will speak with all our landlords in the area to see how we may be able to find property. If you can please connect us to the best person to provide drive radius maps that would be wonderful.
Thank you.
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Richard Huggins Jr. [rhuggins@eei.org] 2/27/2025 2:38:23 PM Cook, Steven [cook.steven@epa.gov] Ruiz, Maryanne [ruiz.maryanne@epa.gov]; Hilosky, Nick [Hilosky.Nick@epa.gov] ubject:Update on EEi EEAC meeting
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Good morning Steven
A couple quick updates for the EEAC meeting next week on the 6th. I plan to have a one page (maybe a little more haha) background document to you COB Monday the 3rd. It will have an agenda, link for video call information, EEi CCR priorities, read ahead questions and some background on EEL I would like to have a 10-15 minute pre call with you and my boss Alex Bond before the 6t\ if you are willing- I will coordinate with Maryanne and Nick to find the time. Thank you for making the time on your West Coast trip to speak with the EEi EEAC; it means a lot to me.
And as always- happy to chat CCR with you at anytime if you want to talk policy or what industry is saying/thinking.
Talk soon
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
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Richard Huggins Jr. [rhuggins@eei.org] 3/3/2025 11:16:55 PM Cook, Steven [cook.steven@epa.gov] ubject:Re: Background document for Thursday with EEi
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I believe the priorities are just one page if you print front and back. Haha
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
From: Cook, Steven <cook.steven@epa.gov> Sent: Monday, March 3, 2025 5:57:39 PM To: Richard Huggins Jr.<rhuggins@eei.org> Subject: RE: Background document for Thursday with EEi
This email originated from an external sender. Use caution before clicking links or opening attachments. If suspicious please click the 'Phish Alert Report' button in Outlook. If you have any questions, email ITsupport@eei.org or call ext 5100.
You have an interesting interpretation of a I-pager @
Steven Cook Deputy Assistant Administrator Office of Land and Emergency Management U.S. Environmental Protection Agency Email: cook.stcven(Zi:cpa.gov Phone: 202-564-7038
From: Richard Huggins Jr.<rhuggins@eei.org> Sent: Monday, March 3, 2025 5:43 PM To: Cook, Steven <cook.steven@epa.gov> Cc: Hilosky, Nick <Hilosky.Nick@epa.gov>; Ruiz, Maryanne <ruiz.maryanne@epa.gov>; Crossland, Andy <Crossland.Andy@epa.gov>; Alex Bond <ABond@eei.org>; Daniel Whittle <dwhittle@eei.org> Subject: Background document for Thursday with EEi
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Good afternoon Steven, attached please find the background document for Thursday. It has some logistics information, agenda, EEi priorities, EEi questions, background on EEi and attendee list. Looking forward to the conversation and thanks again for speaking with our members. Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
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essage
Richard Huggins Jr. [rhuggins@eei.org] 3/3/2025 10:42:42 PM Cook, Steven [cook.steven@epa.gov] Hilosky, Nick [Hilosky.Nick@epa.gov]; Ruiz, Maryanne [ruiz.maryanne@epa.gov]; Crossland, Andy [Crossland.Andy@epa.gov]; Alex Bond [ABond@eei.org]; Daniel Whittle [dwhittle@eei.org] Background document for Thursday with EEi ttachments:EEI_EEACMeeting Logistics_StevenCook_3.3.25.clean.docx
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Good afternoon Steven, attached please find the background document for Thursday. It has some logistics information, agenda, EEi priorities, EEi questions, background on EEi and attendee list. Looking forward to the conversation and thanks again for speaking with our members.
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
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Environmental Executive Advisory Committee In Person Meeting- 701 Pennsylvania Ave NW
Thursday, March 6, 2025 1-2PM
1. Meeting Logistics a. Location- Richard Huggins will meet Steven and Andy in the lobby and escort him to the 4th floor. The room will be organized in a large square where speakers will be in the front of the room and members on the other three sides. b. Format- This session is intended to be an open dialogue where Steven can speak and engage with members. A slide deck is not necessary. c. Proposed agenda 1. EPA' s CCR priorities 11. EPA' s timeline for regulations, guidance and state programs 111. Status of state permit program approvals and reviews 1v. How to engage with EPA (Steven's perspective) v. Steven's responses to EEi question (which were sent prior to meeting) v1. Questions on EEi' s CCR advocacy priorities v11. Open discussion
2. EEi CCR Advocacy Priorities- The items below are EEi's current CCR priorities, which focus on establishing permitting programs while simultaneously updating the regulations. EEi and its members are working to build a record to support any changes needed for the CCR program. As we continue to work on these issues, other developments may arise which we will also bring to the Agency. a. CCRMU universe- EPA's 2024 risk assessment was designed with overly conservative assumptions that resulted in an overly broad CCRMU universe. EPA should at a minimum adopt an approach that amends the 2024 risk nationwide probabilistic assessment and adjusts the CCRMU threshold, allows beneficial use (BU) on site consistent with the definition, and expands the state deferral option. It is important to note that if the Agency proposes to revise the CCRMU universe, critical deadlines for the Facility Evaluation Report and groundwater monitoring are still in effect. EPA should consider extending those deadlines while the definition of areas to be evaluated and monitored are under review.
b. Closure'- For many, closure of CCR units is the most complex and time-consuming activity in the CCR program. Many companies would benefit if the Agency created greater flexibility in the closure regulations for CCR units. 1. Extension of closure for beneficial use2- The CCR beneficial use market is delicate as it can only handle a finite amount of ash at any given time and beneficiation requires additional time to harvesting. This is problematic in relation to the CCR closure timeframes so the Agency should extend closure for beneficial use.
1 EEi and its members are still discussing certain definitions such as free liquids and infiltration need to be revised and thus are not currently listed in the paper. 2 EPA should issue a frequently asked question that states in the affirmative that a closed CCR unit can be reopened for ash harvesting and provide that regulatory certainty in a future rulemaking.
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n. Elimination of free liquids- The elimination of free liquids is a technically challenging endeavor that provides diminishing risk reduction as the amount of liquid decreases in the unit. Dealing with that limited remaining risk (if any) from free liquids can be addressed with a suite of actions. Therefore, the Agency should: 1. Amend the closure criteria to include an alternative risk-based approach to meeting the general closure performance standard;3 2. Withdraw the elimination of free liquids guidance and consider replacing it with guidance on achievable performance by soliciting comments from stakeholders; 3. Allow for the completion of eliminating free liquids during post closure care; and 4. Create a waiver for the requirement to eliminate free liquids for certain CCR units.
m. Extension of closure for CCR removal4- Surface impoundments have up to 7 or 15 years to complete ash removal; however, some may not meet that time due to the volume of ash, truck traffic, and removal of liquids. Therefore, EPA should propose a process to extend the closure timeline unit by unit (similar to 257.102()(2)).
c. Taking an approach to corrective action and closure that allows prioritization of risks -The absence of risk-based flexibility in the 2015 CCR Rule is an artifact of the original self-implementing regulatory scheme. There are wide variations in depth to groundwater, distance to waterways, and proximity to populated areas within the CCR unit universe. These variations result in a nearly infinite combination of site-specific circumstances that can't be effectively addressed with one-size fits all standards. The Agency should introduce additional flexibility into the corrective action and closure requirements to acknowledge site-specific variation across the nation.
d. Permit programs- Consistent with the WIIN Act and Congressional intent, the Agency should quickly approve state permit programs and establish a federal CCR permit program to provide regulatory certainty and provide site-specific flexibility.
3. EEi Questions for Steven a. What are your thoughts in expediting state program approvals? How do you view EPA' s ability to determine "as protective as"? b. Have you read any of the Part A or B decisions, the ADEM denial or CAFOs? If so, do you feel the Agency made correct decisions on groundwater monitoring, corrective action and closure (among other issues)? If not, are you working with the team to discuss your differing views? c. If the Agency reviews the CCRMU universe, will the Agency also look at changing regulatory deadline requirements as some currently designated CCRMU could eventually not be CCRMU?
3 If the Agency establishes a risk-based approach to closure, the remaining options to address free liquids may not be necessary. 4 EEi and members are still discussing if extensions for closure in place are needed.
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d. What is the agency's view/position on the EO issued on February 19 regarding deprioritizing of enforcement. Is there any review or actions by OLEM with existing enforcement in response to the EO?
e. Recognizing the workload associated with potential rule changes and implementing federal permit program/approving state programs, what are EPA's thoughts on prioritizing that action?
f. For State program approvals, should members look at previous decisions by EPA as guidance on how to submit State program approvals or would EPA consider establishing new criteria for State approvals to streamline the process?
g. What appetite does EPA have supporting Rule Change vs. Legislative Change vs. Issuing New Guidance vs. some combination to address lessons learned from the program/practical issues that have arisen?
h. Steven, what situations are you looking to address with site specific flexibility in corrective action and closure?
1. Many companies are concerned about previously closed units and the ability to utilize the state deferral in the CCRMU provisions, can you speak to any thoughts there?
4. EEi (background)- EEi is the association that represents all U.S. investor-owned electric companies. EEi members provide electricity for nearly 250 million Americans and operate in all 50 states and the District of Columbia. The electric power industry supports more than seven million jobs in communities across the United States. EEi members invest more than $150 billion annually to make the energy grid smarter, cleaner, more dynamic, more flexible, and more secure; to diversify the nation's energy mix; and to integrate new technologies that benefit both customers and the environment. They are united in their commitment to get the energy they provide as clean as they can, as fast as they can, while keeping reliability and affordability front and center, as always, for the customers and communities they serve.
5. Attendee List
Full Name
Adair, Sarah Alexander, Anthony Bartoszek, Brian Bond, Alexander Burrows, Byron
Company Name
Duke Energy FirstEnergy WEC Energy Group Edison Electric Institute TECO Energy
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Cook, Steven Dowell, Kelli Duncan, Emily Garvey, Megan
Gillen, Maria Goddard, Matthew Gomos, Fred Gordon, Daisy L
Hammond, Tracy Heim, Shannon Hicks, Juliana Holdsworth, Eric Horton, Melissa Huggins, Richard Imber, Philip Jackson, Huiyi Lyng, Jeff
Markham, Wilbourne
Massey, Eric Maxted, Jeff
McDermott, Marna McGuigan, Ali
Mcivor, Jenny McMurry, Kayla Mestanza, Jason Moore, Madison Morrison, Jared Owens, Cynthia Patterson, Shawn Reimann, Jon Roush, James Safro Osborn, Sandra Schefter, Kellen Scott, Tiffany Tighe, Aija
EPA Entergy Services, LLC American Electric Power Tucson Electric Power Tennessee Valley Authority DTE Energy NiSource Duke Energy American Electric Power Service Corporation NorthWestern Energy Edison Electric Institute Edison Electric Institute Southern Company Edison Electric Institute PPL Services Corp Edison Electric Institute Xcel Energy Tennessee Valley Authority Arizona Public Service Company Alliant Energy Exelon Business Services Company National Grid Berkshire Hathaway Energy American Electric Power Edison Electric Institute Edison Electric Institute Evergy, Inc. Edison Electric Institute DTE Energy AES Corporation CMS Energy Edison Electric Institute Edison Electric Institute WEC Energy Group Edison Electric Institute
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Triplett, David Van Noord, Jill Vaught, Laura Weaver, Kiel Weiss, John Whittle, Daniel Wilkus, Daniel
Entergy Corporation Xcel Energy Services, Inc. Dominion Energy NextEra Energy Entergy Corporation Edison Electric Institute Evergy, Inc.
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Richard Huggins Jr. [rhuggins@eei.org] 3/10/2025 3:29:59 PM Cook, Steven [cook.steven@epa.gov]; Crossland, Andy [Crossland.Andy@epa.gov] Alex Bond [ABond@eei.org] ubject:Thank you and Next Steps
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Steven and Andy-
Thank you for attending our EEAC meeting last week. It sparked plenty of conversation for the remainder of Thursday
and Friday. If there is anything you would like from us on some of our short term asks (please let me know):
1.
Addressing the FER 1 into FER 2 deadlines by merging them into one deadline in Feb 2027, extend GW
monitoring deadline as some CCRMUs will be delineated in later 2026 which will prove difficult to then conduct 8
baseline samples quarterly before the deadline;
2.
Addressing the free liquids memo
3.
Working on a policy memo regarding types of beneficial use that can be permitted on-site.
I also am working with members to collect data on the regulatory changes we discussed last week. I am hopeful that as we find sites/data for those changes, we can engage your team to discuss/show some of the technical issues we are seeing. Finally, as always, I am happy to chat anytime you may have questions about our asks or what we are seeing in the field.
Have a nice week and talk soon Richard
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
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essage
Richard Huggins Jr.
[rhuggins@eei.org]
4/2/2025 2:19:52 PM
Cook, Steven
[cook.steven@epa.gov];
Crossland, Andy
[Crossland.Andy@epa.gov]
Alex Bond [ABond@eei.org];
Daniel Whittle
[dwhittle@eei.org]; Hilosky,
Nick [Hilosky.Nick@epa.gov];
Ruiz, Maryanne
[ruiz.maryanne@epa.gov];
DeRobertis, Cecilia
[DeRobertis.Cecilia@epa.gov];
Breen, Barry
[Breen.Barry@epa.gov]
ubject:
RE: EEi CCR Updates
ttachments:EEI CCRMU GW Deadline
Paper.4.1.25_FINAL.pdf
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Good morning, Steven and Andy
Attached please find EEi's paper on CCRMU GW deadlines. If you have any immediate questions, please feel free to reach out to me otherwise we can briefly touch base on this document at the end of our meeting on the 14th.
Talk soon, Richard
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
From: Richard Huggins Jr. Sent: Monday, March 24, 2025 11:22 AM To: Cook, Steven <cook.steven@epa.gov>; Crossland, Andy <Crossland.Andy@epa.gov> Cc: Alex Bond <ABond@eei.org>; Daniel Whittle <dwhittle@eei.org> Subject: EEi CCR Updates
Good Morning Steven and Andy,
I wanted to provide some updates on the work EEI and its members have been doing.
First, I hope to send you a CCRMU GW Deadline paper this Friday or next Monday. The paper will discuss the issue members are facing and the time needed to meet the initial GW monitoring requirements.
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Second- you recall engagement with DTE on the free liquids memo, the difficulty in meeting the standards and EEI's request to rescind the free liquids memo. DTE and EEI would like to meet P\':::r,scm on April 14th (DTE senior leadership is in town that day) to discuss issues with the memorandum and site-specific issues DTE is facing. I am happy to work with schedulers to find the time that works best. Third- we continue to work as quickly as possible on regulatory changes to the closure performance standard. In the coming weeks we should have information to share on issues facing different units and possible regulatory changes. Finally- we continue to work to gather information on on-site beneficial use with members. If there is anything we can provide in the near term to help with issuing a memo that allows on-site use- please let us know. Looking forward to the on-going conversations and we are happy to have any conversations with you whenever you would like as EEI and its member develop papers on the above topics. -Richard
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: =.:::......::::....:::....::::.......::::-==-=- iPhone: _ _ _ __
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4/1/25
Edison Electric Institute
CCR Management Unit Groundwater Deadlines White Paper
Issue: The facility evaluation regulations allow for a CCR management unit (CCRMU) to be found and delineated throughout 2026. Therefore, some CCR MU may not be delineated until late 2026. The groundwater regulations require the placement of groundwater (GW) wells and a minimum of 8 independent baseline samples (among other things listed below) by May 8, 2028. An owner that does not delineate a CCRM U prior to May 2026 would not have sufficient time to place GW wells and conduct quarterly sampling to obtain a minimum of 8 independent baseline samples to meet the May 8, 2028, deadline.
FER Requirements:
The Facility Evaluation Report, Part 2 (FER 2) must be completed no later than February 8, 2027. 40 CFR 257.75(d)(1 ). The FER 2 requires an extensive summary of information related to the subject units through a physical evaluation of the facility, including "where necessary field sampling." Id. Together, with the Facility Evaluation Report, Part 1 (FER 1), the reports provide information to identify and delineate any CCRMU. (See, e.g., 40 CFR 257.75(d)(1 )(viii) "The size of each CCR management unit, including the general lateral and vertical dimensions and an estimate of the volume of CCR contained within the unit.")
Based on the FER 2 timeline, the evaluation and delineation efforts will be ongoing through 2026 to meet the February 8, 2027, deadline.
Groundwater Monitoring and Analysis Requirements:
The regulations require that groundwater monitoring systems for CCRMU meet the requirements of 257.90(b)(3) by May 8, 2028. According to 40 CFR 257.90(b)(3) the requirements for groundwater monitoring include:
Design and installation of a groundwater monitoring system; Development of a groundwater sampling and analysis program; Initiation of a detection monitoring program to include a minimum of 8 independent samples for each
background and downgradient well; Beginning evaluation of groundwater monitoring data for statistically significant increases (SSls) over
background and statistically significant levels (SSLs) over groundwater protection standards.
The requirements in 257.90(b)(3) for CCRMU groundwater monitoring cross-reference various requirements throughout the rule for the establishment of adequate groundwater monitoring systems and the requirements for detection monitoring. Specifically, among other things, groundwater monitoring systems are required to accurately represent groundwater passing the waste boundary of the CCRMU and the quality of background groundwater and include a minimum number of wells to meet performance standards based on site-specific systems. 40 CFR 257.91. Moreover, some units may be better monitored through a multiunit system. Adequate knowledge of the units and site is needed to design a system that meets the monitoring standards. EPA recognized the "importance of proper site characterization as the foundation for designing a groundwater monitoring system ..." 89 Fed. Reg. at 39064.
After installation of the groundwater monitoring system, the regulations require collection and analysis of a minimum of 8 independent samples of background and downgradient monitoring wells by May 8, 2028. 40 CFR 257 .90(b )(3)(iii)-(v).
Overall, pursuant to 40 CFR 257.90(b)(3), all of the actions - from CCRMU identification and delineation to design and installation of groundwater monitoring systems to collection and analysis of data - must be completed by the combined deadline of May 8, 2028.
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4/1/25 Analysis: The regulations do not provide sufficient time to complete the necessary actions to identify and delineate CCRMU through the FER process and meet the May 8, 2028, deadline for installation of compliant groundwater monitoring systems and collection and analysis of groundwater data. As adopted, the regulations assume that the FER process and the groundwater monitoring actions can proceed concurrently. In practice, however, installation of wells prior to completion of CCRMU characterization is impractical as you may fail to meet the requirement to install wells at the waste boundary if the CCRMU is not fully delineated. Timing to meet 40 CFR 257.90(b)(3) To meet the May 8, 2028, timeline, some members anticipate having to initiate the placement of wells as early as the fall of 2025. Factors that influence this timing include:
The number of potential CCRMU present at a site adding complexity in establishing a compliance monitoring system.
Seasonal weather impacts on the ability to complete field work. Limited availability of qualified drilling contractors and equipment. Limited availability of qualified sampling contractors, consultants, and licensed engineers to complete the
analysis. For facilities on this timeframe, this requires initiation of installation of a groundwater monitoring network a full 18 months prior to the FER 2 report deadline. Example situations where a CCRMU is not delineated by May 2026. Situation 1: An individual CCRM U that would have its own GW network. Situation 2: A CCRMU that will be part of a multi-unit GW system. Situation 3: A CCRMU that could impact the location of background wells. Situation 4: Facility evaluation identified several potential historical beneficial uses of CCR, boundaries of historical use are not established, or in linear features across site. Situation 5: Identification of historical deposition/management of CCR on the ground, not a discrete site with defined boundaries that requires field sampling to determine nature and extent of affected area. Recommendation: The EPA should move the GW monitoring deadline to August 2029, which is thirty months from the completion of FER Part 2. This is based on 24 months to complete GW monitoring as provided in the 2015 CCR Rule plus an additional 6 months due to the limited availability of drillers which is well documented in the Legacy rulemaking record. The initial GW Monitoring Report would then be due on 1/31/30.
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From: Sent: To: Cc:
Subject: Attachment:
Richard Huggins Jr.[rhuggins@eei.org]
Fri 4/11/2025 8:37:14 PM (UTC)
Cook, Steven[cook.steven@epa.gov]; Crossland, Andy[Crossland.Andy@epa.gov]
Alex Bond[ABond@eei.org]; Daniel Whittle[dwhittle@eei.org]; Hilosky, Nick[Hilosky.Nick@epa.gov]; Ruiz, Maryanne[ruiz.maryanne@epa.gov]; DeRobertis, Cecilia[DeRobertis.Cecilia@epa.gov]; Breen, Barry[Breen.Barry@epa.gov]; Holt, Taylor[Holt. Taylor@epa.gov]; Hoskinson, Carolyn[Hoskinson. Carolyn@epa.gov]; Baca, Andrew[Baca.Andrew@epa.gov]
Re: EEi CCR Updates
EPA Briefing Memo_4.14.2025 Meeting.pdf
Good afternoon everyone, Attached please find a short briefing paper to provide background for our meeting on Monday.
Have a nice weekend and see you Monday.
-Richard
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk:=..:......:....:::...=..;:::.......:::== iPhone: ..:......:......:......:....=....:::....:=
From: Richard Huggins Jr. Sent: Wednesday, April 2, 2025 10:19:52 AM To: Cook, Steven <cook.steven@epa.gov>; Crossland, Andy <Crossland.Andy@epa.gov> Cc: Alex Bond <ABond@eei.org>; Daniel Whittle <dwhittle@eei.org>; Hilosky, Nick <Hilosky.Nick@epa.gov>; Ruiz, Maryanne <ruiz.maryanne@epa.gov>; DeRobertis, Cecilia <DeRobertis.Cecilia@epa.gov>; breen.barry@epa.gov <breen.barry@epa.gov> Subject: RE: EEi CCR Updates
Good morning, Steven and Andy
Attached please find EEi's paper on CCRMU GW deadlines. If you have any immediate questions, please feel free to reach out to me otherwise we can briefly touch base on this document at the end of our meeting on the 14th .
Talk soon, Richard
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
From: Richard Huggins Jr. Sent: Monday, March 24, 2025 11:22 AM
ED_ 0 184 7 5D _ 00003006-00001
To: Cook, Steven <cook.steven@epa.gov>; Crossland, Andy <Crossland.Andy@epa.gov> Cc: Alex Bond <ABond@eei.org>; Daniel Whittle <dwhittle@eei.org> Subject: EEi CCR Updates
Good Morning Steven and Andy, I wanted to provide some updates on the work EEi and its members have been doing. First, I hope to send you a CCRMU GW Deadline paper this Friday or next Monday. The paper will discuss the issue members are facing and the time needed to meet the initial GW monitoring requirements. Second- you may recall engagement with DTE on the free liquids memo, the difficulty in meeting the standards and EEi's request to rescind the free liquids memo. DTE and EEi would like to meet in person on April 14th (DTE senior leadership is in town that day) to discuss issues with the memorandum and site-specific issues DTE is facing. I am happy to work with schedulers to find the time that works best. Third- we continue to work as quickly as possible on regulatory changes to the closure performance standard. In the coming weeks we should have information to share on issues facing different units and possible regulatory changes. Finally- we continue to work to gather information on on-site beneficial use with members. If there is anything we can provide in the near term to help with issuing a memo that allows on-site useplease let us know. Looking forward to the on-going conversations and we are happy to have any conversations with you whenever you would like as EEi and its member develop papers on the above topics. -Richard
Richard Huggins Jr. Senior Director, Clean Energy and Environment Edison Electric Institute Desk:==--==....::::..::= iPhone: ..:.....:....:::....=:::..=......:.....:....:...::::.
ED_018475D_ 00003006-00002
EPA/EEi Member Meeting In Person Meeting - EPA Offices
Monday, April 14, 2025 12:25 PM
1. Meeting Logistics Location - EEi staff and DTE will meet with Steven Cook and OLEM staff at EPA Offices Format - This session is intended to be an open dialogue where DTE can speak and engage with EPA on a suite of CCR issues, with a specific focus on compliance with the drainage and stabilization requirements for CCR units closing in place, specifically, EPA guidance on the identification and elimination of free liquids. Proposed Agenda o Introductions o Executive Summary Priority Introduction Background and History o DTE Priorities Discussion Free Liquids (Priority) State Program (If time allows) Site Specific Closure Standard (If time allows)
2. Executive Summary DTE is focused on collaborating with the EPA on critical regulations, such as CCR, where changes will enhance generation flexibility while promoting grid reliability, maintain affordable rates for our customers, and environmental protection, all of which contribute to America's energy dominance and independence.
To achieve these goals, DTE is pursuing opportunities to find resolution in key regulatory requirements of the Coal Combustion Residuals (CCR) rule. As discussed at Edison Electric lnstitute's Environmental Executive Advisory Committee's meeting on March 6th 2025, utilities, contractors and consultants are having difficulty complying with 40 CFR 257.102(d) due to conflicting statements in EPA's April 22, 2024 memo. DTE raised some site-specific concerns to Mr. Cook at the meeting and Mr. Cook asked that we follow up with EPA in the coming weeks to further discuss the concerns. Therefore, we have requested this meeting to discuss the issue of free liquids as this is a near term compliance item that needs resolution to advance a key closure project for DTE. We are seeking resolution from EPA that will provide a clear pathway to compliance.
3. Background DTE is currently in negotiations with potential contractors to dewater and close a CCR surface impoundment at DTE's Monroe Power Plant (MON PP) in accordance with the closure in place performance standard at 40 CFR 257.102d. The unit, a fly ash basin (FAB), was constructed as a water treatment and permanent ash storage pond for fly ash slurry generated at MON PP in Monroe, Michigan. The plant has a capacity of 3200 MW and is DTE's largest generation asset. Construction of the FAB was completed in 1974 and ash slurry was first pumped to the FAB in
ED_018475O_00003007-00001
January 1975. In December of 2023, receipt of all waste at the FAB, including CCR, ceased. The FAB covers approximately 410 acres (310 football fields), its perimeter embankment is approximately 3.5 miles long, 30 to 44 feet in height, and 215 feet wide at its base. Hydrogeological investigations completed in 1970, 1973, 1974, 1994, 2016, and 2020 have demonstrated that the extensive glacially compacted natural clay deposits underlying the unit and the compacted clay embankment are consistently present across the unit and are of sufficiently low hydraulic conductivity to act as an excellent natural clay liner that isolates the FAB from the uppermost aquifer.
Additionally, extensive characterization has proven that absolutely no connection exists between the uppermost aquifer and the FAB. The FAB is not in contact with groundwater and DTE will close the unit via closure in place.
We currently have a fully executable closure plan and schedule that has been through the RFP process and is ready to be contracted.
4. Priority/ Issue Topic Information
Free Liquids DTE developed a dewatering performance standard that was included in the RFP as a requirement for qualified contractors to incorporate into their bids. This design specification was based on regulatory text and definition of free liquids (40 CFR 257.53), and incorporating guidance from EPA's April 22, 2024, memo titled Considerations for the Identification and Elimination of Free Liquids in Coal Combustion Residuals Surface Impoundments and Landfills (Free Liquids Memo).
All qualified contractors submitted exceptions to the dewatering performance standard. Dewatering industry expert contractors and consultants who submitted bids have performed pilot studies and dewatering modeling.
No contractor can meet the dewatering performance standard based on the Free Liquids Memo.
Contractors can meet a dewatering performance standard based on Free Liquids being readily separable under ambient temperature and pressure.
The only path forward is to base dewatering performance standards on "elimination of free liquids" and not the Free Liquids Memo.
DTE is meeting with EPA to discuss a potential resolution to the issue detailed above.
State Program DTE acknowledges and supports EPA Administrator Zeldin's initiative for cooperative federalism. DTE has supported the Michigan Department of Environment, Great Lakes and Energy (EGLE) in developing a CCR program. We are interested to engage with EPA and discuss how DTE can support establishment of such a program.
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Site Specific Closure Standard As announced on March 12, DTE acknowledges that EPA is reviewing the Legacy-Coal Combustion Residual Management Units rule for potential near term and long-term resolutions to address compliance challenges. For DTE, the issue related to free liquids compliance is a near term priority as regulatory timelines for compliance have started. EPA's commitment to review the rule for potential long term compliance resolutions, such as site-specific closure standards, are also of interest to DTE and we would like to discuss how we can engage EPA on this effort.
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Message
From:
Sent: To: CC:
Subject:
Cook, Steven [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =3A8E FB8D2F 2C40D295FE44104768F7 67-E F9CA234-68] 2/6/2025 5:54:34 PM Richard Huggins Jr. [rhuggins@eei.org] Hilosky, Nick [Hilosky.Nick@epa.gov]; Ruiz, Maryanne [ruiz.maryanne@epa.gov]; Breen, Barry [Breen.Barry@epa.gov] RE: EEi Meting Request
Mr. Huggins -
Good to hear from you. We would appreciate input from EEi and other interested parties as we consider the next steps for the CCR program. Appreciate the invitation to meet with the EEAC and will try and accommodate that request. Finally, if you are available, a call tomorrow to discuss how these series of meetings could be most productive would be beneficial.
Please work with Nick/Maryanne for scheduling.
Look forward to seeing you.
Steven
From: Richard Huggins Jr.<rhuggins@eei.org> Sent: Thursday, February 6, 2025 12:28 PM To: Cook, Steven <cook.steven@epa.gov> Subject: EEi Meting Request
I
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Good Afternoon Steven,
As you know, I have been working with EEi's members on coal ash implementation and possible revisions to the program. We have made good progress and would like to have an initial conversation with you in late February or early March. The initial conversation would be higher level on the legacy rule (concerns and revisions) and possible regulatory changes to the base program. We would then like to follow up several weeks later to have a more robust technical indepth conversation. (we would also like to engage the CCR team when appropriate) We plan to engage OAR in a similar manner.
In addition, on March 6, EEi is hosting our Environmental Executive Advisory Committee (EEAC) to discuss 2025 priorities (such as CAA 111, CCR, clean technology development and siting and permitting). This group is comprised of vice presidents that handle environment issues for their companies and have decisional authority over regulatory matters including CCR. We expect over 40 senior executives from member companies to attend. I think the EEAC would benefit greatly hearing your perspective on CCR directly from you. This meeting could work for our initial CCR conversation, or if you would like to do two separate meetings that also works for me.
Happy to touch base over the phone or a teams meeting if that would be helpful to discuss.
talk soon Richard
Richard Huggins Jr.
ED_018475O_00003014-00001
Senior Director, Clean Energy and Environment Edison Electric Institute Desk: 202-508-5233 iPhone: 771-202-1495
ED_018475D_00003014-00002
Message
From:
Sent: To: Subject:
Cook, Steven [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =3A8E FB8D2F 2C40D295FE44104768F7 67-E F9CA234-68] 3/6/2025 8:05:55 PM Hildebrand, Susana [susana.hildebrand@vistracorp.com] RE: Thank you for the time
Susana-
Appreciated the thought that went into the discussion.
Steven Cook Deputy Assistant Administrator Office of Land and Emergency Management U.S. Environmental Protection Agency Email: cook.stcven(Zi:cpa.gov Phone: 202-564-7038
From: Hildebrand, Susana <susana.hildebrand@vistracorp.com> Sent: Thursday, March 6, 2025 11:40 AM To: Cook, Steven <cook.steven@epa.gov> Subject: Thank you for the time
I
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Steven, Sending this (tardy) note to say thank you for the time that you and your staff spent with us discussing the status of CCR and possible opportunities for improvement. We are still working on gathering the information that we discussed and know that you are on a short timeline to develop strategies for addressing CCR issues.
Thanks again and will be reaching out soon.
Susana
Susana M. Hildebrand, P.E. Sr. Director, Environmental Policy Susana.Hildebrand@vistraco p.com
vistracorp.com
1005 Congress Ave Ste 750
Austin, TX, 778701 o 512.349.6467 m 512.230.5704
ED_018475O_00003017-00001
ED_ 0 184 7 5D _ 00003017 -00002
Message
From:
Sent: To: Subject:
Cook, Steven [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =3A8E FB8D2F 2C40D295FE44104768F7 67-E F9CA234-68] 3/14/2025 6:01:38 PM Bridgeford, Tawny [TBridgeford@nma.org] RE: NMA Comments on Phosphogypsum Petition
Tawny-
Thanks for saving me the research time.
Steven Cook Deputy Assistant Administrator Office of Land and Emergency Management U.S. Environmental Protection Agency Email: cook.stcven(Zi:cpa.gov
Phone: 202-564-7038
From: Bridgeford, Tawny <TBridgeford@nma.org> Sent: Friday, March 14, 2025 11:54 AM To: Cook, Steven <cook.steven@epa.gov> Subject: NMA Comments on Phosphogypsum Petition
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Appreciated your time yesterday discussing Good Samaritan implementation. We are excited to support this next phase in creating a pilot program that will result in essential benefits to communities impacted by abandoned mine lands.
Separately, wanted to share the National Mining Association's letter opposing the petition for rulemaking filed with the U.S. Environmental Protection Agency on Feb. 8, 2021, which seeks the promulgation of certain rules pursuant to RCRA, TSCA, and the APA, related to phosphogypsum and process wastewater from phosphoric acid production. The Fertilizer Institute submitted a more extensive opposition response. I've attached their letter if you do not already have it.
Tawny
National Mining Association
Tawny Bridgeford General Counsel & Senior Vice President, Regulatory Affairs National Mining Association 101 Constitution Ave. NW, Suite 500 East Washington, D.C. 20001
Direct: (202) 463-2629 Cell: (202) 731-8339 tbri dqeford@n ma. orq
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Leopold, Matt [MLeopold@hunton.com] 2/17/2025 2:56:57 PM Dekleva, Lynn [dekleva.lynn@epa.gov] ubject:RE: Meet?
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Hi Lynn,
I appreciate your response. We were trying to arrange schedules. Could you provide times on March 3? We '11 then confirm at a mutually convenient time.
Thanks again, Matt
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.com
From: Dekleva, Lynn <dekleva.lynn@epa.gov> Sent: Thursday, February 13, 2025 8:46 PM To: Leopold, Matt <MLeopold@hunton.com> Subject: Re: Meet?
Tbis Me$sa.ge ts From An External $ender
Hunton Andrews .Kurth warning: This message came from outside the firm.
Hi Matt I have some free time tomorrow and can meet. 10-12 at this moment and can reschedule my meeting at 3. Do any of those time slots work? Want to ensure that your client realizes we are in listening mode at this time but are available to listen to their concerns Regards Lynn
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From: Leopold, Matt <MLeopold@hunton.com> Sent: Thursday, February 13, 2025 8:11:33 PM To: Dekleva, Lynn <dekleva.lynn@epa.gov> Subject: Meet? Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links. Hi Lynn, I had a client come in town unexpectedly and they were wondering if there was any chance to meet tomorrow afternoon. It's Sharda USA. They are a pesticide registrant. I know it's late notice but if you have any time I thought I would check. Best, Matt Leopold 202-527-1371
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Leopold, Matt [MLeopold@hunton.com] 3/4/2025 3:45:08 AM Dekleva, Lynn [dekleva.lynn@epa.gov] ubject:RE: Follow up
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Thank you for the update.
Regards, Matt
From: Dekleva, Lynn <dekleva.lynn@epa.gov>
Sent: Monday, March 3, 2025 9:57 PM
To: Leopold, Matt <MLeopold@hunton.com>
Subject: Follow up
This Me,sage Is From An ExtemalSender
Hunton Andrews .Kurth warning: This message came from outside the firm.
Matt, OPP has provided some information on Sharda's submission for the MyPest App. It appears that they requested access for two organizations on 21-Feb-2025. An email was sent back requesting additional information because the agent was not identified as the official Sharda contact in EPA's database. Attached is information to apply for MyPest, pages 12-13 is most relevant for Sharda's situation. If additional assistance is needed, Sharda can contact Dan Schoeff at=="-'-'-'=="'"'-"==.,:.,..Regards Lynn
Lynn Dekleva Deputy Assistant Administrator Environmental Protection Agency Office of Chemical Safety & Pollution Prevention (7101M) 1200 Pennsylvania Avenue, NW Washington, DC 20004
(202) 564-7037 (office) (202) 848-2532 (cell)
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Jeff Blackwood Liblackwood@croplifeamerica.org] 3/21/2025 7:58:57 PM Dekleva, Lynn [dekleva.lynn@epa.gov] Katie Stump [KStump@croplifeamerica.org]; Manojit Basu [mbasu@croplifeamerica.org] RE: Invitation to speak at CLA/RISE Regulatory Conference April 24 ttachments:Speaker Invitation 2025 Dekleva.pdf
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Hi Lynn and happy Friday afternoon!
Refreshing this invitation to the top of your inbox.
We look forward to hearing from you.
Thanks and best, -Jeff
Jeff Blackwood Vice President, Government Relations 202-604-3 771
ropLif
trAME!'~!CA
From: Jeff Blackwood Sent: Thursday, March 13, 2025 11:12 PM To: 'dekleva.lynn@epa.gov' dekleva.lynn@~Q~.:KQ.Y. Cc: Katie Stump KStum era lifeamerica.or ; Manojit Basu MBasu era Subject: Invitation to speak at CLA/RISE Regulatory Conference April 24
lifeamerica.or
Hi Lynn,
Please find attached an invitation from our leadership to appear as the keynote speaker at the CLA/RISE Regulatory Conference in Arlington at 9:30 on Thursday, April 24.
Thanks for your consideration and please be in touch with me or my colleague Katie Stump (copied) if you need any additional information.
Best regards, -Jeff
Jeff Blackwood
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Vice President, Government Relations 202-604-3 771
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March 13, 2025
Dr. Lynn Dekleva Deputy Assistant Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Ave NW Washington, DC 20004
Re: Keynote Invitation, Arlington, VA, April 24, 2025, 9:30 am
Dear Dr. Dekleva:
Croplife America (CLA) and RISE (Responsible Industry for a Sound Environment) congratulate you on your new role as Deputy Assistant Administrator at the Office of Chemical Safety and Pollution Prevention. The Agency's work to register and regulate pesticides is of critical importance to America's farmers, and specialty pesticide users. We look forward to working with you and your team to increase the predictability, credibility and efficiency of EPA's program for the regulation of pesticides.
Each year CLA and RISE host a widely attended Regulatory Conference, which in 2025 will be held April 23-25 at the Renaissance Capital View in Arlington, Virginia. We are excited to invite you to attend our conference as the Keynote Speaker. Your insights as the new Deputy Assistant Administrator would be invaluable to our members and attendees, particularly as you address ensuring sound science in pesticide regulation, leadership on environmental issues, and offer perspectives on current and future Agency priorities. We would be happy to welcome you on Thursday, April 24 for 45 minutes (30 minutes of speaking and 15 minutes of moderated Q&A), beginning at 9:30 am Eastern. If this specific time does not work, we have some flexibility to accommodate your schedule.
CLA is the national trade association representing the manufacturers and distributors of agricultural pesticides. RISE represents manufacturers, formulators, and distributors of specialty pesticides and fertilizers. This Conference traditionally attracts over 400 leaders from more than 250 companies who are a part of our respective memberships, academics, stakeholders, and others who work daily with EPA on pesticide registrations and many other related aspects of the pesticide regulatory process.
Thank you for considering our request. If you have any questions, please do not hesitate to contact us at (202) 296-1585 or via email at adunn@croplifeamerica.org or mprovost@pestfacts.org. Katie Stump, CLA's Senior Manager of Regulatory Affairs and Sustainability, is also available to assist at kstump@croplifeamerica.org). We look forward to hearing from you, and if you agree, to providing more guidance to assist you as you prepare your remarks.
Best regards,
Alexandra Dapolito Dunn President and CEO Croplife America
Megan J. Provost President RISE
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essage
From:
Crop Life America & RISE Events [info@croplifeamerica.org] 3/25/2025 3:12:03 PM Dekleva, Lynn [dekleva.lynn@epa.gov]
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View email in browser
Hello Lynn, We noticed that you started, but didn't finish, registering for 2025 CropLife America & RISE Regulatory Conference. If you are still interested in attending, click here to complete your registration.
If you found something confusing or need more information before registering, please contact us by replying to this email or by emailing our team.
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essage
Chaitovitz, Chuck [CChaitovitz@USChamber.com]
4/11/2025 4:25:19 PM
Reaves, Elissa [Reaves.Elissa@epa.gov]; Dekleva, Lynn
[dekleva.lynn@epa.gov]
Varcoe, Andrew [AVarcoe@USChamber.com]; Merrifield, Trevor
[TMerrifield@USChamber.com]
ubject:
FW: TRI Clarification Rule Coalition Comments and Discussion Request
ttachments:250324_CoalitionComments_Clarifications_AddingPFAStotheTRI_EPA.pdf;
241209PFAS_TRIListingCoalitionComments.pdf; ACC, AFPM, API, Chamber
letter on CSC notification for TRI - April 5.pdf
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Flag:
Follow up
Good afternoon Lynn and Elissa: Please let me know if you have a few minutes to connect during the next week or so. I am happy to accommodate your schedules. Thanks again, and enjoy the weekend, Chuck
Chuck Chaitovitz Vice President, Environmental Affairs and Sustainability U.S. Chamber of Commerce 202-463-5316 (Phone) 202-680-8578 (Cell) cchaitovitz@uschamber.com http://www.uschamber.com For The Pursuit
U.S. Chambero! Commerce
From: Chaitovitz, Chuck Sent: Tuesday, March 25, 2025 7:58 AM To: Reaves.elissa@epa.gov; dekleva.lynn@epa.gov Cc: Merrifield, Trevor <TMerrifield@USChamber.com>; Varcoe, Andrew <AVarcoe@USChamber.com> Subject: TRI Clarification Rule Coalition Comments and Discussion Request
Dear Lynn and Elissa:
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Hope all is going well. Attached are our coalition comments on EPA' s proposed TRI clarification rule, submitted to the docket for your consideration. I am also including our referenced comments from last October's proposed rule adding certain PFAS to the TRI and our joint letter on supplier notification. Please let me know if you have questions. Perhaps we can arrange a call during the coming week or so to discuss this and other related issues? Thanks in advance, Chuck Chuck Chaitovitz Vice President, Environmental Affairs and Sustainability U.S. Chamber of Commerce 202-463-5316 (Phone) 202-680-8578 (Cell) ccha itovitz@uscha m be r.com http://www.uschamber.com For The Pursuit
U.S. Chambero! Commerce
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March 24, 2025
Elissa Reaves, Ph.D. Director Office of Pollution Prevention and Toxics Office of Chemical Safety and Pollution Prevention U.S. Environmental Protection Agency 200 Pennsylvania Avenue, N.W. Washington, DC 20460
RE: Proposed Rule: Toxics Release Inventory (TRI); Clarification of Toxic Chemicals Due to Automatic Additions of Per- and Polyfluoroalkyl Substances Under the National Defense AuthorizationAct; 90 Fed. Reg. 5795 (Jan. 17, 2025), EPA-HQOPPT-2024-0507)
Dear Dr. Reaves:
The undersigned organizations are pleased to provide comments in response to the Environmental Protection Agency's (EPA) proposed clarifications to automatic additions of perand polyfluoroalkyl substances (PFAS) to the TRI ("Proposed Rule" or "Proposal"). There are several important practical, legal, and technical challenges presented by the proposal.
This Proposed Rule, in addition to the October 8, 2024 proposed rule, Addition of Certain PFAS to the Toxics Release Inventory TRI ("October 8 Proposal" 1), represents a substantial proposed departure from evidence-based rulemaking and established policy under the TRI program. EPA indicated that the issues presented in this proposed rule are for "clarification." However, the agency has not yet finalized the precursor elements of the proposed changes to the TRI program set forth in the October 8 Proposal, and therefore, it is premature to issue any clarifications to those changes unless and until a decision is made on whether and, if so, to finalize the previous changes. In response to the Proposed Rule, we call your attention to comments submitted by the U.S. Chamber of Commerce and our coalition in response to the October 8 Proposal that highlight that proposed rule's significant divergence from existing policy, guidance, and practice of the TRI program when interpreting and implementing the 2020 National Defense Authorization Act (NDAA). 2 We also associate ourselves with comments submitted by the American Chemistry Council on the proposed rule. 3
1 89 Fed. Reg. 81776 (October 8, 2024). 2 Comments of the U.S. Chamber of Commerce to proposed Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory (TRI); Proposed Rule, 89 Fed. Reg. 81,776 (Oct. 8, 2024), submitted December 9, 2024. 3 Comments of the American Chemistry Council to Proposed Rule: Toxics Release Inventory (TRI); Clarification of Toxic Chemicals Due to Automatic Additions of Per- and Polyfluoroalkyl Substances Under the National Defense Authorization Act, January 17, 2025.
1
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The following are priority issues for your consideration:
The NDAA does not authorize an automatic listing of the proposed PFAS in perpetuity, nor does it authorize a sweeping designation of all PFAS listed on the TRI as "Chemicals of Special Concern."4
Even if automatic listings were allowed, the chemistries still must meet the rigorous scientific review required under the Emergency Planning and Community Right to Know Act (EPCRA). The regulated community has significant questions and concerns about EPA's proposed interpretation of the final toxicity values, the proposed changes to the definition of "toxic chemical," and how they will result in listings. The scientific evaluations that EPA relies upon to make determinations regarding a TRI listing for a chemical must meet basic requirements to be scientifically robust, to be considered reliable, and to sufficiently support a finding that the EPCRA standard for listing chemicals under TRI has been met for each such chemical.
There is no legal or scientific basis for equating additions of PFAS to the TRI to the requirements of the list of "Chemicals of Special Concern" and should not trigger supplier notifications. Listing all PFAS automatically in both lists would lead to miscommunication and misunderstanding regarding the real risk of PFAS chemistries. In addition, the implementation of notifications in the same year of any final TRI listing would be impractical and contrary to longstanding EPA guidance. 5
We would be pleased to engage with EPA on the issues addressed in the proposed TRI clarification rule. We believe that an appropriately regulatory "right sizing" approach to these issues, which avoids imposing unnecessary costs on the private sector, is required and supported by the mandates and policies of the President's important Executive Orders, including Executive Order 14192 of January 31, 2025, 90 Fed. Reg. 9065 (Feb. 6, 2025) ("Unleashing Prosperity Through Deregulation").
Sincerely,
Alliance for Automotive Innovation Alliance for Chemical Distribution American Chemistry Council
4 Comments of the U.S. Chamber of Commerce on Environmental Protection Agency Proposed Rule: Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting, 87 Fed. Reg. 74379 (Dec. 5, 2022) (submitted Feb. 3, 2023). 5 U.S. EPA, EPCRA Section 313 Questions and Answers 2019 Consolidated Document, EPA 745-B-19-001 (Apr. 2019) provides, in response to Question 151 (p. 61), that "[the Agency believes that the purpose ofEPCRA Section 313 (d)(4) is to provide covered facilities with adequate time to incorporate newly listed chemicals into their data collection processes." In response to Question 876 (p. 354), the Agency's document explains that "For a chemical added on or after January 1 and before December 1 of any reporting year, supplier notifications are to be provided with the first shipment of the chemical in the following reporting year and every year thereafter." These questions and responses are essentially identical to question 151 and question 717 in the 1998 version of this guidance. See U.S. EPA, EPCRA Section 313 Questions and Answers Revised 1998 Version, EPA 745-B98-004, pages 127-28, 231.
2
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American Fuel & Petrochemical Manufacturers American Petroleum Institute Fuel Cell & Hydrogen Energy Association National Asphalt Pavement Association National Council of Textile Organizations National Mining Association PRINTING United Alliance U.S. Chamber of Commerce
3 ED_0 18475D_ 00003063-00003
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
December 9, 2024
The Honorable Michal Freedhoff Assistant Administrator Office of Chemical Safety and Pollution Prevention U.S. Environmental Protection Agency 1200 PennsylvaniaAvenue, NW Washington, DC 20460-0001
Re: Environmental Protection Agency, Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory (TRI); Proposed Rule, 89 Fed. Reg. 81,776 (Oct. 8, 2024)
Dear Dr. Freedhoff:
The undersigned organizations appreciate the opportunity to comment on the U.S. Environmental Protection Agency's (EPA's) Proposed Rule, Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory (TRI) (Proposed Rule). 1 EPA is proposing to add 16 individually listed PFAS, and 15 PFAS categories, to the TRI list of chemicals subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). This Proposed Rule is part of EPA's "whole-of-government" approach to addressing PFAS as outlined in its 2021-2024 PFAS Strategic Roadmap. 2
We are part of the U.S. Chamber of Commerce Coalition of Companies and Trade Associations (the Coalition), which represents manufacturers and processors of PFAS, downstream product manufacturers and users of PFAS products, previous manufacturers and processors, and businesses in other areas of the value chain across the broad economy potentially impacted by the Proposed Rule. The Coalition is composed of a wide cross-section of trade associations and industries, including aerospace, automotive, construction, electronics, energy, mining, health care, telecommunications, textiles, private recyclers, waste management facilities, and other community stakeholders, including first responder services, and water and wastewater utilities. The Coalition also represents businesses potentially subject to TRI reporting obligations for the proposed PFAS to be listed. The U.S. Chamber of Commerce is the largest business trade association in the world, representing more than 3 million companies of all sizes and sectors.
1 89 Fed. Reg. 81776 (Oct. 8, 2024). 2 EPA, PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024, at 11, PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024 (stating as a key action to "enhance PFAS reporting under the Toxics Release Inventory").
1
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
Our organizations are concerned that EPA's proposal to list 16 individual PFAS and 15 categories of PFAS on the TRI:
Fails to put forth a sufficient scientific record for listing required to meet EPCRA's standards for scientific evaluation.
Inappropriately relies upon Provisional Peer-Reviewed Toxicity Values and EPA Transcriptomic Assessment Products for automatic TRI listing.
Is not warranted under the National Defense Authorization Act (NDAA), which does not authorize an automatic listing of the proposed PFAS, nor does it authorize a sweeping designation of all PFAS listed on the TRI as "Chemicals of Special Concern."3
Does not provide the scientific evidence to support an arbitrary 100-pound reporting threshold and removal of the de minimis exemption for supplier notifications.
Will lead to miscommunication and misunderstanding regarding the risk of PFAS chemistries.
Improperly proposes to list categories of PFAS, which is inconsistent with the NDAA's mandate.
Is not supported by EPA's inadequate cost analysis.
For these and other reasons, we are concerned that the Proposed Rule, if finalized, would be deemed unsupported by record evidence, and otherwise arbitrary and capricious, in violation of the Administrative Procedure Act (APA).
The Coalition supports EPCRA's goal to provide the public, through the TRI program, with meaningful information about the risk of exposure to certain chemicals. The members of the Coalition are dedicated to promoting sustainability, environmental stewardship, and the safety of our companies' employees and the communities where we live and operate. However, it is important for EPA to fully evaluate the human health, environmental, economic, safety, legal, and other practical impacts of any potential regulatory requirement. We urge EPA to utilize appropriate processes and criteria to ensure that the proposed action is based on the best available science-based information and risk-based decision making to inform potential impacts to health and the environment. With this in mind, we are eager to work with EPA to protect human health and the environment through the risk-based approach contemplated under EPCRA.
3 Comments of the U.S. Chamber of Commerce on Environmental Protection Agency Proposed Rule: Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting, 87 Fed. Reg. 74379 (Dec. 5, 2022) (submitted Feb. 3, 2023).
2
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
We urge EPA to consider these comments and to make appropriate modifications before listing of any PFAS chemistries to the TRI.
I. EPA Has Not Put Forth a Sufficient Scientific Record for Listing Under EPCRA, Which Requires a Science-Based Approach to the Listing of PFAS on the TRI
EPA's proposed listing for this group of PFAS substances and categories of substances fails to meet the standards for scientific evaluation required by EPCRA. Section 313(d)(2) ofEPCRA requires that, for a chemical to be listed due to human health impacts, it must be "known to cause" or "reasonably anticipated to cause" certain health effects. 4 For chronic effects other than cancer, these effects must be "serious or irreversible." 5 For environmental endpoints, EPA must show "a significant adverse effect on the environment of sufficient seriousness" to justify listing.6 The scientific evaluations that EPA relies upon to make determinations regarding a TRI listing for a chemical must meet basic requirements to be scientifically robust, to be considered reliable, and to sufficiently support EPA's finding that the EPCRA standard for listing chemicals under TRI has been met. Consistency with best practices, transparency and rigor must be hallmarks of evaluations for listing a chemical, and the approach used should include using systematic review methodologies to evaluate evidence. 7 Systematic review methods provide a structured, reproducible, and transparent approach for evaluating evidence from disparate scientific studies to inform a conclusion that is representative of the weight of the scientific evidence. For chemicals, a weight of the evidence approach is one in which evidence from animal, human, and mechanistic studies are evaluated and synthesized to draw an overall conclusion that weighs all the information to determine the likelihood of a hazard being associated with a particular chemical. 8 When weighing scientific information, one important factor is understanding the quality of each piece of evidence so that assessors can give appropriate weight to each item of relevant evidence.
When considering a chemical for a TRI listing, EPA must ensure that best practices are utilized, including a weight of the scientific evidence approach. And, consistent with best practices, EPA's analysis should undergo public comment and peer review to ensure that EPA has appropriately weighed and evaluated information. As described by EPA, "peer review has been fundamental in developing the sound and defensible scientific and technical work products that support Agency
4 42 U.S.C. 11023(d)(2)(A)-(B). 5 42 U.S.C. 11023(d)(2)(B). 6 42 U.S.C. 11023(d)(2)(C). 7 See for example EPA's requirements for risk evaluation under the Toxic Substances Control Act, 89 Fed. Reg. 37028 (May 3, 2024), available at: https://www.federalregister.gov/documents/2024/05/03/2024-09417/proceduresfor-chemical-risk-evaluation-under-the-toxic-substances-control-act-tsca, and EPA's IRIS handbook, 2022, which requires systematic review, available at: https://cfpub.epa.gov/ncea/iris drafts/recordisplay.cfm?deid=3563 70#tab-3. 8 See for example EPA's discussion of weight of the evidence in EPA's Guidance on Use of Weight ofthe Evidence When Evaluating the Human Carcinogenic Potential ofPesticides, 2023, available at: https://www.epa.gov/system/files/documents/2023-06/2023%20CARC%20WoE%20Guidance.pdf.
3
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
decisions."9 EPA has also recognized the importance of public comment, which provides important input to peer review and enhances the transparency of the peer review process. 10
A. TRI Listing Support Documents Are Not of Sufficient Scientific Rigor to Support the Proposed Listings
The TRI listing support documents that EPA developed for this Proposed Rule do not meet scientific standards ofreliance for TRI listings. As noted above, for health effects, EPA must show that the individual PFAS or PFAS category proposed to be listed is known or reasonably anticipated to cause cancer or other serious or irreversible effects. For environmental endpoints, EPA must show a significant adverse effect on the environment of sufficient seriousness to warrant reporting. And EPA should use a transparent and reproducible systematic review framework to evaluate all the available information. As part of these evaluations, EPA must consider the quality of the individual studies cited. The EPA TRI listing support documents are scientifically insufficient and do not provide sufficient evidence to establish that the criteria under EPCRA section 313(d)(2) have been met. In particular, the listing documents do not provide a weight of the scientific evidence review, 11 lack discussion of the quality of studies considered, and do not articulate why health effects are "serious or irreversible." 12 For environmental effects, the listing support documents do not explain why EPA finds the effects to be serious enough to warrant listing. In addition, while EPA says that the listing support documents were reviewed internally by at least three EPA scientists, this type ofreview does not comport with the requirements for external independent peer review.
Eleven individual PFAS and four categories of PFAS rely on TRI listing support documents. Because these documents do not meet basic requirements to ensure sufficient scientific rigor for regulatory use, these PFAS should not be listed. These PFAS include:
Individual PFAS: 1. 1-Butanesulfonamide, 1, 1,2,2,3,3 ,4,4,4-nonafluoro-N-methyl-(MeFBSA) (CASRN 68298-12-4) (Chronic Human Health) 2. 1-Butanesulfonamide, 1, 1,2,2,3,3 ,4,4,4-nonafluoro-N-(2- hydroxyethyl)-N-methyl(MeFBSE) (CASRN 34454-97-2), (Chronic Human Health)
9 EPA Peer Review Handbook: 4th Edition, Executive Summary, available at: https://www.epa.gov/sites/default/files/2015-10/documents/october 19-20 2015 hsrb meeting - final agenda.pdf. 10 EPA Peer Review Handbook: 4th Edition, available at: https://www.epa.gov/sites/default/files/202008/documents/epa___peer review handbook 4th edition.pdf. 11 In the 1994 rulemaking, EPA conducted a thorough hazard assessment analysis and determined on the weight of the evidence whether there was sufficient evidence to establish that the candidate chemical met the statutory criteria for addition to EPCRA under section 313. U.S. EPA, Addition ofCertain Chemicals; Toxic Chemical Release Reporting; Community Right-to-Know, 59 Fed. Reg. 61432, 61433 (Nov. 30, 1994). 12 For example, the listing support document for 2-methylpentane (see https://www.regulations.gov/document/EPAHQ-OPPT-2023-0538-0470) has not explained why increased liver weight and changes in serum chemistry in rats would be known or reasonably anticipated to cause "serious or irreversible" effects in humans. Similarly, the listing document for PFDoA (see https://www.regulations.gov/document/EPA-HQ-OPPT-2023-0538-0469) does not explain why elevated liver weights and potential alterations in lipid homeostasis and energy metabolism in rats would be known or reasonably anticipated to cause a "serious or irreversible" effects in humans.
4
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
3. Cyclopentene, 1,3,3,4,4,5,5- heptafluoro- (HFCPE) (CASRN 1892-03-1) (Effect on the Environment)
4. Ethanesulfonamide, 1, 1,2,2,2- pentafluoro-N-[(pentafluoroethyl) sulfonyl]-, lithium salt (CASRN 132843-44-8) (Chronic Human Health)
5. 6:2 Fluorotelomer alcohol (6:2 FTOH) (CASRN 647-42-7), (Chronic Human Health) 6. Pentane, 1,1,1,2,2,3,4,5,5,5- decafluoro-3-methoxy-4- (trifluoromethyl)- (CASRN
132182-92-4) (Chronic Human Health) 7. Perfluorotridecanoic acid (PFTrDA) (CASRN 72629-94-8) (Effect on the Environment) 8. Perfluoro(2-ethoxy-2-fluoroethoxy) acetic acid ammonium salt (EEA-NH4) (CASRN
908020-52-0) (Chronic Human Health) 9. 2-Propenoic acid, 2-[methyl[(nonafluorobutyl)sulfonyl]amino]ethylester (MeFBSEA)
(CASRN 67584-55-8). (Chronic Human Health) 10. Triethoxy(3,3,4,4,5,5,6,6,7,7,8,8,8- tri-deca-fluorooctyl)silane (CASRN 51851-37-7)
(Chronic Human Health) 11. Trifluoro(trifluoromethyl) oxirane (HFPO) (CASRN 428-59-1), (Chronic Human
Health) PFAS Categories:
12. 9-Chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9Cl-PF3ONS) (CASRN 75642658-1 ), Salts, and Sulfonyl Halides Category
13. 11-Chloroeicosafluoro-3-oxaundecane-1-sulfonic acid (11Cl-Pf30UdS) (CASRN 763051-92-9), Salts, and Sulfonyl Halides Category
14. Perfluorododecanoic acid (PFDoA) (CASRN 307-55-1)*, Salts,Acyl Halides, and Anhydride Category
15. Perfluoroundecanoic acid (PFUnA) (CASRN 2058-94-8), Salts, Acyl Halides, and Anhydride Category
B. ECOTOX Is Not of Sufficient Scientific Rigor to Support Proposed Listings
EPA also relies on the EPA ECOTOX Knowledgebase (ECOTOX) application to inform a proposed PFAS listing. ECOTOX is simply a web-based application that lets a user find information related to the aquatic, terrestrial, and wildlife effects of a chemical. 13 It is a compilation of data that is drawn from other databases, but it provides no weight of the evidence evaluation, and EPA's analysis of the data in ECOTOX has not undergone peer review or public comment. EPA inappropriately relies on ECOTOX for the proposed listing of one chemical, fulvestrant (CASRN 129453-61-8). EPA's justification for listing is based upon results from three individual journal articles that were identified through ECOTOX. Yet EPA provides no weight of the evidence review, presenting only the results from these three journal publications without mention of any other studies that may support or refute these results. A search of the ECOTOX database for fulvestrant yields 533 results. 14 While these results do not necessarily
13 89 Fed. Reg. at 81780. 14 Search conducted Nov. 18, 2024 using "fulvestrant."
5
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
represent 533 individual studies, EPA has identified over 50 studies, and ECOTOX provides no way to synthesize, integrate, or weigh all of that data. 15 EPA provides no discussion regarding why the three studies discussed in the Proposed Rule are sufficiently reliable for regulatory purposes. In addition, there has been no opportunity for peer review or public comment on EPA's choice to rely on these three studies, and EPA provides no discussion of any of the other information available in ECOTOX for fulvestrant.
The evaluation EPA has provided is not sufficiently robust to show that fulvestrant is known to cause or can be reasonably anticipated to cause a significant adverse effect on the environment. Thus, fulvestrant should not be listed as proposed.
C. HAWC Is Not of Sufficient Scientific Rigor to Support Proposed Listings
EPA also relies on the EPA Health Assessment Workspace Collaborative (HAWC) for the listing of one PFAS category, lH,lH, 2H, 2H-Perfluorooctane Sulfonic Acid (6:2 fluorotelomer sulfonic acid, 6:2 FTS) (CASRN 27619- 97-2), Salts, Sulfonyl Halides, and Anhydride Category. EPA has identified, by CAS number, six PFAS that would be part of this category. HAWC is another web-based application tool that allows EPA to assess chemicals and make findings publicly available; however, unlike ECOTOX, HAWC focuses on human health assessments. EPA has used HAWC to make publicly available a summary (also referred to as a systematic evidence map) of available epidemiology and animal data for approximately 150 PFAS. EPA relies on the data files created as part of the evaluation of the approximately 150 PFAS, as well as one journal article, to determine that the 6:2 FTS and members of this category cause serious or irreversible chronic effects. Yet EPA provides no weight of the evidence evaluation, and EPA has not sought public comment or peer review of this conclusion. The evaluation provided in the Proposed Rule, and supporting documentation, is not sufficient to support a listing for 6:2 FTS and members of this category.
D. Draft IRIS Values Are Not of Sufficient Scientific Rigor to Support Proposed Listings
Finally, EPA relies on draft IRIS values to support the listing of two PFAS categories, Perfluorohexanesulfonic acid (PFHxS) (CASRN 355-46-4), Salts, Sulfonyl Halides, and Anhydride Category and Perfluorononanoic acid (PFNA) (CASRN 375-95-1), Salts, Acyl Halides, and Anhydride Category. Because these values are drafts and have not completed the peer review and public comment processes, which includes providing responses to peer review and public comments, these two PFAS categories should not be listed.
In total, at minimum, 11 individual PFAS and 7 PFAS categories should not be listed as proposed because they do not meet the scientific standards necessary to justify that these PFAS chemicals
15 See EPA supporting documentation "Fulvestrant casml29453618 Ecotox-Aquatic-Export 20230816," available at: https://www.regulations.gov/document/EPA-HQ-OPPT-2023-0538-0049.
6
ED_018475D_00003064-00006
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
and categories meet the required criteria under EPCRA section 313(d)(2). EPA should carefully consider all comments made on this topic.
II. EPA Should Limit the Scope of Toxicity Value Sources that Are Relied Upon for Automatic Listing
Consistent with NDAA section 7321(c), additional PFAS are automatically added to the TRI list when certain criteria are met. These criteria include adding PFAS which have a "Final Toxicity Value."16 In this proposed rulemaking, EPA provides a list of EPA events which it interprets as "finalizing a toxicity value."17 EPA seeks to include its Provisional Peer-Reviewed Toxicity Values (PPRTVs) and EPA Transcriptomic Assessment Products (ETAP) on this list. We do not support using PPRTV and ETAP values to support TRI listings.
PPRTVs are used to support EPA's Superfund program. They are not considered to be tier one toxicity values and have uncertainty factors applied to reflect the limitations of the data. In addition, some PPRTVs are often considered to be screening values. PPRTVs are typically developed from a small evidence base. Because of the shortcomings in the data, these assessments are not sufficiently scientifically robust to support a finding of "known" or "reasonably anticipated" effects, as is required by EPCRA. EPA must rely upon more robust assessments to support the automatic listing of PFAS onto the TRI.
Similarly, ETAP values are developed for chemicals that lack traditional toxicity testing data. They are developed using a transcriptomics approach that measures gene activity, not adverse effects, and they are intended to be applied to data-poor chemicals that lack repeat dose studies in animals or suitable human evidence. 18 As described by EPA, "[t]he coordinated transcriptional changes used to identify the POD do not necessarily discriminate between specific hazards, adverse or adaptive effects, nor are they used to infer a mechanism or mode of action." 19 Because the values developed cannot identify adverse effects, these values are not sufficient to ensure that a PFAS chemical would meet the EPCRA listing criteria, which require an understanding of "known" or "reasonably anticipated" effects that are "serious or irreversible." Accordingly, ETAP values are not of sufficient rigor or specificity and should not be used to inform automatic listings of chemistries to the TRI.
III. Contrary to EPA's Assertion, Section 7321(d) of the NOAA Does Not Provide a Statutory Basis for Listing All of the Proposed PFAS Chemicals and Categories
In addition to failing to provide an adequate scientific record to support listing of certain PFAS and categories in the Proposed Rule, EPA's proposal also lacks a stable legal foundation. EPA
16 P. Law 116-92 732l(c)(l)(A)(i). 17 89 Fed. Reg. at 81799. 18 See U.S. EPA, Standard Methods for Development ofEPA Transcriptomic Assessment Products (ETAPs) (Mar. 6, 2024), available at: https://cfpub.epa.gov/si/si__public record Report.cfm?dirEntryid=36067l&Lab=CCTE. 19 EPA, Scientific Support for Transcriptomic Points of Departure, Mar. 2024, at page 16, available at: https://cfpub.epa.gov/si/si public record Report.cfm?dirEntryid=360670&Lab=CCTE.
7
ED_018475D_00003064-00007
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
cites section 7321 (d) of the NDAA as part of its authority to list the proposed PFAS to the TRI. 20 Despite already exceeding the two-year time frame directed by Congress to take action under section 7321(d), EPA broadens the scope of PFAS described by this section of the NDAA and infers an instruction from Congress to evaluate a broad scope of PFAS, when in reality the statute directs a narrow evaluation of certain PFAS for potential TRI listing. Section 7321(d) of the NDAA sets forth a specific list of PFAS for EPA to evaluate and determine whether TRI listing is appropriate. Through the NDAA, Congress directs EPA to "determine whether the substances and classes of substances described in paragraph (2) meet any one of the criteria described in section 313(d)(2) of [EPCRA]."21 Paragraph (2) states, "the substances and classes of substances referred to in paragraph (1) are perfluoroalkyl and polyfluoroalkyl substances and classes of perfluoroalkyl and polyfluoroalkyl substances not described in subsection (b)(l), including-" and goes on to list 15 types of PFAS and categories of PFAS that should be considered for inclusion in the TRI.22
EPA goes beyond those 15 enumerated categories and proposes to list other PFAS outside of that list. While Congress did not explicitly limit its direction to EPA to consider only the listed categories, in context the best statutory reading does limit EPA from significantly expanding the range of substances beyond what is listed in Section 7321 (d), due to time limitations and practicality considerations. This section of the NDAA directs EPA to carry out its determination within two years after the date of enactment of the Act. 23 Given this two-year time frame, which has already lapsed, EPA's expansion of its search to the entire universe of potential PFAS substances to be listed on the TRI is a wholly unreasonable undertaking. EPA attempted to cabin the scope of potential PFAS to consider for listing by analyzing at minimum those PFAS categorized as reportable pursuant to the TSCA PFAS Data Reporting Rule, in addition to other chemicals not on the TSCA inventory. Even ifEPA's undertaking is focused only on substances that meet the definition of "PFAS" under the TSCA PFAS Reporting Rule (which comprised only a subset of the chemicals EPA considered in this Proposed Rule), it would be assessing 1,462 PFAS substances.24 It would be unworkable for Congress to expect that any and all of these nearly 1,500 substances at minimum could or should be evaluated in only a two-year period after the date of enactment of the NDAA. The best reading of section 7321(d)(2) is that EPA was directed to evaluate the substances enumerated in the statute for TRI listing within the period of time allotted by the statute, rather than the arbitrarily broad reading of the statute EPA employed in the Proposed Rule to search far and wide for substances not on that list. Further, since EPA will not be able to finalize this rule until well after the two-year deadline, it should not reach beyond the 15 PFAS that Congress mandated.
While NDAA does not provide a statutory basis for EPA to list on the TRI PFAS substances which are not enumerated in section 7321 (d)(2), EPCRA section 313(d) does provide the
20 89 Fed. Reg. at 81777. 21 P. Law 116-92, 732l(d)(l). 22 P. Law 116-92, 732l(d)(2). 23 P. Law 116-92, 732l(d)(l). 24 U.S. EPA, Toxic Substances Control Act Reporting and Recordkeeping Requirements for Peifluoroalkyl and Polyfluoroalkyl Substances, 88 Fed. Reg. 70516, 70519 (Oct. 11, 2023).
8
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
authority for EPA to add and remove substances. But as described in section I above in detail, EPA has not provided sufficient scientific information to support listing many of those PFAS under the relevant section 313 criteria.
IV. EPA's Designation of These PFAS Listed Under Section 7321(d) as "Chemicals of Special Concern" Warranting a 100-Pound Reporting Threshold Is Arbitrary and Capricious
EPA has not asserted a lawful basis or developed an administrative record to support its consideration of all the PFAS chemicals proposed to be listed under this action as "chemicals of special concern" under 40 C.F.R. 372.28. Through the NDAA, around 200 PFAS chemicals have been listed on the TRI, either by being added by name under section 73 21 (b) or after triggering one ofNDAA's criteria for listing under section 7321(c). Each of these chemicals was listed with an initial congressionally determined reporting threshold of 100 pounds, 25 subject to EPA's revision if it determines a different threshold amount is warranted for a particular chemical.26 As support for its proposal to add PFAS identified under section 7321 (d) of the NDAA to the list at 40 C.F.R. 372.28, EPA cites its finalization of a 2023 rule to categorize PFAS added to the TRI by NDAA sections 7321 (b) and (c) as chemicals of special concern, highlighting NDAA's prescribed initial 100-pound reporting threshold for those chemicals. 27 EPA now proposes to add all of the PFAS described in this Proposed Rule to the list at 40 C.F.R. 372.28, despite lacking the same underpinning rationale from the NDAA. Whereas sections 7321(b) and (c) do contain an initial 100-pound reporting threshold subject to revision by the Administrator, NDAA section 7321(d)- under which many of these chemicals are being listeddoes not contain the same provision. It is silent on a lower reporting threshold. Had Congress wanted EPA to consider the 100-pound threshold as its starting point for all PFAS, or just for all PFAS added under section 7321 (d), it could have included the 100-pound threshold language, as it did in sections 7321(b) and (c). Thus, EPA cannot rely on the same justification it provided for its 2023 rule to add this suite of PFAS to the list of chemicals of special concern.
Absent a statutory provision directing EPA to apply an initial reporting threshold of 100 pounds for each of the substances listed under section 7321(d) of the NDAA, EPA must rely on its authority under EPCRA section 313()(2), which authorizes the Administrator to "establish a threshold amount for a toxic chemical different from the amount established in paragraph (1)" (i.e., the default amounts of 10,000 and 25,000 pounds per year). 28 However, EPA does not even cite this provision in its Proposed Rule as a statutory basis for this action reducing the reporting threshold for this group of PFAS. EPA instead improperly cites the NDAA, which does not in
25 P. Law 116-92, 732l(b)(2)(A); 7321(c)(2)(A) ("the threshold for reporting under section 313 the substances and classes of substances included in the toxics release inventory under paragraph (1) is 100 pounds."). 26 P. Law 116-92, 732l(b)(2)(B)(i); 732l(c)(2)(B)(i) ("Not later than 5 years after the date of enactment of this Act, the Administrator shall ... determine whether a revision to the threshold ... is warranted."). 27 89 Fed. Reg. at 81798 (citing Environmental Protection Agency, Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals ofSpecial Concern; Community Right-toKnow Toxic Chemical Release Reporting; Proposed Rule, 87 Fed. Reg. 74,379-74,387 (Dec. 5, 2022)). 28 42 U.S.C. 11023(f).
9
ED_018475D_00003064-00009
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
fact set forth a baseline reporting threshold for EPA to consider when listing the substances set forth in section 7321(d).
Even if it had relied on the correct statutory provision authorizing this action, EPA still provides no technical or scientific justification for the 100-pound threshold, rendering it arbitrary and capricious. It cites the Agency's reason for first creating the list of chemicals of special concern in 1999 - to "increase the utility of TRI data by ensuring that the data collected and shared through TRI are topical and relevant."29 In 1999, EPA added a list of chemicals identified as persistent, bioaccumulative, and toxic (PBT). In that rule, EPA added 18 chemicals and chemical categories to the list of chemicals of special concern on the basis that they meet the criteria for toxicity and persistence in the environment. 30 Here, however, EPA has not undertaken a substance-by-substance analysis to demonstrate that each one meets the only criteria EPA has used to add chemicals to this list in the past (i.e., the "persistence in the environment" and "tendency to bioaccumulate in the environment" in EPCRA section 313(d)(2)(C)) or any other criteria warranting heightened treatment.
Instead, EPA takes an arbitrarily broad approach of listing all PFAS that have been individually listed to the TRI as chemicals of special concern, as opposed to just those listed under sections 7321(b) and (c), as was done in the 2023 rulemaking at Congress' direction in the NDAA. Not all PFAS carry the same hazards, and EPA should acknowledge that each substance or category of substances has differing properties and risk profiles. Taking a "one size fits all" approach to such a large aggregation of substances, without requiring an individual assessment demonstrating that each one meets heightened criteria, is arbitrary and paves the way for EPA to automatically include all TRI-listed PFAS as chemicals of special concern in the future without an individualized scientific record justifying the heightened treatment. By proposing to treat such a disparate range of PFAS chemistries identically, EPA risks undermining the purported intent behind the list of chemicals of special concern, directing significant resources, focus, and enforcement efforts to chemicals that have not been shown to give rise to significant risks and potentially diluting the value of information transmitted to the public through the TRI program.
EPA attempts to justify its approach, stating that "EPA finds that it is appropriate to maintain consistency for all chemicals added to the TRI pursuant to the NDAA (i.e. those PFAS previously added by NDAA section 7321(b) and (c)). Therefore, EPA is proposing to establish a 100-pound ... reporting threshold for the PFAS proposed for addition in this action."31 Here, under the guise of maintaining "consistency," the Agency proposes an approach which would warrant treating potentially thousands of distinct and unrelated PFAS substances in the same
29 89 Fed. Reg. at 81798 (citing Environmental Protection Agency, Persistent Bioaccumulative Toxic (PBT) Chemicals; Lowering ofReporting Thresholds for Certain PBT Chemicals; Addition ofCertain PBT Chemicals; Community Right-to-Know Toxic Chemical Reporting, 64 Fed. Reg. 58,666 (Oct. 29, 1999)). 30 64 Fed. Reg. at 58671 ("EPA has made the final determination that 18 of the chemicals and chemical categories proposed meet the EPCRA section 313 criteria for persistence and bioaccumulation. Thus, EPA is lowering the reporting threshold for all of these toxic chemicals."). 31 89 Fed. Reg. at 81797-81798.
ED_018475D_00003064-00010
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
manner in the future, without providing the administrative record to back up the approach for each individual substance.
EPA does not purport to propose to add this group of PFAS as chemicals of special concern due to their categorical persistent and bioaccumulative properties (as was done in 1999), and, even if it did purport to do that, its scientific record for each proposed PFAS to be listed would not support that finding. Absent a showing that these substances in fact individually meet some criteria for being considered chemicals of special concern deserving of a heightened reporting threshold, EPA's proposal to do so is arbitrary and capricious. EPA should instead use a quantitative, science-based regulatory approach that is based on sound, peer-reviewed science and a transparent and well-informed record.
In addition to taking an unlawfully broad approach to listing these PFAS as chemicals of special concern warranting a lower reporting threshold, EPA's Proposed Rule will be unworkable and impractical for industry to implement. Prior to EPA's 2023 rulemaking, the list of chemicals of special concern contained fewer than 20 substances and substance groups. This formerly narrow category carries a significantly lower reporting threshold than the standard threshold under EPCRA, and an exemption from the de minimis supplier notification, resulting in a much higher level of monitoring, tracking, and reporting required for these substances. The list is rapidly growing to now include a broad range of hundreds of PFAS substances, for which identifying low concentrations is often impractical, and may not even be scientifically possible. In addition, the listing of these PFAS as chemicals of special concern will have a substantial financial impact and administrative burden on companies throughout the value chain, especially small entities.
V. EPA Should Not List PFAS Categories on the TRI
EPA should not list categories of PFAS as proposed. As described above, EPA misinterprets NDAA section 7321(d), which directs EPA to evaluate "classes of [PFAS] not described in subsection (b)(1) .. ,"32 rather than chemical categories of PFAS. Section 7321(d) lists the relevant individual substances and classes of PFAS in sections 7321(d)(2)(N) and 7321(d)(2)(O). These two classes, identified in sections 7321(d)(2)(N) and 7321(d)(2)(O), correspond to (1) substances for which a method to measure levels in drinking water has been validated by the Administrator and (2) substances that are used to manufacture fluorinated polymers, respectively. EPA's interpretation of the NDAA's use of"classes" of PFAS to indicate that the Agency should list categories for other individual PFAS is not supported by the statutory language. "Classes" and "categories" are well-accepted as being different, both in EPA's own treatment of the terms and under OECD guidance.33 EPA's proposed categories, which include the associated salts, associated acyl/sulfonyl halides, and anhydrides of PFAS, are different from the "classes" that are discussed in the NDAA. Thus, the language of the NDAA does not support listing "categories" of PFAS as EPA has proposed.
32 P. Law 116-92, 732l(d)(2) (emphasis added). 33 OECD, Guidance on Grouping of Chemicals, Second Edition, OECD Series on Testing and Assessment, No. 194 (2017), available at: https://doi.org/10.l 787/9789264274679-en.
11
ED_018475O_00003064-00011
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
While the NDAA does not support the listing of categories, at a bare minimum EPA should include only PFAS that are identifiable by a CAS number, or list each individual PFAS separately, assuming that the individual PFAS meets the TRI listing criteria. EPA specifically seeks comment on this issue, asking if the categories should include PFAS beyond the examples provided for the individual categories. 34 The clear answer to this is no. IfEPA cannot identify the chemical by CAS number, it should not be included in the category, and TRI reporting should not be required.
Allowing EPA to list categories that include PFAS that EPA has not yet identified will cause significant uncertainty for the regulated community and is arbitrary and capricious. EPA's Economic Assessment for the Proposed Rule provides a discussion of the benefits of improving consumer and public knowledge regarding PFAS. 35 However, when EPA lists chemicals on TRI as categories, these benefits will not occur. Researchers and communities will not learn from TRI reporting the composition of releases and the relative toxicity, likely fate, and transport, or the potential exposure of the individual PFAS in the category, since chemicals within the category have different physical and toxicological properties. Similarly, researchers and regulators would not be able to compare different facilities, since two facilities could report the same mass amount corresponding to a category but have very different amounts of individual chemicals within that mass. Similarly, researchers cannot compare the same facility over time due to the same uncertainty. Since chemicals within the same category may be substitutes for each other, reporting by category diminishes the incentive to switch to lower toxicity compounds, because this action will not reduce the reporting burden and associated costs. Finally, because reporting by categories does not provide useful information, the proposed data collection lacks practical utility under the Paperwork Reduction Act.
EPA's positions are inconsistent. IfEPA believes that many PFAS generally meet the criteria for chemicals of special concern, and thus that the release and the use of small amounts of individual PFAS generally have policy relevance, it defeats the purpose to group many PFAS together in a category and gather information primarily on the larger total mass. EPA should refrain from listing categories and after considering risk and cost considerations, EPA should list only individual PFAS chemistries that meet the EPCRA listing criteria.
EPA's analysis should include balancing economic impacts with the benefits of improved public health and environmental protection. Yet, EPA has not provided this analysis.
VI. EPA's Cost Analysis Is Incomplete and Insufficient
The cost analysis provided by EPA in the Proposed Rule is insufficient and very likely underestimates costs. While previous economic analyses of TRI regulations have included capital costs for electronic data gathering, data storage, and reporting, the analysis in the
34 89 Fed. Reg. at 81804. 35 EPA, Economic Analysis for the Addition of Certain Per- and Polyfluoroalkyl Substances; Community Right-toKnow Toxic Chemical Release Reporting Rulemaking: Proposed Rule (RIN 2070-AL03), Dec. 14, 2023, available at: https://www.regulations.gov/document/EPA-HQ-OPPT-2023-0538-0476.
12
ED_018475D_00003064-00012
Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
Proposed Rule considers only the cost to fill out Form R. 36 EPA has not included any of the capital and equipment costs that may be associated with measuring PFAS levels. This leads to an underestimate of actual costs. In addition, tracking and reporting mixtures containing PFAS at concentrations less than the current de minimis thresholds would take significant time and effort across multiple industry sectors and would be burdensome for the TRI reporting facilities, further increasing the costs of its proposed rule. Before finalizing a proposal, which would remove the de minimis exemption, list additional substances as chemicals of special concern, and alter the supplier notification requirements, EPA must amend its economic analysis to correctly reflect the quantifiable costs of its proposal. As noted above, EPA has not accounted for the added costs of ensuring that potentially reportable releases are evaluated for even trace amounts of PFAS. And EPA must appropriately consider these costs.
In addition to including capital costs for electronic data gathering and data storage, EPA must also consider the added cost of tracking de minimis levels of the proposed PFAS in releases that must be reported. While EPA's TSCA section 8(a)(7) rulemaking's economic analyses also underestimated the costs,37 EPA should at least include costs in this regulatory action comparable to those described in the section 8(a)(7) analyses.
EPA has provided no justification for why its "proxy approach" as described in the Proposed Rule economic analysis is sufficient. EPA uses proxy chemicals to estimate the incremental increase in Form R reports. As EPA notes, EPA's review of PFAS chemicals reported in the 2020 Chemical Data Reporting (CDR) rule is not informative because the reporting threshold was 25,000 pounds for the PFAS. Therefore, EPA relied on data from two other chemistries as proxies.38 These two chemistries, pentachlorobenzene and hexachlorobenzene, are not appropriate proxies despite their 10-pound reporting threshold. EPA provides no discussion for why it expects changes that occurred when these two chemicals were listed to be a valid proxy for the PFAS chemistries that EPA proposes to list. In addition, EPA relies upon a method that assumes there will be a 15 percent increase in supplier notifications39 and provides no justification for why this value is appropriate and is not an underestimate. EPA should provide a reasoned basis for using this value. And surprisingly, EPA provides no discussion of the uncertainties in this analysis.
EPA's cost analysis has also not considered the impacts on small businesses of removing the de minimis exemption, thus making the analysis conducted under the Regulatory Flexibility Act insufficient. Given that EPA estimates that upwards of 120,000 facilities subject to federal environmental programs have operated or currently operate in industry sectors with processes that may involve handling and/or release of PFAS, 40 EPA has likely underestimated the number
36 89 Fed. Reg. at 81809. 37 See comments from the US Chamber of Commerce et al., Sept. 27, 2021, available at: https://www.regulations.gov/comment/EPA-HQ-OPPT-2020-0549-0066. 38 EPA, Economic Analysis for the Addition of Certain Per- and Polyfluoroalkyl Substances; Community Right-toKnow Toxic Chemical Release Reporting Rulemaking: Proposed Rule (RIN 2070-AL03), Dec. 14, 2023, available at: https://www.regulations.gov/document/EPA-HQ-OPPT-2023-0538-0476. 39 Id. 40 See EPA, PFAS Analytic Tools, available at https://echo.epa.gov/trends/pfas-tools.
13
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Coalition Comments on Addition of Certain PFAS to the TRI; Proposed Rule
89 Fed. Reg. 81776 (Oct. 8, 2024) 12-9-2024 [clean]
of impacted small entities, as not all NAICS codes cited in the Proposed Rule preamble are included in the small-entity analysis, and EPA's high-end estimate of impacted small entities only includes 865 businesses. EPA should revise its analysis to include the impacts of removing this exemption, and the analysis must include the costs of requiring small businesses to measure all waste streams for low levels of PFAS.
Finally, EPA's economic analysis has not considered the costs ofreporting that may be required by states and tribes. Some states, like Florida, require fees for using Form R, which are greater than using other TRI reporting forms. 41 Nor has EPA considered that reporting will need to include industries, state emergency responders, tribes, and airports that store AFFF. These arbitrary exclusions lead to an underestimation of the costs of this Proposed Rule.
*********************
We appreciate the opportunity to comment on EPA's Proposed Rule. We support science and risk-based regulation of substances, including particular PFAS, that may pose risks to the public. EPA has not provided the necessary science or legal justifications for this Proposed Rule, and we request that EPA reconsider the proposed listings and the proposed changes EPA intends to make for all PFAS listings. Please contact Chuck Chaitovitz, Vice President of Environmental Affairs and Sustainability, at cchaitovitz@uschamber.com with any questions regarding these comments.
Sincerely,
Alliance for Chemical Distribution American Apparel and Footwear Association American Chemistry Council American Coatings Association American Fuel & Petrochemical Manufacturers American Petroleum Institute Council of Industrial Boiler Owners National Association of Manufacturers National Association for Surface Finishing National Asphalt Pavement Association National Council of Textile Organizations National Oilseed Processors Association National Mining Association
Plastics Industry Association PRINTING United Alliance SEMI TRSA - The Linen, Uniform and Facility Services Association U.S. Chamber of Commerce
41 See https://www.epa.gov/toxics-release-inventory-tri-program/tri-statecontacts#:~:text=Facilities%20reporting%20electronically%20do%20not,Form%20A%20through%20E%2DPlan% 20.
14
ED_018475D_00003064-00014
April 5, 2024
The Honorable Michal Freedhoff, Ph.D. Assistant Administrator Office of Chemical Safety and Pollution Prevention US Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460
The Honorable David Uhlmann Assistant Administrator Office of Compliance and Enforcement Assurance US Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460
Re: Changes to the Supplier Notification Requirements for per and polyfluoroalkyl substances and other chemicals of special concern under the Emergency Planning and Community Right-to-Know Act and Pollution Prevention Act (40 CFR Part 372.45)
Dear Dr. Freedhoff and Mr. Uhlmann:
The undersigned organizations wish to bring to your attention a significant issue that has arisen as a result of the changes to Toxic Release Inventory (TRI) supplier notification requirements for substances designated as chemicals of special concern (CSC} under the Agency's Toxic Release Inventory (TRI) reporting requirement finalized on October 31, 2023. Below we discuss issues specific to newly listed per- and polyfluoroalkyl substances (PFAS) and the broader issue of implementation of lower supplier notification thresholds for CSCs.
As a result of the CSC rulemaking last October, suppliers whose "best readily available information" indicated the presence of any amount of a CSC in their products were required to notify customers beginning January 1 of this year. This requirement extended to the seven additional PFAS that the Agency announced were added to TRI on January 9, 2024. 1 As a result, suppliers were already in violation of the notification requirement for products shipped in the early days of 2024 that contained these seven newly-listed PFAS. It is not clear how suppliers would have known about the automatic
USE PA. EPA Requires Toxics Release Inventory reporting for seven additional PFAS. News Release (January 9, 2024). https://www.epa.gov/newsreleases/epa-requires-toxics-release-inventory-reporting-seven-additionalpfas
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The Honorable Michal Freedhoff and David Uhlmann April 5, 2024 Page 2
addition prior to the January 9 announcement, nor how the Agency expects companies to be able to comply without reasonable notification and preparation time. In the case of one of the seven PFAS included in the January 9 announcement, perfluoropropanoic acid (PFPrA), there was no announcement of Agency action beyond a posting to a list serv maintained by the Office of Research and Development's Center for Public Health and Environmental Assessment. Such actions are directly contrary to EPA's commitment "to provide covered facilities with adequate time to incorporate newly listed chemicals into their data collection processes."2 The cumulative burden on suppliers of products containing any amount of a CSCs will continue to increase, moreover, with the issuance of the Toxic Substances Control Act (TSCA) significant new use rule (SNUR) for PFAS determined to be inactive on the TSCA Inventory that will add more than 300 substances subject to notification effective January 1, 2025. 3
We appreciate that the Agency is following the requirement of the National Defense Authorization Act (NOAA) for Fiscal Year 2020 to automatically list PFAS following completion of specified Agency actions. However, the decision to wait until the beginning of the following year to announce the automatic addition of substances is problematic and has the potential to put suppliers in violation of the notification requirement. The regulated community requires more time to properly assess their products, data, and to determine compliance pathways. While the staff of the Data Gathering and Analysis Division (DGAD) have expressed sensitivity to our concerns about supplier notification, they noted that the Agency feels bound by the language of the NOAA.
Recognizing the 2020 NOAA requirement for automatic listing, we urge the Agency to make every effort to announce the addition of PFAS to TRI as soon as practicable after the completion of one of the actions identified in the NOAA, preferably with the publication of a notice in the Federal Register. We further request that EPA issue a No Action Assurance waiving any potential enforcement action against suppliers who do not provide notification of the seven newly listed PFAS to their customers with their first shipment of 2024 and commit to working with industry to ensure timely compliance, similar to the action it took regarding processing and distribution of PIP (3.1).4
In addition, we ask EPA to address the broader issue of practical implementation of the elimination of the de minimis threshold for supplier notification. While much of the emphasis has been related to products that may contain PFAS subject to TRI reporting, the changes also impact products containing any of the substances designated as CSC, including dioxins, PCBs, and polycyclic aromatic compounds. The change to supplier notification requirements is not consistent with the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard and the global framework for supplier notifications, and complying with it disrupts the systems that companies have in place for meeting U.S. and global hazard communication requirements. The elimination of a de minimis threshold for supplier notification of the presence of CSCs creates a significant burden on suppliers up and down
USEPA. EPCA Section 313 Questions and Answers 2019 Consolidated Document. EPA 745-B-19-001 (Apr. 2019), in response to Question 151 (p. 61), 89 Fed. Reg. 1822 (January 11, 2024). 4 USEPA. No Action Assurance Regarding Prohibition of Processing and Distribution of Phenol lsopropylated Phosphate (3:1), PIP (3:1) for Use in Articles, and PIP (3:1)-containing Articles under 40 CFR 751.407(a)(1). Memo from Lawrence Starfield, OECA, to Michal Freedhoff, OCSPP (March 8, 2021)
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The Honorable Michal Freedhoff and David Uhlmann April 5, 2024 Page 3
the value chain in sectors across the economy, exposes them to potential violation, and potentially places them at a competitive disadvantage against overseas companies not subject to the same requirement. The regulated community requires additional time to change supplier notifications and we request EPA provide it either by extension of effective date or statement of enforcement discretion.
Please do not hesitate to contact us if you have questions about the above information.
Sincerely,
Stovo Risotto
Stephen Risotto Senior Director Chemical Products and Technology American Chemistry Council srisotto@americanchemistry.com (202) 249-6727
Jeff Gunnulfsen Senior Director Security & Risk Management Issues American Fuel and Petroleum Manufacturers JGunnulfsen@afpm.org (202) 457-0480
K.oltA Potli,tt
Keith Petka Director Refining and Health, Environment, & Safety American Petroleum Institute petkak@api.org (302) 463-7992
Chuck Chaitovitz Vice President Environmental Affairs and Sustainability US Chamber of Commerce cchaitovitz@uschamber.com (202) 463-5316
cc:
E. Reaves, OPPT
L. Reisman, OPPT/DGAD
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essage
Jim Cooper [JCooper@afpm.org] 3/19/2025 2:34:42 PM Dekleva, Lynn [dekleva.lynn@epa.gov] Jerry Couri [JCouri@afpm.org]; Robert Benedict [RBenedict@afpm.org] AFPM Comments on Prioritization and PrePrioritization of Chemicals Under TSCA ttachments:AFPM Comments on Prioritization of Benzene Final 3-1825.pdf; AFPM Comments on Prioritization of Ethylbenzene Final 318-25.pdf; AFPM Comments on Prioritization of Styrene Final 3-18-25.pdf; AFPM Comments on Preprioritization for 22 Chemicals Final 3-1825.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Dear Dr. Dekleva,
I am writing to request submission of the attached comments to the dockets for the following:
Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability
Benzene; EPA-HQ-OPPT-2018-0475
Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability
Ethylbenzene; EPA-HQ-OPPT-2018-0487
Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability
Styrene; EPA-HQ-OPPT-2018-0461
Pre-Prioritization of Existing Chemical Substances Under the Toxic Substances Control Act (TSCA);
EPA-HQ-OPPT-2023-0606
AFPM realizes it missed the deadline for submitting comments to the above dockets. When trying to submit comments, AFPM had difficulty reaching the appropriate docket website when searching the internet and when finally getting to the right webpage, realized the time for submission had just expired. The is the first time AFPM has experienced this type of difficulty in years of submitting comments under TSCA and apologizes for any inconvenience this may cause the Agency. AFPM members are producers of the individual chemicals for which we wish to submit comments and will be directly impacted throughout the prioritization, risk evaluation,
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and risk management phases. Any assistance you can provide in the submission of these comments to the appropriate dockets would be greatly appreciated. Sincerely,
James R. Cooper Senior Petrochemical Advisor American Fuel & Petrochemical Manufacturers 11100 M Street, NW Suite !100 North Washington, DC 20036 202.457.0480 office 202.844.5497 direct icooper@afpm.org Learn more about AFPM at afpm.org
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INITIATION OF PRIORITIZATION UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA);
NOTICE OF AVAILABILITY BENZENE
Office of Pollution Prevention and Toxics United States Environmental Protection Agency
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS COMMENTS
Attention: EPA-HQ-OPPT-2018-0475
March 18, 2025 Sarah Au Data Gathering, Management, and Policy Division (7406M) Office of Pollution Prevention and Toxics U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460-0001
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I. Introduction
The American Fuel & Petrochemical Manufacturers ("AFPM") respectfully submits these comments on the Environmental Protection Agency's ("EPA" or "the Agency") Federal Register notice titled, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability" ("Proposed Prioritization" or "Proposal"). EPA proposes to categorize benzene as a high priority for risk evaluation and potential risk management under Section 6 of the Toxic Substances Control Act ("TSCA"). 1 These comments address the selection of benzene as a candidate for high-priority designation. AFPM's comments highlight our concerns about the Proposed Prioritization. AFPM urges EPA to consider that:
Benzene is mostly used as a chemical intermediate and is consumed in closed processes, through chemical reactions, with extremely low potential for exposure;
The TSCA Work Plan for Chemical Assessments ("2014 TSCA Work Plan"), used as a basis for prioritization, exaggeratedly claims that benzene is used as an ingredient in consumers goods; and,
Benzene was included as a high priority primarily because it has a robust hazard dataset, and EPA largely ignored the potential for exposure.
Based on the concerns raised in these comments, EPA should categorize benzene as a low priority for risk evaluation at this time. Chemicals from the TSCA Work Plan are only required to make up half the substances subject to risk evaluation during any given time. There are many substances on the TSCA Work Plan that have a higher potential for exposure, due to their primary uses as ingredients in commercial or consumer products, that EPA could designate as a high priority.
II. AFPM Interest in the Proposed Framework
AFPM is the leading trade association representing the manufacturers of the fuels that keep America moving and petrochemicals that are the essential building blocks for organic chemistry, including plastic products that improve the health, safety, and living conditions of humankind and make modem life possible. AFPM members are committed to sustainably manufacturing safe, high-performing fuels and the petrochemicals and derivatives that growing global populations and economies need to thrive.
AFPM members produce benzene, a petrochemical building block, which is subject to TSCA and many other federal regulations. EPA comprehensively regulates benzene in industrial and mobile sources through interlocking Clean Air Act authorities. At the facility level, the 2015 refinery sector rule established fence line monitoring requirements for benzene emissions,2 while the National Emissions Standards for Benzene Emissions from Coke By-Product Recovery Plants and Benzene Storage Vessels set benzene emissions standards for those operations. 3 Bulk terminals receiving liquids containing benzene are subject to a separate set of standards to
1 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) l\"oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. 2 40 CFR 63.658 (Refinery sector fence line monitoring provisions for benzene). 3 40 CFR Part 61, subparts Land Y, respectively.
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control benzene emissions.4 Moreover, a facility's equipment in benzene service is subject to a separate set of emissions standards for leaks of benzene. 5 In addition, chemical manufacturing plants and refineries are subject to the benzene wastewater operations National Emission Standards for Hazardous Air Pollutants.6 Benzene in gasoline is subject to limits through the mobile source air toxics standards on both the vehicle and fuel. 7 Moreover, OSHA has standards to mitigate occupational exposure to benzene. 8
TSCA does not operate in a vacuum and does not have primacy over any other statutes, environmental or otherwise. In Section 9(b), Congress commanded EPA to "coordinate actions taken under this chapter with actions under other Federal laws administered in whole or in part by the Administrator." Congress further directed that EPA "shall use such authorities [in other laws] to protect against such risk" if EPA determines that a risk "could be eliminated or reduced to a sufficient extent."9
AFPM member companies are regulated under TSCA, and their products have been and will continue to be subject to TSCA risk evaluations. As seen above, uses of benzene are already heavily regulated under different statutes and regulations. The concentration of benzene as an ingredient in any product is very low due to these other regulations. In addition, as seen in the next section, the amount of benzene's total production that goes into these other uses is also very small. Given benzene is primarily a chemical intermediate consumed in closed processes through chemical reactions, with extremely low potential for exposure, EPA should prioritize other substances with higher exposure potential for risk evaluation.
III. Comments on the Prioritization Proposal for Benzene
A. Benzene does not meet the statutory obligations for designation as a highpriority substance.
EPA is required under TSCA Sec. 6(b)(3)(C) to "designate at least one high-priority substance upon the completion of each risk evaluation."9 TSCA Sec. 6(b)(2)(D) directs the Agency to give preference to chemicals "that are listed in the 2014 update of the TSCA Work Plan for Chemical Assessments ["2014 TSCA Work Plan"] as having a Persistence and Bioaccumulation Score of 3," and "are known human carcinogens and have high acute and chronic toxicity." 1011 Benzene has a persistence and bioaccumulation score of only 1. EPA points to a general hazard category score of 3 in Unit III.B.2 of the Proposed Prioritization, but this general hazard score does not specify that benzene is a known human carcinogen and has high acute and chronic toxicity. 12 It only lists benzene as a known human carcinogen and does
4 40 CFR Part 61, subparts BB. 5 40 CFR Part 61, subparts J. 6 40 CFR Part 61, subpart FF. 7 E7-2667.pdf See e.g., 40 CFR Parts 80 and 86, et. Seq. 8 29 CFR 1910.1028. 9 See TSCA Sec. 6(b)(3)(C). 10 See TSCA Sec. 6(b)(2)(D). 11 See 2014 update of the TSCA Work Plan for Chemical Assessments. 12 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) J\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024.
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not explain the health rating EPA used nor benzene's low acute toxicity. The European Chemical Agency ("ECHA") dossier for benzene states it "does not pose an acute hazard following ingestion (oral LD50 > 2000 mg/kg), skin contact (dermal LD50 > 5000 mg/kg) or acute inhalation (4-hour LC50 > 20 mg/L) exposures." Such a toxicological profile indicates that benzene does not have high acute toxicity. 13
TSCA Sec. 6(b)(1)(A) stipulates that the "process to designate the priority of chemical substances shall include a consideration of the hazard and exposure potential." 14 Sec. 6(b)(1 )(B)(i) reiterates Congressional direction when it requires EPA to prioritize substances that "may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use."15 In the 2014 TSCA Work Plan, the Agency claims that benzene is "[w]idely used in consumer products," which is not supported by current knowledge of this product. 16 Some internet sources also claim that benzene is used in consumer products, but those sources are outdated and do not consider the modem regulatory landscape.
"In the United States of America, the primary use of benzene is in the production of ethylbenzene, accounting for 52% of the total benzene demand in 2008. Most ethylbenzene is consumed in the manufacture of styrene, which is used in tum in polystyrene and various styrene copolymers, latexes and resins. The second-largest use of benzene in the United States of America (accounting for 22% of demand) is in the manufacture of cumene (isopropylbenzene), nearly all of which is consumed in phenol production. Benzene is also used to make chemical intermediates: cyclohexane, used in making certain nylon monomers (15%); nitrobenzene, an intermediate for aniline and other products (7%); alkylbenzene, used in detergents (2%); chlorobenzenes, used in engineering polymers (1 %); and miscellaneous other uses (1 %)." 17
B. EPA focused mostly on hazard, not risk, as a determining factor for the previous prioritization.
Benzene has a robust hazard dataset. In Unit III.A. of the Proposed Prioritization, EPA notes that it "heavily weighted data availability in deciding which chemical substances to include" and that "chemicals ultimately designated as High-Priority Substances for risk evaluation should have a robust data landscape," which penalizes benzene just because it possesses a more full hazard dataset. 18 There are no provisions in TSCA Sec. 6 that direct or authorize EPA to use completeness of hazard data as a criterion for high-priority designation.
13 See ECHA dossier for Benzene. 14 See TSCA Sec. 6(b)(l)(A). 15 See TSCA Sec. 6(b)(l )(B)(i). 16 See 2014 update of the TSCA Work Plan for Chemical Assessments. 17 Kirschner M. 2009 Chemical Profile: Benzene. ICIS Chemical Business available at http://www.icis.com/Articles/2009/02/16/9192064/Chcmical-profile-Benzcnc.html. Also accessed through the Library of Medicine webpagc for Benzene. 18 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) J\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. p. 102905.
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Focusing on the availability of hazard data is not a risk-based approach to chemicals management because it artificially downplays the potential for exposure. In short, a chemical should not be penalized simply because there is a data rich environment for that chemical.
C. EPA does not demonstrate that the conditions ofuse for benzene present a significant potential for exposure.
In Unit III.B., EPA generally notes that benzene was reported in 2020 under the Chemical Data Reporting ("CDR") rule but the Agency does not provide any information on what it found in the CDR to support its claim that the conditions of use for benzene could lead to a significant potential for exposure. 19 Information reported under the CDR rule is general usage information and there is no legitimate reason that EPA cannot aggregate it to support its assertion in the proposed designation. EPA should release the data to support the presence of a significant potential for exposure if it believes there is one, otherwise benzene should not be deemed a high priority.
Conclusion
AFPM has serious concerns about EPA selecting benzene for consideration as a high priority. The Agency has provided no information to support a finding of significant potential exposure. Further, benzene is a petrochemical intermediate used in closed systems to make a wide variety of polymers, active pharmaceutical ingredients, dyes, synthetic fibers, etc., and is consumed in those chemical processes. The TSCA statutory language is very clear that EPA must demonstrate a potential for exposure that may lead to an unreasonable risk. Benzene also does not have the required persistence, bioaccumulation, and acute toxicity levels that TSCA requires for consideration as a high-priority chemical. EPA must remove benzene from further consideration so it can concentrate on substances on the TSCA Work Plan that have a higher potential for exposure, that may actually present an unreasonable risk.
Sincerely,
James Cooper Senior Petrochemical Advisor
19 Id. at 102907.
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INITIATION OF PRIORITIZATION UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA);
NOTICE OF AVAILABILITY ETHYLBENZENE
Office of Pollution Prevention and Toxics United States Environmental Protection Agency
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS COMMENTS
Attention: EPA-HQ-OPPT-2018-0487
March 18, 2025 Sarah Au Data Gathering, Management, and Policy Division (7406M) Office of Pollution Prevention and Toxics U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460-0001
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I. Introduction
The American Fuel & Petrochemical Manufacturers ("AFPM") respectfully submits these comments on the Environmental Protection Agency's ("EPA" or "the Agency") Federal Register notice titled, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability" ("Proposed Prioritization" or "Proposal"). EPA proposes to categorize ethylbenzene as a high priority for risk evaluation and potential risk management under Section 6 of the Toxic Substances Control Act ("TSCA"). 1 These comments address the selection of ethylbenzene as a candidate for high-priority designation. AFPM's comments highlight our concerns about the Proposed Prioritization. AFPM urges EPA to consider that:
Ethylbenzene is a chemical intermediate that is consumed in closed processes through chemical reactions, with extremely low potential for exposure,
The TSCA Work Plan for Chemical Assessments ("2014 TSCA Work Plan") used as a basis for prioritization incorrectly claims ethylbenzene is used as an ingredient in consumers goods; and,
Ethylbenzene was only included as a high priority because it has a robust hazard dataset, and EPA largely ignored the potential for exposure.
Based on the concerns raised in these comments, EPA should categorize ethylbenzene as a low priority for risk evaluation at this time. EPA is only obligated to designate and conduct risk evaluations only on half the substances at any given time. There are many substances on the TSCA Work Plan that have a greater potential for exposure, due to their use as ingredients in commercial or consumer products, which EPA could designate as a high priority
II. AFPM Interest in the Proposed Framework
AFPM is the leading trade association representing the manufacturers of the fuels that keep America moving and petrochemicals that are the essential building blocks for organic chemistry, including plastic products that improve the health, safety, and living conditions of humankind and make modem life possible. AFPM members are committed to sustainably manufacturing safe, high-performing fuels and the petrochemicals and derivatives that growing global populations and economies need to thrive.
AFPM members produce ethylbenzene, a petrochemical building block (i.e., intermediate) "mainly used in the manufacture of styrene," which is a monomer used to make polystyrene.2 According to the Ullmann 's Encyclopedia ofChemical Technology, ethylbenzene "is almost exclusively (> 99%) used as an intermediate for the manufacture of styrene monomer."3 Expandable polystyrene ("EPS") is one of the most widely used insulation materials in modem
1 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) l\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. 2 See EPA Fact Sheet on Ethylbenzenc. 3 Coty, R.R., Welch, V.A., Ram, S. & Singh, J. (1987) Ethylbenzene. In: Gerhartz, W., Yamamoto, Y.S., Kaudy, L., Rounsaville, J.F. & Schulz, G., eds, U!lmann's Encyclopedia ofChemical Technology, 5th rev. Ed., Vol. AlO, New York, VCH Publishers, pp. 35-43. Also accessed through the National Library of Medicine webpage for Ethyl benzene.
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construction. It is also used to make insulation panels for ovens, microwaves, and refrigerators. EPS is also used in food packaging that extends the life of fresh meat and produce. There is also a rigid form of polystyrene that is used to make the housing for smoke detectors, shockabsorbing automotive door panels, and instrument panels in automobiles. Rigid polystyrene is also used to make test tubes and petri dishes found in the laboratory.
In addition to its criticality to manufacturing supply chains that depend on polystyrene, styrene is also used with other monomers to make copolymers, such as the ABS (it is the "S" in ABS) plastic used for computer keyboards, lightweight car parts, and Lego blocks. Styrene is also used to make styrene-butadiene rubber used in modem automobile tires, as well as styrenebutadiene latex used to make carpet backing. Polystyrene and styrene copolymers are not styrene, nor are they ethylbenzene. The ethylbenzene is consumed in the process to make styrene, and the styrene is consumed in the process to make polystyrene and styrene copolymers.
AFPM member companies are regulated under TSCA, and their products have been and will continue to be subject to TSCA risk evaluations. Given ethylbenzene is a chemical intermediate that is consumed in closed processes through chemical reactions, with extremely low potential for exposure, EPA should prioritize other substances with higher exposure potential for risk evaluation.
III. Comments on the Prioritization Proposal for Ethylbenzene
A. Ethylbenzene does not meet the statutory obligations for designation as a high-priority substance.
EPA is required under TSCA Sec. 6(b)(3)(C) to "designate at least one high-priority substance upon the completion of each risk evaluation."4 TSCA Sec. 6(b)(2)(D) directs the Agency to give preference to chemicals "that are listed in the 2014 update of the TSCA Work Plan for Chemical Assessments ["2014 TSCA Work Plan"] as having a Persistence and Bioaccumulation Score of 3," and "are known human carcinogens and have high acute and chronic toxicity."56 Ethylbenzene has a persistence and bioaccumulation score of only 1. EPA points to a general hazard category score of 3 in Unit III.B.2. of the Proposed Prioritization, but this general hazard score does not specify that ethylbenzene is a known human carcinogen and has high acute and chronic toxicity.7 EPA incorrectly states that ethylbenzene is a "probable human carcinogen."8 On the contrary, IARC classifies ethylbenzene as a "possible human carcinogen (Group 2B)."9 The Agency for Toxic Substances and Disease Registry (ATSDR) toxicological profile for ethylbenzene states the LD50 for inhalation is "13,367 ppm following a 2-hour exposure ... and 4,000 ppm following a 4-hour exposure." Such a toxicological profile
4 See TSCA Sec. 6(b)(3)(C). 5 See TSCA Sec. 6(b)(2)(D). 6 See 2014 update of the TSCA Work Plan for Chemical Assessments. 7 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) l\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. 8 Id. @ 102907. 9 See List of IARC :vfonographs.
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indicates that ethylbenzene does not have high acute toxicity, which is required under the statute. 10
TSCA Sec. 6(b)(1)(A) stipulates that the "process to designate the priority of chemical substances shall include a consideration of the hazard and exposure potential." 11 Sec. 6(b)(1 )(B)(i) reiterates Congressional direction when it requires EPA to prioritize substances that "may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use."12 In the 2014 TSCA Work Plan, the Agency claims that ethylbenzene is used as an ingredient in consumer products, which is not supported by current knowledge of this product. 13 EPA acknowledges that ethylbenzene is "mainly used in the manufacture of styrene" on its own fact sheet. 14 Ethylbenzene, like other intermediates, is used in closed systems that consume the substance. In this Proposal, EPA is disregarding the exposure component of the risk equation and appears to be moving toward a hazard-based approach to prioritization, which runs counter to Congressional intent.
B. EPA focused mostly on hazard, not risk, as a determining factor for the previous prioritization.
Ethylbenzene has a robust hazard dataset. In Unit III.A., EPA notes that it "heavily weighted data availability in deciding which chemical substances to include" and that "chemicals ultimately designated as High-Priority Substances for risk evaluation should have a robust data landscape," which inflates ethylbenzene's risk prioritization just because it possesses a fuller hazard dataset. 15 There are no provisions in TSCA Sec. 6 that direct or authorize EPA to use completeness of hazard data as a criterion for high-priority designation. Focusing on the availability of hazard data is not a risk-based approach to chemicals management because it fails to evaluate the potential for exposure, a foundational variable in risk determinations. In short, a chemical should not be penalized simply because there is a data rich environment for that chemical. EPA does not demonstrate that the conditions of use for ethylbenzene present a significant potential for exposure.
In Unit III.B., EPA generally notes that ethylbenzene was reported in 2020 under the Chemical Data Reporting ("CDR") rule but the Agency does not provide any information on what it found in the CDR to support its claim that the conditions of use for ethylbenzene could lead to a significant potential for exposure. 16 Information reported under the CDR rule is general usage information and there is no legitimate reason that EPA cannot aggregate it to support its assertion in the proposed rule. EPA should release the data to support the presence of significant
10 See ATSDR Tox Profile for Ethylbcnzcnc. p. 34. See the International Labour Organization for toxicity classifications. 11 See TSCA Sec. 6(b)(l)(A). 12 See TSCA Sec. 6(b)(l)(B)(i). 13 See 2014 update of the TSCA Work Plan for Chemical Assessments. 14 See EPA fact sheet for cthylbcnzcnc. 15 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) J\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. p. 102905. 16 Id. at 102907.
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potential for exposure if the Agency believes there is one, otherwise it should not be deemed high-priority.
IV. Conclusion AFPM has serious concerns about EPA selecting ethylbenzene for consideration as a high
priority. The Agency has provided no information to support a finding of significant potential exposure. Further, ethylbenzene is a petrochemical intermediate used in closed systems to make styrene and is consumed in those chemical processes. The TSCA statutory language is very clear that EPA must demonstrate a potential for exposure that may lead to an unreasonable risk. Ethylbenzene also does not have the required persistence, bioaccumulation, and toxicity levels that TSCA requires for consideration as a high-priority chemical. EPA must remove ethylbenzene from further consideration so it can concentrate on substances on the TSCA Work Plan that have a higher potential for exposure, that may actually present an unreasonable risk. Sincerely,
James Cooper Senior Petrochemical Advisor
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INITIATION OF PRIORITIZATION UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA);
NOTICE OF AVAILABILITY STYRENE
Office of Pollution Prevention and Toxics United States Environmental Protection Agency
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS COMMENTS
Attention: EPA-HQ-OPPT-2018-0461
March 18, 2025 Sarah Au Data Gathering, Management, and Policy Division (7406M) Office of Pollution Prevention and Toxics U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460-0001
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I. Introduction
The American Fuel & Petrochemical Manufacturers ("AFPM") respectfully submits these comments on the Environmental Protection Agency's ("EPA" or "the Agency") Federal Register notice titled, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA); Notice of Availability" ("Proposed Prioritization" or "Proposal"). EPA proposes to categorize styrene as a high priority for risk evaluation and potential risk management under Section 6 of the Toxic Substances Control Act ("TSCA"). 1 These comments address the selection of styrene as a candidate for high-priority designation. AFPM urges EPA to consider that:
Styrene is a chemical intermediate that is consumed in closed processes through chemical reactions and has an extremely low potential for exposure;
The TSCA Work Plan for Chemical Assessments ("2014 TSCA Work Plan") used as a basis for prioritization incorrectly claims styrene is used as an ingredient in consumers goods - it is not; and,
Styrene was included as a high priority because it has a robust hazard dataset; however, EPA largely ignored the potential for exposure.
Based on the concerns raised in these comments, EPA should re-categorize styrene as a low priority for risk evaluation at this time. Chemicals from the TSCA Work Plan are only required to make up half the substances subject to risk evaluation during any given time. There are many substances on the TSCA Work Plan that have a higher potential for exposure, due to their uses as ingredients in commercial or consumer products, which EPA could designate as a high priority.
II. AFPM Interest in the Proposed Framework
AFPM is the leading trade association representing the manufacturers of the fuels that keep America moving and petrochemicals that are the essential building blocks for organic chemistry, including plastic products that improve the health, safety, and living conditions of humankind and make modem life possible. AFPM members are committed to sustainably manufacturing safe, high-performing fuels and the petrochemicals and derivatives that growing global populations and economies need to thrive.
AFPM members produce styrene, a petrochemical building block (in this case a monomer) used to make polystyrene. "Low levels of styrene occur naturally in a variety of foods, such as fruits, vegetables, nuts, beverages, and meats."2 Styrene can also be found in automobile exhaust and cigarette smoke. 3 Expandable polystyrene ("EPS"), made from styrene, is one of the most widely used insulation materials in modem construction. It is also used to make insulation panels for ovens, microwaves, and refrigerators. EPS is also used in food packaging that extends the life of fresh meat and produce. There is also a rigid form of
1 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) l\"oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. 2 See Agency for Toxic Substances and Disease Registry ("ATSDR") Toxicolobical Profile for Styrene. p. 3. 3 Id.
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polystyrene that is used to make the housing for smoke detectors, shock-absorbing automotive door panels, and instrument panels in automobiles. Rigid polystyrene is also used to make test tubes and petri dishes found in the laboratory. Regardless of its final form, polystyrene does not contain styrene, except perhaps in trace amounts, and there is no appreciable risk of exposure to styrene when handling polystyrene.
In addition to its criticality to manufacturing supply chains that depend on polystyrene, styrene is also used with other monomers to make copolymers, such as the ABS (it is the "S" in ABS) plastic used for computer keyboards, lightweight car parts, and Lego blocks. Styrene is also used to make styrene-butadiene rubber used in modem automobile tires, as well as styrenebutadiene latex used to make carpet backing. Polystyrene and styrene copolymers are not styrene. The styrene is consumed in the process to make polystyrene and styrene copolymers and there is no appreciable risk of exposure to styrene when handling ABS or any other styrenebased polymer.
AFPM member companies are regulated under TSCA, and their products have been and will continue to be subject to TSCA risk evaluations. Given styrene is a chemical intermediate that is consumed in closed processes through chemical reactions and has an extremely low potential for exposure, EPA should prioritize other substances with higher exposure potential for risk evaluation.
III. Comments on the Prioritization Proposal for Styrene
A. Styrene does not meet the statutory obligations for designation as a high-priority substance.
EPA is required under TSCA Sec. 6(b)(3)(C) to "designate at least one high-priority substance upon the completion of each risk evaluation."4 TSCA Sec. 6(b)(2)(D) directs the Agency to give preference to chemicals "that are listed in the 2014 update of the TSCA Work Plan for Chemical Assessments ["2014 TSCA Work Plan"] as having a Persistence and Bioaccumulation Score of 3," and "are known human carcinogens and have high acute and chronic toxicity."56
Styrene's toxicological profile demonstrates that this chemical should not be a high priority. Specifically, Styrene has a persistence and bioaccumulation score of only 1.7 EPA points to a general hazard category score of 3 in Unit III.B.2. of the Proposed Prioritization, but this general hazard score does not specify that styrene is a known human carcinogen and has high acute and chronic toxicity. 8 It only lists styrene as a probable carcinogen (Group 2A). The Agency for Toxic Substances and Disease Registry ("ATSDR") toxicological profile for styrene
4 See TSCA Sec. 6(b)(3)(C). 5 See TSCA Sec. 6(b)(2)(D). 6 See 2014 update of the TSCA Work Plan for Chemical Assessments. 7 Id. 8 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) J\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024.
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states an "LC50 of 2,770 ppm after 2 hours of exposure was reported in rats, and the LC50 for mice after exposure for 4 hours was 4,940 ppm." Such a toxicological profile indicates styrene does not have high acute toxicity such as required by the statute.9
TSCA Sec. 6(b)(1)(A) stipulates that the "process to designate the priority of chemical substances shall include a consideration of the hazard and exposure potential." 10 Sec. 6(b)(1 )(B)(i) reiterates Congressional direction when it requires EPA to prioritize substances that "may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use."11 In the 2014 TSCA Work Plan, the Agency claims that styrene is "[w]idely used in consumer products," which is inaccurate. 12 EPA acknowledges that styrene is "used predominately in the production of polystyrene plastics and resins" and "as an intermediate in the synthesis of materials used for ion exchange resins and to produce copolymers" on its own fact sheet. 13 Styrene, like other intermediates, is used in closed systems that consume the substance. In this Proposal, EPA is disregarding the exposure component of the risk equation, which runs counter to Congressional intent.
B. EPA focused mostly on hazard, not risk, as a determining factor for the previous prioritization.
Styrene has a robust hazard dataset. In Unit III.A., EPA notes that it "heavily weighted data availability in deciding which chemical substances to include" and that "chemicals ultimately designated as High-Priority Substances for risk evaluation should have a robust data landscape," which penalizes styrene just because it possesses a more full hazard dataset. 14 There are no provisions in TSCA Sec. 6 that direct or authorize EPA to use completeness of hazard data as a criterion for high-priority designation. Focusing on the availability of hazard data is not a risk-based approach to chemicals management because it artificially downplays the potential for exposure. In short, a chemical should not be penalized simply because there is a data rich environment for that chemical.
C. EPA does not demonstrate that the conditions ofuse for styrene present a significant potential for exposure.
In Unit III.B., EPA styrene was reported in 2020 under the Chemical Data Reporting ("CDR") rule, but the Agency does not provide any information on what it found in the CDR to support its claim that the conditions of use for styrene could lead to a significant potential for exposure. 15 Information reported under the CDR rule is general usage information and there is no legitimate reason that EPA cannot aggregate it to support its assertion in the Proposed
9 See ATSDR Tox Profile for Styrene. p. 24. See the International Labour Organization for toxicity classifications. 10 See TSCA Sec. 6(b)(l)(A). 11 See TSCA Sec. 6(b)(l)(B)(i). 12 See 2014 update of the TSCA Work Plan for Chemical Assessments. 13 See EPA fact sheet for styrene. 14 See 89 Fed. Reg. 102907, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) J\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. p. 102905. 15 Id. at 102907.
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Prioritization. EPA should release the data to support the presence of significant potential for styrene exposure if the Agency believes there is one, otherwise styrene should not be deemed high-priority.
IV. Conclusion AFPM has serious concerns about EPA selecting styrene for consideration as a high
priority. The Agency has provided no information to support a finding of significant potential exposure. Further, Styrene is a petrochemical intermediate used in closed systems to make polystyrene and styrene copolymers and is consumed in those chemical processes. The TSCA statutory language is very clear that EPA must demonstrate a potential for exposure that may lead to an unreasonable risk. Styrene also does not have the required persistence, bioaccumulation, and toxicity levels that TSCA requires for consideration as a high-priority chemical. EPA must remove styrene from further consideration so it can concentrate on substances on the TSCA Work Plan that have a higher potential for exposure, that may actually present an unreasonable risk. Sincerely,
James Cooper Senior Petrochemical Advisor
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INITIATION OF PRIORITIZATION UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA)
PRE-PRIORITIZATION OF EXISTING CHEMICAL SUBSTANCES UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA)
Office of Pollution Prevention and Toxics United States Environmental Protection Agency
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS COMMENTS
Attention: EPA-HQ-OPPT-2023-0606
March 18, 2025 Sarah Au Data Gathering, Management, and Policy Division (7406M) Office of Pollution Prevention and Toxics U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460-0001
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I. Introduction
The American Fuel & Petrochemical Manufacturers ("AFPM") respectfully submits these comments on the Environmental Protection Agency's ("EPA" or "Agency") Federal Register notice titled, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA)," to the reopened docket for EPA's "Pre-Prioritization of Existing Chemical Substances Under the Toxic Substances Control Act (TSCA)" ("Proposed Pre-Prioritization"). EPA has reopened the docket and is seeking comment on a list of 22 chemical substances for consideration as candidates for prioritization and subsequent risk evaluation and risk management. 1 These comments address a subset of the list of 22 chemicals, five of which are petrochemicals (aka "petrochemical intermediates") and one, hydrogen fluoride ("HF"), a critical catalyst used in the manufacture of high-octane gasoline.
Specifically, these comments address the following chemical substances' conditions of use by refiners and petrochemical manufacturers: petrochemical intermediates (bisphenol A, mxylene, o-xylene, p-xylene, and bisphenol S) as well as the catalyst critical to the high-octane component of gasoline (HF).2 For the reasons set forth below, AFPM urges EPA to consider these six chemicals as low priorities under TSCA section 6(b):
The five petrochemical intermediates listed above are primarily used as building blocks in closed-loop systems by chemical companies, subject to comprehensive regulations under the Occupational Safety and Health Administration ("OSHA"), Department of Transportation ("DOT"), and other EPA offices, such as the Office of Air and Radiation and the Office of Land and Emergency Management;
The petrochemical intermediates are consumed through chemical reactions and do not exist in any appreciable amount in downstream products;
HF is also used in closed systems by petroleum refineries, and is subject to comprehensive regulations under the OSHA, DOT, and other EPA offices;
The 2014 TSCA Work Plan, High Priority Chemicals Data System ("HPCDS") and other data sources that EPA relied upon for use information in the previous prioritization of these chemicals were technically flawed and incorrect.
II. AFPM Interest in the Proposal
AFPM is the leading trade association representing the manufacturers of the fuels that keep America moving and petrochemicals that are the essential building blocks for organic chemistry, including plastic products that improve the health, safety, and living conditions of humankind and make modem life possible. AFPM members are committed to sustainably
1 See 89 Fed. Reg. 102903, "Initiation of Prioritization Under the Toxic Substances Control Act (TSCA) l\oticc of Availability." EPA-HQ-OPPT-2023-0601; FRL-11581-06-OCSPP, published December 18, 2024. 2 The xylenes listed as potential high priorities are not the same as mixed xylenes and have different conditions of use. The separated xylenes (i.e., meta-xylene, ortho-xylene, and para-xylene) are value added products used to make synthetic fibers, fiber-reinforced polymers, and other specialized materials. Mixed xylenes can be found as ingredients in formulated mixtures, but the separated xylenes generally are not.
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manufacturing safe, high-performing fuels and the petrochemicals and derivatives that growing global populations and economies need to thrive.
AFPM member companies are regulated under TSCA, and their products have been and will continue to be subject to TSCA risk evaluations. In applying TSCA, EPA must analyze the prioritization criteria and use the most accurate information regarding the uses of and potential exposures to chemicals it considers during the pre-prioritization process.
EPA cannot meet its statutory obligations for using the best available science under TSCA section 26(h)(2) unless the Agency considers "the extent to which the information is relevant for the Administrator's use in making a decision about a chemical substance or mixture."3 EPA must also take into account "the likely duration, intensity, frequency, and number of exposures under the conditions of use" (emphasis added).4 If the fundamental information the Agency considers to identify a chemical substance's conditions of use is flawed, then any derivative analyses, such as exposure assessments and risk evaluations, will also be flawed.
EPA must also consider the "best available science" under TSCA section 26(h) in assessing the presence of an unreasonable risk, which means acknowledging the fundamental chemistry involved with petrochemical intermediates. That is, that the petrochemical intermediates do not exist, except in trace quantities, after processing and do not present significant potential for exposure and, therefore, cannot pose an unreasonable risk to human health or the environment.
III. Comments on the Pre-Prioritization for the Petrochemical Intermediates
A. Chemical intermediates generally do not meet the statutory criteria for prioritization.
TSCA requires EPA to "include a consideration of the hazard and exposure potential of a chemical" when prioritizing substances that may be subject to a risk evaluation, but requires assignment of a high priority designation and the start of a risk evaluation only if EPA finds an "unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use."5 In tum, TSCA defines "conditions of use" to include the "circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of."6
As AFPM discusses further below, there are no unreasonable risks because there are no reasonably foreseeable routes of exposure. Intermediate chemicals are used in closed-loop processes where they are consumed when transformed into another chemical substance. In all cases, petrochemical intermediates should be considered a low priority under the statute.
3 See 15 USC~ 2625(h)(2). 4 See 15 USC~ 2605(6)(4)(F)(iv). 5 See 15 USC 2605(6)( 1)(A) and 15 USC ~ 2605(6 )(l)(B)(i). 6 See 15 USC 2602.
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B. Petrochemical intermediates are critical to American manufacturing.
Petrochemical intermediates are near the top of the manufacturing supply chain and a critical first step for thousands of different products. Most manufacturing processes depend on chemical reactions and start with one or more of a very small number of chemical substances called base petrochemicals. AFPM members manufacture six base chemicals, including: ethylene, propylene, butylenes (also known as olefins) and benzene, toluene, xylenes (also known as aromatics).
From these base petrochemicals, literally thousands of other chemical substances and products can be made through a series of chemical reactions. For example, in the petrochemical derivative manufacturing process, take p-xylene (a base petrochemical) and react it with oxygen to make terephthalic acid. React that terephthalic acid with ethylene glycol (made from ethylene and water) creating polyethylene terephthalate ("PET"). The original base chemicals are transformed into new materials in this process. PET is a polyester, like the fiber found in fleece jackets, golf shirts, and running shoes. PET is also used to make water bottles. PET is fully recyclable, and chemists can actually use advanced recycling techniques to return PET to its original building blocks so it can be recycled over and over again with little degradation.
Of course, the chemistry is technically more complex than this simplified version, but it all starts with base petrochemicals that serve as the building blocks to make thousands of products we see and use every day. Just about everything that isn't glass, rock, or steel starts with one or more of these six base petrochemicals.
Base petrochemicals and their first derivatives are primarily used as intermediates to make other chemical substances and are typically not seen outside of a closed container or process unit in a tightly controlled manufacturing facility. Many second derivatives are also intermediates. Those petrochemicals and derivatives may have other uses, but those other uses typically represent fractions of the total production volumes.
Petrochemical intermediates are used in chemical reactions to attach functional groups of atoms to another molecule, or they serve as monomers (molecules that can link up like a chain) to make a polymer (i.e., plastic material). In either case, the original petrochemical intermediate is consumed in the process to make the other molecule or to make the polymer. When this happens, the petrochemical intermediate no longer exists when it is transformed into the new substance, so it is only present in trace amounts in any of the subsequent chemical substances, polymers, or downstream products that result from the chemical reactions or other manufacturing processes. Importantly, the concentration levels of these petrochemical intermediates are negligible in terms of risk, which is why EPA has traditionally provided exemptions for de minimis levels.
To be clear, the term "intermediate" does not apply to ingredients or material components of products because only trace amounts of the original molecule (i.e., the intermediate) exist after it is transformed during the chemical reaction.
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C. Accidental releases ofchemical intermediates should not be considered in TSCA risk evaluations.
Intermediates are used to make other chemical substances, and they are stored in closed containers and transferred by attached hoses or pipes from the closed container to a closed process unit. This creates a closed-loop system, so in these scenarios the intermediates are also referred to as "closed-system" intermediates. The only way that a person could be exposed to a closed-system intermediate is from an accidental release or spill of the substance which is not a condition of use to be considered under TSCA.
AFPM is not alone in this view. EPA stated, on May 3, 2024, "where exposures from future releases of a chemical substance are unsubstantiated, speculative or otherwise not likely to occur (e.g., a future one-time accident involving the chemical substance that could be caused by an atypical one-time set of circumstances), EPA would generally not assess them as part of a risk evaluation."7 This statement by EPA, coupled with the facts of petrochemical intermediate manufacturing and use practices, should render these substances low priorities under TSCA.
Accidental releases should not be considered in TSCA risk evaluations, let alone prioritizations, because the risk equation under TSCA does not contain the required probability functions (i.e., frequency, duration, and magnitude of accidental release). Risk under TSCA is derived from the margin of exposure ("MOE"), expressed as the ratio of the no-observedadverse-effect level ("NOAEL") obtained from animal toxicology studies to the dose given or an estimate of concentration from an exposure model. The models used to evaluate the risks of accidents, like under EPA's Risk Management Program ("RMP") are totally different than the models used to do risk evaluations under TSCA. Additionally, the duration and magnitude of exposure in accident scenarios varies from scenario to scenario and are not predictable without a rigorous analysis of past releases that are germane to the scenario under study. The MOE equation and risk evaluation methods used for TSCA Sec. 6 do not fully account for these parameters and functions. For all these reasons EPA should not consider accidental releases in TSCA risk evaluations.
D. The sources EPA depended on for exposure information during the previous preprioritization and prioritization are misleading and, in some cases, incorrect.
EPA relied on two primary sources of use information for the previous pre-prioritization and prioritization of chemicals for risk evaluation under TSCA: (1) data reported under the Chemical Data Reporting ("CDR") regulations, which forms the basis of the uses identified in the 2014 TSCA Work Plan, and (2) the HPCDS. Both of these sources are flawed when applied to petrochemical intermediates because they do not often discern between an intermediate used to make a product and an ingredient or material component made from the intermediate that is used in a product -- there are also cases where those sources do not distinguish between a monomer and a polymer. In addition, and maybe more importantly, EPA disclaims the reliability
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of the CDR as a valid information source due to troubles with the information collected in those years.
For example, the 2020 CDR data reports styrene in the following manner: 8
Type of Process or Use Operation: Processing-incorporation into formulation, mixture, or reaction product
Industrial Sector: Adhesive Manufacturing Industrial Function Category: Adhesives and sealant chemicals
Styrene block copolymers, which are polymers made with alternating monomer units (like styrene and butadiene), are used in adhesives, not styrene itself. Styrene is very reactive and is only used as a monomer to make the block copolymers found in adhesives. Styrene block copolymers are not styrene.
The same 2020 CDR data also report styrene in the following manner: 9
Type of Process or Use Operation: Processing-incorporation into formulation, mixture, or reaction product
Industrial Sector: Plastics Material and Resin Manufacturing Industrial Function Category: Paint additives and coating additives not described
by other categories
This example also demonstrates the limitations of CDR information because styrene is used to make styrene/acrylic copolymer binders for paint. Styrene/acrylic copolymers are not styrene.
To further highlight the limitations of CDR information used for the most recent prioritization designations, below is an example found in EPA' s supporting document for the designation of vinyl chloride as a high-priority substance:
"It is difficult to discern whether there are significant changes in conditions ofuse for vinyl chloride based on reported information to CDR in 2016 and 2020 because guidance regarding the reporting ofcategories and subcategory information was updated between these periods. This update may have resulted in the use information being reported differently in 2020 compared to 2016, possibly leading to inaccurate implications that some uses may have commenced or ceased in recent years. "10
The CDR lists a category of use for vinyl chloride as "Incorporating into formulation, mixture or reaction product" and the corresponding subcategory as "Binder in plastics material
8 See EPA's ChemView database for CDR information. 9 Id. 10 See "Proposed Dcsig ation of Vinyl Chloride as a High-Priority Substance for Risk Evaluation." EPA Document # EPA-740-P-24-002, published July 2024. p. 17.
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and resin manufacturing."11 Vinyl chloride is a gaseous substance and does not "bind" anything. Vinyl chloride is a monomer used to make copolymer binders. Those binders are not vinyl chloride. The vinyl chloride is polymerized with another monomer (hence, the term "copolymer"). The copolymers have different molecular structures than vinyl chloride.
The CDR also lists a category of "Incorporating into articles" with a subcategory of "Wire and cable in primary metal manufacturing."12 In addition, the CDR has a category of "Building/construction materials not covered elsewhere" and subcategory of "Cable and wire manufacturing."13 Polyvinyl chloride ("PVC") is used in coatings for wire and cable, not vinyl chloride. Vinyl chloride is a gas and will not coat metal. The CDR lists vinyl chloride as a binder under the category "Plastic and rubber products not covered elsewhere."14 As mentioned above, vinyl chloride is used to make binders, but it is not a binder itself.
Another example can be found in EPA's supporting document for designation of acetaldehyde as a high-priority substance. 15 In the case of acetaldehyde's relationship to glue and adhesives highlighted in the document, it is an intermediate used to make polyvinyl acetate ("PVA"). PVA is what is used in the glue and adhesives CDR category, not acetaldehyde. The acetaldehyde is consumed in the process that makes the PVA, so acetaldehyde is not "used" in the glue and adhesives. To further complicate the matter, polyvinyl acetate is used to make polyvinyl alcohol (via hydrolysis of the acetate), both of which use "PVA" as an acronym. Polyvinyl alcohol is what is used in certain paper manufacturing processes, not polyvinyl acetate, and certainly not acetaldehyde. 16
As with vinyl chloride, EPA also acknowledges the shortcomings of CDR data for designation of acetaldehyde as a high-priority chemical. In the Agency's supporting document, EPA acknowledges that the functional use of a chemical wasn't even reported to the CDR until 2020. 17
EPA did incorporate subcategories of use (i.e., functions) and revise its CDR reporting guidance between the 2016 and 2020 reporting periods, but it appears that the guidance is still confusing to some reporters because instead of acetaldehyde being "used" in "paint and coatings," as reported in 2016, it is now reportedly being "used" in "construction and building materials covering large surfaces" (i.e., paint and coatings). 18 The CDR also lists acetaldehyde as an "intermediate in single component glue and adhesives," in "food, beverage, and tobacco product manufacturing," and in "packaging.. .including paper articles."19 The intermediate is not found in those products in any appreciable amounts because it is transformed into PVA, which is
11 Id. at 18. 12 Id. 13 Id. 14 Id. 15 See "Proposed Dcsig ation of Acctaldehyde as a Ili 6h-Priority Substance for Risk Evaluation." EPA-740-P-24003, July 2024. 16 Id. at 15. 17 Id. at 16. 1s Id. 19 Id. at 17.
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a totally different chemical substance. Acetaldehyde is consumed in the process to make PVA. In other words, PVA is used in those products, not acetaldehyde.
These are just three examples that demonstrate the limitations and potential inaccuracies of the CDR as a source of exposure information that the Agency used to create its 2014 TSCA Work Plan and currently uses to designate chemicals as high priorities for risk evaluation under TSCA. These same limitations would apply to the five chemicals AFPM has identified as essential petrochemical intermediates.
The HPCDS is a database of children's products that purportedly "contain" chemicals reported by manufacturers of children's products to the states Oregon and Washington. The HPCDS does not distinguish between ingredients and intermediates. It is not a reliable source for information on materials or the chemicals that make those materials because the use categories are very vague. For example, the HPCDS categorizes Acrylonitrile among "Synthetic Polymers" and "Textiles." Acrylonitrile is not a synthetic polymer; in fact, it is not a polymer at all. Similarly, in EPA's supporting document for designation of acrylonitrile as a high-priority chemical, the Agency relied on the HPCDS to claim that acrylonitrile is used in consumer products, including those intended for children.20 One of the categories of uses for acetaldehyde that the HPCDS lists is "toys, games, blankets, jewelry, and clothing."21 Again, the HPCDS uses generic descriptions for acetaldehyde, such as "Synthetic Polymers" or "Textiles." Acetaldehyde is not a synthetic or any other kind of polymer.
The HPCDS does not acknowledge the difference between a monomer and polymer or intermediate and ingredient. Therefore, the HPCDS cannot be considered a valid source for chemicals found in products. These same limitations would apply to the five chemicals AFPM has identified as essential petrochemical intermediates.
IV. Comments on Hydrogen Fluoride
AFPM notes that, due to its inherent properties, unmitigated HF exposure may cause immediate, adverse effects, which is why AFPM members use it in closed systems that are tightly regulated under EPA, OSHA, and DOT. In fact, EPA already regulates accidental releases of HF under RMP Part 68.22
HF is used by AFPM members as a catalyst in the alkylation processes at petroleum refineries, allowing them to make the high-octane components of cleaner burning gasoline. The alkylation processing units, storage units, and transfer units employ engineering controls to negate an unreasonable risk of injury from being present under its foreseeable conditions of use.
Baker Risk, a globally recognized risk management company, recently quantified the lifetime risk of sustaining a life-threatening injury from HF use at refineries at 1 in 52 million (this was using a similar methodology to the National Safety Council).23 Besides federal
20 See "Proposed Dcsig ation of Ac ylonitrilc as a High-Priority Substance for Risk Evaluation." EPA Document# EPA-740-P-24-004, July 2024. p. 17. 21 Id. 22 See 40 CFR Part 68. 23 Refine y Provision in House Energy Bill :vfakcs Good Safe y Sense I RcalClearEncrgy
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requirements, AFPM members properly manage the risk of HF acid through industry recommended practices such as API 751. Even though the publication of the 4th Edition24 resulted in the number of HF incidents decreasing by one-third of the previous rate, the 5th Edition in 2021 included a special-emphasis inspection program to inspect all carbon steel components for five HF corrosion zones.
Due to its conditions of use as a catalyst in closed-loop alkylation units and the comprehensive regulatory and other regimes that prevent exposure (and reduces the potential of accidental release), EPA should categorize HF as a low priority for risk evaluation under TSCA.
V. Conclusion AFPM appreciates the opportunity to comment on this Proposed Pre-Prioritization.
Petrochemical intermediates are not ingredients or material components of products; rather, they are used in closed systems to make other chemicals and are consumed in the process when they are transformed into another chemical substance. There is negligible potential for exposure. HF is also a chemical used in closed systems with negligible potential for exposure. AFPM strongly urges EPA to designate petrochemical intermediates and HF as low priorities for risk evaluation under TSCA. Sincerely,
James Cooper Senior Petrochemical Advisor
24 API 751 - 4th Edition (2013) - Safe Operation of Hydrofluoric Acid Alkylation Units, Section 6.2 Mitigation Systems.
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essage
Chaitovitz, Chuck [CChaitovitz@USChamber.com] 3/14/2025 5:23:24 PM Dekleva, Lynn [dekleva.lynn@epa.gov] Merrifield, Trevor [TMerrifield@USChamber.com]; Varcoe, Andrew [AVarcoe@USChamber.com]; Beard, Preston [PBeard@USChamber.com]; cwhiteman@uschamber.com; Tyler, Tom [Tyler.Tom@epa.gov]; Reaves, Elissa [Reaves.Elissa@epa.gov] TSCA 8(a)7 submission extension request coalition letter ttachments:250314USCC_Coalition_TSCA8a7extension_EPA.pdf
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Dear Dr. Dekleva: Hope all is well. Attached is our TSCA 8(a)7 reporting and recordkeeping rule submission extension request coalition letter for your consideration. Please let me know if you have questions or concerns. Perhaps we can arrange a follow-up discussion during the coming weeks? Thanks in advance, and enjoy the weekend, Chuck
Chuck Chaitovitz Vice President, Environmental Affairs and Sustainability U.S. Chamber of Commerce 202-463-5316 (Phone) 202-680-8578 (Cell) cchaitovitz@uschamber.com http://www.uschamber.com For The Pursuit
U.S., Chamber of Gornmerce
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March 14, 2025
Dr. Lynn Dekleva Office of Pollution Prevention and Toxics Environmental Protection Agency 1200 PennsylvaniaAve. NW Washington, DC 20460-0001
RE: Extension of Reporting Submission Period; Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) Data Reporting and Recordkeeping Under the Toxic Substances Control Act (TSCA); Change to Submission Period; EPA-HQ-OPPT-2020-0549
Dear Dr. Dekleva:
The undersigned organizations urge you to extend the submission date for the Toxic Substances Control Act 8(a)7 Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) by at least an additional six months - after the beta testing of the application has completed, the application has been made public, and clear agency guidance is published.
EPA has previously determined that the resources and technical capability to effectively execute the requirements of the rule were not practically in place, and accordingly, extended the submission period start date from November 12, 2024 to July 11, 2025. 89 Fed. Reg. 72,336 (Sept. 5, 2025). These facts persist and should compel the agency to act immediately to grant additional compliance time while the agency addresses unresolved implementation challenges.
This extension will also allow EPA to thoroughly consider initiating a new rulemaking that executes needed changes to this TSCA reporting rule before regulated entities make significant expenditures building compliance plans. In a letter earlier this year to Administrator Zeldin1, we recommended that EPA modify the rule to reduce the burden on businesses by recognizing that the rule's broad and somewhat unprecedented data collection approach is unnecessary to meet TSCA's statutory requirements. EPA should provide a phased, two-tiered system that acknowledges the value of collecting data from major sources, reconsiders the need for information from small business and other insignificant data, and offers initial exemptions consistent with other TSCA reporting requirements. These important changes will reduce the potential cost burden, especially on small businesses.
1 https://www.uschamber.com/e nvi ronm ent/bu si ness-coa lition-on-pfas-pri nci ples-policy-recom m endations
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We welcome the opportunity to present these concepts in person and look forward to working with you and your team as this issue proceeds.
Sincerely,
Alliance for Automotive Innovation Alliance for Chemical Distribution American Apparel & Footwear Association American Chemistry Council American Coatings Association American Fuel & Petrochemical Manufacturers American Petroleum Institute Associated General Contractors ofAmerica Fluid Sealing Association Fuel Cell & Hydrogen Energy Association National Asphalt Pavement Association National Association of Manufacturers National Council of Textile Organizations National Mining Association The Chlorine Institute The Fertilizer Institute TRSA - The Linen, Uniform and Facility Services Association U.S. Chamber of Commerce
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Message
From: Sent: To: Subject:
Dekleva, Lynn [dekleva.lynn@epa.gov] 3/11/2025 10:10:09 AM Holm, Stewart [Stewart_Holm@afandpa.org] Re: Congratulations!
Thanks so much!
Get Outlook for iOS
From: Holm, Stewart <Stewart_Holm@afandpa.org>
Sent: Monday, March 10, 2025 3:51:33 PM
To: Dekleva, Lynn <dekleva.lynn@epa.gov>
Subject: Congratulations!
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Lynn, I just want to say congratulations on your EPA position. I am delighted that you wanted to return to EPA and I believe your service will greatly benefit the world of new chemicals and the multitude of other issues you are involved in. I hope to see you sometime in a more informal setting once you have a chance to breathe.
Take care,
Stewart
Stewart E. Holm Chief Scientist Stewart_holm@afandpa.org Office: (202) 463 - 2709
AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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Dekleva, Lynn [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =46422A1F601E4F77AC7FD488AAC09F3C-E B1853F3-2A] 3/14/2025 2:24:10 PM Beard, Preston [PBeard@USChamber.com]; Smith, Matthew [msmith@USChamber.com]; Tyler, Tom [Tyler.Tom@epa.gov]; Altieri, Sonia [Altieri.Sonia@epa.gov]; Malloy, Ruth [malloy.ruth@epa.gov]; Parker, James [Parker.James.L@epa.gov]; Kaiser, Sven-Erik [Kaiser.Sven-Erik@epa.gov] RE: USCC Chemistry Solutions Working Group Registration Report/ 69 Sign Ups
Perfect. Thank you!
From: Beard, Preston <PBeard@USChamber.com> Sent: Friday, March 14, 2025 10:23 AM To: Dekleva, Lynn <dekleva.lynn@epa.gov>; Smith, Matthew <msmith@USChamber.com>; Tyler, Tom <Tyler.Tom@epa.gov>; Altieri, Sonia <Altieri.Sonia@epa.gov>; Malloy, Ruth <malloy.ruth@epa.gov>; Parker, James <Parker.James.L@epa.gov>; Kaiser, Sven-Erik <Kaiser.Sven-Erik@epa.gov> Subject: RE: USCC Chemistry Solutions Working Group Registration Report/ 69 Sign Ups
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You're absolutely right. I have teed up the group to answer how they feel about these questions. Just wanted to give you a heads up.
Preston Beard
Director of Policy, Global Energy Institute
202-280-9585 IPBeard(ii:uschambcr.com IGlobal Energy Institute IU.S. Chamber of Commerce
From: Dekleva, Lynn <dekleva.lynn( ~Q~:KQY.> Sent: Friday, March 14, 2025 10:19 AM To: Beard, Preston <PBeard@lUSCharnber.com>; Smith, Matthew <msrnith(wUSCharnber.com>; Tyler, Tom
<Iyler.Tom@e_r2.9._,_g_Qy>; Altieri, Sonia <Altieri.Sonia@e129..:.gg_y:>; Malloy, Ruth <malloy.ruth@~Q~:KQY.>; Parker, James <Pa rker.Jarnes. L@e.129..:.g_9_y:>; Kaiser, Sven-Erik <Kaiser.Sven-Erik@_~9..:.gg_y:> Subject: RE: USCC Chemistry Solutions Working Group Registration Report/ 69 Sign Ups
: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Preston, My understanding was this was a listening session for EPA to hear from the Chamber and that EPA would not be sharing information. Regards Lynn
From: Beard, Preston <PBeard@USCharnber.com> Sent: Friday, March 14, 2025 10:14 AM To: Smith, Matthew <msrnith@USCharnber.com>; Dekleva, Lynn <dekleva.lynn@~.Q9..:.gg__y>; Tyler, Tom <Tyler.Tom@_~_,_g_Qy>; Altieri, Sonia <Altieri.Sonia@~9..:.gg_y:>; Malloy, Ruth <malloy.ruth@epa.gov>; Parker, James <Parker.James.L@epa.gov>; Kaiser, Sven-Erik <Kaiser.Sven-Erik@epa.gov> Subject: RE: USCC Chemistry Solutions Working Group Registration Report/ 69 Sign Ups
ED_0 18475D_ 00003083-00001
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I wanted to pass along some initial thoughts on the conversations
1. Implementation and Compliance of Recent HON and TSCA Rules
o
How does EPA plan to implement recent HON and TSCA rules, and are any modifications
anticipated?
o
Given lead times and compliance costs, how should industry navigate uncertainties in
requirements and timeframes?
2. TSCA Risk Evaluation Framework Rule & Stakeholder Engagement
o
Will the court grant EPA's voluntary remand of the Risk Evaluation Framework Rule before the
March 21 oral argument deadline?
0
What is the timing for withdrawing and reproposing the rule?
0
Will EPA engage stakeholders in discussions about potential changes?
0
change?
What aspects of the framework rule and ongoing risk evaluations are being prioritized for
3. TSCA Section 5: Addressing the Backlog & New Chemicals Review
o
How does EPA plan to address the backlog of new chemical submissions while supporting the
administration's goal of domestic manufacturing?
o
What steps will EPA take to improve predictability in the new chemical approval process?
o
How will Consent Orders and Significant New Use Rules (SNURs) be handled?
o
Can we expect an increase in non-5(e) SNURs or a reduction in time between signed Consent
Orders and published SNURs?
o
Is EPA considering re-writing the newly finalized New Chemicals Rule?
4. PFAS Framework & Guidance
o
Will EPA consider removing the PFAS framework?
o
If not, will EPA provide specific guidance on key framework elements, such as defining
'negligible' exposure?
5. Risk Evaluations & Management Rules
0
Will there be changes to pending or recently finalized risk evaluations?
0
Should we expect modifications to final risk management rules, or will EPA focus on future
evaluations?
6. Exposure Assessments: Worker, Air, and Water Risks
o
What is EPA's approach to evaluating worker exposures? Will it continue setting ECELs or
other exposure levels?
o
How will EPA address air and water exposures under TSCA?
0
offices?
Will EPA revert to the previous policy of leaving air and water assessments to other EPA
Preston Beard
ED_0 18475D_ 00003083-00002
Director of Policy, Global Energy Institute
202-280-9585 IPBeard(ii:uschambcr.com IGlobal Energy Institute IU.S. Chamber of Commerce
From: Smith, Matthew <msmith@USCharnber.com> Sent: Friday, March 14, 2025 9:57 AM To: dekleva.lynn@e..Q~.:.gQ.,Y.:; Tyler, Tom <Tyler.Tom@~Q~:.RQY_>; Altieri.Sonia@ef2E.:.R9_\!.; malloy.ruth@~Q~:.RQY; Parker.J arn es. L@e_Q_~.:KQ.y; Kaiser. Sven -Erik@e.Q~_,_gg_y Cc: Beard, Preston <PBeard@USChamber.com> Subject: USCC Chemistry Solutions Working Group Registration Report/ 69 Sign Ups
Mark KANDY Shelly Nick Jill Jeff Brian Beth Suzanne Paul
James
Gerald Ian Ben Marie Lorraine Jennifer Reagan Cynthia Mark
Bacchus BECKNER Bravard Breslin Brubaker Bruening Callahan Carruthers Chang Coleman
Cooper
Couri Davis Gann Gargas Gershman Gibson Giesenschlag Graham Hamlin
Toyota Motor North America, Inc. Occidental Chemical Corp Huntsman ACD American Chemistry Council Huntsman Alliance For Chemical Distribution Huntsman International, Inc. American Coatings Association Huntsman American Fuel & Petrochemical Manufacturers AFPM Oxy Oxy American Cleaning Institute (ACI) Daikin America Alliance for Chemical Distribution The Fertilizer Institute Huntsman LLC Occidental Chemical Corporation
ED_0 18475D_ 00003083-00003
Mark Stewart Sara Lisa Ryan Danielle James Jeff Michael Carolyn Rayna Jason Doug Jason Bruce Colleen James Kari Deana Richard Amy Bryant Kathleen Christopher
Herwig Holm Hopper Jackson Jackson Jones Kim Kovacs Krugman Kupper Laiosa Larrabee Leigh Leuck Linderman Litkenhaus Matheson Mavian McRae Moynihan Neal Newell O'Keefe Ostman
RTX Corporation American Forest & Paper Association Corteva Agriscience Emerson American Chemistry Council American Petroleum Institute American Cleaning Institute ExxonMobil Product Solutions The Estee Lauder Companies Boeing Chemours Chevron Alliance for Chemical Distribution (ACD) Lockheed Martin IWLA Dow LiquidPower Specialty Products Inc. Dow Johnson & Johnson RiverStone Emerson ExxonMobil Chemours Occidental Chemical Corporation
ED_0 18475D_ 00003083-00004
Keith Analisa Drew Jennifer
Mallory
Denise Anna Dan Kevin Desiree Darius Gulan Chip Derek Nick Alex Dereke Vittoria Lori Robert Jason William Lu
David
Petka Puzzanghero Rak Reid
Richardson
Roesh Romanovsky Selechnik Sheridan Solomon Stanton Sun Swearngan Swick Tindall Tobia Tsao van Blommestein Vosefski West Williamson Wilson Yu
Ailor
American Petroleum Institute Alliance for Chemical Distribution Toyota Motor North America Koppers National Association of Manufacturers Chevron Boeing American Cleaning Institute Westlake Corporation Emerson American Cleaning Institute Motiva Enterprises LLC Westlake Corporation Oxy AEM Spirit AeroSystems Huntsman Chemicals Ltd. ACI Toyota Motor Manufacturing Huntsman Westlake Corporation Motiva Enterprises LLC Phillips 66 American Coke and Coal Chemicals Institute
ED_0 18475D_ 00003083-00005
Matthew Smith Coordinator, Global Energy Institute msmith(Cl{uschambcr.com (202) 961-6821
U.S. Chamber of Commerce
ED_0 18475D_ 00003083-00006
Message
From:
Sent: To: Subject: Attachments:
Dekleva, Lynn [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =46422A1F601E4F77AC7FD488AAC09F3C-E B1853F3-2A] 3/4/2025 2:57:10 AM Leopold, Matt [MLeopold@hunton.com] Follow up MYPESTlntroJanuary2025.pdf
Matt, OPP has provided some information on Sharda's submission for the MyPest App. It appears that they requested access for two organizations on 21-Feb-2025. An email was sent back requesting additional information because the agent was not identified as the official Sharda contact in EPA's database. Attached is information to apply for MyPest, pages 12-13 is most relevant for Sharda's situation. If additional assistance is needed, Sharda can contact Dan Schoeff at schoeff.daniel@epa.gov. Regards Lynn
Lynn Dekleva Deputy Assistant Administrator Environmental Protection Agency Office of Chemical Safety & Pollution Prevention (7101M) 1200 Pennsylvania Avenue, NW Washington, DC 20004 dekleva.lynn@epa.gov (202) 564-7037 (office) (202) 848-2532 (cell)
ED_018475D_ 00003084-00001
ED_0 18475D_ 00003085-00001
THANK YOU INDUSTRY WORK GROUP
MEMBERS
American Chemistry Council Center for Biocide Chemistries
ISSA-The Worldwide Cleaning Industry Association
Lisa Amadio, Ramboll
Howard Bochnek, Sr. VP American Infection Control, Inc
Rebecca Mannion, Scientific & Regulatory Consultants, Inc. Animal Health Institute Johnna Bridges, Elanco US Inc. Biological Products Industry Alliance Megan Priest, Delta Analytical Wes Marchione, Corteva Agriscience, Croplife America
RISE (Responsible Industry for a Sound Environment)
Kristen Cianni, Atticus Edward Duncan, Valent
PRIA Coalition
Kristen Spatz, RISE Hannah Alleman, ACC Center for Biocide Chemistries
Monty Dixon, Syngenta
Tais Huber, Adama
Council of Producers and Distributors of Agrotechnology
Jayne Walz, Helena Agri-Enterprises, LLC
Jeremy Malone, Spring Regulatory
Household and Consumer Products Association
Lisa Amadio, Ramboll
Tom Lennan, MGK
ED_0 18475D_ 00003085-00002
APPLICATION EXPERIENCE ROADMAP
PHASE 1-3: DEPLOY APPLICATION/CASE MANAGEMENT DASHBOARD PHASE 4+: DEPLOY END TO END APPLICATION EXPERIENCE
Ql-2 24
Q3-4
125
1- 4
SCOPING
Internal and External meetings held to gather baseline requirements
January 2024
June 2024
REQUIREMENTS GATHERING
External Stakeholder Requirements gathering continues
Established Weekly Portal Workgroup with all trade organizations August 2024
Demo wireframes and begin active development of Phase 1
PHASE 1-3 DEPLOYMENT
Stakeholder Demo, Customer Registration and Dashboards Vl Deployment January 17, 2025
Post-launch focus groups and training February 2025
PHASE 3-4 DEVELOPMENT & DEPLOYMENT
Portal Workgroup Sessions for Design and Business Needs from OPP and Industry
Q1-Q3: Dashboard V2, V3
Q4 2025: Phase 4+ Development
ED_0 18475D_ 00003085-00003
APPLICATION EXPERIENCE PAST, CURRENT, FUTURE
ED_0 18475D_ 00003085-00004
JANUARY MYPEST DEPLOYMENT
CREATE USERNAME AND ROLE CHAT
PENDING APPLICATIONS APPLICATIONS
ROLE MANAGEMENT
ED_0 18475D_ 00003085-00005
CUSTOMER EXPERIENCE: MYPEST APP
NO CHANGES TO CDX ALL Submissions Still Go Through CDX
THE SUBMISSION OF APPLICATIONS AND DOCUMENTS RELATED TO PESTICIDE
ACTIONS/APPLICATIONS/SUBMISSIONS WILL REMAIN VIA CDX, NOT IN MyPEST
ED_0 18475D_ 00003085-00006
CUSTOMER EXPERIENCE: MYPEST APP
Transparency and Visibility
Pursuant to requirements in PRIA 5, MyPest App seeks to provide accurate, up to date information about pesticide applications.
It is not expected to directly impact the time it will take to complete pesticide applications
ED_0 18475D_ 00003085-00007
CUSTOMER EXPERIENCE: MYPEST APP
Each Company Must Establish a Company Ai:lmin in MyPest
No one in your organization will be able to view information in the MyPest App until a Company
Admin is established
A user guide has been distributed, will be available on the website, and support is available to help your org establish a
Company Admin
ED_0 18475D_ 00003085-00008
CUSTOMER EXPERIENCE: PROJECTED COMPLETION DATE
What IS and IS NOT the Projected Completion Date?
OPP created the Projected Completion Date in response to registrant requests
The projected completion date: IS NOT a new PRIA Date IS NOT a negotiated date IS NOT a reason to call/email the RM/PM IS NOT permanent (may be further updated) IS a work in progress - target date is February 1 to have 100% of cases populated for AD & RD
*BPPD will work towards getting PRIA actions populated by Feb 1, focusing first on new Als, new products and uses, then will work on other PRIA actions, which may go past Feb 1
IS an RM/PMs best current estimate IS an effort by OPP to provide additional regulatory certainty to registrants IS dependent on changes from the Science Teams/Divisions
ED_0 18475D_ 00003085-00009
GLOSSARY FOR MYPEST APP
Company Ad min (CA): New role to manage company roles and perm1ss1ons Company Representative (CR): New role to handle day to day registration activities for all company applications Consultant: New role to handle limited registration activities as authorized by the CA Customer Experience (MyPest, MyPest App): New web view to allow real time tracking of company application information AFTER submission via CDX
ED_018475D_00003085-0001 0
CREATE A LOGIN FOR MYPEST
Create a Username and Password Request a Role Company Admin Company Rep Consultant ALL ROLES ESTABLISHED PER EPA COMPANY NUMBER
ED_018475D_00003085-00011
COMPANY ADMIN ROLE
Rights and Permission setting for the Organization is performed by the Company Ad min (CA)
Minimum of 1 CA- May have 1+
CA Approves Role Requests
CA Performs Role Management (promotion, demotion, approval, rejection)
CA may be an employee of the organization OR an outside agent/consultant (likely in the case of a small company or foreign organization)
Company Admin Establishment Request Role and Upload Authorization Letter
Company Letterhead, Signed by Authorizing Official (c-suite level company official)
EPA Ad min Verifies the Following
Does email domain match Organization? AND
Does Name match Company Contact in OPP Database?
If no to either 1 or 2, submit letter via CDX for the organization for additional verification
ED_0 18475D_ 00003085-00012
CDX SUBMISSION INSTRUCTIONS IF REQUIRED FOR YOUR ORGANIZATION
Login to CDX Pick Appropriate Organization Click on Registration Review Click on "Non-DCI Data Submission" Use Case 6041 [Meat Mea I] Title Document Exactly as Specified Below:
[Company Number][Company Name]Mypest Company Admin.[doctype] E.g. "99999 CDX Test Company Mypest Company Admin.pdf"
ED_0 18475D_ 00003085-00013
COMPANY REPRESENTATIVE AND CONSULTANT ROLES
Company Representative View all applications View all pending applications View Company Activity *March Deployment: View product info, ingredient info, chat for Company
Consultant View pending applications matching CDX
submission email and MyPest user email
View Applications as authorized by CA
View Pending Applications as authorized by CA
*March Deployment: View product info, ingredient info, chat as authorized by CA
APPLICATIONS
All Applications Regardless of Status
Open and Closed Applications
Limited information
No Click-through for more details
*March Deployment: View product info, ingredient info, additional case details with click-through to details page
0 Applications,
Ca$e Number
867530
Product Name
e~~Zap eooox
51:9825 .,,--u-_,._,.,..,__,,
~K-r-..l..litol Xtrcrrn: ~~
460029
Krn zyja l<J~s Bus_ B Gone
Status In Progrnss Technical Review
Sc aent ifie Review
98730~3 ,_,___,,, .....,_,,,..,,"'.,~--,
Let'h:?tl Dosu ..............,,.,.,.,.,~,--,--
In Progress
___ V1(;!WAll _,......,,,,_.....,_._,
Due Date 10/10/2024 06/22/2024 07/29/2()24 09/25/2024
ED_0 18475D_ 00003085-00015
Pending Applications
Product Name: Epsllonion Case Number: 00613429 Case Subject: A635 Status: Science Review
Product Name: Gamma Oil Case Number: 00613427 Case Subject: 19276.0 Status: Public Participation
Product Name: Alpha Beta Case Number: 00613425 Case Subject: 8641.0 Status: Post-Science Regulatory
Product Name: Chem Z1 Case Number: 00613423 Case Subject: A535 Status: Technical Screen
Product Name: Chem Z Case Number: 00613421 Case Subject: A470.1 Status: Post-Science
PENDING APPLICATIONS
Applicatlon Date:2024-0629 Start Daite:2024-07-20 Original Due Date:2026-01-21 Project Completion Date: -
Application Date:2024-06-13 Start Oate:2024-07-04 Orlglnal Due Date:2027-01-04 Project Completion Date:-
Application Date:20240321 Start Date:2024-04-11 Original Due Oate:2026-05-12 Project Completion Date: -
Application Date:2024-0803 Start Date:2024-08-24 Original Due Da:te:20250224 Project Completion Date:-
Application Dete:2024-06-16 Start Oate:2024-07-07 Origins.I Due Da:te:202411 07 Project Complatlon Date:-
View all allowed pending applications based on role
Additional details such as Start Date, Status, and Projected Completion Date
No Click-through functionality for January release
*March Deployment: View product info, ingredient info, additional case details, and case chat
Status Values: Front-end Processing, Technical Screen, Science Review, Post-Science Regulatory, and Public Participation
ED_O18475D_ 00003085-00016
ROLE MANAGEMENT AND CHATTER BASICS
Admin Activities/CA Role Management
Sponsor a new CA, Company Representative, or Consultant
Approve or Reject Role Requests for Company
Chat
Not available in January!
March release will enable case click-through and Case level chat/communication!
ED_0 18475D_ 00003085-00017
CHAT: WHAT IT IS AND IS NOT
Chat IS:
Available starting March 21! A way to communicate with OPP staff about applications A good replacement for emails A better way to associate communication with specific pesticide applications/requests A better way to track communication over time regardless of the person
Chat IS NOT:
Available in January!
Instant Messaging - treat it like you do email, e.g. official communication to OPP A Chat Bot - no instant response from a person or a chat bot Live connection to OPP staff
ED_0 18475D_ 00003085-00018
Whitfield, Peter [pwhitfield@sidley.com] 3/6/2025 6:41:51 PM Dominguez, Alexander [dominguez.alexander@epa.gov] ubject:RFS Compliance Deadline Issue
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Alex, Just wanted to alert you to an issue a number of my clients are battling re: RFS compliance deadline. As you know, EPA issued a proposed rule to adjust the cellulosic volumes in December and indicated that the Mar. 31 compliance deadline would be extended. Since that proposed rule has not been finalized, a lot of clients are worrying about potential noncompliance if they do not retire RINs by Mar. 31 (and certain of them cannot use the deficit provision because they used it last year). Compounding the issue is that certain contractors/consultants are telling them they will be in violation and have to pay large penalties. If there are assurances your office can provide that the compliance deadline will be extended at some point that would be greatly appreciated, as my clients want to avoid purchasing and retiring RINs unnecessarily only to have to unretire and adjust their compliance in the future. Any help you can offer on this is greatly appreciated. Happy to discuss in more detail if needed.
Thanks, Peter
PETER WHITFIELD
SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 Cell 202.669.2160 (please use as primary contact) +1 202 736 8531 pwhitfield@sidley.com www.sidley.com
,--
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ED_0 18475D_ 00003098-00001
Birsic, Michael J. [mjbirsic@marathonpetroleum.com] 4/1/2025 6:49:35 PM Dominguez, Alexander [dominguez.alexander@epa.gov] OAR Invitations [OAR_I nvitations@epa.gov] ubject:RE: [EXTERNAL] Re: Meeting Request
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Thank you!
From: Dominguez, Alexander <dominguez.alexander@epa.gov> Sent: Tuesday, April 1, 2025 2:48 PM To: Birsic, Michael J.<mjbirsic@marathonpetroleum.com> Cc: OAR Invitations <0AR_lnvitations@epa.gov> Subject: [EXTERNAL] Re: Meeting Request
Mike,
Appreciate you reaching out and looping in our Administrative Support Team. They will follow up with you shortly.
Thank you, Alex
Sent from iPhone
From: Birsic, Michael J.<mibirsic@marathonpetroleum.com> Sent: Tuesday, April 1, 2025 2:43 PM To: Dominguez, Alexander <dominguez.alexander@epa.gov> Subject: Meeting Request
I
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Alex,
I hope you are well. I wanted to reach out to request a meeting with you to discuss the Renewable Fuel Standard. Please let me know when you may have some availability in the near future.
Thank you in advance for your consideration,
Mike
Michael Birsic
ED_018475O_00003107-00001
Marathon Petroleum Corporation 1201 F Street, NW, Suite 625 Washington, DC 20004 Direct: 202-442-2459 Cell: 202-213-2548
ED_018475O_00003107-00002
essage
Jonathan Weinberger uonathan.weinberger@gm.com] 3/11/2025 3:24:52 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Omar Vargas [omar.vargas@gm.com]; NICOLE SESSOMS [nicole.sessoms@gm.com] ubject:RE: [EXTERNAL] RE: GM/EPA Meeting
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Thank you again, Alex! Jonathan
From: Dominguez, Alexander <dominguez.alexander@epa.gov> Sent: Monday, March 10, 2025 11:02 AM To: Jonathan Weinberger <jonathan.weinberger@gm.com>; Omar Vargas <omar.vargas@gm.com>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: [EXTERNAL] RE: GM/EPA Meeting
ATTENTION:This email originated from outside of GM.
Omar and Jonathan,
Appreciate you reaching out and following up on this. If they have not already done so, Administrative Support Team will be contacting you to find time this week for a call/virtual meeting as well as additional time for an in-person.
Looking forward to it and please feel free to follow-up if any issues with scheduling.
Thank you, Alex
Alexander Dominguez Deputy Assistant Administrator for Mobile Sources Office of Air and Radiation U.S. Environmental Protection Agency
From: Jonathan Weinberger <jonathan.weinberger@gm.com> Sent: Monday, March 10, 2025 9:52 AM To: Omar Vargas <omar.vargas@gm.com>; Dominguez, Alexander <dominguez.alexander@epa.gov>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: RE: GM/EPA Meeting
ED_018475O_00003108-00001
I
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Thank you so much, Alex! Mike Abboud speaks highly of you. We look forward to connecting very soon. Lots to discuss! Jonathan
Jonathan R. Weinberger Chief Policy Advisor I Global Affairs Jonathan.weinberger@gm.com I T 202.355.4270
From: Omar Vargas <omar.vargas@gm.com> Sent: Saturday, March 8, 2025 6:02 PM To: Jonathan Weinberger <ionathan.weinberger@gm.com>; Dominguez.alexander@epa.gov; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: Re: GM/EPA Meeting
Hi Alex,
Circling back to see if you or a member of your staff would have a few minutes to connect. Jonathan submitted a scheduling request on our behalf the week before last.
Would like to update you on a discussion our CEO had with the President and tasking the President asked us to undertake with follow up to Secretary Lutnick. It concerns tailpipe emissions.
Thanks much, Omar
Get Outlook for iOS
From: Jonathan Weinberger <jonathan.weinberger@gm.com> Sent: Wednesday, February 26, 2025 4:54:55 PM To: Dominguez.alexander@epa.gov <Dominguez.alexander@epa.gov>; Omar Vargas <omar.vargas@gm.com>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: GM/EPA Meeting
Hello, Alexander! I think my friend Mike Abboud gave you a heads up that we would be reaching out to connect you and our head of public policy, Omar, who is copied. Nicole is Omar's EA and can help get something on the calendar ASAP. Thank you for offering your time and look forward to meeting! Jonathan
Nothing in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message.
Confidentiality Note: This message is intended only for the person or entity to which it is addressed. It may contain confidential and/or privileged material. Any review, transmission, dissemination or other use, or taking
ED_018475D_000031 08-00002
of any action in reliance upon this message by persons or entities other than the intended recipient is prohibited and may be unlawful. If you received this message in error, please contact the sender and delete it from your computer. Nothing in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. Confidentiality Note: This message is intended only for the person or entity to which it is addressed. It may contain confidential and/or privileged material. Any review, transmission, dissemination or other use, or taking of any action in reliance upon this message by persons or entities other than the intended recipient is prohibited and may be unlawful. If you received this message in error, please contact the sender and delete it from your computer.
ED_018475D_000031 08-00003
Jordan Christman [ChristmanJ@api.org] 3/25/2025 5:00:13 PM Dominguez, Alexander [dominguez.alexander@epa.gov] Fw: RFS Meeting ttachments:2025 EPA External Meeting Request Form.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Best, Jordan Noelle Christman
Federal Relations o: 202.682.8419 m: 540.392.1258 e: christmanj@api.org 200 Massachusetts Ave NW Washington, DC 20001
Get Outlook for iOS
From: Jordan Christman Sent: Monday, March 24, 2025 12:36:23 PM To: OAR Invitations <0AR_lnvitations@epa.gov> Subject: RE: RFS Meeting
Good Morning, Please see attached the meeting request form. Let me know if you have any questions. Thank you! Best, Jordan Noelle Christman
Federal Relations o: 202.682.8419 m: 540.392.1258 e: christmani@api.org 200 Massachusetts Ave NW Washington, DC 20001 www.api.org
ED_018475O_00003109-00001
t~mer,can
PNroteun1 Institute
From: OAR Invitations <0AR_lnvitations@epa.gov> Sent: Monday, March 3, 2025 3:29 PM To: Jordan Christman <ChristmanJ@api.org> Cc: OAR Invitations <0AR_lnvitations@epa.gov> Subject: FW: RFS Meeting
fsauticm: Sto1. loo~ 011:Jiinl'. rllis email is f:rom an outsitte sDurce. llease use tlie llisl :lilertt l1ttiton ii sus1ieious.
Hi Jordan, We were forwarded your email below regarding a meeting request for the Office of Air and Radiation (OAR) front office.
Please fill out the attached external meeting request form, and we will get back to you shortly.
Thanks, OAR Scheduling Team
From: Jordan Christman <ChristrnanJ@a.Qi,-9J_g> Sent: Monday, March 3, 2025 12:40 PM To: Dominguez, Alexander <QQJDJnguez.alexander@E:!_Q_~.,_g_g_y> Subject: RFS Meeting
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Good Afternoon Alex,
Hope you had a nice weekend -
API would like to request a meeting to discuss RFS priorities sometime in the coming weeks. Please let me know the best way to proceed with this request.
Thank you! Appreciate the consideration.
Best, Jordan Noelle Christman
Federal Relations
o: 202.682.8419 m: 540.392.1258 e: christmani@api.org
200 Massachusetts Ave NW Washington, DC 20001
www.api.org
ED_018475D_000031 09-00002
ED_018475D_000031 09-00003
External Meeting Request Form
Today's Date: 3/24/25 Requesting Organization: American Petroleum Institute Title of the Meeting: RFS Purpose: API, along with other biofuels stakeholders, would like to discuss the RFS.
Background: API sent a letter regarding RFS priorities to EPA on February 19, 2025.
Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 3/31 /25 Last possible date for the meeting: 4/28/25 Is the meeting urgent and if so, why: No
Requested Time Length: 60 minutes Have you met with anyone within EPA: Yes, but not related to this topic. EPA participants requested: Alexander Dominguez; Aaron Szabo External Participants (including name [last, first], affiliation/organization, and email): Hupman, Will; American Petroleum Institute; hupmanw@api.org Christman, Jordan; American Petroleum Institute; christmanj@api.org Virtual, in-person, or hybrid meeting requested: In-Person Point of Contact for the Meeting: Jordan Christman; christmanj@api.org
***Please email this form back to OAR_Invitations@epa.gov***
ED_018475O_00003110-00001
essage
Omar Vargas [omar.vargas@gm.com]
3/11/2025 10:15:05 PM
Dominguez, Alexander [dominguez.alexander@epa.gov]; Jonathan Weinberger uonathan.weinberger@gm.com]; NICOLE SESSOMS [nicole.sessoms@gm.com] ubject:RE: [EXTERNAL] RE: GM/EPA Meeting
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Thank you Alex. We have a call scheduled for Friday. Talk soon and have a good week. Omar Vargas
g
Omar A. Vargas Vice President, Head of Global Public Policy 25 Massachusetts A venue, NW Suite 400 Washington, DC 20001 Executive Assistant: Nicole Sessoms: nicole.sessoms@~gm.com omar.vargas@r~gm.com I desk: 202.775.5028 I mobile: 313.688.9160
From: Dominguez, Alexander <dominguez.alexander@epa.gov> Sent: Monday, March 10, 2025 11:02 AM To: Jonathan Weinberger <jonathan.weinberger@gm.com>; Omar Vargas <omar.vargas@gm.com>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: [EXTERNAL] RE: GM/EPA Meeting
ATTENTION:This email originated from outside of GM.
Omar and Jonathan, Appreciate you reaching out and following up on this. If they have not already done so, Administrative Support Team will be contacting you to find time this week for a call/virtual meeting as well as additional time for an in-person.
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Looking forward to it and please feel free to follow-up if any issues with scheduling. Thank you, Alex
Alexander Dominguez Deputy Assistant Administrator for Mobile Sources Office of Air and Radiation U.S. Environmental Protection Agency
From: Jonathan Weinberger <ionathan.weinberger@gm.com> Sent: Monday, March 10, 2025 9:52 AM To: Omar Vargas <omar.vargas@gm.com>; Dominguez, Alexander <dominguez.alexander@epa.gov>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: RE: GM/EPA Meeting
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Thank you so much, Alex! Mike Abboud speaks highly of you. We look forward to connecting very soon. Lots to discuss! Jonathan
Jonathan R. Weinberger Chief Policy Advisor I Global Affairs Jonathan.weinberger@gm.com I T 202.355.4270
From: Omar Vargas <omar.vargas@gm.com> Sent: Saturday, March 8, 2025 6:02 PM To: Jonathan Weinberger <ionathan.weinberger@gm.com>; Dominguez.alexander@epa.gov; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: Re: GM/EPA Meeting
Hi Alex, Circling back to see if you or a member of your staff would have a few minutes to connect. Jonathan submitted a scheduling request on our behalf the week before last. Would like to update you on a discussion our CEO had with the President and tasking the President asked us to undertake with follow up to Secretary Lutnick. It concerns tailpipe emissions. Thanks much, Omar
ED_018475O_00003111-00002
Get Outlook for iOS
From: Jonathan Weinberger <jonathan.weinberger@gm.com> Sent: Wednesday, February 26, 2025 4:54:55 PM To: Dominguez.alexander@epa.gov <Dominguez.alexander@epa.gov>; Omar Vargas <omar.vargas@gm.com>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: GM/EPA Meeting
Hello, Alexander! I think my friend Mike Abboud gave you a heads up that we would be reaching out to connect you and our head of public policy, Omar, who is copied. Nicole is Omar's EA and can help get something on the calendar ASAP. Thank you for offering your time and look forward to meeting! Jonathan
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Ryan Ullman [rullman@ipaa.org] 2/3/2025 7:25:14 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Christopher B. Kearney [CKearney@tfgnet.com] ubject:lnvite to Discuss Oil and Gas Air Issues
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Alex,
My name is Ryan Ullman and I am VP of Government Relations and Political Affairs for the Independent Petroleum Association of America (IPAA). I believe you may know my colleague Lee Fuller and are familiar with our organization.
I've also added Chris Kearney to this email. Chris represents a handful of oil and gas trade associations that would help inform any conversation on air issues in the oil and gas industry.
At your convenience, Chris and I would like to discuss setting up a virtual meeting with roughly 10 state and federal oil and gas associations to discuss how sound energy policy and environmental stewardship can be accomplished.
If you're so inclined, you can review the transition document we have been circulating since last November here: https://www.ipaa.or r w -content/u loads/2024/11/2024-IPAA-Transition-Issue-Packet. df
Additionally, here is a sample of the resources we have produced through our Energy In Depth program that demonstrate the ongoing commitment and success American energy producers have had with respect to lowering emissions associated with E&P activities.
Methane Emissions Decline in Top Oil and Gas Basins (2019-2023)
Please feel free to contact me with any questions or _o_penings _in your schedule to have a preliminary discussion with us regarding this request. My cell number is i Ex. 6 Personal Privacy (PP) i
'-----------------)
Sincerely, Ryan Ullman VP Government Relations & Political Affairs Independent Petroleum Association of America
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Leopold, Matt [MLeopold@hunton.com] 2/6/2025 7:10:41 PM Dominguez, Alexander [dominguez.alexander@epa.gov]
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Alex,
I am requesting a meeting with my client Daimler Trucks North America. We are available at 12:00 pm, Friday February 7. Please let me know if you need additional information.
Best regards, Matt
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.com
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Jamie Boone (TMNA) uamie.boone@toyota.com] 2/26/2025 1:29:27 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Stephen J Ciccone (TMNA) [stephen.ciccone@toyota.com] ubject:Re: Follow Up Contact Information
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PROTECTED lil{i:fH1-fM
Thanks Alex! Will ask internally about the Ann Arbor question and follow up. Jamie
Jamie
From: Dominguez, Alexander <dominguez.alexander@epa.gov> Sent: Tuesday, February 25, 2025 4:39:00 PM To: Stephen J Ciccone (TMNA) <stephen.ciccone@toyota.com>; Jamie Boone (TMNA) <jamie.boone@toyota.com> Subject: [EXTERNAL] Follow Up Contact Information
Stephen and Jamie,
It was a pleasure meeting you. As I do not have business cards yet, I wanted to be sure to follow up with my contact information should you need anything.
Best, Alex
Alexander Dominguez Deputy Assistant Administrator for Mobile Sources Office of Air and Radiation U.S. Environmental Protection Agency (202) 564-7013
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Stephen J Ciccone (TMNA) [stephen.ciccone@toyota.com] 2/25/2025 10:24:48 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Jamie Boone (TMNA) uamie.boone@toyota.com] Emily Festa (TMNA) [emily.festa@toyota.com] ubject:RE: Follow Up Contact Information
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
PROTECTED lil{i:fH1-fM
Excellent - and just in time to receive an invitation for our annual party, on April 9. We will get invites out in a week or so. Emily will handle. Toyota parties are always epic!
Stephen Ciccone TOYOTA MOTOR NORTH AMERICA, Inc. Group Vice President Government Affairs Office Toyota Motor North America 325 7th Street, NW, Suite 1000 Washington, DC 20004 Cell: 202-957-3023 E: ste hen.ciccone to eta.com
From: Dominguez, Alexander <dominguez.alexander@epa.gov> Sent: Tuesday, February 25, 2025 4:39 PM To: Stephen J Ciccone (TMNA) <stephen.ciccone@toyota.com>; Jamie Boone (TMNA) <jamie.boone@toyota.com> Subject: [EXTERNAL] Follow Up Contact Information
Stephen and Jamie,
It was a pleasure meeting you. As I do not have business cards yet, I wanted to be sure to follow up with my contact information should you need anything.
Best, Alex
C
Alexander Dominguez Deputy Assistant Administrator for Mobile Sources Office of Air and Radiation U.S. Environmental Protection Agency (202) 564-7013
ED_0184750_00003131-00001
ED_018475O_00003131-00002
Leopold, Matt [MLeopold@hunton.com] 2/24/2025 5:48:25 PM Dominguez, Alexander [dominguez.alexander@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:lnvitation - FMI Government Affairs Committee
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Hello Abbie and Alex,
I represent FMI, the Food Industry Association related to the AIM Act regulations. FMI would like to invite one or both of you to attend a meeting of its Government Relations Committee meeting on March 4th. The meeting begins at 12:30pm, and 1:00 pm may be an ideal time if you are available. The members are interested in regulatory updates from the Office of Air and Radiation as well as getting to know you.
Thank you for considering this invitation. I'm happy to pass along any additional information that you might want to know.
Regards, Matt
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.corn
ED_018475O_00003132-00001
essage
Michael Formica
[formicam@nppc.org]
2/21/2025 4:04:08 PM
Voyles, Travis
[voyles.travis@epa.gov]; Kramer,
Jessica L.
[kramer.jessical@epa.gov];
McIntosh, Chad
[mcintosh.chad@epa.gov];
Dominguez, Alexander
[dominguez.alexander@epa.gov];
Atkinson, Emily [Atkinson.Emily@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
C: Paul Bredwell
(pbredwell@uspoultry.org)
[pbredwell@uspoultry.org];
crichter@thepolicygroup.com;
Lauren Lurkins
[I au ren@I urkin sstrategies. com];
cdetlefsen@nmpf.org; Courntey
Briggs [courtneyb@fb.org]; Travis
Cushman [travisc@fb.org]
Travis, Chad, Jess and Alex,
On behalf of National Pork Producers Council, United Egg Producers, U.S. Poultry & Egg Association, and the American Farm Bureau Federation, thank you for your time earlier this week. We understand your time is important and extremely limited, and we appreciate you listening to the priority issues within our organizations related to the important ongoing work of U.S. EPA. I have provided email addresses for all my colleagues here (who are copied on this email).
Feel free to reach out to any of us individually to follow up on any aspects of our discussion. In addition, we will work collectively to provide you the follow up information we promised.
We look forward to speaking further and working with you all on these issues of importance to America's agricultural sector.
Thank you,
Chief Legal Strategist 122 C Street, NW Suite 875 Washington, DC 20001 M: 202.680.3820
ED_018475O_00003133-00001
National Pork Producers -... CouncilT..
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This message contains confidential information belonging to The National Pork Producers Council and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by email if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses and The National Pork Producers Council does not accept liability for any errors or omissions in the contents of this message which arise as a result of e-mail transmission. If verification is required please request a hard-copy from: The National Pork Producers Council, 10676 Justin Dr., Urbandale, IA 50322. Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of The National Pork Producers Council.
From: Voyles, Travis <voyles.travis@epa.gov> Sent: Sunday, February 9, 2025 12:24 AM To: Michael Formica <formicam@nppc.org> Cc: Kramer, Jessica L. <kramer.jessical@epa.gov>; Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov>; Atkinson, Emily <Atkinson.Emily@epa.gov> Subject: RE: Meeting Request
Michael-I apologize, I had a draft response up and ready to click send the very next day and then somehow it got lost in the chaos of this week.
I am adding Jess Kramer who just started this week as a Senior Advisor to the Administrator for water and Abbie Tardif who is the Principal Deputy Assistant Administrator in the Office of Air and Radiation. Between us three we can cover all the issues you have detailed below. Let us know if you prefer one big meeting or would prefer to divide the issues up somehow-we are flexible either way.
I am adding Emily Atkinson to help will the scheduling (Abbie may add someone from OAR to help on that front as well).
Looking forward to finding some time and the discussion.
Thanks,
Travis
Travis Voyles Assistant Deputy Admnistrator Office of the Administrator U.S. Environmental Protection Agency C: (202) 787-0595
From: Michael Formica <forrnicarn@DJ:11?.f.:..Qig> Sent: Monday, February 3, 2025 10:59 PM To: Voyles, Travis <voyles.travis@epa.gov> Subject: Meeting Request Importance: High
ED_0 18475D_ 00003133-00002
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Mr. Voyles
As discussed, I would like to request a meeting with Senior leadership at EPA to discuss a number of issues that are fast approaching regarding the nation's livestock farmers. Attendees would include representatives of the American Farm Bureau Federation, Dairy Industry, United Egg Producers, US Poultry and Egg Association, and US Pork Industry. The issues include:
1.
EPA' s pending Meat and Poultry Effluent Limitation Guidelines (ELG) in the Office of Water which are due to
be finalized in August. https://www.cpa. ,Qyfcg/mcat-and-pou ltry-r roducb-cffl ucnt- ~u idcl incs-2024-proposcd-ru le
As proposed by the Biden Administration, this rule carries a cost of over $1.16 billion a year, will lead to over 75, mostly small and medium sized, processing plants having to shut down according to EPA's own data, and result in the loss of hundreds of thousands ofjobs throughout the supply chain. It would also eliminate markets for many livestock farmers, risking localized farm crisis.
2.
The status of the National Air Emissions Monitoring Study, and in particular the work of the agency on
development oflong overdue emission estimating methodologies. https://www.cpa.gov/afos-air/national-air-cmissions-
monitorin 1-stud #nacms-stud
There is currently a comment period open on the latest draft ofEPA's models. I requested an extension of the comment period in December, which was partly granted a couple of days prior to President Trump's inauguration. As laid out in the attached extension request letter, there are a number of issues that will be triggered by this process which we believe EPA needs to be more engaged on.
3.
The CAPO Rule ELG, the ongoing work of the Animal Ag Water Quality subcommittee that is operating under
the Farm Ranch and Rual Communities FACA Committee, and nutrient issues associated with CAFOs in general.
4.
PFAS and its impact on agriculture.
Thank you and I look forward to discussing these with you and your team.
Michael Formica Chief Legal Strategist 122 C Street, NW Suite 875 Washington, DC 20001 M: 202.680.3820
National Pork Producers -... CouncilT..
Connect with us! NPPC I Facebook I Twitter I Linkedln
This message contains confidential information belonging to The National Pork Producers Council and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by email if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses and The National Pork Producers Council does not accept liability for any errors or omissions in the contents of this message which arise as a result of e-mail transmission. If verification is required please request a hard-copy from: The National Pork Producers Council, 10676 Justin Dr., Urbandale, IA 50322. Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of The National Pork Producers Council.
ED_0 18475D_ 00003133-00003
From: Michael Formica Sent: Friday, December 20, 2024 1:12 PM To: J3egan.Michael@~2~.,_g9_y_; NAEMS@eQ_~g_Q_y:; enobakhare.rosema y@.~Q_~g_Q_y:; Cope.Grant@.~<!.:R.QY; Utech.Dan@~J:1-c!.:R.QY Cc: Lauren Lurkins <lauren@lurkinsstrategies.com>; Paul Bredwell (pbredwell@uspoultry.org) <pbredwell@uspoult y.org>; Christian Richter (crichter@therolicygroup.com) <crichter@therolicygroup.com>; cdetlefsen@nmpf.org; Tom Hebert <tom.hebert@bayardridge:.f.9Jll>; dschilling@fu,_Q.r_g; ~f~_,._Qrg; Courntey Briggs <courtneyb@fP-:9_r_g>; chaduep@unitedegg.~QlD. Subject: Extension of Time Request: Livestock AP42 Air Emissions Estimating Methodologies Importance: High
Administrator Reagan and NAEMS Research Group
On behalf of the National Pork Producers Council, National Milk Producers Federation, US Poultry and Egg Association and the United Egg Producers, please find the attached letter requesting a 180 day extension of time to comment on the draft AP-42 Air Emissions Estimating Methods for Animal Feeding Operations. In addition to this request for time, we are also asking that EPA's Office of General Counsel provide adequate responses to the multiple questions we've raised concerning implementation of the these EEMs, the legal obligations that will arise for signatories under the air consent agreements, and the agencies plan to communicate with the individual farmers who may unknowingly face a series of rapid legal obligations under the air consent agreements.
If you have any questions, please do not hesitate to contact me.
Hope you and your families all have a safe and happy Holidays.
Thank you
Michael Formica Chief Legal Strategist 122 C Street, NW Suite 875 Washington, DC 20001 M: 202.680.3820
National Pork Producers .,.. CouncilT..
Connect with us!
NPPC I Facebook I Twitter I Linkedln
This message contains confidential information belonging to The National Pork Producers Council and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by email if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses and The National Pork Producers Council does not accept liability for any errors or omissions in the contents of this message which arise as a result of e-mail transmission. If verification is required please request a hard-copy from: The National Pork Producers Council, 10676 Justin Dr., Urbandale, IA 50322. Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of The National Pork Producers Council.
ED_018475O_00003133-00004
Emily Wong [WongE@api.org] 2/26/2025 9:12:08 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Dominguez, Alexander [dominguez.alexander@epa.gov] FW: API OOOObc Meeting Request ttachments:API Meeting Request.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Abbie and Alex,
Congratulations on your new roles! I wanted to flag for you both that I submitted a meeting request to come in and talk about our OOOObc reconsideration requests. I sent it to the usual OAR email address, but I wanted to flag for you personally as well.
Looking forward to coming in to see you guys soon.
Thanks,
Emily Wong
Director Federal Relations
o: 202.682.8136 m: 704.616.1203 e: wonge@api.org
www.api.org
From: Emily Wong Sent: Wednesday, February 26, 2025 10:41 AM To: OAR Invitations <0AR_lnvitations@epa.gov> Subject: RE: API OOOObc Meeting Request
Thank you! I filled out the PDF version here.
From: OAR Invitations <OAR lnvitations@eQ_c!.:_g_~I{> Sent: Wednesday, February 26, 2025 8:51 AM To: Emily Wong <yvor:igf...@il.f2!-0rg> Cc: OAR Invitations <OAR lnvitations@epa.gov> Subject: FW: API OOOObc Meeting Request
ED_018475O_00003134-00001
fsauticm: Sto1. loo~ 011:Jiinl'. rllis email is f:rom an outsile sou1se. ielease use tie l\!inisl ;l!le~ lutton H s11s1i1Zious.
Good morning Emily, Please fill out the attached external meeting request form, and we will get back to you shortly. Thanks, OAR Scheduling Team
From: Emily Wong <Wor)_g_E.@~i.or_g> Sent: Tuesday, February 25, 2025 1:35 PM To: OAR Invitations <OAR lnvitations@~p-~_g_Q_y_> Subject: API OOOObc Meeting Request
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links. Good afternoon, On behalf of the American Petroleum Institute, I am submitting the attached request for a meeting with Abigale Tardif on our OOOObc reconsideration requests. I used the form I have used in the past, so if there is a new version or any additional information you need from us, please let me know. My attendee list includes several member company representatives who hold leadership roles in API on these issues, but once a date and time is confirmed, I think we will have additional interest from member companies. Thanks in advance for your assistance.
Emily Wong
Director Federal Relations o: 202.682.8136 m: 704.616.1203 e: wonge@api.org www.api.org
ED_018475O_00003134-00002
External Meeting Request Form
Today's Date: 2/26/25 Requesting Organization: American Petroleum Institute (API) Title of the Meeting: OOOObc Reconsideration Purpose: To discuss EPA's progress on OOOObc reconsideration.
Background: API submitted two petitions for reconsideration on OOOObc. EPA granted reconsideration on two of the issues raised in those petitions, net heating value and temporary flaring duration due to maintenance or malfunction. We would like to discuss EPA's progress on the rulemaking to Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 3/3/25 Last possible date for the meeting: 3/14/25
Is the meeting urgent and if so, why: Yes
The compliance deadline for the many of the requirements we would like to see reconsidered has Requested Time Length: 30 minutes
Have you met with anyone within EPA: yes
EPA participants requested: Abigale Tardif
External Participants (including name [last, first], affiliation/organization, and email): Lesley Schaaff, Hess - lschaaff@hess.com Tim Hillis, Oxy - timothy_Hillis@oxy.com Virtual, in-person, or hybrid meeting requested: In-Person Point of Contact for the Meeting: Emily Wong (wonge@api.org)
***Please email this form back to OAR_Invitations@epa.gov***
ED_018475O_00003135-00001
From: Sent: To:
Cc: Subject: Attachment: Attachment: Attachment:
Wozniak, Russell (RA)[wozniara@dow.com]
Mon 3/31/2025 8:34:29 PM (UTC)
Szabo, Aaron[Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie)[Tardif.Abigale@epa.gov]; Donahue, Sean[donahue.sean@epa.gov]; Dominguez, Alexander[dom inguez.alexander@epa.gov]; Tsi rigotis, Peter[Tsi rigotis. Peter@epa.gov]; Lassiter, Penny[Lassiter. Penny@epa.gov]; Lessard, Patrick[Lessard. Patrick@epa.gov]; Bouchard, Andrew[Bouchard .Andrew@epa.gov]
Mavian, Kari (K)[KMavian@dow.com]
Presidential Exemption Request - HON Rule - UCC/Dow - Seadrift, TX Operations
Presidential Exemption Request Letter - Dow Seadrift.pdf
Attachment 1 Cover Letter UCC Seadrift Operations.pdf
Attachment 1 UCC Seadrift Operations.pdf
Dear EPA,
The following Presidential Exemption Request was submitted to EPA's =.:..:...=:.:....::...;..====~ e-mail address earlier today for our Union Carbide Seadrift, TX Operations site. Union Carbide is a wholly owned subsidiary of The Dow Chemical Company (Dow). The request consists of a cover letter along with Attachment #1 (2 files: Cover Letter and Project Information), which provides additional details.
This e-mail is just to provide a copy of the request that was submitted.
We appreciate EPA's review of the request and are available to answer any questions regarding the attached submittal.
For reference, I serve as a technical contact for our Dow sites on EPA air pollution rules and policy matters so feel free to contact me with any questions as well.
Regards,
Russell A. Wozniak Dow US Air Advocacy Leader & California Regulatory Affairs Leader Environmental Expertise/Regulatory Affairs Cell Phone 361-571-5420
General Business
ED_0184750_00003148-00001
March 31, 2025
United States Environmental Protection Agency 1200 Pennsylvania Ave. NW Washington, DC 20460
RE: Request for Presidential Exemption - Clean Air Act Section 112(i)(4) National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) - HON Regulation 40 CFR 63 Subparts F, G, and H Union Carbide Corporation - Seadrift, Texas site Title V Operating Permit No. 02031 - Glycol Ethers and Oxide Derivatives Plants TCEQ RN102181526; CN601688781 Submitted via e-mail to: airaction@epa.gov
To Whom It May Concern,
Union Carbide Corporation ("UCC"), a wholly owned subsidiary of The Dow Chemical Company (Dow) requests a Presidential exemption from compliance obligations of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) also referred to as the HON Rule. 1 For the reasons highlighted in this letter and attachment, we believe it is necessary and appropriate for the President to grant an exemption under Clean Air Act (CAA) Section 112(i)(4) for sources regulated by the final rule either on an individual basis or collectively. If done collectively, we request that EPA include this regulated facility under that collective action.
We urge the Administration to swiftly consider and issue such an action based on an understanding that both: 1) "availability" for the purposes of this section refers not only to the existence of technology capable of achieving compliance with the rule, but encompasses practical challenges with the timeframes necessary to plan, procure, and install required technologies and such activity cannot occur within the current compliance timeframe; and 2) national security encompasses not only military defense applications and infrastructure, but also economic security, a perspective that has been acknowledged by the President in Executive Orders and key security agencies like the Department of Defense. Indeed, as the White House has stated regarding domestic priorities, "economic security is national security".2 As additional support on this point, we reference the separate joint coalition submission sent to EPA from the American Chemistry Council (ACC) and the American Fuel & Petrochemicals Manufacturers (AFPM) detailing the critical nature of ethylene oxide as a building block to several supply chains throughout domestic manufacturing, and the potential risks to our nation's national security interests if continued production is jeopardized.
1 National Emissions Standards for Hazardous Air Pollutants (NE SHAP). Powilring the Great American Comeback https://www.epa.gov/system/liles/documents/202503/neshap_powering-thegreatamericancomeback_Jact-sheet...2.pdl 89 Fed. Reg. 42932 (May 16, 2024). ' https ://www.whilehouse.gov/presidential-actions/2025/02/amencafirstinvestmentpolicy/.
Page 1
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We believe that the Administration has already been provided with sufficient information (including prior comments and the underlying petition for reconsideration on the HON rule) to support an exemption covering all regulated facilities or on a facility-specific basis. This letter and the attachments provide additional detail and support on the time-critical nature of the request for relief and to address EPA's request for information. We submit both in support of a category-wide grant, as well as to provide company-specific information if the President pursues a facility-specific exemption action.
A two-year compliance exemption is especially needed for the following HON implementation projects at our Seadrift, Texas site.
Seadrift, TX Site
Installation of two new vent scrubber projects to control any process vents that may contain low concentrations and low emissions of ethylene oxide, but that are "In Ethylene Oxide Service" from the Glycol Ethers Plant and the Ethanolamines Plant. The water from these scrubbers will be further processed in a process wastewater reactor system, called a Purge Glycol Reactor, to react any residual ethylene oxide to other organic compounds.
Process wastewater streams from the Glycol Ethers Plant and the Ethanolamines Plant will also flow to the same Purge Glycol Reactors that will be installed by the vent scrubber project. The Purge Glycol Reactors will react small concentrations of ethylene oxide to other chemical compounds.
The following information associated with this request for our Seadrift, Texas site is included in a February 26, 2025, letter to EPA, which is included as Attachment #1 to this letter.
Emissions standards or limitations subject to the request, Facility(ies) and/or affected source(s), and Length of compliance period being requested. The original Attachment #1 requested a
one-year compliance date extension, which was the maximum allowed, but Dow is seeking a two-year compliance exemption with this letter to account for any potential delays in the projects.
Information in support of the compliance exemption requests for this site is provided below:
Explanation why the technology to implement the standard is not available.
Vent Scrubber Projects - Seadrift, Texas:
Technology to implement the standard is not available prior to July 15, 2026, for the following reasons:
Both scrubber projects will involve water scrubbers to remove low levels of ethylene oxide from process vents in the Glycol Ethers Plant and the Ethanolamines Plant. For water scrubbers, the HON rule requires the owner or operator using a control device other than a flare, scrubber with a reactant tank, or thermal oxidizer, to notify the
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Administrator of the operating parameters that are planned to be monitored during the performance test prior to establishing operating parameter limits for the control device (40 CFR 63.124(a)(2)(viii). Thus, there is a requirement to conduct performance testing and then to work with regulatory agencies to establish adequate monitoring parameters. This process is expected to take an unknown period of time for both UCC/Dow and regulatory agencies to reach agreement on these requirements.
Both scrubber projects will drain the scrubber water from the scrubbers to the Purge Glycol Reactors for conversion of any ethylene oxide removed by the scrubber to other organic compounds. Concerns with the Purge Glycol Reactor projects are explained below.
Purge Glycol Reactor Projects:
The Seadrift, Texas site have process wastewater streams "in ethylene oxide service" that will need to be controlled in accordance with the amended HON rule. EPA's new standard for process wastewater in ethylene oxide service requires that individual process wastewater streams be managed in closed systems and then treated to remove ethylene oxide to less than 1 ppmw for each stream. Technology to implement the standard is not available prior to July 15, 2026, for the following reasons:
Technology to implement the standard is not readily available from external vendors, therefore, UCC/Dow is designing and plans to install custom reactors to react ethylene oxide with water under selected operating conditions to meet the 1 ppmw requirement. There is not a vendor guarantee that this technology will meet the standard, thus performance tests will be required to confirm compliance.
111 Additional time is needed to properly engineer and construct these types of reactors and capital projects. Typically, it takes 36 months to complete projects similar to these. More information is available in Attachment #1 on the major steps in the engineering, procurement, and construction process.
In addition, EPA's HON rule does not have specific monitoring requirements for this type of treatment device, therefore, this site will be required to conduct performance testing and to submit a request to establish unique monitoring parameters per 63.151 (f)(1) (3) of the HON rule to EPA or to the TCEQ. The frequency and content of monitoring, recording, and reporting will be determined in accordance with the permitting authority.
With respect to the national security implications of ethylene oxide"related supply chain disruptions, we incorporate the information provided by ACC and AFPM in a letter submitted to EPA related to these exemption requests. In addition, we also supply the following information:
The production plants covered by this exemption request at our Seadrift, TX site use ethylene oxide as a raw material to produce Glycol Ethers and Ethanolamines. Ethylene oxide is an important chemical precursor for these production plants and is used to produce a wide range of other chemicals, including military jet fuels, pharmaceuticals, semiconductors, automotive, agricultural products (note that ethanolamine products can be used in formulations
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that can also increase crop yields), antifreeze, plastics, home and personal care products, and textiles. It also performs a crucial role as a sterilizing agent for heat-sensitive medical equipment that cannot be sterilized with steam or radiation. UCC/Dow estimates that its U.S. manufactured ethylene oxide supplies the requirements of 75% of the U.S. government's jet fuel additive, 25% of the automotive brake fluid market, and nearly 10% of aircraft deicing fluids-all essential products required for national safety and the smooth functioning of the U.S. economy.
Absent a compliance exemption, it is likely UCC/Oow will have to shut down some facilities that produce or use ethylene oxide in the second half of 2026 to comply with the HON rule, which will have downstream impacts on these derivatives of ethylene oxide with consequences for all of the sectors mentioned above. If UCC/Dow were to shut down multiple facilities simultaneously, the cascading impacts of the loss of ethylene oxide production would be widespread and felt throughout the U.S., both economically and from an essential products perspective. During these outages, employees may also face loss of work, negatively impacting the local community and individual American families' households.
As explained further in Attachment #1, UCC/Dow originally requested a one-year compliance extension to July 15, 2027, to complete construction on these projects and an additional 150 days to December 12, 2027, to complete all required performance testing and establishment of operating parameters and to submit the Notification of Compliance Status Report. The Presidential Exemption under Clean Air Act Section 112(i)(4) does not require that the President provide the bare minimum of time needed to obtain and install controls. Thus, to allow for any unexpected delays in the project schedules, with this letter we are seeking a twoyear compliance exemption under Section 112(i)(4) of the Clean Air Act to July 15, 2028 to complete the site's HON implementation projects and a compliance exemption to December 12, 2028, to submit the Notification of Compliance Status Report for those projects. Any exemption granted under this section should also contain an option for EPA to consider a renewal for facilities for which compliance processes may run longer than two years.
If you have any questions or require additional information, please contact Mr. Russell Wozniak of our Environmental Expertise organization at (361) 571-5420 or email: wozniara@dow.com.
s~
~~~ Fernando Frollini
Responsible Care Leader Seadrift Operations
Attachments:
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cc: Aaron Szabo, Senior Advisor to the Administrator, Office of the Administrator Abigale Tardif, Principal Deputy Assistant Administrator, Office of Air and Radiation Sean Donahue, Principal Deputy General Counsel, Office of General Counsel Alex Dominguez, Deputy Assistant Administrator for Mobile Sources, Office of Air and Radiation Peter Tsirigotis, Director, Office of Air Quality Planning and Standards Penny Lassiter, Director, Sector Policies and Programs Division, Office of Air Quality Planning and Standards Patrick Lessard, Refining and Chemicals Group Leader, Office of Air Quality Planning and Standards Andrew Bouchard, General Engineer, Office of Air Quality Planning and Standards
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Attachment #1 - February 26, 2025 Letter to USEPA - Submittal of Additional Information Requested for Request for Extension of Compliance Time UCC/Dow Seadrift, Texas Operations
This cover letter and attachment provides additional details on these projects, the covered process vents, covered process wastewater streams, and the HON regulatory citations impacted.
Pages ED_018475O_00003149-00006
7
February 2.6, 2025
Ms. Mary Greene
Director, Air Enforcement Division Office of Ci vii Enforcement United States Environmental Protection Agency Mail Code 2242-A 1200 Pennsylvania Ave, N.W. William Jefferson Clinton Building/Room 1119 Washington, DC 20460-0001
Submittal of Additional Information Requested Request for Extension of Compliance Time - Two Projects Compliance with the Ethylene Oxide Provisions 40 CFR 63 Subpart G - National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry (HON Rule) Union Carbide Corporation Seadrift, Texas Operations Title V Operating Permit No. 02031- Glycol Ethers Plant and & Oxide Derivatives Plant TCEQ Regulated Entity Number RN102UUS26 TCEQ Customer Reference Number CN601688781
Dear Ms. Greene,
This letter and the attached information provides additional information requested by
USEPA in a letter December 20, 2024, regarding our request for an extension to the
current July 15, 2026, due date for compliance with aH ethylene oxide requirements in EPA's amendments to the HON air pollution rule (40 CFR 63 Subparts F, G, and H).
Our request for a compliance extension and thes,e projects involve:
11 Installation of two new vent scrubber projects to control any process vents that may contain low emissions of ethylene oxide, but that are "In Ethylene Oxide Service" from the Glycol Ethers Plant and the Ethanolamines Plant The liquid from these scrubbers will be further processed in two Purge Glycol Reactors to convert any residual ethylene oxide to other organic compounds.
11 Process wastewater streams from the Glycol Ethers Plant and the Ethanolamines Plant will also flow to the same Purge Glycol Reactors that are installed by the vent scrubber project. The Purge Glycol Reactors will react small concentrations of ethylene oxide to other chemical compounds.
ED_018475O_00003150-00001
Request for Extension of Compliance
SECTION I GENERAL INFORMATION A. Print or type the following information for each facility for which you are requesting an extension of compliance (63.9(b)(2)(i)-(ii))
.Operatinq_permit Number (OPTIO_NALl__________________________________Facility I.D ._ N_umber j OPTI_O NAL) -----------------------
Ex.6
B. Indicate the relevant standard or other requirement that is the basis for this request for this compliance extension request:
Pursuant to 40 CFR 63.6(i)(4)(i) and (ii) of the MACT rule General Provisions our Seadrift Operations site is requesting a one-year extension from the compliance date of July 15, 2026, to July 15, 2027 for physical installation or December 12, 2027 for other requirements, for the following projects and associated regulatory citations: The scope of these projects has changed from a Thermal Oxidizer Project and Purge Glycol Reactor to two different projects that will involve a vent gas scrubber and a Purge Glycol Reactor system for each CMPU. The Purge Glycol Reactor systems will also treat any process wastewater streams to meet the HON requirements. Project #1 - One vent scrubber will be installed in our Glycol Ethers Plant to treat process vents In Ethylene Oxide Service from this plant. The liquid from this vent scrubber will be combined with a process wastewater stream from this plant and then treated in a Purge Glycol Reactor. Project #2 - One vent scrubber will be installed in our Ethanolamines Plant to treat process vents In Ethylene Oxide Service from this plant. The liquid from this vent scrubber will be combined with a process wastewater stream from this plant and then treated in a Purge Glycol Reactor.
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Regulatory Citations that apply to both projects are:
40 CFR 63 Subpart G - 40 CFR 63.124 - Process Vents and Storage Vessels that are in ethylene oxide service - procedures to determine compliance.
40 CFR 63.138 - Process wastewater provisions - performance standards for treatment processes managing Group 1 wastewater streams and/or residuals removed from Group 1 wastewater streams; and
40 CFR 63.138(b)(3) - Control options: Group 1 wastewater streams for Table 9 compounds - Reduce, by removal or destruction, the concentration of ethylene oxide to a level less than 1 parts per million by weight as determined in the procedures in 63.145(b) of this subpart; and the following general control provisions for Group 1 process wastewater streams:
40 CFR 63.132 - Process wastewater provisions - general 40 CFR 63.133 - Process wastewater provisions - wastewater tanks 40 CFR 63.134 - Process wastewater provisions - surface impoundments 40 CFR 63.135 - Process wastewater provisions - containers 40 CFR 63.136 - Process wastewater provisions - individual drain systems 40 CFR 63.137 - Process wastewater provisions - oil-water separators
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C.
Reasons wh additional time is needed A one-year extension is needed in order to properly engineer and construct the projects. Typically, it takes 36 months to complete projects similar to these. Key steps in the engineering, procurement, and construction process are:
Major Steps in Process
Testing to determine "In EO Service" and PreFEED Project Scoping
Front End Engineering Design (FEED)
Detailed Design Engineering
Procurement (Obtaining Vendor Bids, Vendor Questions & Selection, Equipment Fabrication & Delivery to site)
Construction of Required Equipment, Piping and Instrumentation
Develop Operating Procedures, Commissioning Equipment, and Placing Into Service
Estimated Time to Complete (Months)
6 12 9 19 (overlaps with engineering)
10 (overlaps with detailed engineering) 1 - 1.5 months
Total Estimated Time for Project including testing
36
to determine "In EO Service":
Note: Some steps like Procurement overlap with Front End Engineering Design, Detailed Design Engineering, and Construction. Construction also overlaps with Detailed Design Engineering.
SECTION II CERTIFICATION (Note: you may edit the text in this section as deemed appropriate)
Based upon information and belief formed after a reasonable inquiry, I, as a responsible official of the above-mentioned facility, certify the information contained in this request is accurate and true to the best of my knowledge.
Name of Responsible Official (Print or Type)
Fernando Frollini
Signature of Responsible Official
Title
Responsible Care Leader
Date (mm/dd/yy)
02/26/2025
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Note: Responsible official is defined under 63. 2 as any of the following: the president, vicepresident, secretary, or treasurer of the company that owns the plant; the owner of the plant; the plant engineer or supervisor; a government official if the plant is owned by the Federal, State, city, or county government; or a ranking military officer if the plant is located on a military installation.
SECTION Ill COMPLIANCE SCHEDULE INFORMATION
A. Describe the controls that will be installed at your facility to ensure compliance with the relevant standard. (63.6(i)(6)(i)(A)) - See the descriptions for each project below:
Project #1 - One new Water Scrubber will be installed in our Glycol Ethers Plant to treat process vents In Ethylene Oxide Service from this plant. The liquid from this vent scrubber will be treated in a Purge Glycol Reactor to remove trace amounts of ethylene oxide that may be present. In addition, a process wastewater stream In Ethylene Oxide Service from this plant will also be treated in this same Purge Glycol Reactor.
The goal of the Water Scrubber is to reduce the ethylene oxide concentration to a level of< 1 ppmv prior to discharge to the atmosphere. The goal of the Purge Glycol Reactor is to reduce the ethylene oxide concentration to a level of< 1 ppmw.
Project #2 - One new Water Scrubber will be installed in our Ethanolamines Plant to treat process vents In Ethylene Oxide Service from this plant. The liquid from this vent scrubber will be treated in a Purge Glycol Reactor to remove trace amounts of ethylene oxide that may be present. In addition, a process wastewater stream in Ethylene Oxide Service from this plant will also be treated in this same Purge Glycol Reactor.
The goal of the Water Scrubber is to reduce the ethylene oxide concentration to a level of< 1 ppmv prior to discharge to the atmosphere. The goal of the Purge Glycol Reactor is to reduce the ethylene oxide concentration to a level of< 1 ppmw.
Due to small levels of emissions associated with these sources, the health of persons will be protected from imminent endangerment, as required by 40 CFR 63.6(i)(4)(ii).
B. Describe your compliance schedule by specifying the date by which you will complete each of the following steps toward achieving compliance: (63.6(i)(6)(i)(B)(1 )-(4 )):
A compliance schedule, including the date by which each step toward compliance will be reached. At a minimum, the list of dates shall include:
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(1) The date by which on-site construction, installation of emission control equipment, or a process change is planned to be initiated.
On-site construction for both projects is planned to be initiated by August 1, 2026. Dow may initiate some work related to tie points prior to this date to facilitate this project.
(2) The date by which final compliance is to be achieved.
Compliance for both projects is expected to be achieved by July 15, 2027.
(3) The date by which on-site construction, installation of emission control equipment, or a process change is to be completed; and
On-site construction is planned to be completed by June 1, 2027, for both projects.
(4) The date by which final compliance is to be achieved;
Start-up of both systems and compliance is expected to be achieved by July 15, 2027.
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Additional Information Requested by EPA in December 20, 2024 Letter & 40 CFR 63.6(i)(10)
Each of the requested items is provided for Projects #1 and #2.
Process Vent Streams In Ethylene Oxide Service - Information for Projects #1 and #2 - Installation of water scrubbers and Purge Glycol Reactors.
Identify each affected source covered by the extension:
Process Vent Stream
Alcohol Recovery Column Vent Scrubber Vent - EPN 583 Condensate Pot C-1219 Vent - EPN 781 TEA Column Jet Vent - EPN 294 South Jet Condensate Tank Vent
Plant
Glycol Ethers Glycol Ethers Ethanolamines Ethanolamines
Specify the termination date of the extension.
The termination date of the extension will be July 15, 2027, for the installation of the vent scrubbers and their Purge Glycol Reactor systems. The termination date of the extension will be December 12, 2027, for the Notification of Compliance Status Report and other associated requirements as detailed below.
Specify the dates by which steps toward compliance are to be taken, if appropriate
As noted above, construction is expected to commence on this project by August 1, 2026, with the goal of completing construction by June 1, 2027. A performance test on each scrubber along with establishment of operating parameters for each scrubber for continuous monitoring will be conducted after the start-up date.
Specify other applicable requirements to which the compliance extension applies (e.g., performance tests).
We also propose extensions to the following items related to the start-up of the water scrubbers and the testing, monitoring, recordkeeping, and reporting requirements:
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#1 - Scrubbers - Performance Testing and Establishment of Operating Parameters - 63.124(a)(2)(viii)
Dow proposes an extension for the scrubber monitoring requirements until December 12, 2027. This will allow time for the scrubbers to be placed into the service by July 15, 2027, and for the site to conduct performance testing and to work with the regulatory agencies to establish operating parameters.
#2 - Scrubbers - Continuous Monitoring of Operating Parameters 63.124(b )(6)
Dow proposes an extension of these requirements until December 12, 2027, since the requirements in this section require the scrubbers to be in operation. Then, a performance test is required to establish the parameters that will be monitored on a continuous basis. This timing also aligns with the submittal of the Notification of Compliance Status report.
#3 - Scrubber Recordkeeping Requirements for Periods During Which Operating Values Are Outside of the Operating Limits Specified in 63.124(b)(6) - 63.118(f)(5)
Dow proposes an extension for these scrubber record keeping requirements in this section until December 12, 2027, to allow time for the scrubber to be placed into service, tested, and for operating parameters to be established.
#4 - Notification of Compliance Status Report - 63.152(b)(8)
Dow proposes that the due date for this report in be extended to December 12, 2027, to align with a date 150 days after the requested date extension for having the scrubbers in service to conduct testing and to determine the operational parameters to monitor.
#5- Periodic Report - 63.152(c), 63.118(f)(5) and 63.108(1)(2)
Dow proposes that the due date for this report be extended to December 12, 2027, to align with a date 150 days after the requested date extension for having the scrubber in service. Portions of these sections require some scrubber operating data, such as periods during which operating values are outside of the applicable operating limits.
Specify any additional conditions that the Administrator (or the State) deems necessary to assure installation of the necessary controls and protection of the health of persons during the extension period.
No additional information is being provided with this update.
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Process Wastewater Streams In Ethylene Oxide Service Information for Projects #1 and #2 - Installation of water scrubbers and Purge Glycol Reactors.
Identify each affected source covered by the extension:
There are two existing process wastewater streams that will be collected and piped to the new treatment system. Two new process wastewater streams from the vent gas scrubbers will also flow into the new treatment system:
Process Wastewater Stream
Plant
C-1219 Condensate Drain South Jet Condensate Vessel Liquid Stream from Glycol Ethers Vent Scrubber - New Liquid Stream from Ethanolamines Vent Scrubber - New
Glycol Ethers Ethanolamines Glycol Ethers
Ethanolamines
Specify the termination date of the extension.
The termination date of the extension will be July 15, 2027, for the installation of the Purge Glycol Reactor systems and the termination date of the extension will be December 12, 2027, for the Notification of Compliance Status Report and other associated requirements as detailed below.
Specify the dates by which steps toward compliance are to be taken, if appropriate
As noted above, construction is expected to commence on these projects by August 1, 2026, with the goal of completing construction by June 1, 2027. A performance demonstration along with establishment of operating parameters for continuous monitoring will be conducted after the start-up date.
Specify other applicable requirements to which the compliance extension applies (e.g., performance tests).
Dow also proposes extensions to the following items related to the installation of the Purge Glycol Reactors and the testing, monitoring, recordkeeping, and reporting requirements:
#1 - Performance Demonstration and Establishing Parameter Monitoring Ranges - 63.146(a) and 63.151(f)(1)- (f)(3)
Dow proposes that the requirement in 63.146(a) for the owner/operator to submit a request to monitor alternative parameters according to the procedures in 63.151 (f)
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be extended to July 15, 2027, to align with the start-up date of the Purge Glycol Reactor.
Dow proposes that all due dates to complete the requirements in 63.151 (f)(1) - (3) be extended to December 12, 2027, to allow time for a performance demonstration and setting of parameters after the Purge Glycol Reactors start operation.
Table 12 of the HON rule refers to 63.151 (f), which requires compliance with paragraphs (f)(1) - (3) as copied below. Dow proposes an extension to December 12, 2027 to complete the performance demonstration, establish parameter monitoring ranges, and commence monitoring. This is five months after the requested extension date of July 15, 2027 to have the Purge Glycol Reactors installed. The rule text for 63.151 (f) and (1) - (3) is provided below:
The owner or operator who has been directed by any section of this subpart that expressly references this paragraph to set unique monitoring parameters or who requests approval to monitor a different parameter than those listed in 63.114 for process vents, 63.127 for transfer, or 63.143 for process wastewater of this
subpart shall submit the information specified in paragraphs (f)(1 ), 1.fl0, and .<.flQl of
this section with the operating permit application or as otherwise specified by the permitting authority. 40 CFR 63.151(f).
(1) A description of the parameter(s) to be monitored to ensure the control technology or pollution prevention measure is operated in conformance with its design and achieves the specified emission limit, percent reduction, or nominal efficiency, and an explanation of the criteria used to select the parameter(s).
(2) A description of the methods and procedures that will be used to demonstrate that the parameter indicates proper operation of the control device, the schedule for this demonstration, and a statement that the owner or operator will establish a range for the monitored parameter as part of the Notification of Compliance Status report required in 63.152(b) of this subpart, unless this information has already been included in the operating permit application.
(3) The frequency and content of monitoring, recording, and reporting if monitoring and recording is not continuous, or if reports of daily average values when the monitored parameter value is outside the range established in the operating permit or Notification of Compliance Status will not be included in Periodic Reports required under 63.152(c) of this subpart. The rationale for the proposed monitoring, recording, and reporting system shall be included.
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#2 - Wastewater Parameter Exceedance Reporting - 63.146(d)(3)
Dow proposes that the due date for reporting monitoring results for each operating day during when the daily average of any monitored parameter approved in accordance with 63.151 (f) was outside the range established in the Notification of Compliance Status be extended to December 12, 2027. This will allow to us conduct testing and setting of operating parameters after the systems start-up on or before July 15, 2027. This will also align with the submittal of the Notification of Compliance Status report. The identification of the treatment process, the parameter that was of range, and the date the parameter was out of range must be reported.
#3 -Wastewater Recordkeeping - 63.147(b)(4) and (e)
Dow proposes that the requirement in 63.147(b)(4) be extended to December 12, 2027. The requirement in 63.147(b)(4) is that for Item 3 oftable 12 of this subpart, the owner or operator shall keep records approved by the Administrator. 63.147(e) notes that the Administrator will specify appropriate record keeping requirements.
#4 - Notification of Compliance Status Report - 63.152(b)
Dow proposes that the due date for this report be extended to December 12, 2027 to align with #1 above.
#5- Periodic Report - 63.152(c)
We propose that the due date for this report be extended to December 12, 2027 to align with #1 above.
Specify any additional conditions that the Administrator (or the State) deems necessary to assure installation of the necessary controls and protection of the health of persons during the extension period.
No additional information is being provided with this response.
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essage
Mavian, Kari (K) [KMavian@dow.com] 3/5/2025 10:06:29 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Lassiter, Penny [Lassiter.Penny@epa.gov]; Tsirigotis, Peter [Tsi rigoti s. Peter@epa.gov]; Bouchard, Andrew [Bouchard.Andrew@epa.gov]; Donahue,Sean [donahue.sean@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov]; Dominguez, Alexander [dominguez.alexander@epa.gov]; Lessard, Patrick [Lessa rd. Patrick@epa.gov] Dow follow-up to ACC/AFPM HON meeting ttachments:2025-03-4 HON Reconsideration Letter_Dow Final.pdf; 2025-03-4 HON Reconsideration Letter_UCC Final.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Dear Principal Deputy Assistant Administrator Tardif,
Please find attached two follow-up letters from Dow and Dow's subsidiary, Union Carbide, reiterating our immediate request for an extension of the compliance date for the HON. Thank you again for meeting with us in February to discuss this rule and the urgent nature of this request. As we mentioned in our meeting, and in our comments and meetings with EPA during the HON rulemaking process, the two-year compliance deadline is not practical for the types of projects needed to comply with this rule. That has been confirmed by our project teams and further detailed in the attached letters. In addition, we express support for the ACC and AFPM petition for reconsideration due to the technically unachievable requirements in the final rule, also further detailed in the attachments.
Please contact me with any questions or information you may need to assist with this request. Thank you for your attention to this.
Best regards, Kari
Kari Mavian Global Direclor of Regulatory Advocacy and Policy
Dow 500 Nor1h Capitol St NW, Suite: 200 . Washington, D.C. 20001 Mobile: 202.997.1613 Email: kmavianr~dow.com
ED_018475O_00003154-00001
General Business
ED_018475O_00003154-00002
March 4, 2025
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460
RE: Request for Extension of the Compliance Deadline and Letter of Support for ACC/AFPM Petition for Reconsideration In Re: New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry (89 Fed. Reg. 42932). Docket ID: EPA-HQ-OAR-2022-0730 ("HON rule").
Dear Principal Deputy Assistant Administrator Tardif:
We are writing on behalf of The Dow Chemical Company ("Dow") to thank you for meeting with us on February 18th to discuss our concerns with the final HON rule and express our support for the petition for reconsideration filed by the American Chemistry Council ("ACC") and the American Fuel & Petrochemical Manufacturers ("AFPM") urging the Environmental Protection Agency ("EPA") to reconsider its final HON rule. First and foremost, Dow requests immediate relief and a one-year extension to the impractical compliance deadlines, which are fast approaching, as the final rule's deadlines are unrealistic and cannot be met. Without an extension, this will lead to facility shutdowns and jeopardize important ethylene oxide supply chains including military jet fuels, aircraft deicing fluids, semiconductors, pharmaceuticals, and sterilization.
We also support the call to revoke the regulatory provisions promulgated under Clean Air Act section 112() because they exceed EPA's statutory authority and do not comply with the requirements of reasoned decision-making. While the petition filed by ACC and AFPM speaks to the general need for immediate relief and the rule's consequences from a national perspective, we wanted to ensure that you also had input from a regulated entity that is subject to EPA's final HON rule. The final rule's deadlines are unrealistic and there is a need for immediate relief. The final rule also harms the national interest because it exceeds EPA's statutory authority and imposes undue burdens and costs that impede private enterprise and far outweigh any public benefit.
Global Dow Center 2211 HH Dow
I Midland, Ml 48674 USA
General Business
ED_018475O_00003155-00001
Dow and its subsidiaries have long been committed to high operational and safety practices that consistently meet or exceed regulations and applicable laws wherever it operates. Dow works proactively and collaboratively with regulators to ensure compliance with all applicable federal, state, and local regulations and continues to advocate for sensible, risk-based emissions standards based on the best available science. Long before EPA promulgated its final HON rule, Dow established an Ethylene Oxide (EO) Emissions Reduction Program overseen by the Corporate EO Steering Team, which consists of members from the company's business, engineering, procurement, strategy, and leadership teams. The Corporate EO Steering Team has focused on five key steps (1) compliance (establishing confidence in EO emission data); (2) robust operation (preventing EO releases and limit exceedances); (3) risk reduction (preventing unplanned events resulting in EO emissions); (4) operating discipline (accomplishing sustained improvement); and (5) communications. Dow's efforts to implement these steps significantly decreased EO emissions. In 2021, Dow's EO emissions declined by more than 70% from a 2018 baselinei. Dow has also engaged with its local communities to listen to the concerns, questions, and needs of community members.
EPA Should Extend Upcoming Deadlines
Dow and its subsidiary (which will send its own separate communication), have submitted requests to extend the compliance deadline of July 15, 2026 by one year for five of their twenty-eight projects that are being implemented to comply with the ethylene oxide provisions of the HON rule. We are continuing to work with EPA on their request for more information related to these extension requests.
In preparing to comply with the HON rule, Dow has undertaken an extensive amount of work to sample and test individual process vents and process wastewater streams to determine if these sources meet the definition of "In Ethylene Oxide Service". Dow has also expended significant financial resources on project scoping and engineering for all the projects, and devoting significant employee time, including new hires and reallocation of human capital away from other workstreams. Beginning in April 2024, Dow commenced comprehensive sampling and monitoring at two of its facilities (and two of its subsidiary's facilities) to identify which projects would need upgrades to comply with the HON rule and which projects are "in ethylene oxide service" (meaning that the projects include equipment that processes ethylene oxide ("EO")). Because of the sheer number of product lines and the vastness of Dow equipment that is involved in BO-related processes, those efforts remain ongoing. The breadth of projects that Dow must implement to comply with the final rule is constantly evolving, as Dow has been forced to add and subtract projects as new sampling information becomes available.
Dow is required to undertake an extensive assessment process to determine whether equipment is in EO service, and how Dow can and should upgrade its equipment to meet the HON rule's extraordinarily stringent limits. That process requires (1) testing vents for flow rate and composition; (2) scoping out potential solutions to bring EO emissions into compliance with
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the final rule; and (3) sourcing bids from external vendors who may be able to develop the required technology. Each of these steps presents significant practical challenges. For example, there are few vendors who are qualified to build the necessary devices and, because every EO emitting industry needs to comply simultaneously, industry faces a significant backlog. Similarly, some of the technologies needed to comply with EPA's requirements have known reliability issues.
In addition to this detailed assessment process, each of the five separate projects, for which Dow seeks an extension, independently require (1) six months to determine if equipment is in EO service; (2) 12 months for front-end engineering design; (3) nine months of detailed design engineering; (4) 19 months for procurement of vendor bids, vendor questions and selection, equipment fabrication and delivery (overlaps with front end engineering design); (5) ten months for construction of required equipment, piping, and instrumentation (overlaps with detailed design engineering); and (6) 1-1.5 months to develop operating procedures, commissioning the equipment, and placing it into service. This information was provided to EPA several times with our comments on the rule and in meetings with the Agency.
Without an extension, Dow will not be able to meet the compliance timeline and potentially will have to shut down some of its facilities until we complete these projects. Dow will also be forced to implement projects at a rate that increases safety risks; diverts resources from other previously planned projects; and limits Dow's ability to innovate and develop new products to help the American people in everyday life. Therefore, an extension is needed now to avoid expending significant resources to comply with the final rule's unreasonable deadlines.
EPA Should Grant the Motion for Reconsideration
EO serves as an important chemical precursor used to produce a wide range of other chemicals, including home and personal care products, pharmaceuticals, agricultural products, antifreeze, military jet fuels, plastics, detergents, and textiles. It also performs a crucial role as a sterilizing agent for heat-sensitive medical equipment that cannot be sterilized with steam or radiation. Dow estimates that its U.S. manufactured EO supplies the requirements of 75% of the U.S. government's jet fuel additive, 35% of the osmotic laxative market, 25% of the automotive brake fluid market, and nearly 10% of aircraft deicing fluids-all essential products required for national safety and the smooth functioning of the U.S. economy.
Dow may have to shut down some facilities that produce or use ethylene oxide in the second half of 2026 to comply with the HON rule, which is likely to have downstream impacts on the derivatives of EO with consequences for all of the sectors mentioned above. If Dow were to shut down the facilities simultaneously, the cascading impacts of the loss of EO production would be widespread and felt throughout the U.S., both economically and from an essential products perspective. During these outages, hourly employees will also face loss of work, negatively impacting the local community and individual American families' households.
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There are several provisions of the final rule that are untenable. Two of the most challenging are EPA's decision to regulate process wastewater streams at a level of 1 ppmw without any allowance for low mass flows or any consideration that some of the ethylene oxide in the process wastewater streams will react with water to form ethylene glycol. EPA's assumption that 50% of the ethylene oxide in the wastewater streams will be emitted to the atmosphere is much higher than fraction emitted values calculated by Dow's estimating tools, which predict 5 to 15% will be emitted. These wastewater streams require additional unit operations to react or remove the ethylene oxide from the process wastewater. In addition, EPA's decision to regulate small process vent streams at a level of 1 ppmv without regard to the stream pressure, flowrate or net heating value also create engineering challenges when determining how to collect and transport these streams to a control device and then what type of control system to design.
In addition to these engineering concerns, EPA has finalized requirements that would actually increase ethylene oxide emissions. For example, EPA has eliminated the Delay of Repair option for addressing small equipment leaks. This means that if a manufacturer cannot fix a small leak within fifteen days, the entire plant must be shut down to address that leak. By removing this delay of repair option, manufacturers estimate this could lead to 4-6 more plant shutdowns a year. Shutting down and starting up plants would emit more ethylene oxide emissions than allowing a small leak to continue until it can be safely fixed. And this may not only impact the ethylene oxide unit but could also force units offline that rely on ethylene oxide as an input in making other products.
In addition, EPA has finalized requirements that are not technically feasible. For thermal oxidizers, EPA is requiring continuous monitoring of flue gas. Flue gas temperatures are 1300 1600F for smaller thermal oxidizers with no heat recovery. Technology is not available to continuously measure flowrates at these high temperatures. This makes compliance impossible.
EPA has finalized a fenceline monitoring action level of 0.2 /m3 of ethylene oxide based on a new ambient air monitoring method (Method 327). There are many technical concerns with the new Method 327 and the ability of commercial labs to run the new method and analyze the number of canisters required for each site. The final action level is also below background levels taken at areas where there is no ethylene oxide being manufactured or used. This makes compliance impossible.
Finally, these requirements are all based on an overly conservative scientific assessment. EPA is relying on a risk value from the EPA EO IRIS assessment, which has been challenged as flawed and overly conservative. Further, EPA is utilizing this IRIS value without taking other scientific and peer-reviewed data into consideration. The IRIS risk value is 23,000 times lower than what is naturally occurring in the human body and below background levels.ii
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Despite the critical role EO plays in everyday life and the substantial work Dow has taken to reduce EO emissions, EPA refused to incorporate several of Dow's comments into the HON rule. Nor has it adequately addressed the objections that EPA has exceeded its authority and imposed burdensome regulations that do not reflect the best and most appropriate reading of the statutory requirements. The rule imposes significant costs that are not outweighed by the expected public benefits, and it will harm national interests. As a result, EPA should grant the petition for reconsideration and take time to impose a HON rule that is appropriate, costeffective, and consistent with the national interest.
Respectfully submitted,
Louis Vega President, Dow North America
Cc: Aaron Szabo, Senior Advisor to the Administrator, Office of the Administrator Sean Donahue, Principal Deputy General Counsel, Office of General Counsel Alex Dominguez, Deputy Assistant Administrator for Mobile Sources, Office of Air and Radiation Peter Tsirigotis, Director, Office of Air Quality Planning and Standards Penny Lassiter, Director, Sector Policies and Programs Division, Office of Air Quality Planning and Standards Patrick Lessard, Refining and Chemical Group Leader, Office of Air Quality Planning and Standards Andrew Bouchard, General Engineer, EPA Office of Air Quality Planning and Standards
i EPA used 2017 data in this final rule, which does not accurately estimate current risk since many facilities began emission reduction programs in 2018 when the new risk value was announced. ii https://www.a merica nchem istry.com/chem istry-i n-a merica/chem istries/ethylene-oxide
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Union Carbide Corporation A Subsidiary of The Dow Chemical Company
7501 State Highway 185 North Seadrift, TX 77983
March 4, 2025
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460
RE: Request for Extension of the Compliance Deadline and Letter of Support for ACC/AFPM Petition for Reconsideration In Re: New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry (89 Fed. Reg. 42932). Docket ID: EPA-HQ-OAR-2022-0730 ("HON rule").
Dear Principal Deputy Assistant Administrator Tardif:
We are writing on behalf of Union Carbide Corporation ("UCC"), a wholly owned subsidiary of The Dow Chemical Company to express our support for the petition for reconsideration filed by the American Chemistry Council ("ACC") and the American Fuel & Petrochemical Manufacturers ("AFPM") urging the Environmental Protection Agency ("EPA") to reconsider its final HON rule. First and foremost, UCC requests immediate relief and a oneyear extension to the impractical compliance deadlines, which are fast approaching, as the final rule's deadlines are unrealistic and cannot be met. Without an extension, this will lead to facility shutdowns and jeopardize important ethylene oxide supply chains including military jet fuels, aircraft deicing fluids, semiconductors, pharmaceuticals, and sterilization.
We also support the call to revoke the regulatory provisions promulgated under Clean Air Act section 112() because they exceed EPA's statutory authority and do not comply with the requirements of reasoned decision-making. While the petition filed by ACC and AFPM speaks to the general need for immediate relief and the rule's consequences from a national perspective, we wanted to ensure that you also had input from a regulated entity that is subject to EPA's final HON rule. The final rule's deadlines are unrealistic and there is a need for immediate relief. The final rule also harms the national interest because it exceeds EPA's statutory authority and imposes undue burdens and costs that impede private enterprise and far outweigh any public benefit.
EPA Should Extend Upcoming Deadlines
UCC has submitted requests to extend the compliance deadline of July 15, 2026 by one year for four projects that are being implemented to comply with the ethylene oxide provisions
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of the HON rule. We are continuing to work with EPA on their request for more information related to these extension requests.
In preparing to comply with the HON rule, UCC has undertaken an extensive amount of work to sample and test individual process vents and process wastewater streams to determine if these sources meet the definition of "In Ethylene Oxide Service". UCC has also expended significant financial resources on project scoping and engineering for all of the projects, and devoting significant employee time, including new hires and reallocation of human capital away from other workstreams. Beginning in April 2024, UCC commenced comprehensive sampling and monitoring at two of its facilities to identify which projects would need upgrades to comply with the HON rule and which projects are "in ethylene oxide service" (meaning that the projects include equipment that processes ethylene oxide ("EO")). Because of the sheer number of product lines and the vastness ofUCC equipment that is involved in BO-related processes, those efforts remain ongoing. The breadth of projects that UCC must implement to comply with the final rule is constantly evolving, as UCC has been forced to add and subtract projects as new sampling information becomes available.
UCC is required to undertake an extensive assessment process to determine whether equipment is in EO service, and how UCC can and should upgrade its equipment to meet the HON rule's extraordinarily stringent limits. That process requires (1) testing vents for flow rate and composition; (2) scoping out potential solutions to bring EO emissions into compliance with the final rule; and (3) sourcing bids from external vendors who may be able to develop the required technology. Each of these steps presents significant practical challenges. For example, there are few vendors who are qualified to build the necessary devices and, because every EO emitting industry needs to comply simultaneously, industry faces a significant backlog. Similarly, some of the technologies needed to comply with EPA' s requirements have known reliability issues.
Without an extension, UCC will not be able to meet the compliance timeline and potentially will have to shut down some of its facilities until we complete these projects. UCC will also be forced to implement projects at a rate that increases safety risks; diverts resources from other previously planned projects; and limits UCC's ability to innovate and develop new products to help the American people in everyday life. An extension is therefore needed now to avoid expending significant resources to comply with the final rule's unreasonable deadlines.
EPA Should Grant the Motion for Reconsideration
EO serves as an important chemical precursor used to produce a wide range of other chemicals, including home and personal care products, pharmaceuticals, agricultural products, antifreeze, military jet fuels, plastics, detergents, and textiles. It also performs a crucial role as a sterilizing agent for heat-sensitive medical equipment that cannot be sterilized with steam or radiation.
UCC may have to shut down some facilities that produce or use ethylene oxide in the second half of 2026 to comply with the HON rule, which is likely to have downstream impacts on the derivatives of EO with consequences for all of the sectors mentioned above.
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Despite the critical role EO plays in everyday life, EPA refused to incorporate several of industry's comments into the HON rule. Nor has it adequately addressed the objections that EPA has exceeded its authority and imposed burdensome regulations that do not reflect the best and most appropriate reading of the statutory requirements. The rule imposes significant costs that are not outweighed by the expected public benefits, and it will harm national interests. As a result, EPA should grant the petition for reconsideration and take time to impose a HON rule that is appropriate, cost-effective, and consistent with the national interest.
Respectfully submitted,
Andrew J. Switalski Vice President, General Counsel and Secretary
Cc: Aaron Szabo, Senior Advisor to the Administrator, Office of the Administrator Sean Donahue, Principal Deputy General Counsel, Office of General Counsel Alex Dominguez, Deputy Assistant Administrator for Mobile Sources, Office of Air and Radiation Peter Tsirigotis, Director, Office of Air Quality Planning and Standards Penny Lassiter, Director, Sector Policies and Programs Division, Office of Air Quality Planning and Standards Patrick Lessard, Refining and Chemical Group Leader, Office of Air Quality Planning and Standards Andrew Bouchard, General Engineer, EPA Office of Air Quality Planning and Standards
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essage
Wozniak, Russell (RA) [wozniara@dow.com] 3/31/2025 8:25:45 PM Szabo, Aaron [Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Donahue,Sean [donahue.sean@epa.gov]; Dominguez, Alexander [dominguez.alexander@epa.gov]; Tsirigotis, Peter [Tsi rigoti s. Peter@epa.gov]; Lassiter, Penny [Lassiter. Pen ny@epa.gov]; Lessard, Patrick [Lessa rd. Patrick@epa.gov]; Bouchard, Andrew [Bouchard.Andrew@epa.gov] Mavian, Kari (K) [KMavian@dow.com] Presidential Exemption Request HON Rule - Dow Louisiana Operations ttachments:Dow LAO Glycol II 2203-V13 Presidential Exemption.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Dear EPA,
The following Presidential Exemption Request was submitted to EPA's :::.::..:..:..::.:..::...:.;:_;:;_;:,=;;;..=-="-='=.""'"- e-mail address earlier today for our Dow Chemical Louisiana Operations site. The request consists of a cover letter along with Attachment #1, which provides additional details.
This e-mail is just to provide a copy of the request that was submitted.
We appreciate EPA's review of the request and are available to answer any questions regarding the attached submittal.
For reference, I serve as a technical contact for our Dow sites on EPA air pollution rules and policy matters so feel free to contact me with any questions as well.
Regards,
Russell A. Wozniak Dow US Air Advocacy Leader & California Regulatory Affairs Leader Environmental Expertise/Regulatory Affairs Cell Phone 361-571-5420
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March 31, 2025
United States Environmental Protection Agency i 200 Pennsylvania Ave. NW Washington, DC 20460
RE: Request for Presidential Exemption - Clean Air Act Section 112(i)(4) National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) - HON Regulation 40 CFR 63 Subparts F, G, and H Dow Louisiana Operations - Plaquemine Iberville Parish, Louisiana Title V Operating Permit No. 2203-V13-Glycol 11 Plant Submitted via e-mail to: airaction@epa ..9...9_y_
To Whom It May Concern,
The Dow Chemical Company (Dow) requests a Presidential exemption from compliance obligations of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) also referred to as the HON Rule). 1 For the reasons highlighted in this letter and attachment, we believe it is necessary and appropriate for the President to grant an exemption under Clean Air Act (CAA) Section i 12(i)(4) for sources regulated by the final rule either on an individual basis or collectively. If done collectively, we request that EPA include our regulated facility under that collective action.
We urge the Administration to swiftly consider and issue such an action based on an understanding that both: 1) "availability" for the purposes of this section refers not only to the existence of technology capable of achieving compliance with the rule, but encompasses practical challenges with the timeframes necessary to plan, procure, and install required technologies and such activity cannot occur within the current compliance timeframe; and 2) national security encompasses not only military defense applications and infrastructure, but also economic security, a perspective that has been acknowledged by the President in Executive Orders and key security agencies like the Department of Defense. Indeed, as the White House has stated regarding domestic priorities, "economic security is national security".2 As additional support on this point, we reference the separate joint coalition submission sent to EPA from the American Chemistry Council (ACC) and the American Fuel & Petrochemicals Manufacturers (AFPM) detailing the critical nature of ethylene oxide as a bullding block to several supply chains throughout domestic manufacturing, and the potential risks to our nation's national security interests if continued production is jeopardized.
We believe that the Administration has already been provided with sufficient information (including prior comments and the underlying petition for reconsideration on the HON rule) to support an exemption covering all regulated facilities or on a facility-specific basis. This letter
1 National Emissions Standards for Hazardous Air Pollutants (NESHAP), Powering the Great American Comeback https://www.epa.gov/system/files/documents/202503/neshap_powering-the-great-american-comeback_Jact-sheet_2.pdf 89 Fed. Reg. 42932 (May 16, 2024). 2 https://www.whitehouse.gov/presidential-actions/2025/02/amerlca-first-investment-policy/.
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and the attachment provide additional detail and support on the time-critical nature of the request for relief and to address EPA's request for information. We submit both in support of a category-wide grant, as well as to provide company-specific information if the President pursues a facility-specific exemption action.
A two-year compliance exemption is especially needed for a HON implementation project at our Glycol II plant to install a process wastewater reactor system, called a Purge Glycol Reactor, to react small concentrations of ethylene oxide to other chemical compounds. The following information associated with this request for our Louisiana Operations site is included in a February 20, 2025, letter to EPA, which is included as Attachment #i to this letter.
Emissions standards or limitations subject to the request, Facility(ies) and/or affected source(s), and Length of compliance period being requested. The original Attachment #1 requested a one-
year compliance date extension, which was the maximum allowed, but Dow is seeking a two-year compliance exemption with this letter to account for any potential delays in the project.
Information in support of the compliance exemption request is provided below:
Explanation why the technology to implement the standard is not available.
EPA's new standard for process wastewater in ethylene oxide service requires that individual process wastewater streams be managed in closed systems and then treated to remove ethylene oxide to less than i ppmw for each stream. Technology to lmplement the standard is not available prior to July 15, 2026, for the following reasons:
Technology to implement the standard is not readily available from external vendors, therefore, Dow is designing and plans to install a custom reactor to react ethylene oxide with water under selected operating conditions to meet the 1 ppmw requirement. There is not a vendor guarantee that this technology will meet the standard, thus a performance test will be required to confirm compliance.
Additional time is needed to properly engineer and construct this type of reactor and capital project. Typically, it takes 36 months to complete projects similar to these. More information is available in Attachment #1 on the major steps in the engineering, procurement, and construction process.
In addition, EPA's HON rule does not have specific monitoring requirements for this type of treatment device, therefore, Dow will be required to conduct performance testing and to submit a request to establish unique monitoring parameters per 63.151 (f){1) - (3) of the HON rule to EPA or to the LDEQ. The frequency and content of monitoring, recording, and reporting will be determined in accordance with the permitting authority.
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Explanation why an exemption is in the national security interests of the United States.
With respect to the national security implications of ethylene oxide-related supply chain disruptions, we incorporate the information provided by ACC and AFPM in a letter submitted to
EPA related to these exemption requests. In addition, we also supply the following information:
The Glycol 11 plant at Louisiana Operations produces ethylene oxide which serves as an important chemical precursor used to produce a wide range of other chemicals, including military jet fuels, pharmaceuticals, semiconductors, automotive, agricultural products, antifreeze, plastics, home and personal care products, and textiles. It also performs a crucial role as a sterilizing agent for heat-sensitive medical equipment that cannot be sterilized with steam or radiation. Dow estimates that its U.S. manufactured ethylene oxide supplies the requirements of 75% of the U.S. government's jet fuel additive, 25% of the automotive brake fluid market, and nearly 10% of aircraft deicing fluids-all essential products required for national safety and the smooth functioning of the U.S. economy.
Absent a compliance exemption, it is likely Dow will have to shut down some facilities that produce or use ethylene oxide in the second half of 2026 to comply with the HON rule, which will have downstream impacts on the derivatives of ethylene oxide with consequences for all of the sectors mentioned above. If Dow were to shut down multiple facilities simultaneously, the cascading impacts of the loss of ethylene oxide production would be widespread and felt throughout the U.S., both economically and from an essential products perspective. During these outages, employees may also face loss of work, negatively impacting the local community and individual American families' households.
As explained further in Attachment #i, Dow originally requested a one-year compliance extension to July 15, 2027, to complete construction on this project and an additional 150 days to December 12, 2027, to complete all required performance testing and establishment of operating parameters and to submit the Notification of Compliance Status Report. The Presidential Exemption under Clean Air Act Section 112(i){4) does not require that the President provide the bare minimum of time needed to obtain and install controls. Thus, to allow for any unexpected delays in the project schedule, with this letter Dow is seeking a two-year compliance exemption under Section 112(i)(4) of the Clean Air Act to July 15, 2028, to complete the site's HON implementation projects and a compliance exemption to December 12, 2028, to submit the Notification of Compliance Status Report for those projects. Any exemption granted under this section should also contain an option for EPA to consider a renewal for facilities for which compliance processes may run longer than two years.
If you have any questions or require additional information, please contact Mr. Russell Wozniak of our Environmental Expertise organization at (361) 571-5420 or email: wozniara@dow.com.
?!:J~ Site Responsible Care Leader
Louisiana Operations
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Attachment: cc: Aaron Szabo, Senior Advisor to the Administrator, Office of the Administrator
Abigale Tardif, Principal Deputy Assistant Administrator, Office of Air and Radiation Sean Donahue, Principal Deputy General Counsel, Office of General Counsel Alex Dominguez, Deputy Assistant Administrator for Mobile Sources, Office of Air and Radiation Peter Tsirigotis, Director, Office of Air Quality Planning and Standards Penny Lassiter, Director, Sector Policies and Programs Division, Office of Air Quality Planning and Standards Patrick Lessard, Refining and Chemicals Group Leader, Office of Air Quality Planning and Standards Andrew Bouchard, General Engineer, Office of Air Quality Planning and Standards
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Attachment #1 - February 20f 2025 Letter to USEPA - Submittal of Additional Information Requested for Request for Extension of Compliance Time Dow Louisiana Operations - Glycol II Plant
This attachment provides additional details on the project, the covered process wastewater streams, and the HON regulatory citations impacted.
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February 20, 2025
CERTIFIED MAIL NO.70201810 0000 0749 4252 Return Receipt Requested Ms. Mary Greene Director, Air Enforcement Division Office of Civil Enforcement United States Environmental Protection Agency Mail Code 2242-A 1200 Pennsylvania Ave, N.W. William Jefferson Clinton Building/Room 1119 Washington, DC 20460--000 I Submittal of Additional Information Requested Request for Extension of Compliance Time - One Project Purge Glycol Reactor for Process Wastewater Streams Compliance with the Ethylene Oxide Provisions 40 CFR 63 Subpart G -National Emission Standards for Hazardous Air Pollutants for the Sy11thetic Organic Chemical Manufacturing Industry (HON Rule) Dow Louisiana Operations - Plaquemine, Iberville Parish, Louisiana
Title V Operating Permit No. 220J.V13-Glycol n Plant
Dear Ms. Greene, This letter and the attached information provides additional information requested by USEPA in a letter December 20, 2024, regarding our request for an extension to the current July 15, 2026, due date for compliance with al I ethylene oxide requirements in EPA's amendments to the HON air pollution rule (40 CFR 63 Subparts F, G, and H). Our requesl for a compliance extension and this project involves the following:
Installation of a process wastewater reactor system, called a Purge Glycol Reactor, to react small concentrations of ethylene oxide to other chemical compounds in our Glycol U Plant.
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Request for an Extension of Compliance Louisiana Operations
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This project represents only a small subset of the HON implementation projects at the site and we seek an extension of compliance time only for what is absolutely necessary.
Pursuant to 40 CFR 63.6(i)(4)(i) and (ii) of the MACT rule general provisions our Louisiana Operations site is requesting a one-year extension from the compliance date of July 15, 2026, to July 15, 2027, for the project identified above. This extension is necessary in order to properly engineer the project, order and obtain the equipment, and then construct and start-up the project. Moreover, while the project is being completed, we will take steps 10 protect against imminent endangerment, including by prioritizing our completion of other projects at the site that have higher air emissions. More details on our request and the schedule for implementation for this project is included in the auached information, and we would be pleased to provide more details upon request.
ff you have any questions or require addilional information, please contact Ashlie LeBlanc at ~leblanc2@dow.com or Mr. Russell Wozniak of our Environmental Expertise organization at (361) 571-5420; email: wozniara@dow.com.
Sincerely,
~ Mary Me er
Site Responsible Care Leader Louisiana Operations
cc:
Mr. Steve Thompson Air Enforcement Branch Chief EPA Region 6 Compliance Assurance and Enforcement Division 120 l Elm St., Suite 500 Dallas, TX 75270-2102
Dr. Amanda Vincem Department of Environmental Quality Office of Environmental Services P.O. Box 4313 Baton Rouge, LA 70821-4313
Attachment
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Update to Request for Extension of Compliance
SECTION I
GENERAL INFORMATION
A. Print or type the following information for each facility for which you are requesting an extension of compliance (63.9(b)(2}(i}-(ii))
0 eratln Permit Number OPTIONAL
Permit 2203-V13
Facilit I.D. Number OPTIONAL
Street Address
j 21255 Louisiana Highway 1
I City Plaquemine
I Slate Louisiana
Facili Name if different from Res onslble Official's Name
Louisiana Operations
I ZIP Code 70764
Facili Street Address If different than Res onsible Official's Street Address
Facili Local Contact Name
Ashlie LeBlanc
I Clty Plaquemine
Title
EH&S Leveraged Air S ecialist
I State Louisiana
Phone OPTIONAL
I ZIP Code 70765
B. Indicate the relevant standard or other requirement that is the basis for this request for this compliance extension request:
Pursuant to 40 CFR 63.6(i)(4)(i) and (ii) of the MACT rule General Provisions our Louisiana Operations site is requesting a one-year extension from the compliance date of July 15, 2026, to July 15, 2027, for the following project and associated regulatory citations:
Project #1 - Purge Glycol Reactor Project - 40 CFR 63 Subpart G -
40 CFR 63.138 - Process wastewater provisions - performance standards for treatment processes managing Group 1 wastewater streams and/or residuals removed from Group 1 wastewater streams; and
40 CFR 63.138(b)(3) - Control options: Group 1 wastewater streams for Table 9 compounds - Reduce, by removal or destruction, the concentration of ethylene oxide to a level less than 1 parts per million by weight as determined in the procedures in 63.145(b) of this subpart; and the following general control provisions for Group 1 process wastewater streams:
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40 CFR 63.132 40 CFR 63.133 40 CFR 63.134 40 CFR 63.135 40 CFR 63.136 40 CFR 63.137 -
Process wastewater provisions Process wastewater provisions Process wastewater provisions Process wastewater provisions Process wastewater provisions Process wastewater provisions -
general wastewater tanks surface impoundments containers individual drain systems oil-water separators
Project #2 - Dow is removing this project from the extension request. Revised Emission Control System for Start up Vents 4Q CFR 63 Subpart G 40 GFR 63.~24 - Process Vents and Storage Vessels that ai:e in ethylene oxide service pmoadures to determine compliance.
C.
Reasons whv additional time is needed
A one-year extension is needed in order to properly engineer and construct this type of project. Typically, it takes 36 months to complete projects similar to these. Key steps In the engineering, procurement, and construction process are:
Major Steps in Process
Testing to determine "In EO Service" and PreFEED Project Scoping
Front End Engineering Design (FEED)
Detafled Design Engineering
Procuremenl (Obtaining Vendor Bids, Vendor Questions & Selection, Equipment Fabrication & Delivery lo site)
Construction of Required Equipment, Piping and Instrumentation
Develop Operating Procedures, Commissioning Equipment, and Placing Into Service
Estimated Time to Complete (Months)
6 12 9 19 {overlaps with engineering)
10 (overlaps with detailed engineering)
1 - 1.5 months
Total Estimated Time for Project including testing
36
to determine "In EO Service::
Note: Some steps like Procurement overlap with Front End Engineering Design, Detailed Design Engineering, and Construction. Construction also overlaps with Detailed Design Engineering.
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SECTION ll CERTIFICATION (Note: you may edit the text in this section as deemed appropriate)
Based upon information and belief formed after a reasonable inquiry, I, as a responsible official of the above-mentioned facility, certify the information contained in this request is accurate and true to the best of my knowledge.
Name al Res onsible Official Print or T e e Official
Title
Senior Production Director
Note: Responsible official is defined under 63.2 ,,1s any of the (of/owing: the president, vicepresident, secretary, or treasurer of the company that owns the plant; the owner of the plant; the plant engineer or sup0rvisor; a government official if the pfant is owned by the Federal, State, city, or county government; or a ranking military officer if the plant is located on a mifitary installation.
SECTION Ill COMPLIANCE SCHEDULE INFORMATION
A. Describe the controls that will be installed at your facility to ensure compliance with the relevant standard. (63.6(i)(6)(i)(A)) - See the descriptions for each project below:
Project #1 - Installation of a process wastewater reactor system, called a Purge Glycol Reactor, to react small concentrations of ethylene oxide in process wastewater streams from the Glycol II Plant to other chemical compounds. The reactor system will be operated at an elevated temperature and pressure to react a low concentration of ethylene oxide to other organic compounds. These small process wastewater streams from the Glycol II HON covered process plant has minimal ethylene oxide emissions, but each process wastewater stream with 1 ppmw or more ethylene oxide must be controlled.
Project #2 - Dow is removing this project from the extension request. lnstallatiGR-Gf..a
111 PlaAt These 'wl8Ats
Due to small levels of emissions associated with these wastewater streams, the health of persons will be protected from imminent endangerment, as required by 40 CFR 63.6(i)( 4 )(ii).
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B. Describe your compliance schedule by specifying the date by which you will complete each of the following steps toward achieving compliance: (63.6(i)(6)(i)(8)(1 )-(4)):
A compliance schedule, including the date by which each step toward compliance will be reached. At a minimum, the list of dates shall include:
(1) The date by which on-site construction, installation of emission control equipment, or a process change is planned to be initiated.
On-site construction for this project is planned to be initiated by August 1, 2026.
(2) The date by which final compliance is to be achieved.
Compliance for this project is expected to be achieved by July 15, 2027.
(3) The date by which on-site construction, installation of emission control equipment, or a process change is to be completed; and
On-site construction is planned to be completed by June 1, 2027, for this project.
(4) The date by which final compliance is to be achieved;
Start-up of this system and compliance is expected to be achieved by July 15, 2027.
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Additional Information Requested by EPA in December 20, 2024 Letter & 40 CFR 63.6(i)(1 0)
Each of the requested items is provided for Project #1. Dow is no longer seeking a compliance extension for Project #2.
Project #1 - Installation of a process wastewater reactor system, called a Purge Glycol Reactor
Identify each affected source covered by the extension:
There are four process wastewater streams that wlU be collected and piped to the new treatment system:
Process Wastewater Stream
Plant
D-370 Scrubber Bottoms P-321 A/B Ethylene Recovery Hotwell #1 and #2 - Combined E-90 Scrubber Water PurQe
....__~~ ..
., ~~-~_,......,.._...,.,,..__.,.,._,_...
Glvcol 2 Glycol 2 Glvcol2 Glycol 2
Specify the termination date of the extension.
The termination date of the extension will be July 15, 2027, for the installation of the Purge Glycol Reactor system and the termination date of the extension will be December 12, 2027, for the Notification of Compliance Status Report and other associated requirements as detailed below.
Specify the dates by which steps toward compliance are to be taken, if approprf ate
As noted above, construction is expected to commence on this project by August 1, 2026, with the goal of completing construction by June '1, 2027, A performance
demonstration along with establishment of operating parameters for continuous monitoring will be conducted after the start-up date.
Specify other applicable requirements to which the compliance extension applies (e.g., performance tests).
Dow also proposes extensions to the following items related to the installation of the Purge Glycol Reactor and the testing, monitoring, recordkeeping, and reporting requirements:
Pages
ED_0184750_00003174-00012
#1 - Performance Demonstration and Establishing Parameter Monitoring Ranges 63.146(a} and 63.i51(f)(1)-(f)(3}
Dow proposes that the requirement fn 63.146(a) for the owner/operator to submit a request to monitor alternative parameters according to the procedures in 63 .151 (f) be extended to July 15, 2027 to align with the start-up date of the Purge Glycol Reactor.
Dow proposes that all due dates to complete the requirements in 63.151 (f)( 1) - (3) be extended to December 12, 2027 to allow time for a performance demonstration and setting of parameters after the Purge Glycol Reactor starts operation.
Table 12 of the HON rule refers to 63.151(f), which requires compliance with paragraphs (f)(1) -(3) as copied below. Dow proposes an extension to December 12, 2027 to complete the performance demonstration, establish parameter monitoring ranges. and commence monitoring. This is five months after the requested extension date of July 15, 2027 to have the Purge Glycol Reactor installed. The rule text for 63.151 (f) and (1) - (3) is provided below;
The owner or operator who has been directed by any section of this subpart that expressly references this paragraph to set unique monitoring parameters or who requests approval to monitor a different parameter than those lfsted in 63.114 for process vents, _63.127 for transfer, or 63.143 for process wastewater of this
subpart shall submit the information specified in QaraqraphsW(1!, illi.fl, and (.!lQ2 of
this section with the operating permit application or as otherwise specified by the permitting authority. 40 CFR 63.151 (f),
(1) A description ol the parameter(s) to be monitored to ensure the control technology or pollution prevention measure is operated in conformance with its design and achieves the specified emission limit, percent reduction. or nominal efficiency, and an explanation of the criteria used to select the parameter(s).
(2) A description of the methods and procedures that will be used to demonstrate thal the parameter indicates proper operation of the control device, the schedule for this demonstration, and a statement that the owner or operator will establish a range for the monitored parameter as part of the Notification of Compliance Status report required in .___:Ll_52(b} of this s ~;mart, unless this information has already been Included in the operating permit application.
(3) The frequency and content of monitoring, recording, and reporting if monitoring and recording is not continuous, or if reports of daily average values when the monitored parameter value is outside the range established in the operating permit or Notification of Compliance Status will not be included in Periodic Reports required under 63.152!c) of thjs subpa(_t, The rationale for the proposed monitoring, recording, and reporting system shall be included.
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ED_018475O_00003174-00013
#2 - Wastewater Parameter Exceedance Reporting 63.146(d)(3)
Dow proposes that the due date for reporting monitoring results for each operating day during when the daily average of any monitored parameter approved in accordance with 63.151 (f) was outside the range established in the Notification of Compliance Status be extended to December 12, 2027. This will allow to us conduct testing and setting of operating parameters after the system starts.up on or before July 15, 2027. This will also align with the submittal of the Notification of Compliance Status report. The identification of the treatment process, the parameter that was of range, and the date the parameter was out of range must be reported.
#3 - Wastewater Recordkeeping 63.147(b)(4) and (e)
Dow proposes that the requirement in 63.147(b)(4) be extended to December 12, 2027. The requirement in 63:147(b)(4) is that for Item 3 of table 12 of this subpart, the owner or operator shall keep records approved by the Administrator. 63.147(e) notes that the Administrator will specify appropriate recordkeeping requirements.
#4 Notification of Compliance Status Report 63.152(b)
Dow proposes that the due date for this report be extended to December 12, 2027 to align with #1 above.
#5 - Periodic Report~ 63.152(c)
We propose that the due date for this report be extended to December 12, 2027 to align with #1 above.
Specify any additional conditions that the Administrator (or the State) deems necessary to assure installation of the necessary controls and protection of the health of persons during the extension period.
No additional information Is being provided with this response.
Page?
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essage
Meyers, Robert [RMeyers@crowell.com] 3/10/2025 10:00: 16 PM Dominguez, Alexander [dominguez.alexander@epa.gov] FW: Pending Requests for Determination ttachments:Request for Determination OAR 6152020.pdf; Request for Determination Memorandum 06152020.pdf; Application for Non-Hazard Waste Determination and NonApplicability ofTitle V OLEM.pdf
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Forwarding due to bounceback.
Robert J. Meyers
Crowell & Moring LLP rmeyers@crowell.com +1.202.624.2967 direct
+202-306-5254 mobile
From: Meyers, Robert <RMeyers@crowell.com> Sent: Monday, March 10, 2025 5:01 PM To: szabo.aaron@epa.gov; cook.steven@epa.gov; tardif.abigale@epa.gov; cook.steven@epa.gov; dominguez.alex@epa.gov; schwab.justin@epa.gov Subject: Pending Requests for Determination
This email is to bring to your attention two requests for a determination previously filed with the EPA regarding new technology equipment (designed for forestry and agricultural uses and to address the clean-up of wood debris) that remain pending at the Agency.
As outlined in the requests, this equipment provides multiple benefits to air quality and the environment and is far superior to current alternatives, but has encountered issues with regard to appropriate classification and permitting. The requests were made in 2020 to both the Office of Air and Radiation and the Office of Land and Emergency Management regarding approaches that could potentially resolve uncertainty in the classification of this equipment.
We recognize that this is currently an extremely busy period for EPA, but would welcome the opportunity to discuss matters contained within the requests with the appropriate officials and staff at your earliest convenience.
Should you have any questions concerning the requests or need additional information regarding same, please do not hesitate to contact me.
ED_018475O_00003179-00001
Robert J. Meyers
rmeyers@crowell.com +1.202.624.2967 direct Linked In
+202-306-5254 mobile
Crowell & Moring LLP 1001 Pennsylvania Avenue NW Washington, DC 20004
Crowell
crowell.com
This message may contain privileged and confidential information. IF IT WAS SENT TO YOU BY MISTAKE, DO NOT READ IT. Instead, please notify the sender (or postmaster@crowell.com) by reply e-mail, and delete this e-mail. Unauthorized dissemination, forwarding or copying of this e-mail is strictly prohibited.
ED_018475D_ 00003179-00002
essage
Mascarenhas, Brendan [Brendan_Mascarenhas@americanchemistry.com] 3/7/2025 8:05:53 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Dominguez, Alexander [dominguez.alexander@epa.gov]; Tsirigotis, Peter [Tsi rigoti s. Peter@epa.gov]; Lassiter, Penny [Lassiter.Penny@epa.gov]; Lessard, Patrick [Lessard.Patrick@epa.gov]; Bellas, Leslie [LBellas@afpm.org]; Zenick, Elliott [Elliott_Zenick@americanchemistry.com]; White, Kimberly [kimberly_white@americanchemistry.com]; Mavian, Kari [kmavian@dow.com]; LaPorte, Mara [maralaporte@eastman.com]; Allen Kacenjar [allen.kacenjar@squirepb.com] ACC-AFPM Thanks and Letter - HON/ Executive Order ttachments:ACC AFPM Letter HON Executive Order - March 7 2025.pdf
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Dear Ms. Tardif,
ACC and AFPM would like to express our appreciation for the chance to meet with you and Patrick Lessard during our February 18, 2025 meeting on priority issues related to EPA's final rule for NSPS and NESHAP for the Synthetic Organic Chemical Manufacturing and Group I & II Polymers and Resins Industries, or the HON final rule. The attached letter reiterates our thanks and highlights our concerns in the context of the release of President Trump's Executive Order (EO) "Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency' Deregulatory Initiative." As detailed in our letter, we believe several HON provisions meet the EO's criteria for regulatory requirements of concern.
Again, we greatly appreciate the chance to discuss these issues and we look forward to continued engagement. If you have any questions or if we can be of any help, please feel free to reach out anytime. Thanks very much.
Regards, Brendan
erkan" Chemistry undl
Brendan Mascarenhas Senior Director, Environment 0: (202) 249-6423 C: (703) 989-5269 brendan mascarenhas a:americanchemistr .com 700 2nd Street NE I Washington, DC I 20002 \VWW.americanchemistrv.com
ED_018475O_00003219-00001
I h
...
Ap,rll 14~16,.2025 Washington, DC
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
ED_ 0 184 7 5D _ 00003219-00002
AFPM
erican emistry
uncil
March 7, 2025
Ms. Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, D.C. 20004
RE: EPA s Final Rule for New Source Performance Standards (NSPS) for the Synthetic Organic Chemical
Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and Group I & II Polymers and Resins Industry.
Dear Ms. Tardif:
The American Chemistry Council (ACC) and the American Fuel & Petrochemical Manufacturers (AFPM) would like to express our appreciation for the opportunity to meet with you and Patrick Lessard on EPA's final rule for New Source Performance Standards (NSPS) for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and Group I & II Polymers and Resins Industry (the HON rule). 1 As explained during our meeting, the sweeping Clean Air Act (CAA) SOCMI NESHAP and NSPS requirements will impact hundreds of domestic manufacturing facilities with unworkable final provisions that must be implemented in accordance with an unachievable timeline. Immediate relief is necessary to avoid severe economic impacts as facilities are preparing for the impending July 2026 compliance deadlines.
After our February 18, 2025 meeting, President Trump issued an Executive Order (EO) titled "Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency' Deregulatory Initiative" (Lawful Governance EO), which directs agency heads to review regulations and identify priority actions that are "overbearing and burdensome" and do not reflect the best reading of the underlying statute.2 To implement this executive order, EPA should rescind all HON provisions relying on EPA's unlawful second risk review because those regulations are not based on the best reading of CAA 112(f).3 Moreover, the improper reliance on CAA 112(f) to promulgate emissions standards means that EPA made no effort to determine whether the costs of those requirements outweigh the public benefit.4
The regulatory costs associated with the final requirements are staggering. As our petition for reconsideration details, EPA acknowledged that the rule's requirements impose costs of $83 million per cancer case prevented. This value
1 89 Fed. Reg. 42932 (May 16, 2024). 2 https://www.whitehouse.gov/presidcntial-actions/2025/02/ensurin6-lawful-govcmance-and-implemcnt b-thc-presidents-departmentof-bovcmmcnt-efficicncy-regulato -initiative/. In Section 2(ii), the EO cites "regulations that are based on unlawful delegations of legislative power." As detailed in the January 17th opening industry petitioner brief in the underlying litigation and in comments submitted by Huntsman on the rulemaking, EPA's interpretation of its authority under CAA 112(f), especially as implemented in the HON, constitutes an unlawful delegation oflegislative power. 3 Id. at Section 2(iii). 4 Id. at Section 2(v).
1
700 Second Street NE, Wasr:irirHon DC 20002 I 202.249.7000 I americancr:ernistrv.com
ED_0 18475D_ 00003220-00001
AFPM
erican emistry
uncil
alone is not cost-effective, and yet it also vastly underestimates the actual costs per cancer case prevented. Our petition explains that with a more realistic accounting for the true universe of facility impacts, the true cost of each cancer case prevented from EPA's requirements is likely in the hundreds of millions, if not billions, of dollars. Moreover, as previously presented to EPA, the rule imposes eight-figure costs even for some facilities for which EPA has found risks to be acceptable.
Finally, the HON rule's ethylene oxide requirements have sweeping impacts across domestic manufacturing that will cause near-term shutdowns for U.S. facilities and threaten longer term availability of ethylene oxide to critical supply chains for energy production, military applications, medical sterilization uses, and several other uses. 5 As the Lawful Governance EO and other executive orders appropriately recognize, energy and economic security are critical components ofAmerica's overall strength and national security.
*********************************
The final HON rule is a significant regulatory action that negatively impacts scores of domestic manufacturing facilities. As detailed in briefjudicially challenging the HON rule and our petition for reconsideration, the rule does not reflect the best reading of EPA's CAA statutory authority; it imposes millions of dollars of unjustified costs that do not outweigh its benefits; it will have a massive impact across critical supply chains; and it generally impedes the economic and national security of our nation. Rescinding HON provisions promulgated under the CAA 112(f) authority is critical first step to implementing the Lawful Governance EO and eliminating agency overreach.
We thank EPA for your consideration of this request.
If you have any questions or would like more information, please free to contact me via phone at (202) 249-6423 or email at Brendan Mascarcnhas@amcricanchemist y.corn or Leslie Bellas at lbellas@afpm.org.
Sincerely,
Brendan Mascarenhas Senior Director, Regulatory & Scientific Affairs American Chemistry Council
Leslie Bellas Vice President, Regulatory Affairs American Fuel & Petrochemical Manufacturers
CC: Alex Dominguez, Deputy Assistant Administrator for Mobile Sources, Office of Air and Radiation Peter Tsirigotis, Director, Office of Air Quality Planning and Standards Penny Lassiter, Director, Sector Policies and Programs Division, Office of Air Quality Planning and Standards Patrick Lessard, Refining and Chemicals Group Leader, Office of Air Quality Planning and Standards
5 Id. at Section 2(vi).
700 Second Street NE, Wasr:irirHon DC 20002 I 202.249.7000 I americancr:ernistrv.com
2
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essage
Ludwiszewski, Raymond B.
[RLudwiszewski@gibsondunn.com]
2/19/2025 12:11:06 AM
Szabo, Aaron
[Szabo.Aaron@epa.gov]; Tardif,
Abigale (Abbie)
[Tardif.Abigale@epa.gov];
Dominguez, Alexander
[dominguez.alexander@epa.gov]
ubject:
ACC II Waiver and CRA Analysis
ttachments:ACC II Waiver and the CRA
February 2025.pdf
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Aaron/Abigale/Alexander -
Please find attached an analysis of the legal foundation for subjecting EPA's decision to grant California a waiver for its ACC II program to review under the CRA. I understand that EPA will include documentation supporting the consideration of the waiver as a rule subject to the CRA when it transmits the rules to Congress.
If valuable, I would be happy to discuss further with your counsel at your convenience.
Thx,RAY
Raymond B. Ludwiszewski
T: +1 202.955.8665 IM: +1 202.262.8294 Rludwiszewski@gibsondu nn .com
Gibson, Dunn & Crutcher LLP 1700 M Street, N.W., Washington, D.C. 20036-4504
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ED_018475O_00003221-00001
EPA's Notice of Decision Regarding California's ACC II Waiver is a Rule Subject to the Congressional Review Act
February 2025
Background
On January 6, 2025, in the waning days of the Biden Administration, the Environmental Protection Agency ("EPA") issued a notice of decision granting a Clean Air Act ("CAA") Section 209 waiver for California's Advanced Clean Cars II ("ACC II") regulations for light-duty vehicles. 1 California's ACC II regulations impose an electric vehicle ("EV") mandate, requiring all new passenger cars, trucks and SUVs sold in California to produce zero emissions by 2035.
The Congressional Review Act ("CRA") enables Congress to enact joint resolutions invalidating new "rules" adopted by agencies. 5 U.S.C. 801-808. EPA has characterized its waiver of CAA preemption for California's unprecedented ACC II program as an adjudicative order, not a rule, thus purportedly immunizing this decision from the CRA process. But given its sweeping nationwide consequences, massive economic impact, and clear zero-emission vehicle mandate, EPA's decision to grant California a preemption waiver for ACC II is a rule subject to the CRA process. See 5 U.S.C. 551(4); 5 U.S.C. 804(3). To support the CRA process, a member of Congress or a committee should request that the Government Accountability Office ("GAO") issue a decision that EPA's ACC II waiver decision is a rule subject to the CRA.
L Defining Rules under the Congressional Review Act
The CRA enables Congress to enact joint resolutions invalidating new rules adopted by agencies. 5 U.S.C. 801-808. Starting from the later of the date an agency publishes a rule in the Federal Register or submits that rule to Congress, Congress has sixty days to introduce a joint resolution disapproving the rule, excluding days either chamber is adjourned for more than three days during session. Id. 802(a). If a disapproval resolution is enacted, the rule has no force or effect. Id. 801(b)(l). And the rule cannot "be reissued in substantially the same form" unless authorized later by law. Id. 801(b)(2).
a. Statutory Definitions of a Rule The CRA adopts most of the definition of "rule" from the Administrative Procedure Act
("APA"), id. 804(3), which states that a rule is "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy...." Id. 551(4). However, the CRA excludes rules of particular applicability from its definition of "rule." Id. 804(3).
1 California State Motor Vehicle and Engine Pollution Control Standards; Advanced Clean Cars II; Waiver of Preemption; Notice of Decision, 90 Fed. Reg. 642 (Jan. 6, 2025).
1
ED_018475O_00003222-00001
The APA also separately defines an order to be "the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." Id. 551(6) (emphasis added). Rules and orders are mutually exclusive categories under the APA, and an order is not a rule subject to the CRA. But the definition of "order" is plainly a catch all category designed to capture any action that does not fall under the APA's definition of a rule, including "licensing."
Courts have stated that rules of general applicability tend to impact many individuals or stakeholders, are prospective in nature, and are designed to prescribe a policy in enforcing a statute. See, e.g., Nat'l Ass'n ofHome Builders v. U.S. Army Corps of Eng'rs, 417 F.3d 1272, 1285 (D.C. Cir. 2005) (holding that a nationwide dredge and fill permit is a rule rather than an adjudication because these permits IIgrant rights, impose obligations, or produce other significant effects on private interests"); Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 96 (D.C. Cir. 2002) (holding that a program imposed on multiple participants in future years was a rule); United States v. Florida East Coast Railway Co., 410 U.S. 224, 246 (1973).
Conversely, courts have held that an order is a case-specific, individual determination made in "highly fact-specific contexts" that has an immediate effect on the individual or individuals involved. Neustar, Inc. v. FCC, 857 F.3d 886, 893 (D.C. Cir.); see also Florida East Coast Railway Co., 410 U.S. at 246; Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994) ("adjudications resolve disputes among specific individuals in specific cases, whereas rulemaking affects the rights of broad classes of unspecified individuals").
Rules of particular applicability, another category altogether, are rules addressed to
specific, identified entities. American Broadcasting Co., Inc. v. FCC, 682 F.2d 25, 31-32 (2d. Cir.
1982)
(explaining
that,
11
[a]
rule
is
one
of
particular
applicability
if
it
is
addressed
to
and
served upon named persons."). In American Broadcasting, the Second Circuit relied on the
APA's legislative history to explain that a rule of particular applicability is a rule that is served
upon a named person rather than being published in the Federal Register. 682 F.2d at 31-32. In
other words, rules of particular applicability were added to the APA definition of "rule" to
avoid filling the Federal Register with a mass of particularized rule making, such as rate setting,
that do not IIdirectly affect[] pre-existing legal rights or obligations."2 Id (quoting Appalachian
Power Co. v. Train, 566 F.2d 451,455 (4th Cir. 1977) (internal quotations removed)).
EPA's ACC II waiver decision is a rule of general applicability and therefore subject to the CRA. The waiver decision will have sweeping nationwide consequences, increase the price
2 For instance, the legislative history highlights Internal Revenue Service (IRS) private letters as examples. See 142 Cong. Rec. S3683-01, S3687 (daily ed. April 18, 1996) ("IRS private letter rulings ... are classic examples of rules of particular applicability ..."). IRS issues private letter rulings to taxpayers who request a specific ruling on the facts of their situation. Id.
2
ED_018475D_00003222-00002
of cars, reduce consumer choice, and is intended to set the country on a path towards driving exclusively electric vehicles. A policy decision of such magnitude could not fall under the APA's definition of an order, license, or rule of particular applicability that is exempt from the CRA.
11. Agency Positions on Waiver Decisions as Rules
a. EPA Likely in an effort to insulate its decision from review by this Administration, the Biden
EPA did not submit a CRA report to Congress or the Comptroller General for its ACC II waiver decision. It noted in the Federal Register publication that the CRA IIdoes not apply because this action is not a rule." 3 This is in line with Democrat Administrations' posture on waiver decisions and the CRA. For instance, in reinstating CARB's waiver for its Advanced Clean Cars I (ACC I) regulations, the Biden EPA also took the position that its decision reinstating California's waiver (after it was revoked by the first Trump Administration) is not a rule not subject to the CRA.4
b. GAO In response to an inquiry from the Senate about the availability of CRA review for a
Section 209 waiver decision, the GAO under President Biden also took the position that EPA's 2022 decision to reconsider its previous withdrawal of the ACC I waiver was an order rather than a rule.5
Relying in part on arguments that the Biden EPA submitted to GAO, the agency argued that the waiver decision was a "case-specific, individual determination of a set of facts with an immediate effect on the individual(s) involved" because it was particular to California and the ACC I regulations rather than a "broad unspecific group," and it had an immediate effect in California. Id. at 5. It was also a "final disposition" and "form of permission." Id. As such, the GAO found that the waiver decision fit the APA's definition of an "order," see 5 U.S.C. 551(6), rather than a rule.
GAO further asserted that, even if the waiver decision satisfied the APA definition of a rule, it would be exempt from the CRA as a rule of particular applicability because the waiver
3 California State Motor Vehicle and Engine Pollution Control Standards; Advanced Clean Cars II; Waiver of Preemption; Notice of Decision, 90 Fed. Reg. 642 (Jan. 6, 2025).
4 California State Motor Vehicle Pollution Control Standards; Advanced Clean Car Program; Reconsideration of a Previous Withdrawal of a Waiver of Preemption; Notice of Decision, 87 Fed. Reg. 14,332, 14,379 (Mar. 14, 2022).
5 See U.S. Gov't Accountability Office, B-334309, Applicability of the Congressional Review Act to Notice of Decision on Clean Air Act Waiver of Preemption (2023) at https://www.gao.gov/assets/870/863746.pdf.
3
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"concern[ed] a specific entity-California-and addresse[d] a statutory waiver specific to California's [ACC I] Program." 6 GAO relied on one of its prior decisions to form this conclusion, which itself pointed to a 2019 GAO decision that analyzed what constitutes a rule of particular applicability. 7 In its 2019 decision, GAO relied heavily on American Broadcasting to argue that rules of particular applicability are addressed to named entities and address actions they may or may not take. 8 However, GAO ignored a critical element described by the Second Circuit in American Broadcasting: rules of particular applicability were created to avoid filling the Federal Register with a mass of rulemakings that do not affect legal rights or obligations. 682 F.2d at 31-32.
Ill. EPA's ACC II Waiver Decision is a Rule Subject to the CRA
The Biden EPA improperly sought to insulate its ACC II waiver decision from review and recission by this Administration by incorrectly characterizing the decision as an order, not a rule. But this Administration has the opportunity to correct the record on this critical issue for the U.S. automotive industry and American consumers.
a. EPA's ACC II Waiver Decision has the Characteristics of a Rule EPA's ACC II waiver decision has far more characteristics of a rule than an order or
license. Although the waiver decision is formally addressed to California, it is not designed or intended to be particular to California, and its effect will be felt nationwide. The ACC II waiver decision will have a widespread effect on the industry, it is prospective in nature, and it is designed to dictate a nationwide policy agenda of mandating electric vehicles and limiting individual consumer choice to purchase gasoline-powered vehicles.
For instance, California's ACC II regulations are intentionally designed for widespread adoption beyond California to include multiple states pursuant to Section 177 of the CAA ("Section 177 states"). As an example, the regulations include provisions for pooling zeroemission vehicles ("ZEV") sales across the States that adopt the ZEV regulations. Cal. Code
6 See also CONG. RsCH. SERV., R48168, CALIFORNIA AND THE CLEAN AIR ACT (CAA) WAIVER: FREQUENTLY ASKED QUESTIONS (2024) at https://crsreports.congress.bov/product/pd f/ /R48168. In a report, the Congressional Research Service (CRS) adopted GAO and EPA's view that a waiver decision is an order, not a rule, citing the same reasons. But CRS reports are not binding; the governing statute does not confer any legal authority on CRS reports. See 2 U.S.C. 166 et seq.
7 See U.S. Gov't Accountability Office, B-334995, U.S. Food and Drug Administration-Applicability of the Congressional Review Act to Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200 mg (2023) at https://www.gao.gov/products/b-334995 (citing U.S. Gov't Accountability Office, B-330843, Board of Governors of the Federal Reserve System-Applicability of the Congressional Review Act to Supervision and Regulation Letters (2019) at https://www.gao.gov/products/b-330843).
8 See U.S. Gov't Accountability Office, B-330843 (citing American Broadcasting, 682 F.2d at 31-32).
4
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Regs., tit. 13, 1962.4(g)(l)(D). Thus, by design, the ACC II regulations do not "concern [only] a specific entity-California," as GAO stated in its earlier opinion.
The ACC II regulations will also have a massive market impact. California and the other Section 177 states are expected to account for approximately 40% of new light-duty vehicle registrations, meaning numerous manufacturers, purchasers, and other stakeholders will be impacted. 9 CARB's economic analysis estimates that compliance with ACC II will cost $210 billion through MY 2040 in California alone. 10 There are also sweeping energy security implications, as the rapid increase in electrification may strain mineral supply chains and impact energy security on a national level.
The view that the waiver decisions are orders is inconsistent with the importance attached to the ACC II regulations by CARB itself. For instance, CARB asserts that the regulations will reduce greenhouse gas emissions by 395.1 million metric tons over 14 years, with avoided climate impacts between $9.8 and $40.1 billion. 11 CARB chair Liane Randolph stated that the ACC II regulations represented "a historic moment for California, for [its] partner states, and for the world as [it] set forth this path towards a zero-emission future." 12
Further, if EPA attempted an action with the same contours and magnitude of ACC II, it would undoubtedly be considered a rule. EPA's approval of a state agency rule having the same effect should not evade CRA review as an order.
Under the CAA, emission control measures taken by states or localities that are necessary to attain federal air quality standards must be included in the State Implementation Plan (SIP) submitted to EPA. See Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 2015). The Ninth Circuit has specifically held that this includes measures for which California has an EPA waiver of preemption. Id. Accordingly, since 2015, CARB has submitted rules for which it has received an EPA waiver decision for federal approval as part of the SIP. 13 Air emissions rules included in the SIP become EPA rules by virtue of EPA's approval of the SIP. See Cal. Dump Truck Owners Assoc. v. Nichols, 784 F.3d 500, 506-07 (9th Cir. 2015). Therefore, regardless of what EPA labels its waiver decision, CARB mobile source rules become federal rules when included in an EPA-approved SIP. See id.
9 "Section 177 States Regulation Dashboard," https://ww2.arb.ca.gov/our-work/programs/advancedclean-cars-program/states-have-adopted-californias-vehicle-regulations.
10 See CARB Advanced Clean Cars II Final Statement of Reasons, Appendix F: Updated Costs and Benefits Analysis, at https://ww2.arb.ca. 0 ov/sitcs/dcfault/filcs/barcu/re0 ac /2022/accii/fsorappf.pdf.
11 See CARB ACC II Waiver Request Support Document found at EPA-HQ-OAR-2023-0292.
12 See CARB Transcript 8-25-202 found at EPA-HQ-OAR-2023-0292.
13 See, e.g., Air Plan Revisions; California; California Mobile Source Regulations, 89 Fed. Reg 103,726, 103,727 (Dec. 19, 2024).
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Finally, CARB standards must follow the limits of EPA'sown authority. Section 202(a) of the CAA describes EPA's authority when promulgating emission standards applicable to new motor vehicles. 42 U.S.C. 7521(a)(l). This provision is incorporated by reference into the waiver requirements of Section 209(b). Id. 7543(b)(1 ). In other words, EPA shall only grant a waiver for California's "standards and accompanying enforcement procedures" if those standards and procedures are "consistent with" the limits on authority that would apply if EPA were to promulgate the same rules itself. The scope of EPA's authority is limited by the CRA. Thus, EPA's power to grant a waiver is constrained by the CRA and EPA cannot evade that Congressional limit by describing the waiver decision as an order.
The ACC II waiver decision is also not a rule of particular applicability. In reaching its conclusion about the ACC I waiver decision being a rule of particular applicability, GAO relied on American Broadcasting's statement that a "rule is one of particular applicability if it is addressed to and served upon named persons." American Broadcasting, 682 F.2d at 31-32. But GAO misread this case and depended on a contorted argument that, because the waiver decision formally concerns only California, it meets this definition. See U.S. Gov't Accountability Office, B-334309 at 6. But as discussed above, American Broadcasting also explains that rules of particular applicability were added to the APA definition of "rule" to avoid filling the Federal Register with a mass of particularized rule making, such as rate setting, that do not impact pre-existing legal rights or obligations. 682 F.2d at 31-32. EPA waiver decisions plainly do not fall under this definition. Waiver decisions are published in the Federal Register, are open for public comment, and impact the legal rights of numerous entities.
b. EPA's ACC II Waiver Decision is Unique and Unprecedented
Supporters of California's sweeping ACC II program may seek to rely upon the historical treatment of waiver requests as adjudications, and not rules, in arguing that the decision to grant California's ACC II waiver is immune from CRA review. Setting aside whether those prior waiver determinations were properly classified as adjudications-and they were not-California's ACC II program is so unique and so unprecedented in its breadth, scope, and effect that it must be evaluated on its own merits for CRA purposes. And when the waiver is viewed in light of the fundamental nationwide shift in emission regulation that California seeks to implement through ACC II, it is manifestly clear that the ACC II waiver decision is sui generis and cannot be treated as equivalent to prior waiver decisions, including for purposes of review under the CRA.
When EPA first authorized California to set its own emission standards upon a showing of "compelling and extraordinary conditions," 14 California's program was exactly that-a California-only phenomenon. While states possessed the ability to adopt California's program via Section 177 of the CAA, few actually did so. As such, for decades, decisions granting
14 See 42 U.S.C. 7543(b)(l)(B).
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California's waivers accomplished nothing more than allowing California to set its own in-state emission standards to address its own in-state emission problems. For more than twenty years, any waiver that was granted to California was effectively a California-only issue, and did not carry with it a nationwide impact on industry or consumers. As a result, there was little or no reason for Congress or industry to scrutinize whether waivers were properly characterized as rules or adjudications, including for purposes of the CRA.
Beginning in the early 2000s, more states began to adopt California's programs. 15 But even then, California's programs were modest in their requirements-for example, allowing hybrid vehicles to count toward the ZEV requirements. This meant that any impact from California's standards (or the adoption thereof by a Section 177 state) was limited and any potential national cost or impact was minimized-even though the California program was now effective in states outside of California.
It was not until California's adoption of its ACC I program in 2012 that the scope and stringency of California's programs ramped up, drastically increasing the nationwide costs and consequences of the decision to grant California a CAA waiver. This dramatic shift in the breadth, scope, and effect of California's tighter standards was coupled with a contemporaneous increase in the number of states that were adopting California's programs through Section 177. And this sweeping impact-touching more than 40% of the U.S. vehicle market-is even more acute with the advent of the ZEV mandate and stricter standards imposed by ACC II.
In other words, the notion that California waiver determinations have a nationwide impact and scope is a very recent phenomenon -and are not reflective, as some would argue, of a fifty-year-old tradition of allowing California to dictate emission policy on a national scale. Reliance upon the treatment of prior waiver determinations is not determinative of how the ACC II waiver should be treated, including for purposes of the CRA process. Rather, what matters is the unprecedented and pervasive effect of California's ACC II regulations on the nation, on the entire automotive industry, and on the U.S. consumer.
c. GAO's ACC I Waiver Decision is not Controlling For similar reasons, GAO should issue a decision finding that EPA's ACC II waiver
decision is a rule subject to the CRA, and it does not need to be concerned about its precedent designating the ACC I waiver decision as an order.
15 See CARB, States That Have Adopted California's Vehicle Regulations, at https://ww2.arb.ca.0 ov/ourwork/pro~rams/advanced-clcan-cars-pro0 ram/states-have-adopted-californias-vehiclc-re0 ulations.
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Although GAO gives precedential weight to its prior legal decisions, the agency may modify or reverse a prior decision if it rests upon an error of fact or law, or if GAO becomes aware of relevant information that would have caused it to resolve the matter differently. 16
GAO should reverse its 2023 decision finding that EPA's ACC I waiver decision was an order because it overlooked extensive legal and factual evidence about the waiver decision. Some of the rule characteristics described above apply equally to the ACC I waiver decision, including the large market impact and the intent for nationwide adoption, and this information was disregarded by GAO.
But if GAO chooses not to reverse its erroneous 2023 decision regarding the ACC I waiver decision, it can easily distinguish between the two waiver decisions. California's ACC II regulations are even more divergent from the national rules than the ACC I regulations, and they are significantly more stringent. The ACC II regulations will impact the entire industry and are intended to transition California and the Section 177 states to electric vehicles, increasing car prices and limiting consumer choice, while the ACC I regulations were designed to be harmonized with federal rules.
For instance, the ACC I regulations included a continuation of CARB's Low EmissionVehicle ("LEV") rules which included increasingly more stringent standards for criteria pollutants and greenhouse gas ("GHG") emissions.17 But these regulations were issued with a commitment to be part of a "continued national program" with EPA and the National Highway Traffic Safety Administration ("NHTSA"). 18 CARB agreed that it would not contest the federal agencies' CAFE and GHG standards, and that compliance with the federal standards through MY 2025 would be IIdeemed compliance with the California GHG emissions standards." Id.
Therefore, it was possible for an automaker to comply with the ACC I emissions standards by following the federal rules. It did not matter as much if the ACC I waiver decision was an adjudication or a rule because an automaker could simply follow the federal rules. CARB's ACC II emission standards, on the other hand, are more stringent than the federal rules. They phase out the ability of automakers to include ZEVs in their LEV fleet calculation of the
16 See U.S. Gov't Accountability Office, 24-107329, Protocols for Decisions and Opinions (2024) at https://www. 0 ao. 0 ov/assets/870/865936.pdf. 17 See CARB, Low-Emission Vehicle (LEV III) Program at https://ww2.arb.ca. 0 ov/ourwork/pro0 rams/advanced-clean-cars-pro0 ram/ ev-pro0 ram/ ow-emission-vehicle-lev-iii-pro0 ram. 18 See Letter from Mary D. Michals, Chairman of CARE, to Ray LaHood, Secretary of the U.S. Department of Transportation, and Lisa Jackson, Administrator of EPA (July 28, 2011) at https://www.epa./;)ov/si tcs/dcfou It/fi lcs/2016-10/docu mcnts/carb-comm itmcnt-1 tr.pd f.
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combined NMOG and NOx fleet average requirement by MY 2029. 19 They also include the introduction of high altitude NMOG and NOx limits and the introduction of fleet standards for medium-duty vehicles. Id.
Further, ACC II's ZEV program is significantly more stringent than its predecessor program. The ACC I regulations included a ZEV program that required automakers to produce for sale in California and the Section 177 states an increasing number of ZEVs, culminating in around 14% ZEV sales by MY 2017. 20 But ACC II requires a ramp-up from a 35% ZEV sales requirement in MY 2026 to a 100% ZEV sales requirement in MY 2035. 21 By pushing the ZEV sales requirement to 100%, if effectively means that automakers will no longer be able to purchase credits to meet their obligations because there will be no remaining credits left over. The 100% ZEV target in ACC II is materially different from the lower fleet mix target in ACC I. The ACC II regulations also place a variety of quality controls directly on ZEVs including battery durability and warranty requirements, as well as range calculation requirements. Id.
As mentioned, California intends for the ACC II regulations to set the country on a path towards zero tailpipe emissions, and EPA's decision to allow California to do so is materially different from its prior approval of CARB's ACC I regulations. 22
Even though it should, GAO does not need to reverse its 2023 decision on the ACC I waiver decision to find that the ACC II waiver decision is a rule. The two waiver decisions are distinguishable, and GAO can find that EPA's ACC II waiver decision is a rule without disturbing its decision on the ACC I waiver.
IV. Recharacterizing the Waiver Decision will have Spillover Benefits and Minimal Spillover Risks
Even if a member introduces a joint resolution disapproving the ACC II waiver decision but it ultimately fails to pass, any characterization of the waiver decision as a rule will benefit the U.S. automotive industry and American consumers. In various enforcement alerts, statements in waiver proceedings, and rules, CARB has taken the indefensible position that it
19 See CARE, Final Regulation Order for Section 1961.4 Exhaust Emission Standards and Test Procedures - 2026 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles at https://ww2.arb.ca.0 ov/si tes/defau It/files/ arcu/ re0 act/2022/acci i/2acci ifro1961.4. pd f.
2CARE, Final Regulation Order: Amend section 1962.1, Title 13, California Code of Regulations~ Zero-
Emission Vehicle Standards for 2009 through 2017 Model Year Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles at http://www.arb.ca.1;;,ov/re1;;,act/2012/zev2012/fro1 rev.pdf.
21 CARE, Final Regulation Order for Section 1962.4 Zero-Emission Vehicle Standards for 2026 and Subsequent Model Year Passenger Cars and Light-Duty Trucks at https://ww2.arb.ca.gov/sitcs/dcfaul /filcs/barcu/re1;;,act/2022/accii/2acciifro1962.4.pdf.
22 See CARE Transcript 8-25-202 found at EPA-HQ-OAR-2023-0292.
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will retroactively enforce its emissions regulations. With no coherent explanation of its legal authority for retroactive enforcement, CARB has argued that it will enforce back to the state law effective date when it receives a waiver from EPA, including for periods where the model year has passed. If the ACC II waiver is restored by a future Democratic administration, manufacturers may face the situation where California alleges the waiver revocation was improper, its ACC II regulations were still valid, and that it can retroactively enforce the ACC II regulations following the restoration.
Characterizing the ACC II waiver decision as a rule would mitigate CARB's ability to retroactively enforce the ACC II regulations. The federal courts have made it clear that to protect industry's due process guarantees under the Fourteenth Amendment, in the absence of authority for retroactive application, rulemaking should be forward-looking. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988). This will make it more difficult for CARB to distinguish any retroactive enforcement from the due process case law on the basis that the waiver decision is not a rule.
Designating waiver decisions as rules is unlikely to spillover to other of EPA's statespecific determinations and adjudications, such as water quality standards. Unlike the other state-specific determinations, Sections 209 and 177 of the CAA contemplate that other states will need to adopt CARB's emissions regulations in identical format. See 43 U.S.C. 7507(1) (states may adopt the CARB standards if "such standards are identical to the California standards"). That requirement is unique to this program, and unlike other state-specific EPA determinations, it shows a clear intent to implement California's emissions policies beyond the state.
EPA should submit a report to Congress including the ACC II waiver decision as a rule subject to the CRA. See 5 U.S.C. 802(a). And Congress should move a joint resolution through the CRA process quickly. 23 In addition, a member or committee should send a request, in writing, to the Comptroller General asking it to issue an opinion finding that EPA's ACC II waiver decision is a rule subject to the CRA.
23 After introduction, the joint resolution goes to the appropriate House or Senate committee. 5 U.S.C. 802(b). The House follows its usual legislative course, but the Senate may use various fast-track procedures, requiring little Senate floor time. Id. 802(c). Once either the House or Senate passes a joint resolution, it is transmitted directly to the floor of the other chamber. Id. 802().
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Message
From:
Sent: To: Subject:
Dominguez, Alexander [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =C9B9619 B7BAE415EA7A035A836F2C3 B1-E E98AC36-02] 3/3/2025 2:43:38 PM Tom Stricker (TMNA) [tom.stricker@toyota.com] RE: Making Connection
Tom,
Appreciate you reaching out. Please let me know if you want to set something up in the coming weeks/month and happy to do so.
Alex
n
Alexander Dominguez Deputy Assistant Administrator for Mobile Sources Office of Air and Radiation U.S. Environmental Protection Agency
From: Tom Stricker (TMNA) <tom.stricker@toyota.com> Sent: Thursday, February 27, 2025 6:29 PM To: Dominguez, Alexander <dominguez.alexander@epa.gov> Subject: Making Connection
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PROTECTED lil{i:fH1-fM
Hello Alex:
Several of my colleagues from Toyota met you this week, and Jamie Boone forwarded me your contact information. I wanted to introduce myself- I lead Toyota's Sustainability and Regulatory Affairs team. I'm based here in DC, although my team is spread across DC, MI, KY, and CA. Would be great to connect at some point. In the meantime, please don't
hesitate to reach out if you need anything. My cell is i-;;~;-~:;:~~~~;;;~~-~;;;~;. Thanks.
L--------------.
Tom Stricker Group Vice President TOYOTA MOTOR NORTH AMERICA Sustainability and Regulatory Affairs 325 Jth Street, NW, Suite 1000 Washington, DC 20004 W: 202-463-6851
E: =.:..:..:..::::.::.:....:..=:..:....>.o..-::..::::...z....::::.==-'-'-
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Message
From: Sent: To: CC: Subject:
Dominguez, Alexander [dominguez.alexander@epa.gov] 3/7/2025 2:04:35 PM Larrabee, Jason uasonlarrabee@chevron.com]; Szabo, Aaron [Szabo.Aaron@epa.gov] OAR Invitations [OAR_lnvitations@epa.gov] Re: meeting request - March 19
Jason,
Appreciate you reaching out and adding in our Administrative Support Team to help facilitate scheduling.
Thank you
Alex
Sent from iPhone
From: Larrabee, Jason <jasonlarrabee@chevron.com> Sent: Friday, March 7, 2025 8:42:36 AM To: Dominguez, Alexander <dominguez.alexander@epa.gov>; Szabo, Aaron <Szabo.Aaron@epa.gov> Subject: meeting request - March 19
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Aaron and Alex Chevron will have two of our fuels regulation experts in DC on March 19th and we wanted to request a meeting with the both of you to discuss current and future fuel regulations under your purview. Our day on the 19th is flexible from 9 am 4 pm and believe 45-60 minutes of your time would be appreciated. I'm happy to answer any questions. Jason
Jason Larrabee
Manager, Federal & International Affairs - Downstream & Chemicals
Chevron ICorporate Affairs 600 13th Street, NW. Suite 600 IWashington, DC 20005-3027 Office: +1 202 408 5853 IMobile +1 202 288 2459
asonlarrabee chevron.com
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Dominguez, Alexander [dominguez.alexander@epa.gov] 3/14/2025 12:10:07 AM Geoff Moody [GMoody@afpm.org] Re: AFPM Statement on EPA's Regulatory Announcement
Thank you!
Sent from iPhone
From: Geoff Moody <GMoody@afpm.org> Sent: Thursday, March 13, 2025 5:29:33 PM To: Dominguez, Alexander <dominguez.alexander@epa.gov> Subject: AFPM Statement on EPA's Regulatory Announcement
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Alex, I realized I forgot to send this to you yesterday. The following was/is AFPM's statement on the announcement. Thanks, Geoff
AFPM welcomes reconsideration of EPA vehicle and manufacturing regs
WASHINGTON, D.C. - American Fuel & Petrochemical Manufacturers (AFPM) President and CEO Chet Thompson issued the following statement on today's announcements that EPA will re-open and reconsider a number of regulations finalized under the Biden-Harris administration, including vehicle tailpipe standards, the Risk Management Program rule, National Ambient Air Quality Standards (NMQS) and air toxic regulations:
"The previous administration finalized vehicle rules that no gas, diesel or traditional hybrid can meet on their own. The standards would ban most new gas-powered cars, harming consumers, the U.S. economy, and our national security. We welcome the news that EPA Administrator Zeldin is reopening these regulations to restore consumer choice and make good on the President's promise to end EV mandates. This is an opportunity to work cof!aborative!y with fuel manufacturers, automakers and consumer groups on revised standards that factor in lifecycle emissions and spur true competition among fuels and powertrains, while protecting our people and the environment.
"We appreciate the administration revisiting rules like the RMP, PM2 5 NAAQS and emissions standards for certain chemical manufacturing facilities since each imposes hundreds of million of dollars in compliance costs on U.S. manufacturers without delivering corresponding benefits to consumers, the environment or public health. Sound science and common sense needs to be the basis of every EPA regulation so that U.S. manufacturers are positioned to meet the dual challenge of supplying energy and products to a growing world while also reducing the environmental impact of our operations and products. The previous administration missed this mark all too often." - Chet Thompson, AFPM President and CEO
Geoff Moody Senior Vice President Government Relations & Policy
American Fuel & Petrochemical Manufacturers 11100 M Street NW Suite 900 North
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Washinqton. DC 20006 202.457.0480 office 202.844.54119 direct 202.280.0430 mobile gmoody@afpm.org Learn more about .AFPM at afpm.org
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Message
From: Sent: To: Subject:
Dominguez, Alexander [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =C9B9619 B7BAE415EA7A035A836F2C3 B1-E E98AC36-02] 3/10/2025 3:01:41 PM Jonathan Weinberger uonathan.weinberger@gm.com]; Omar Vargas [omar.vargas@gm.com]; NICOLE SESSOMS [nicole.sessoms@gm.com] RE: GM/EPA Meeting
Omar and Jonathan,
Appreciate you reaching out and following up on this. If they have not already done so, Administrative Support Team will be contacting you to find time this week for a call/virtual meeting as well as additional time for an in-person.
Looking forward to it and please feel free to follow-up if any issues with scheduling.
Thank you, Alex
n
Alexander Dominguez Deputy Assistant Administrator for Mobile Sources Office of Air and Radiation U.S. Environmental Protection Agency
From: Jonathan Weinberger <jonathan.weinberger@gm.com> Sent: Monday, March 10, 2025 9:52 AM To: Omar Vargas <omar.vargas@gm.com>; Dominguez, Alexander <dominguez.alexander@epa.gov>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: RE: GM/EPA Meeting
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Thank you so much, Alex! Mike Abboud speaks highly of you. We look forward to connecting very soon. Lots to discuss! Jonathan
Jonathan R. Weinberger Chief Policy Advisor I Global Affairs Jonathan.weinberger@gm.com I T 202.355.4270
From: Omar Vargas <omar.vargas@gm.com> Sent: Saturday, March 8, 2025 6:02 PM To: Jonathan Weinberger <jonathan.weinberger@gm.com>; Dominguez.alexander@epa.gov; NICOLE SESSOMS
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<nicole.sessoms@gm.com> Subject: Re: GM/EPA Meeting
Hi Alex, Circling back to see if you or a member of your staff would have a few minutes to connect. Jonathan submitted a scheduling request on our behalf the week before last. Would like to update you on a discussion our CEO had with the President and tasking the President asked us to undertake with follow up to Secretary Lutnick. It concerns tailpipe emissions. Thanks much, Omar
Get Outlook for iOS
From: Jonathan Weinberger <ionathan.weinberger@gm.com> Sent: Wednesday, February 26, 2025 4:54:55 PM To: Dominguez.alexander@epa.gov <Dominguez.alexander@epa.gov>; Omar Vargas <omar.vargas@gm.com>; NICOLE SESSOMS <nicole.sessoms@gm.com> Subject: GM/EPA Meeting
Hello, Alexander! I think my friend Mike Abboud gave you a heads up that we would be reaching out to connect you and our head of public policy, Omar, who is copied. Nicole is Omar's EA and can help get something on the calendar ASAP. Thank you for offering your time and look forward to meeting! Jonathan
Nothing in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. Confidentiality Note: This message is intended only for the person or entity to which it is addressed. It may contain confidential and/or privileged material. Any review, transmission, dissemination or other use, or taking of any action in reliance upon this message by persons or entities other than the intended recipient is prohibited and may be unlawful. If you received this message in error, please contact the sender and delete it from your computer.
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From:
Sent: To: Subject:
Dominguez, Alexander [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =C9B9619 B7BAE415EA7A035A836F2C3 B1-E E98AC36-02] 4/4/2025 1:19:03 PM Larrabee, Jason uasonlarrabee@chevron.com] RE: speaking request
Jason, Appreciate you reaching out and I have forwarded this request to our Administrative Support Team. They will reach out to you shortly. Alex
Alexander Dominguez
I Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency (202) 564-7013
From: Larrabee, Jason <jasonlarrabee@chevron.com> Sent: Thursday, April 3, 2025 3:00 PM To: Dominguez, Alexander <dominguez.alexander@epa.gov> Subject: speaking request
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Alex-
I wanted to invite you to a speaking engagement to discuss the philosophy of US EPA transportation initiatives under Trump Administration.
Chevron is hosting our annual fly-in with our marketing and retail customers at the end of April and I believe the group would value your insights on how the US EPA may impact their business.
We have the following times available for a discussion no longer than 30 minutes: Monday, April 28th from 6:30pm - 8:30pm Tuesday, April 29th from 8am - 9:30am and 7pm - 9pm
Please let me know if your schedule allows addressing the group and I'm happy to answer any questions.
Regards,
Jason
Jason Larrabee Manager, Federal & International Affairs - Downstream & Chemicals Chevron I Corporate Affairs 600 13th Street, NW. Suite 600 I Washington, DC 20005-3027 Office: +1 202 408 5853 I Mobile +1 202 288 2459
ED_018475D_ 00003263-00001
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Message
From:
Sent: To: Subject:
Dominguez, Alexander [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =C9B9619 B7BAE415EA7A035A836F2C3 B1-E E98AC36-02] 2/19/2025 12:56:04 PM Geoff Moody [GMoody@afpm.org] RE: Catching Up
j i. .----------------- .
Perfect Ex. 6 Personal Privacy (PP) Talk soon.
i---------------- I
From: Geoff Moody <GMoody@afpm.org> Sent: Wednesday, February 19, 2025 7:51 AM To: Dominguez, Alexander <dominguez.alexander@epa.gov> Subject: Re: Catching Up
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Thanks Alex, noon is great. What's the best number for you?
From: Dominguez, Alexander <dominguez.alexander@epa.gov> Sent: Wednesday, February 19, 2025 7:00:21 AM To: Geoff Moody <GMoody@afpm.org> Subject: Re: Catching Up
fEXTERNAL_MESSAGE:_This_email_originated_outside_of_our..company................................................................................................J
Hey Geoff - absolutely- can do before 9:00 12-2 or later this evening. Just let me know what works
Alex
Sent from iPhone
From: Geoff Moody <GMoody@afpm.org> Sent: Tuesday, February 18, 2025 4:57 PM To: Dominguez, Alexander <dominguez.alexander@epa.gov> Subject: Catching Up
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Alex, do you have a few minutes to catch up tomorrow by any chance?
Geoff Moody Senior Vice President Government Relations & Policy
American Fuel & Petrochemical Manufacturers 1800 M Street NW
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Suite 900 North Washington, DC 20006 202.457.04/l0 office 202.844.5489 direct 202.280.0430 mobile gmoody@afpm.org Learn more about .AFPM at afpm.org
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Subject:
Dunham, Sarah [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=A9444681441E4521AD92AE7D42919223-SDUNHAM] 3/19/2025 9:03:02 PM Williams, Cynthia (.) [cwilli96@ford.com] Baker, Diana (D.M.) [dbaker9@ford.com]; SOKOLOWSKI, CHERYL (c.) [CSOKOL05@ford.com]; Stewart, Gwen [Stewart.Gwen@epa.gov] RE: Ford/EPA Meeting
Hi CynthiaI'm adding Gwen Stewart to this email to help with scheduling from my end. I just had a meeting put on my calendar from 11 :45 to 12: 15 that day (the 25th) which may be difficult for me to move. Is there anyway you and Bob could meet at 12:30 instead of 11 :30? If that doesn't work, I'll see ifl can move my other meeting. Thanks
From: Williams, Cynthia (.) <cwilli96@ford.com> Sent: Wednesday, March 19, 2025 4:41 PM To: Dunham, Sarah <Dunham.Sarah@epa.gov> Cc: Baker, Diana (D.M.) <dbaker9@ford.com>; SOKOLOWSKI, CHERYL (C.)<CSOKOLOS@ford.com> Subject: Ford/EPA Meeting
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Hi Sarah,
It was good to speak with you today. I spoke with Bob and March 25th at 11 :30 a.m. works best for him. Please let me know if that works for you. Bob and I would plan to meet with you at your office or you are welcome to come to the Ford DC office. I am adding Bob's admin, Diana, and my admin Cheryl to help with scheduling the discussion.
Regards,
Cynthia Williams
Global Director, Vehicle Compliance (she/her/hers) Ford Motor Company Cell: 313-268-9467 email: cwilli96@Hord.com
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essage
SOKOLOWSKI, CHERYL (c.) [csokolo5@ford.com] 3/19/2025 9:11:20 PM Baker, Diana (D.M.) [dbaker9@ford.com]; Dunham, Sarah [Dunham.Sarah@epa.gov]; Williams, Cynthia(.) [cwilli96@ford.com] Stewart, Gwen [Stewart.Gwen@epa.gov] ubject:Re: Ford/EPA Meeting
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Cynthia can also make 12:30 work
Cheryl Sokolowski Administrative Assistant to Cynthia Williams
From: Baker, Diana (D.M.) <dbaker9@ford.com> Sent: Wednesday, March 19, 2025 5:10:27 PM To: Dunham, Sarah <Dunham.Sarah@epa.gov>; Williams, Cynthia (.) <cwilli96@ford.com> Cc: SOKOLOWSKI, CHERYL (C.)<CSOKOL05@ford.com>; Stewart, Gwen <Stewart.Gwen@epa.gov> Subject: RE: Ford/EPA Meeting
Yes, we can make 12:30 PM work for Bob Holycross. Thank you.
From: Dunham, Sarah <Dunham.Sarah@epa.gov> Sent: Wednesday, March 19, 2025 5:03 PM To: Williams, Cynthia (.) <cwilli96@ford.com> Cc: Baker, Diana (D.M.) <dbaker9@ford.com>; SOKOLOWSKI, CHERYL (C.)<CSOKOL05@ford.com>; Stewart, Gwen <Stewart.Gwen@epa.gov> Subject: RE: Ford/EPA Meeting
Hi CynthiaI'm adding Gwen Stewart to this email to help with scheduling from my end. I just had a meeting put on my calendar from 11 :45 to 12: 15 that day (the 25th) which may be difficult for me to move. Is there anyway you and Bob could meet at 12:30 instead of 11 :30? If that doesn't work, I'll see ifl can move my other meeting. Thanks
From: Williams, Cynthia (.) <cwilli96@ford.com> Sent: Wednesday, March 19, 2025 4:41 PM To: Dunham, Sarah <Dunharn.Sarah@eQ..~:E.9_\!.> Cc: Baker, Diana (D.M.) <dbaker9@ford.com>; SOKOLOWSKI, CHERYL (C.)<CSOKOL05@ford.com> Subject: Ford/EPA Meeting
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Hi Sarah, It was good to speak with you today. I spoke with Bob and March 25th at 11 :30 a.m. works best for him. Please let me know if that works for you. Bob and I would plan to meet with you at your office or you are welcome to come to the Ford DC office. I am adding Bob's admin, Diana, and my admin Cheryl to help with scheduling the discussion. Regards, Cynthia Williams Global Director, Vehicle Compliance (she/her/hers) Ford Motor Company Cell: +1-313-268-9467 email: cwilli96@Hord.com
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Message
From: Sent: To: Subject:
Mary Gigilio [mgiglio@ethanolrfa.org] 2/14/2025 4:55:05 PM Dunham, Sarah [Dunham.Sarah@epa.gov] Last Chance for NEC - Let's find your perfect (business) match!
Last Chance for NEC - Let's find your perfect (business) match!
I
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Hey Dunham -
Roses are red, Ethanol is green, NEC is next week, Don't ghost the scene!
event for ethanol leaders, innovators, policy makers, and industry pros. We noticed you haven't quite confirmed J..::::..c::::...!.C.c:..:.:...:....:::= Consider this your love letter (or dramatic rom-com airport scene) where we urge you to pack your bags and head straight for Nashville, TN!
Join us for:
Networking Opportunities: Meet and mingle with the industry's top minds and make
connections that will last longer than a box of chocolates.
Government Policies: Get the latest scoop on ethanol regulations and policies that
will make your heart skip a beat.
Business Development: Discover new strategies and insights to grow your business
and make it flourish like a bouquet of roses.
Ethanol Markets: Gain the latest info on ethanol markets and trends that will leave you
swooning.
Get ready to be swept off your feet by expert discussions:
Back to the Beginning: Celebrating Our Roots: As the renewable fuels sector
celebrates several important milestones in 2025, hear from the visionary farmers, investors,
and builders who founded the modern-day ethanol industry.
ED_018475O_00003291-00001
Navigating the Future of Clean Fuel Tax incentives: Leading tax policy experts
explore the path forward for key provisions under the Inflation Reduction Act, including 45Z, as
well as the Second-Generation Biofuel Production Tax Credit. The panel explores emerging
issues, compliance challenges, and opportunities shaping decisions in the ethanol industry.
Cashing in on Carbon Markets? Experts and analysts discuss what's happening-
and not happening-in U.S. and global carbon markets. From regulated markets like state
LCFS programs and international carbon policies to voluntary markets and tax incentives, learn
about the opportunities and challenges that lie ahead for farmers and biofuel producers
interested in monetizing carbon reduction.
Back to the Future: Ethanol's Role in Heavy-Duty and Aviation: Ethanol's
abundant supply, low cost, and low carbon intensity value continue to make it an attractive
option for decarbonizing aviation, as well as heavy-duty vehicles and equipment. Hear from
innovative companies about the latest developments in new markets and new applications for
ethanol.
Power Outage or Power Surge? What is the Future of Electric Vehicles? Electric
vehicles remain at the center of discussions around the energy transition and transformation of
the auto industry. But there have been many bumps on the road to electrification, and the future
path for EVs isn't clear. This panel explores the innovations and trends shaping the future of
EVs, as well as the latest on consumer acceptance and the expected impact of policy and
regulation .
...and much more!
Don't leave ethanol hanging and be part of an event that promises to be as sweet as a Valentine's Day treat. ~
Register now, before it's too late!
See you in Music City!
Warmest regards,
Sincerely,
Mary Giglio VP, Events & Initiatives Renewable Fuels Association www.EthanolRFA.org
ED_0 18475D_ 00003291-00002
For more information, visit http://www.nationalethanolconference.com/ Copyright 2025 Renewable Fuels Association, All rights reserved. You are receiving this email as a member of the Renewable Fuels Association, attendee of the National Ethanol Conference, or reader of RFA Daily Brief. Our mailing address is: Renewable Fuels Association 16024 Manchester Road, Suite 101 Ellisville, MO 63011 Add us to your address book Want to change how you receive these emails? You can update your preferences or unsubscribe from this list.
ED_018475D_ 00003291-00003
Message
From: Sent: To: Subject:
Mary Gigilio [mgiglio@ethanolrfa.org] 2/14/2025 4:55:04 PM Dunham, Sarah [Dunham.Sarah@epa.gov] Last Chance for NEC - Let's find your perfect (business) match!
Last Chance for NEC - Let's find your perfect (business) match!
I
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Hey Sarah -
Roses are red, Ethanol is green, NEC is next week, Don't ghost the scene!
event for ethanol leaders, innovators, policy makers, and industry pros. We noticed you haven't quite confirmed J..::::..c::::...!.C.c:..:.:...:....:::= Consider this your love letter (or dramatic rem-com airport scene) where we urge you to pack your bags and head straight for Nashville, TN!
Join us for:
Networking Opportunities: Meet and mingle with the industry's top minds and make
connections that will last longer than a box of chocolates.
Government Policies: Get the latest scoop on ethanol regulations and policies that
will make your heart skip a beat.
Business Development: Discover new strategies and insights to grow your business
and make it flourish like a bouquet of roses.
Ethanol Markets: Gain the latest info on ethanol markets and trends that will leave you
swooning.
Get ready to be swept off your feet by expert discussions:
Back to the Beginning: Celebrating Our Roots: As the renewable fuels sector
celebrates several important milestones in 2025, hear from the visionary farmers, investors,
and builders who founded the modern-day ethanol industry.
ED_0 18475D_ 00003292-00001
Navigating the Future of Clean Fuel Tax incentives: Leading tax policy experts
explore the path forward for key provisions under the Inflation Reduction Act, including 45Z, as
well as the Second-Generation Biofuel Production Tax Credit. The panel explores emerging
issues, compliance challenges, and opportunities shaping decisions in the ethanol industry.
Cashing in on Carbon Markets? Experts and analysts discuss what's happening-
and not happening-in U.S. and global carbon markets. From regulated markets like state
LCFS programs and international carbon policies to voluntary markets and tax incentives, learn
about the opportunities and challenges that lie ahead for farmers and biofuel producers
interested in monetizing carbon reduction.
Back to the Future: Ethanol's Role in Heavy-Duty and Aviation: Ethanol's
abundant supply, low cost, and low carbon intensity value continue to make it an attractive
option for decarbonizing aviation, as well as heavy-duty vehicles and equipment. Hear from
innovative companies about the latest developments in new markets and new applications for
ethanol.
Power Outage or Power Surge? What is the Future of Electric Vehicles? Electric
vehicles remain at the center of discussions around the energy transition and transformation of
the auto industry. But there have been many bumps on the road to electrification, and the future
path for EVs isn't clear. This panel explores the innovations and trends shaping the future of
EVs, as well as the latest on consumer acceptance and the expected impact of policy and
regulation .
...and much more!
Don't leave ethanol hanging and be part of an event that promises to be as sweet as a Valentine's Day treat. ~
Register now, before it's too late!
See you in Music City!
Warmest regards,
Sincerely,
Mary Giglio VP, Events & Initiatives Renewable Fuels Association www.EthanolRFA.org
ED_018475D_00003292-00002
For more information, visit http://www.nationalethanolconference.com/ Copyright 2025 Renewable Fuels Association, All rights reserved. You are receiving this email as a member of the Renewable Fuels Association, attendee of the National Ethanol Conference, or reader of RFA Daily Brief. Our mailing address is: Renewable Fuels Association 16024 Manchester Road, Suite 101 Ellisville, MO 63011 Add us to your address book Want to change how you receive these emails? You can update your preferences or unsubscribe from this list.
ED_018475D_00003292-00003
essage
From: Renewable Fuels Association [mruff@ethanolrfa.org]
ent: 3/25/2025 9:07:12 PM o: Dunham, Sarah
[Dunham.Sarah@epa.gov] ubject:Ethanol Emergency
Response & Steel Drum 101 Webinars - Don't Miss Out
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
LJ
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Please join the Renewable Fuels Association and TRANSCAERre for Ethanol Emergency Response & Steel Drum 101 Wcbinars. Attendees will receive in-depth information on proper training techniques that emergency responders and hazmat personnel need to effectively respond to an ethanol-related emergency. Along with providing emergency responders with hclpfull information to better comprehend the components of steel drums and vital safety standards. Certificates of Completion will be awarded to all attendees at the end of the Wcbinar. This is a one clay training. These sessions arc FREE to attend and open to the public.
Where Anywhere with access to the internet!
When Tucscla . April 15 2025 - 11 :00 A\1 to 4:00 P\1 CDT Thursda . \1ay 15. 2025 - 11 :00 A\1 to 4:00 P\1 CDT
Jul 22 2025 - 11 :00 A\1 to 4:00 P\1 CDT Wcdncsda Auoust 13 2025 - 11 :00 A\1 to 4:00 P\1 CDT Feel free to pass this on to fire departments. hazmat teams, safety personnel, safety managers or anyone else in your area or community who may be interested in attending. ALL ATTENDEES MUST REGISTER https://www.transcaer.com/traininJc?:/traininu-evcnts/cthanol-safct -steel-drum- IO l-wcbinar/42655
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ED_018475D_00003294-00003
EJEJEJEJEJ
Renewable Fuels Association I 425 Third St. SW Suite 1150 I Washington, DC
20024 us
Unsubscribe I Update Profile I Constant Contact Data Notice
ED_018475D_00003294-00004
Message
From: Sent: To: Subject:
Mary Giglio [MGiglio@ethanolrfa.org] 2/11/2025 2:52:34 PM Dunham, Sarah [Dunham.Sarah@epa.gov] Shake Hands with Top Ethanol Leaders at NEC
Shake Hands with Top Ethanol Leaders at NEC
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ED_018475D_ 00003296-00001
Not Too Late to Grab a Pass to Make Valuable Connections with Top Ethanol Executives Next Week at the 30th Annual NEC
Hi Sarah,
February 17-19. Don't miss out on this
opportunity to connect with the brightest minds
and top executives shaping the future of the ethanol industry. Picture this: a room buzzing
with CEOs, presidents, general managers, and top innovators-all ready to connect,
collaborate, and maybe even spill a secret or two about what's next for the ethanol industry.
The guest list at the 30th Annual NEC reads like the Oscars for ethanol, except instead of golden statues, there's the promise of golden business opportunities. Here's just a taste of some of those you can meet amongst the nearly 850 attendees already registered:
Absolute Energy, LLC, CEO
Ace Ethanol, President
Adkins Energy, COO
Advario, Director, Commercial
Alco Energy Canada, Chief Executive Officer
Al-Com Clean Fuel, CEO
Antora Energy, Director of Project Development
Aztalan Bio LLC, CEO
Badger State Ethanol, LLC, CEO
BASF, Commercial & Technical Service Manager
Big River Resources, LLC, CEO
BNSF Railway, Ethanol Market Manager
Calgren, CEO
Chief Ethanol Fuels Inc., General Manager
CIE, LLC, CEO
CTE Global, Inc., President
Dakota Ethanol, CEO
East Kansas Agri-Energy, CEO
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Eco-Energy, Inc., CEO
ExxonMobil, Trading Analyst
Fagen, Inc., Vice President of Business Development
Fluid Quip Technologies, Vice President
Golden Grain Energy, CEO
Grain Processing Corp., Vice President, Alcohol Products
Granite Falls Energy, CEO
Guardian Energy, CEO
Highwater Ethanol, LLC, CEO
Husker Ag, LLC, CEO
ICM, Inc., President
IFF, Marketing Director
John Deere, Research Partnerships & Science Policy Lead
KAAPA Ethanol Holdings LLC, CEO
Kinder Morgan Terminals, Commercial & Business Development Manager
Lallemand Biofuels and Distilled Spirits, VP of Sales North America
Uncolnland Agri-Energy, LLC, Process Manager
Uncolnway Energy, LLC, Director
Marathon Petroleum Company, Manager Renewab!es and Emerging Technologies
Novonesis, Head of Sales, Bioenergy NA
OPIS, A Dow Jones Company, Director
Pearson Fuels, Managing Member
Phibro Ethanol, President
Reliant Holdings Ltd., Director of Business Development and Sourcing
RPMG, CEO
RSM US LLP, Partner
Shell, Commercial Manager New Fuels
Southwest Iowa Renewable Energy, CEO
The Andersons, inc., VP, Trade & Processing
Trenton Agri Products LLC, President
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Toyota Motor North America, Program Manager
Union Pacific Railroad, Marketing Manager
Western New York Energy, LLC, President
Western Plains Energy, LLC, CEO
Whether you're looking to forge strategic partnerships, explore new ethanol market trends, or simply meet the brains behind industry breakthroughs, this event is the place to be.
And guess what? When you register, we'll spill the beans and share the list of attendee names, companies and titles! Communicate directly via the event app prior, during and post event. Now you can plan for those side meetings and cocktail chats like a true networking ninja-ready to mix, mingle, and impress the industry's big hitters!
We'll see you next week. Bring your A-game and don't forget your cowboy boots! Best regards, Mary Giglio VP, Events & Initiatives Renewable Fuels Association www.EthanolRFA.org
nn77
- For more information, visit nationalethanolconference.com! -
ED_018475D_00003296-00004
Copyright 2025 Renewable Fuels Association, All rights reserved. You are receiving this email as a member of the Renewable Fuels Association, attendee of
the National Ethanol Conference, or reader of RFA Daily Brief. Renewable Fuels Association 16024 Manchester Road, Suite 101 Ellisville, MO
63011 USA Want to change how you receive these emails? You can ~mdate Y0J:!LQ[eferences or
:~LO;ikll2scribe frorn this li~t
ED_018475D_00003296-00005
Cory Pomeroy [cpomeroy@txoga.org] 4/9/2025 6:35:51 PM Kramer, Jessica L. [kramer.jessical@epa.gov]
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Jess,
I wanted to see if you might have a few minutes in the coming days to discuss matters important to Texas. Please let me know.
Regards,
Cory Pomeroy Vice President & General Counsel Texas Oil & Gas Association (512) 478-6631 office (512) 799-1091 mobile
CONFIDENTIALITY NOTICE: This email communication and any files transmitted with it may contain confidential and or proprietary information and is provided for the use of the intended recipient only. Any review, retransmission or dissemination of this information by anyone other than the intended recipient is prohibited. If you receive this email in error, please contact the sender and delete this communication and any copies immediately. Thank you.
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essage
Levine, Jesse [Jesse_Levine@afandpa.org] 4/15/2025 7:34:36 PM Kramer, Jessica L. [kramer.jessical@epa.gov] Noe, Paul [Paul_Noe@afandpa.org]; Holm, Stewart [Stewart_Holm@afandpa.org]; gjohnson@ncasi.org ubject:Checking Availability: FollowUp Call
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Jess: Thank you again for your time last week. It was great speaking with you.
As we discussed, we are writing to schedule a follow-up call. Here are times (ET) that work for US.
Monday, April 21
9am
11am
1pm
3pm
Please let us know when works best for you.
Jesse Levine Senior Director, Energy and Environmental Policy Jesse Levine@afandpa.org Office: (202) 463-2581
AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
20 3C
Im
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Leopold, Matt
[MLeopold@hunton.com]
3/19/2025 6:46:58 PM
Kramer, Jessica L.
[kramer.jessical@epa.gov]
ubject:
Meeting request
ttachments:Summary of 401
Downstream Process -
Line 5 3.18.25.pdf
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Hello Jess,
I represent Enbridge in matters related to the permitting and relocation of the Line 5 liquid pipeline. Enbridge is requesting a meeting on Thursday, March 27 to discuss issues related to the neighboring jurisdiction review process under CWA Section 401. I have attached a background document to provide information on the issues.
Enbridge is available to meet at your convenience on Thursday, March 27. Please let us know if there is a convenient time.
Best regards, Matt
Matthew Z. Leopold
Partner
mleopold((J;hunton.com
p 202.419.2041
m 202.527.1371
bio
Linkcdln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 2003 7
Hun Lon.com
ED_018475D_ 00003352-00001
March 18, 2024 OVERVIEW AND STATUS OF SECTION 401 DOWNSTREAM PROCESS FOR RELOCATION This document provides a brief overview of the so-called "downstream process" under Clean Water Act (CWA) Section 401 as it relates to permitting the relocation of Enbridge's Line 5 liquid pipeline outside of the Bad River Band's Reservation (the "Relocation") (see map below).
In February 2020, Enbridge submitted its application to the U.S. Army Corps of Engineers ("USACE"), St. Paul District for an individual CWA Section 404 permit and Rivers and Harbors Act Section 10 permit. In January 2022, USACE issued public notice for the application and, as we detail below, EPA submitted comments that the Relocation "will have a substantial and unacceptable adverse impacts" to the Band's downstream water quality. In response, Enbridge and USACE attempted to engage EPA to address/resolve the agency's downstream concerns. EPA agreed to bi-weekly meetings beginning in Fall 2023 to discuss such concerns, and as a result of those meetings, many ofEPA's concerns have been addressed. While USACE was prepared to issue the 404 permit, the Band and EPA invoked the neighboring jurisdiction review process under CWA Section 401, which includes a hearing in which EPA must submit to USACE "its evaluation and recommendation(s) concerning [the Band's] objection." 40 C.F.R. 121.15(c). EPA should share with Enbridge any remaining downstream issues in advance of the hearing, to allow for resolution ofthose issues promptly, or alternatively, conclude that the Relocation will not result in adverse impacts to downstream water quality.
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March 18, 2024
Downstream Review Process
The Wisconsin Department of Natural Resources (WDNR) issued CWA section 401 water quality certification for the Relocation on November 14, 2024. In accordance with CWA 401(a)(2) and 40 C.F.R. 121.13(b), EPA determined on December 13, 2024, that a discharge from the proposed relocation "may affect" the Band's water quality, setting in motion the downstream (or "neighboring jurisdiction") review process. 1
Pursuant to 40 C.F.R. 121.14, on February 11, 2025, the Band formally "objected" to WDNR's CWA Section 401 water quality certification contending that the proposed Relocation "will affect" the quality of the Band's waters, aquatic resources, and wetlands, so as to violate the Band's water quality requirements. The Band also requested a public hearing pursuant to CWA Section 401(a)(2).
The downstream review regulations provide no set timeframe for USACE to schedule the hearing, following receipt of the Band's objection; however, USACE recently indicated that the hearing will be held in the next 30-60 days. USACE must provide notice of the hearing at least 30 days in advance, 40 C.F.R. 121.15(b), and USACE regulations require that the public hearing will be held within the Bad River Reservation. See 33 C.F.R. 325.2(b)(l)(i).
Importantly, at the hearing, EPA's Regional Administrator "shall submit to [USACE] its evaluation and recommendation(s) concerning the objection." 40 C.F.R. 121.15(c). USACE must consider recommendations from the Band and EPA, and any additional evidence presented to USACE at the hearing, and determine whether additional permit conditions are necessary to ensure that any discharge from the Relocation will comply with the Band's water quality requirements. Id. 121.15(d). If additional permit conditions cannot ensure the discharge will comply with the Band's water quality requirements, then USACE cannot issue the 404 permit. Id. 121.15(e).
Previous Correspondence and Interactions with EPA
EPA Initially Identified Potential Adverse Effects from Construction of the Relocation. On March 16, 2022, EPA notified USACE that the proposed discharge of fill material into wetlands and waterbodies "may result in substantial and unacceptable adverse impacts" to the Bad River and Kakagon-Bad River Sloughs wetland complex." On April 14, 2022, EPA notified USACE that the wetland and waterbody fill discharges during construction "will have a substantial and unacceptable impact."
Since 2022, Enbridge sought to engage EPA Region 5 to discuss/resolve downstream issues identified in EPA's letters. Bi-weekly meetings began in Q3 of 2023. Enbridge worked through various plans and issues with EPA at those meetings. Much of the discussion to date has focused on materials submitted to EPA years ago. The bi-weekly meetings ended in Q2 2024.
Enbridge made clear at the bi-weekly meetings (as detailed below) that the Relocation will not result in adverse effects to water quality on the Reservation, and extensive plans and mitigation are in place to ensure no adverse effect occurs.
EPA has not identified any specific outstanding downstream issues or otherwise expressed to Enbridge which, if any, EPA comments remain unaddressed.
1 While Section 401 provides for a downstream process, its use is extremely rare - it has only been initiated with respect to one other project, the Polymet mine in Minnesota. That downstream process resulted in USACE denying the mine permit due to the potential for increased mercury (and other) contamination to downstream tribal waters.
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March 18, 2024
Downstream Issues Have Been Fully Addressed. As opposed to the Polymet mine (which resulted in disturbance of existing/known Mercury and minerals flowing directly into downstream waters), the Relocation will not result in the release of any chemical pollutant. Note that, in Polymet, existing Mercury levels already exceeded downstream Tribal water quality standards. Construction of the Relocation, however, will not disturb any existing contamination (like the Mercury associated with Polymet).
Total Suspended Solids (TSS). The primary water quality parameter at issue with the Relocation is TSS impacts arising from the release of sediment during construction activities in and near waters, which EPA and the Band assert could degrade water quality and species habitat. Construction in waters is expected to be complete within 20-32 hours for each crossing. Large watercourses will be crossed via Horizontal Directional Drill (HDD) that will avoid direct construction impacts (including TSS) to the waterbody.
o To analyze and quantify TSS impacts resulting from in-stream construction, Enbridge commissioned the RPS Group (now part of Tetra Tech) to conduct sediment dispersion modeling from construction activities. RPS has performed such work for the Federal Government and utilized a model it jointly developed with USACE to simulate sediment impacts - the model is widely used in the United States and internationally to assess sediment releases. The modeling confirms that any and all TSS levels from construction will be lower than the Band's water quality standard for TSS before any water enters the Reservation. The TSS levels from construction are less than what naturally occurs during storm-related events.
Enbridge 's Final Plans for Construction Address EPA 's Comments. For example, Enbridge's PostConstruction Monitoring and Sampling Plan is one of the most extensive ever prepared for a pipeline project. To ensure that there is no adverse impact to water quality, Enbridge will take samples pre-, post-, and during construction to test water quality parameters, including for TSS and other parameters (e.g., macroinvertebrates required by EPA).
EPA Concluded the USACE's Reissuance ofTwo Regional General Permits (RGPs) (for Utility and Minor Discharges) Would Not Result in Downstream Effects to the Band's Waters. On January 20, 2023, USACE issued a public notice concerning renewal of two RGPs for use in Wisconsin and Minnesota. As a result of the proposed renewals, the Band initiated a 401 downstream hearing process, asserting that the RGPs will result in an adverse effect to water quality on the Band's Reservation. The RGPs allow for construction similar to that occurring from the Relocation - temporary, localized impacts within waterbodies upstream of the Reservation. In its comments submitted to USACE, EPA stated that it did not believe that RGPs would result in an adverse effect to the Band's water quality. Based on EPA's comments, USACE issued the final RGPs in August 2024, concluding that the conditions set forth in the RGPs were adequate to not violate the Band's water quality standards. EPA should similarly find no adverse effect to the Band's water quality resulting from the Relocation.
To allow the permitting process to proceed efficiently, EPA should share any outstanding downstream issues now to allow for quick resolution before the hearing, or provide documentation for the record concluding that the Relocation has addressed EPA's concerns and will not result in an adverse effect to downstream water quality.
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Chaitovitz, Chuck [CChaitovitz@USChamber.com] 2/11/2025 2:22:21 PM Kramer, Jessica L. [kramer.jessical@epa.gov]
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Dear Jess:
Congrats on your new role. Hope you are doing well.
Please let me know if you have a few minutes during the coming weeks to discuss our shared water priorities and do not hesitate to contact me if I can be of assistance.
I am happy to accommodate your schedule.
Thanks in advance,
Chuck
Chuck Chaitovitz Vice President, Environmental Affairs and Sustainability U.S. Chamber of Commerce 202-463-5316 (Phone) 202-680-8578 (Cell) cchaitovitz@uschamber.com http://www.uschamber.com For The Pursuit
US., Chamber of Gom,nerce
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essage
Courtney Briggs [courtneyb@fb.org] 2/21/2025 5:45:44 PM Kramer, Jessica L. [kramer.jessical@epa.gov] WAC Meeting ttachments:WAC 2025 Transition Team Briefing Paper(78842697 .1) ec.docx
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Hi Jess,
It was great to see you the other day! As I mentioned, WAC would greatly appreciate the opportunity to meet with you to discuss our concerns with the Biden WOTUS rule. Attached is a document that outlines many of those concerns and provides specific examples of where we believe the Biden's rule runs afoul of the Sackett decision. We would greatly appreciate the opportunity to walk you through this. We are happy to accommodate your schedule. Thanks so much!
Best, Courtney
Courtney Briggs Senior Director, Government Affairs American Farm Bureau Federation (202)406-3667 (Office) (202) 577-7294 (Cell)
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PRIVILEGED & CONFIDENTIAL DRAFT ATTORNEY WORK PRODUCT
Waters of the United States (WOTUS)
REQUEST: The new Administration has an opportunity to break the familiar cycle of EPA and the Corps disregarding the Supreme Court's attempts to articulate clear limits on the scope of federal authority under the Clean Water Act. Although the Supreme Court attempted to "identify with greater clarity what the Act means by 'the waters of the United States"' in Sackett (May 2023), and the Biden Administration issued a revised regulation with regulatory text that quotes directly from the Supreme Court's decision, the Biden Administration nonetheless stretched the Supreme Court's words beyond recognition through implementation of the regulation. Lower courts have taken notice and begun rejecting EPA's and the Corps' attempts to assert jurisdiction over features that are not WOTUS under Sackett, but that has not deterred the agencies from overreaching. The new Administration should: (1) immediately withdraw the Biden Administration's post-Sackett implementation guidance memos; and (2) initiate a new rulemaking to revise the regulatory definition of WOTUS by adding definitions, exclusions, and other provisions that will ensure consistency with Sackett.
Explanation: In Sackett, the Supreme Court left no doubt that the Rapanos (2006) plurality opinionauthored by Justice Scalia-sets forth the correct test for what is a WOTUS under the Clean Water Act: "waters of the United States" encompass only (i) "relatively permanent" bodies of water connected to traditional interstate navigable waters; and (ii) wetlands that have a "continuous surface connection" with relatively permanent waters, "so that they are 'indistinguishable' from those waters." For a wetland to be jurisdictional, it must be "difficult to determine where the 'water' ends and the 'wetland" begins."
For over a year-and-a-half and counting, the Biden Administration refused to come to terms with Sackett's unequivocal endorsement of the Rapanos plurality's test. This refusal has led to permitting delays, litigation, and uncertainty, which are impacting land- and facility-owners' use and enjoyment of their property. Sadly, all of this was predictable. When the Supreme Court was actively considering Sackett, the Biden Administration attempted to steer the outcome of the case by issuing a revised WOTUS rule (January 2023), which characterized the Rapanos plurality's test as "extremely limited" and one that "has no grounding in" the statute. The Supreme Court clearly disagreed. Since Sackett, EPA has posted numerous "Field Memos" (essentially, instructions to Corps and EPA staff on how to implement the rule) on its website announcing expansive interpretations of the "relatively permanent" and "continuous surface connection" requirements that cannot be squared with the Court's opinion. For instance:
Even "if a wetland is divided by a road," the wetlands on either side of the road are jurisdictional so long as "a culvert [] maintain[s] a hydrologic connection" between the two and either wetland has a continuous surface connection to a relatively permanent water. The agencies further claim they can "consider if a subsurface hydrologic is maintained" between the two wetlands as part of assessing whether they can assert jurisdiction over both. (Field Memo LRB-2021-013 86)
A "pipe directly connecting [a wetland and a relatively permanent tributary] under a road serves as a physical connection that meets the continuous surface connection requirement for the wetland." (Field Memo NAP-2023-01223)
A wetland "exhibits a continuous surface connection" to a relatively permanent impoundment of a jurisdictional water via "an ephemeral drainage swale" that "conveys water from the surrounding uplands and [the wetland] at a low frequency and low volume" such as after a "rain event." (Field Memo NAP-2023-01223)
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PRIVILEGED & CONFIDENTIAL DRAFT ATTORNEY WORK PRODUCT
"Depending on the factual context, including length of the connection and physical indicators of flow, more than one feature such as a non-relatively permanent ditch, other non-relatively permanent channel, or culvert can serve as part of a continuous surface connection where together they provide an unimpaired, continuous physical connection to a jurisdictional water." Field Memo POH-2023-00187)
These Field Memos illustrate how the Biden Administration attempted to twist Sackett (and the underlying Rapanos plurality test) to conform to its overbroad and unlawful interpretation of the Clean Water Act.
Lower courts have begun to take note ofEPA's and the Corps' attempts to disregard the limiting principles articulated by the Rapanos plurality and Sackett:
In Lewis v. United States (December 2023), the U.S. Court of Appeals for the Fifth Circuit rejected the federal government's attempt to assert jurisdiction over wetlands in Louisiana as "incompatible with finding adjacency under Sackett." The government tried to argue that the property in question contained jurisdictional wetlands. But as the Court pointed out, the "nearest relatively permanent body of water is removed miles away from the Lewis property by roadside ditches, a culvert, and a non-relatively permanent tributary. In sum, it is not difficult to determine where the 'water' ends and any 'wetlands' on Lewis's property begin-there is simply no connection whatsoever."
In United States v. Sharfi (December 2024), the U.S. District Court for the Southern District of Florida held that "relatively permanent, standing, or continuously flowing bod[ies] of water" do not include "'intermittent' or 'ephemeral' ditches or channels with seasonal flow" and thus, such ditches and channels near the defendants' property are not jurisdictional. The Court also held that, even if those ditches and channels are jurisdictional, any wetlands on the defendants' property are not "indistinguishable" from those ditches and channels because there is no continuous "surface water connection" between the wetlands and the ditches or channels. The Court emphasized that the statement in Sackett that "temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells" and Sackett 's requirement that jurisdictional wetlands must be "indistinguishable" from another WOTUS "would have no practical meaning" if physical abutment alone could establish a "continuous surface connection."
Losses in court, however, did not deterred the Biden Administration from continuing to misread Sackett. Indeed, all of the "Field Memos" on EPA' s website post-date the Fifth Circuit's Lewis decision. The new Administration should bring an end to this mischief by:
Immediately rescinding all "Field Memos" as well as the underlying September 2023 Joint Coordination Memoranda that established the Headquarters-level review and coordination process that has led to the issuance of those "Field Memos." Perhaps the most egregious Field Memos are the ones that EPA and the Corps have issued in the 27 states where the Biden Administration's WOTUS rule was preliminarily enjoined. In those states, EPA and the Corps should be applying the pre-2015 interpretation of the Rapanos plurality opinion, which is closer to (but still not entirely aligned with) the Supreme Court's analysis in Rapanos and Sackett. Instead, the Biden Administration has effectively disregarded that preliminary injunction by
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PRIVILEGED & CONFIDENTIAL DRAFT ATTORNEY WORK PRODUCT
trying to apply the same overbroad interpretation of the "continuous surface connection" requirement that it is applying in the rest of the country. Following withdrawal of the Joint Coordination Memoranda, encourage the Corps to promptly review and process requests for Approved Jurisdictional Determinations without the need to engage in any Headquarters-level review or coordination. Initiating a new rulemaking to revise the regulatory definition of WOTUS in a way that actually ensures consistency with Sackett. This does not require a wholesale repeal of the 2023 WOTUS definition. The regulatory text, which largely parrots the wording of the Sackett opinion is not itself objectionable. Rather, the problem lies in: (i) the absence of any regulatory text clarifying what constitutes a "relatively permanent water" or a "continuous surface connection"; and (ii) the rule's preamble, which tries to interpret Rapanos plurality's test in a way that neither Sackett nor Rapanos allows. Consider issuing new guidance documents in line with Sackett that provide further clarity to Agency staff and the public.
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Cordes, Mary [mary.cordes@chemours.com] 2/27/2025 4:10:10 PM Kramer, Jessica L. [kramer.jessical@epa.gov] Karakitsos, Dimitrios J (WAS X75132) [dimitri.karakitsos@hklaw.com] FW: Follow Up ttachments:DOD Report on Critical Per- and Polyfluoroalkyl Substance Uses 2023 (002).pdf; Essential Chemistry for America_Fact Sheet.pdf; PFASEconomicReportlpager.pdf; EssentialChemistries_-ProvidingBenefits-Across-the-U.S.Economy.pdf
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Trying again with the right email!
From: Cordes, Mary Sent: Thursday, February 27, 2025 10:58 AM To: abboud.michael@epa.gov; kramer.jessica@epa.gov Cc: Wellman, Amber D; COOMES, TODD Subject: Follow Up
Hello Michael and Jess - thank you for speaking with us this week. We appreciate the conversation and look forward to working with you in this Administration.
Sharing a few follow-ups below from our side:
1.
The Burgoon Paper is linked here:
https://www.scicnccdircct.com/scicncc/articlc/pii/S027323002300 l 708?via%3 Dihub
a.
Thank you for the offer to meet with your staff. Can we look at dates the week on March 10 or March 17?
2.
Per our conversation on essential use and defense applications, I am attaching here DOD's report to Congress on
Critical PFAS Use. We have even more specific examples that we are happy to share with you.
3.
Attaching some collateral from the U.S. Chamber of Commerce's Essential Chemistry for America Campaign,
which focuses on critical use of PFAS across various industries. This report looks at the economic impact and benefits of
these chemistries.
Michael - I know we discussed a couple of follow-up contacts in the meeting. Can you just send those my way whenever you have them?
My cell is below - call or text if easier to get ahold of me that way.
Best, Mary
Mary Cordes
ED_018475O_00003377-00001
Head of Federal Government Affairs The Chemours Company Cell: + 1 (202) 394-4893 E-mail: mary.cordcs(a~chcmours.com
Chemours,_
Chcmours.com This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by return e-mail and delete this e-mail from your system. Unless explicitly and conspicuously designated as "E-Contract Intended", this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute a consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties. https://www.chemours.com/en/email-disclaimer
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McHale, Caitlin [cmchale@nma.org] 3/3/2025 4:18:29 PM Kramer, Jessica L. [kramer.jessical@epa.gov] ubject:Follow Up
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Hi Jess, Hope you had a great weekend. Wanted to see if you had a few minutes to chat sometime today. Thanks so much, Caitlin
National Mining Association
Caitlin McHale Associate General Counsel National Mining Association 101 Constitution Ave. NW, Suite 500 East Washington, D.C. 20001 Cell/Text: (703) 593-8543 Desk: (202) 463-2646
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Echols, Lamar N [lamar.n.echols@exxonmobil.com] 4/4/2025 3:59:53 PM Kramer, Jessica L. [kramer.jessical@epa.gov] Robertson, Peter D [peter.d.robertson@exxonmobil.com]; Risley, David [Risley.David@epa.gov]; Lanier, Lynsey [Lanier.Lynsey@epa.gov]
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Thank you! Have a great weekend.
On Apr 3, 2025, at 2:56 PM, Kramer, Jessica L. <kramer.jessical@epa.gov> wrote:
Hey Lamar, I would be more than happy to chat. My schedule is a little crazy at the moment, but David and Lynsey can help find some time over the next week or so for us to connect. Thank you!
Jess
From: Echols, Lamar N <lamar.n.echols@exxonmobil.com> Sent: Wednesday, April 2, 2025 3:17 PM To: Kramer, Jessica L. <kramer.jessical@epa.gov> Cc: Robertson, Peter D <peter.d.robertson@exxonmobil.com> Subject: Time to chat
I
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Hi Jessica,
I hope you are doing well. Do you have a few minutes in the next week or so to chat about permitting issues? Our schedules are flexible.
Thanks in advance.
Best, Lamar
Lamar Echols
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Federal Government Affairs ExxonMobil Corporation
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Leopold, Matt [MLeopold@hunton.com] 4/4/2025 9:14:52 PM Kramer, Jessica L. [kramer.jessical@epa.gov] FW: Meeting Request Vault 44.01 ttachments:OW External Meeting Request Form 2025.docx
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From: Eng, Connie <Eng.Connie@epa.gov> Sent: Friday, April 4, 2025 2:10 PM To: Leopold, Matt <MLeopold@hunton.com> Subject: FW: Meeting Request - Vault 44.01
This Me,sage Is From An ExtemalSender
Hunton Andrews .Kurth warning: This message came from outside the firm. Good Afternoon, Matt, Im the External Meeting Coordinator in the Office of Water/Immediate Office. Pleased to meet you ! Apologies for just circling back, the last couple of weeks have been pretty busy. We are happy to have our Principal Deputy Assistant Administrator meet with you all sometime end of April/early May. I also attached herewith the External Meeting Request Form to be completed and send back to me, so I can process this meeting request.
Thanks much !
Best,
Cornelia (Connie) !Eng Specia[}lssistant Office ofWater/Immediate Office V.S. !Environmenta[<Protection }lgency
1200 <Pennsyfvania}lve, JV7vJ/, Washington <DC 20460 [>:<] =======-'- I~ 202-564-3279
ED_018475O_00003410-00001
From: Leopold, Matt <MLeopold@hunton.com> Sent: Friday, March 28, 2025 2:10 PM To: Thompkins, Anita <Thompkins.Anita@_~-9_,_g_g_y:> Cc: Kramer, Jessica L. <kramer.jessical@~~_,_g_g_y:>; Browne, Peggy <Browne.Peggy_@.~_p_~_g_<2_~> Subject: Meeting Request
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Anita,
I represent Vault 44.01, a large Carbon Capture and Storage (CCS) company operating in the Midwest. The Vault team would like to come to Washington, DC on April 3, 4, 7, 8, or 9, and we would like to request a meeting with Jess Kramer to discuss our proposed projects pending Class VI permit applications. If those dates are not available, we could potentially meet on April 10 or 11.
Please let me know if any of those dates are available and what additional information you may need.
Best regards, Matt Leopold
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.corn
ED_018475D_0000341 0-00002
External Meeting Request Form Office of Water
U.S. Environmental Protection Agency
This form assists in planning participation in events and activities Please complete all requiredfields
This is not a confirmation ofattendance.
Basic Backeround Today's date
Requesting individual and/or affiliation
Name of Org/affiliation requesting to meet
Requested meeting date or date range Requested meeting time Location (e.g. EPA Headquarters) Virtual or In-Person
Meetine Descriotion: Brief description or purpose of meeting: (e.g., meet and greet, policy discussion, informational) *Please attach a separate document for agenda/topics to be discussed (provide fit!! context) List of attendees Officialfit!! name (per ID); Title; Email Address Please indicate Intemational/Foreign visitors with country of residence (if any) Will there be time for Q&A? If so, who will be moderating
What questions will be asked?
Any PowerPoint presentations?
List names/title/email address/country of international/foreign attendees Attachments [please attach agenda and other meeting material(s)J. Agenda must be submitted together with the come_!eted meeting request torm.
Ethics Considerations: Describe entity hosting EPA official
E.g., private company, political action committee, academic institution.
Rev. February, 2021 ED_018475O_00003411-00001
Has your organization ever received funding from EPA? If so, what type of funding did you receive for which project? Host(s) relationship to the EPA? Is the entity also a Federally Registered Lobbyist? Is there a registration fee? If so, does this fee apply to the speaker? Amount? Are you giving a gift, award, or anything else of value? What is the dollar value? Are you providing a meal? What is the dollar value?
Yes/No If applicable
If applicable
Contact Information: Your name and title: Telephone number: Mailing address:
E-Mail address: Cell phone number: Best way to reach you ?
EPA Contacts: Connie Eng, Special Assistant, OW/IO ([ HYPERLINK "mailto:eng.connie@epa.gov"]) David Risley, Chief of Staff ([ HYPERLINK "mailto:risley.david@epa.gov" ]) Lynsey Lanier, Deputy Chief of Staff ([ HYPERLINK "mailto:lanier.lynsey@epa.gov" ])
Rev. February, 2021 ED_ 0 184 7 5D _ 00003411-00002
essage
Leopold, Matt
[MLeopold@hunton.com]
3/31/2025 1:52:24 PM
Kramer, Jessica L.
[kramer.jessical@epa.gov]
Risley, David
[Risley.David@epa.gov];
Lanier, Lynsey
[Lanier.Lynsey@epa.gov]
ubject:
RE: Meeting request
ttachments:Control RS-23-000-
3267_ELS response
04062023. pdf;
Response_Quill_Case_23-
03774-R05--TS - General
Correspondence
Letter.pdf; EPA letter
_03062023.pdf; Letter to
EPA re meeting on
Relocation (8.11.23).pdf
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Jess, Following up on our meeting. Here is correspondence between Enbridge and EPA. Thank you, Matt
From: Leopold, Matt Sent: Wednesday, March 26, 2025 5:41 PM To: Kramer, Jessica L. <kramer.jessical@epa.gov> Cc: Risley, David <Risley.David@epa.gov>; Lanier, Lynsey <Lanier.Lynsey@epa.gov> Subject: RE: Meeting request Yes, I can confirm we are available at that time tomorrow. David and Lynsey, I'd be happy to fill out a meeting request form with the attendees. Regards, Matt
From: Kramer, Jessica L. <kramer.jessical@_~9..:.gg_y:> Sent: Wednesday, March 26, 2025 3:50 PM To: Leopold, Matt <MLeopold@hunton.com> Cc: Risley, David <Risley.David@_~E..:.15.9_\I:>; Lanier, Lynsey <Lanier.Lynsey@.~_p_~,.g_Qy> Subject: RE: Meeting request
This Message Is FromAn l;xtmal Senaer
H~nton Andrews Kurth warning:\ This mes;age came ftom outside the firm.
Hey Matt,
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I'm so sorry for the delay. Is there any chance you could meet from 10:30 - 11 :00 tomorrow? I'm including David and Lynsey here who can help get myself and Peggy lined up for that if it would work for you. Thank you! Jess
From: Leopold, Matt <MLeopold@hunton.com> Sent: Wednesday, March 19, 2025 2:47 PM To: Kramer, Jessica L. <kramer. jessical@~E...:15.9_\:':> Subject: Meeting request
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Hello Jess,
I represent Enbridge in matters related to the permitting and relocation of the Line 5 liquid pipeline. Enbridge is requesting a meeting on Thursday, March 27 to discuss issues related to the neighboring jurisdiction review process under CWA Section 401. I have attached a background document to provide information on the issues.
Enbridge is available to meet at your convenience on Thursday, March 27. Please let us know ifthere is a convenient time.
Best regards, Matt
Matthew Z. Leopold
Partner
mleopold((J;hunton.com
p 202.419.2041
m 202.527.1371
bio
Linkcdln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hun Lon.com
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
IL
60604-3590
REPLY TO THE ATTENTION OF:
VIA EMAIL
Lisa Connolly Director, Environmental Projects Enbridge Incorporated 915 N. Enbridge Parkway, Suite 9108 Houston, Texas 77079 [Lisa.Connolly@enbridge.com]
Dear Ms. Connolly:
Thank you for your March 6, 2023, letter responding to the U.S. Environmental Protection Agency's March 16, 2022, and April 13, 2022, letters on Enbridge's Line 5 Wisconsin Segment Relocation Project, and your request to meet with EPA in-person, including the St. Paul District of the U.S. Army Corps of Engineers and Wisconsin Department of Natural Resources, to further discuss the comments articulated in our letters. While we appreciate your efforts to attempt to address the concerns outlined in our letters, EPA will need to contact the other governmental parties to discuss the possibility of a meeting which may take some time. After we have had an opportunity to do so, we will contact you with the results of those discussions.
In the meantime, if you have questions, please feel free to contact Melissa Blankenship at 312886-9641 or blankenship.melissa@epa.gov.
Sincerely,
4/6/2023
Tera L. Fong Director, Water Division Signed by: Environmental Protection Agency
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 5
77 WEST JACKSON BOULEVARD CHICAGO, IL 60604-3590
REPLY TO THE ATTENTION OF:
W-15J
Ms. Lisa Connolly Director, Environmental Projects Enbridge Energy, Limited Partnership Energy Center Five 915 N. Eldridge Parkway Suite 1100
Houston, TX 77079
Dear Ms. Connolly:
Thank you for your August 11, 2023 meeting request and for affording us the time to work on the issue. On August 29 and 30, 2023, EPA staff participated in a site visit alongside Joe McGaver of your staff, Environmental Resource Management staff, staff from the St. Paul District of the Army Corps of Engineers, Bad River environmental program staff, as well as staff from the Great Lakes Indian Fish & Wildlife Commission, to observe several proposed aquatic resource impact areas within the proposed Enbridge Line 5 realignment.
EPA staff found the site visit to be beneficial. During the visit, EPA recommended, and Mr. McGaver agreed, that the best course of action for technical discussions regarding Enbridge's response to EPA's 404 permit application comments is through a combination of correspondence and virtual technical meetings. We also identified important documents during the site visit that we did not previously have. As a result, we agreed upon the need to develop an index of documents relevant to our review of the 404 permit application to support productive technical discussions on our comments moving forward. We want to emphasize that our discussions will be restricted to matters related to EPA' s 404 technical comments.
EPA believes this is the most efficient course of action and will allow for technical discussions sooner without the complications of scheduling multiple in-person meetings in Chicago. EPA spoke with the US Army Corps of Engineers, and they were amenable to this plan. My staff will be reaching out to Mr. McGaver to schedule a coordination meeting the week of September 18, 2023. If you have any concerns with proceeding in this manner, please let me know.
ED_0184750_00003426-00001
Again, thank you for your letter. If you have further questions, please contact Kerryann Weaver of my staff at 312-353-9483 or weaver.kerryann@epa.gov.
Sincerely,
9/14/2023
Tera L. Fong Division Director, Water Division Signed by: Environmental Protection Agency
ED_018475D_00003426-00002
March 6, 2023
Debra Shore Regional Administrator
& Great Lakes National Program Manager US EPA Region 5 77 West Jackson Boulevard Chicago, IL 60604
Tera L. Fong Division Director, Water Division US EPA Region 5 77 West Jackson Boulevard Chicago, IL 60604
Re: Enbridge Line 5 Wisconsin Segment Relocation - Enbridge Response to Certain EPA Comments and Request for a Meeting with EPA
Dear Regional Administrator Shore and Division Director Fong:
I am writing on behalf of Enbridge in response to the U.S. Environmental Protection Agency's ("EPA") March 16, 2022 and April 13, 2022 letters to the U.S. Army Corps of Engineers ("Corps") concerning the Enbridge Line 5 Wisconsin Segment Relocation Project ("Relocation" or "Project") and to request a meeting with EPA. Specifically, our team would like to discuss with you our efforts to date to design the Relocation in the least impactful manner to the environment and waters. Extensive information has been gathered and data developed, including on proposed and alternative installation methods for the Project at all water crossings. This information demonstrates that there will be no adverse impacts from the Project on any Aquatic Resources of National Importance ("ARNI"), specifically the Bad River and Kakagon-Bad River Sloughs wetland complex. We have also recently completed modeling of anticipated sedimentation impacts to water quality resulting from installation methods at the Project's proposed water crossings and would like the opportunity to further discuss those modeling results with you. Due to the detailed and very technical nature of this information, we believe that it would be beneficial to present this information to EPA directly during an in-person meeting. We have copied the Corps and the Wisconsin Department of Natural Resources ("WDNR") on this letter, and plan to include them to participate in the meeting.
The specific agenda items that we would like to discuss at an in-person meeting are set forth below. We would also like to discuss our plan to address the comments in EPA's letters that are not identified below.
1. Appropriate Water Crossing Methods: Enbridge has evaluated a variety of different crossing methods depending on the type and characteristics of the waterbody being crossed. The methods Enbridge evaluated are the open-cut (wet-trench), dry crossing (flume or dam-and-pump), horizontal direction drill ("HOD"), and Direct Pipe methods. Each of these methods have their advantages and disadvantages, and each may only be suitable for certain types of waters that are proposed to be crossed by the Project.
Enbridge has identified 12 waterbodies that it proposes to cross via HOD. This includes the White River, Deer Creek, Brunsweiler River, Highway 13/UNT Brunsweiler River, Trout Brook, Billy Creek, Silver Creek, Krause Creek, Bad River, Tyler Forks, Potato River, and Vaughn Creek. The HOD method is generally used to cross sensitive areas, areas with extended steep banks, or particularly deep, wide, or high-flow waterbodies where the site-specific topography and the local geologic substrate are suitable. Survey work conducted to date by the Project team has confirmed that these 12 waterbodies meet these parameters. Due to the unique geologic and other site conditions at the Marengo River, Enbridge is proposing to utilize an alternative trench less method, Direct Pipe installation, at the Project's proposed crossing of this waterbody. A Direct Pipe installation is similar to an HOD, but allows the pipe to be installed simultaneously with the tunneling of the bore hole.
ED_O18475D_ 00003427-00001
Regional Administrator Shore Division Director Fong March 6, 2023 Page 2 of 8
The advantages of using the HOD and Direct Pipe installation methods at these locations are that they avoid or reduce construction-caused instream sedimentation; will not cause streambed or bank disturbance; there are no potential streamflow or aquatic species effects; and these methods reduce the amount of required waterbody restoration.
All other crossings, including the 14 listed in EPA's March 16 letter, are much smaller and narrower than the waters described above, and are more suitable to be crossed by trenching methods. Enbridge accordingly proposes to install pipe at all other crossings via trench methods. Such trench methods will allow for pipe installation much more quickly than an HOD, limiting the amount of temporal environmental disturbance (including emissions) resulting from installation activities by equipment and construction crews. Two types of trench methods have been studied by Enbridge: (1) the open-cut (wet trench) method, which involves trenching through the waterbody while water continues to flow across the instream work area; and (2) dam and pump / flume methods, which involve construction of temporary dams to isolate installation activities from a diverted stream flow thereby minimizing downstream sedimentation. Based on Enbridge's comparative analysis, the open-cut method would result in the greatest environmental impact (i.e., downstream sedimentation) due to installation activities occurring directly within the flowing waterway. To avoid such impacts, Enbridge will use the open-cut only when no flow is present at the time of crossing. The dam and pump/ flume methods will be used at all crossings where flowing water is present. Because the installation of pipe with a dam and pump/ flume method isolates the water from the direct construction activity, impacts to waterbodies crossed via this method will be limited to shortterm increased sedimentation. However, this will only occur while the dam is being installed or removed as the stream flow is restored. Also, because trench methods can be completed relatively quickly (as compared to an HOD), construction impacts to non-aquatic resources at all crossings will also be limited in terms of extent and duration.
For all crossing methods, Enbridge will avoid and mInImIze impacts on waterbodies by implementing the applicable measures described in its Environmental Protection Plan ("EPP"), which can be discussed at the in-person meeting as well.
2. Proposed Crossing Methods for Upstream Crossings of Outstanding Tribal Resource Waters and Outstanding Resource Waters: The Project will cross six waterbodies designated by the Bad River Band as Outstanding Resource Waters ("ORW"): White River, Marengo River, Bear Trap Creek, Brunsweiler River, Tyler Forks, and Vaughn Creek. The Project will also cross the Bad River, which has sections within the exterior boundaries of the Reservation designated as both ORW as well as Outstanding Tribal Resource Waters ("OTRW"). Enbridge proposes to cross all Tribal ORW/OTRW waters, with the exception of Bear Trap Creek, using a trenchless crossing technique (HOD or Direct Pipe). Enbridge's use of a trenchless method will avoid direct impacts to existing water quality as there will be no instream construction disturbance or disturbance to the stream banks. Also, the Project will not cross any of these waterbodies within the Bad River Reservation; the closest crossing of a Tribal designated OWR/OTRW waterbody to the Reservation is over 2.4 river miles (3.8 km) upstream of the Reservation boundary.
With respect to the crossing of Bear Trap Creek, based on field observations, it is an intermittent waterbody at the proposed crossing location. Accordingly, Enbridge proposes to cross Bear Trap Creek, at a point located approximately 8.6 river miles (13.8 km) upstream of the Reservation at a time in the year when no flow is present; or if water is present, Enbridge will use a dam and pump / flume method. Use of this method at Bear Trap Creek will limit potential downstream sedimentation impacts to the period of instream construction activities associated with the installation and removal of temporary dams. Enbridge does not propose to cross any flowing ORW/OTRW waterbodies using the open cut (wet trench) crossing technique.
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Clearing and maintenance of the pipeline right-of-way will be required (with Enbridge-proposed buffers), but no wetland fill will occur. Enbridge will also avoid and minimize impacts on waterbodies by implementing the applicable measures described in its EPP, as noted above.
3. Potential Effects of the Project on Water Quality: Enbridge has determined that the potential effects of its pipeline installation on water quality would be localized and limited in duration. The primary water quality parameter affected by pipeline installation at the proposed water crossings is the disturbance of streambed sediment resulting in a short-term increase in total suspended solids ("TSS"). To evaluate the potential of the Project to impact water quality, Enbridge commissioned RPS Group ("RPS") to conduct a quantitative assessment of sediment dispersion from planned waterbody crossing activities. The results of RPS' analysis, which are specified in greater detail in the RPS report, indicate that potential increases of TSS concentrations in the water column caused by use of a trench method or an unexpected inadvertent return during an HOD would be localized, limited in duration, result in less TSS levels than storm-related events, and will not degrade water quality or existing designated uses (either the site of the crossing or downstream). Further, due to the limited nature of TSS impacts resulting from pipe installation, no further degradation to the already-impaired waterbodies identified by EPA will occur (Trout Brook Creek, Marengo River, and Bay City Creek).
RPS, for purposes of its modeling, utilized a more conservative (i.e., more protective) calculated representative threshold of 19 mg/L TSS. This 19 mg/L calculated representative threshold is based upon the measured relationship between turbidity and TSS within the Bad River that correlates to the Bad River Band's water quality standard for turbidity within the boundaries of the Reservation. For trench methods, TSS concentrations predicted downstream of the trenched installations (e.g., 500-1,000 m) were on the order of <1 to 30 mg/L for a small watercourse and <1 to 10 mg/L for a medium watercourse. These levels are consistently below background conditions for the anticipated construction period of June-August. By 1,000 m (or 1 km) downstream (which is still well outside the Reservation boundary for all crossings), the predictions of any increase in TSS concentrations will be below the conservative representative calculated threshold of 19 mg/L. This temporary increased TSS concentration at any specific location is expected to dissipate over the course of approximately one day. The limited temporal duration of TSS concentrations ensures that cumulative impacts from crossing installations are also limited.
With respect to crossings that are proposed to be conducted via HOD, TSS impacts would not occur for any pipe that is successfully installed via an HOD method. TSS impacts could, however, occur as a result of an unexpected inadvertent return. As noted above, RPS modelled a potential inadvertent release occurring at the Bad River, which EPA has identified as an ARNI. The effect of a hypothetical inadvertent return would be temporary, of short duration, and confined to a relatively short downstream distance from the crossing. Modeling results indicate that TSS concentrations are expected to decrease quickly - for example, at distances 500-1,000 m downstream, TSS concentrations would be than less or similar to background conditions. By 2,000 m (or 2 km) downstream, TSS predictions for all scenarios were below the more conservative representative calculated threshold of 19 mg/L.
Due to the limited nature of the increased TSS concentrations resulting from installation, any potential impacts to aquatic species and their habitat will also be localized, limited in duration, and less than background TSS levels.
4. Compliance with the Bad River Band's Water Quality Standards: The proposed route would cross the various watercourses in the Project area at distances between 2.1 km and 23.9 km (1.3 and 14.9 miles) upstream of the Reservation boundary. All TSS concentrations, as modeled by RPS, are expected to be below the more conservative representative calculated threshold of 19 mg/L by the time any suspended sediments from trenching installations (or an inadvertent return on the Bad
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River) reach the downstream Reservation boundary. As noted above, all TSS concentrations are expected to be less than background TSS levels in the waterbodies crossed by pipe installation activities.
While EPA has identified the Bad River as an ARNI, its crossing via HOD will be expected to result in no direct impact; or in the unlikely case of an inadvertent return, the release of drilling fluid into the Bad River would be temporary, isolated, and disperse before reaching the Reservation boundary approximately 12 miles downstream. Sedimentation impacts resulting from pipe installation (whether via dry crossing methods or HOD) are expected to have no impact on the Kakagon-Bad River Sloughs, given that this complex is located within the Reservation boundary approximately 48 miles downstream. Any TSS plumes in waterbodies crossed by the Project are expected to be temporary in any given location and will not pose a permanent impact to downstream waters, whether individually or cumulatively. For example, installation of pipe via a trench method is expected to be completed in 1-2 days at any given crossing and any potential sedimentation impacts are expected to last no more than a day. Accordingly, potential increased TSS concentrations at one waterbody crossing would be expected to subside before TSS impacts at another crossing would result from installation. Also, because: (a) TSS levels are the primary water quality parameter affected by pipeline construction, and (b) TSS levels resulting from construction will not exceed the representative calculated threshold on waters within the Reservation, all other Bad River water quality standards (whether numeric or narrative) will be complied with, and downstream water quality would not be degraded as a result of pipe installation activities occurring outside of the Reservation boundary.
5. Water Quality Monitoring: We are in receipt of EPA's November 14, 2022 comments on En bridge's proposed Water Quality Monitoring Plan for the Relocation. We appreciate EPA's comments and would like to discuss with you how Enbridge intends to implement its Water Quality Monitoring Plan, including in light of EPA's comments.
The goal of our Water Quality Monitoring Plan is to ensure that the Bad River Band's and State of Wisconsin's water quality standards are maintained throughout pipe installation activities. Prior to construction, Enbridge will collect baseline water quality data from perennial streams that will be crossed by the pipeline centerline during construction of the Project, as well as select intermittent streams (at time when water is present at the time of construction).
Enbridge has identified the following 19 waterbodies and tributaries of waterbodies that will cross upstream of the Bad River Reservation that will be included in the preconstruction water quality sampling program: Beartrap Creek, White River, Marengo River, Brunsweiler River, and unnamed tributary to the Brunsweiler River, Trout Brook, and unnamed tributary to Trout Brook, Billy Creek, an unnamed tributary to Billy Creek, Silver Creek, three unnamed tributaries to Silver Creek, Bad River, an unnamed tributary to the Bad River, Tyler Forks, Potato River, Vaugh Creek, and an unnamed tributary to Vaugh Creek. Enbridge will collect grab samples at the pipeline crossing location of each of these waterbodies prior to start of the stream crossing (if stream flow is present) as a baseline measurement. These sample will then be analyzed for TSS, turbidity and other factors by a certified laboratory using standard analytical methodologies or through field analysis using standard sample protocols.
Two of the 19 waterbodies listed above are identified under Section 303(d) of the Clean Water Act as impaired: Trout Brook (fecal coliform); and Marengo River (fecal coliform). One additional waterbody crossed by the Project is listed as a Section 303(d) waterbody (Bay City Creek - listed for exceedance of total phosphorus standards); however, this waterbody does not flow into the Bad River Reservation. The tested/monitored water quality parameters will include those described above as well as analysis for the respective impairment to these three waterbodies. Photographs will be taken (upstream, downstream, and across) to document physical conditions at each site.
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Additional proposed monitoring protocols are as follows:
During instream construction, Enbridge will collect water quality samples for analysis of the same parameters from approximately 100 feet upstream and downstream of the crossing where Enbridge has secured landowner permission for off right-of-way access, or will access the sample site from the waterbody where safe stream conditions allow (i.e., depth). Samples will be collected during the installation of the temporary dams and removal of the temporary dams.
Following completion of instream construction activities, Enbridge will complete streambank restoration/stabilization and restore natural stream flow through the construction workspace. Enbridge will then collect daily water quality samples for three additional days upstream of the crossing location and downstream of the crossing location at approximately the same locations as the active construction samples. Enbridge will collect additional samples at one-week post construction and one-month post construction.
In the event of an in-stream inadvertent return, Enbridge will collect water samples upstream of the crossing location and 100 feet downstream of the inadvertent return location where Enbridge has secured landowner permission for off right-of-way access. Additionally, Enbridge will collect water samples at each public road crossing downstream of the instream inadvertent return location to the boundary of the Bad River Reservation. Samples will be collected from the stream bank where public rights-of-way allow or will be collected from the respective bridge.
6. Wetland Surveys Conducted Using the Wisconsin Wetland Rapid Assessment Methodology ("WRAM"): Field crews evaluated each wetland proposed to be crossed/impacted by the Project using the WRAM. Through this process each wetland was assessed for functional value, floristic integrity, condition assessment of the wetland assessment area and buffer, as well as for potential impacts resulting from Project construction. The floristic integrity assessment was focused on primary questions pertaining to invasive species cover, strata, Natural Heritage Information plant community ranking, and relative frequency of the plant community within the watershed. At the recommendation of the Corps, additional vegetation surveys were conducted during the 2022 field season on select wetlands characterized by the WRAM as moderate to high-quality to further assess the potential impacts of the Project to regional wetland ecosystems. Wetlands classified under the WRAM as "low value" (for example, due to high levels of nonnative species or recent disturbance through agricultural or forest harvest) were not surveyed. Species encountered and associated cover values were collected and then used to calculate two metrics: (i) the Floristic Quality Index ("FQI"); and (ii) the Mean C-value. A total of 73 wetland features were evaluated to determine floristic quality, with nine of these features deemed to have multiple community types. This process took into consideration the FQI component of WRAM for appropriate wetlands. Data gathered through this process (which recorded floristic diversity, quality, and community) can be utilized to assess appropriate mitigation/restoration for the Project.
A key finding of the 2022 surveys was a divergence between the quality of the wetlands as assessed using the calculated FQI versus the quality determined through consideration of the cover-weighted Mean Coefficient of Conservatism ("wC"). That divergence is consistent with the findings of two research reports funded by EPA Region 5 and conducted in Wisconsin over the last decade. The research conducted by Lake Superior Institute in Northern Lakes and Forests Inland Wetland Surveys: Relationship between Floristic Quality Assessment and Anthropogenic Stressors. Technical Report 2015-2, Lake Superior Research Institute, University of WisconsinSuperior, Superior, WI (Hlina, P., N.P. Danz, K. Beaster, D. Anderson S. Hagedorn. 2015) found
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this relationship in the Northern Lakes and Forests ecoregion of the state, and a follow-up review covering additional ecosystems titled Provisional Wetland Floristic Quality Benchmarks for Wetland Monitoring and Assessment in Wisconsin. Final Report to US EPA Region V, Grants # CD00E01576 and #CD00E02075. A 2019 WDNR report, EGAD# 3200-2020-01 (Marti, A.M. and T.W. Bernthal. 2019), subsequently confirmed this finding statewide:
Community diversity and the effects of overall cover of individual plant species are captured using wC, resulting in a more ecologically and statistically defensible assessment metric and corresponding set of Benchmark criteria for comparison. Based on these factors, we suggest that w C Benchmark criteria are used as the primary provisional Benchmarks whenever possible when attempting to apply Benchmark criteria for a project.
Accordingly, use of the we benchmark criteria (as opposed to exclusively the calculated FQI) was appropriate for assessing wetlands potentially impacted by the Project.
7. Wetland Impacts and Wetland Functional Values: The Project will have minimal impacts on wetlands and the functional values of those wetlands will be maintained. Specifically, the Project will require permanent fill of only approximately 0.019 acres (826 square feet) of emergent wetland and permanent fill of less than 0.004 acre (173 square feet) of scrub-shrub wetland. This fill is unavoidable because it is required to install mainline block valves to comply with mandatory pipeline safety requirements imposed on Enbridge by the Pipeline and Hazardous Materials Safety Administration and the installation of permanent roads to access those mainline block valves. These permanent impacts affect only three low-quality wetlands, which have already been determined during wetland delineation to have invasive flora. In each case, Enbridge will install a permanent culvert beneath the access roads at each location to maintain existing hydrology within the wetland complex. Importantly, all permanent wetland impacts will occur outside of the Reservation and have no impact on the Kakagon-Bad River Sloughs wetland complex located far downstream within the Reservation.
Impacts resulting from installation within or in proximity to wetlands will be avoided to the extent possible, and if unavoidable will be mitigated. The primary impact to wetlands resulting from pipeline construction is the temporary removal of wetland vegetation during active construction and the conversion of forested and shrub-scrub wetland vegetation to emergent wetland vegetation within the permanent right-of-way. To compensate for these impacts, Enbridge has developed a Compensatory Wetland Mitigation Plan that addresses temporal wetland impacts, wetland conversion (e.g., conversion of forested wetland to emergent wetland), and permanent wetland fill. This plan has been reviewed by the Corps. In accordance with that Plan, Enbridge will, to the maximum extent practicable, restore affected wetlands to preconstruction conditions, which is considered in-place compensation. Enbridge will also provide compensatory wetland mitigation for unavoidable Project-related impacts including temporary loss of wetland cover, permanent conversion of wetland type, and permanent wetland fill.
With respect to the conversion of 33.95 acres of forested and scrub-shrub wetlands to emergent wetlands, this is a temporary impact only because wetland function will be maintained. See Reissuance and Modification of Nationwide Permits: Final Rule, 86 Fed. Reg. 2744, 2773-2774 (Jan. 13, 2021) ("In areas where temporary fills occur, the wetlands in the right-of-way will remain, although there may be a conversion in wetland type. Those wetlands will continue to perform wetland functions, including hydrologic functions, biogeochemical cycling, and habitat functions, but there may be some changes to those functions and the degree to which the wetlands perform those functions ... Activities that are authorized by NWPs do not require activity-specific evaluation under the 404(b)(1) Guidelines (see 40 CFR 230.5(b)). Emergent and scrub-shrub wetlands
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perform valued wetland functions, even though those functions differ to some degree from the functions performed by forested wetlands.").
Enbridge has committed to post-construction monitoring of the right-of-way to determine the extent of secondary or indirect impacts, if any. Post-construction monitoring would also: (i) evaluate the effectiveness of wetland restoration efforts; (ii) document overall revegetation success; and (iii) identify areas that may require additional remediation. The post-construction monitoring program will assess quantitatively and/or qualitatively the success of post-construction wetland restoration through documentation of plant cover, plant distribution, and species composition of plant communities in the wetlands impacted by pipeline construction and operation.
To ensure the effectiveness and accuracy of this monitoring, Enbridge completed wetland and waterbody surveys along the Project route and associated work areas to properly characterize (i.e., provide a baseline for wetland) floristic quality. Enbridge also completed additional vegetation surveys in certain select "medium" and "high" quality wetlands. Based on the survey information, Enbridge calculated a weighted floristic quality index value for each wetland/wetland community and a weighted Coefficient of Conservatism value. Post-construction wetland monitoring will ensure that these wetland values are maintained following completion of the project.
Further, because the Project will result in the direct fill of only 0.02 acres of wetland, construction will not adversely affect storm and/or floodwater capacity in any of the wetlands crossed by the Project. Nor will construction adversely affect the ability of crossed wetlands to moderate water level fluctuation extremes. The limited volume of fill will, in other words, allow the same volume of discharge/recharge of groundwater and/or surface water to wetlands.
8. Blasting Activities and Impacts: Blasting and its potential impacts will be limited. Enbridge anticipates that blasting may be required for installation of the pipe only in locations where bedrock is present at or within the trench depth. Blasting is a preferable means for constructing through bedrock at certain locations because the use of mechanical means would: (1) increase the duration of rock removal noise impacts at a given location from seconds (for blasting) to days or weeks; (2) increase the duration of vibration impacts; (3) increase the overall construction duration resulting in a longer period between initial ground disturbance and final restoration; and (4) increase equipment air emissions due to the extended work duration and additional equipment needs.
Potential pipeline related blasting impacts, such as changes in water levels and/or turbidity in shallow aquifers, are anticipated to be localized and temporary because water levels will quickly re-establish equilibrium and turbidity levels will rapidly subside following blasting, trenching, pipeline installation, and backfilling. Enbridge will avoid or minimize groundwater impacts by implementing construction techniques described in its construction and restoration plans, such as using temporary and permanent trench plugs. Following construction, Enbridge will also restore the ground surface to original contours as closely as practicable and restore vegetation on the rightof-way to establish surface drainage and recharge conditions as closely as possible to those prior to construction.
For flowing waterbody crossings that may require blasting due to shallow bedrock, Enbridge will initiate the dry crossing method (i.e., dam and pump) prior to blasting to isolate the workspace and blasting area from natural streamflow. Installation of the temporary instream dams is expected to disperse mobile aquatic organisms away from the crossing area before the blast is conducted and minimize propagation of the blast energy. For waterbody blasts, as for all blasting, Enbridge will use only specialized trench-blasting explosives that do not contain perchlorate or ammonium nitrate fuel oil to avoid the discharge of remnant residues into the waterbody.
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For small, non-flowing waterbody crossings and waterbodies that are dry at the time of construction and are located in areas of shallow bedrock, Enbridge proposes to install temporary upstream and downstream dams to isolate the area of excavation/blasting prior to blasting as a proactive method to minimize the potential for downstream sediment migration should the waterbody begin to flow following blasting and prior to instream construction. Enbridge will initiate the open-cut crossing method within five days following blasting. Enbridge will have equipment and materials on site ready to initiate a dry crossing technique should the stream begin to flow following blasting. Prior to backfilling, Enbridge will install trench breakers within the adjacent upland area (location to be based on site-specific conditions) to prevent subsurface flow of water (either from the waterbody or to the waterbody). The bed and banks of each waterbody will be restored as near as practicable to preconstruction conditions prior to removal of the upstream and downstream temporary dams. Enbridge will seed the disturbed areas of the stream bank and install erosion blankets above the ordinary high-water mark to minimize potential bank erosion.
Where in-stream blasting would be conducted, the waterbody substrate would be restored to natural grade after pipe installation is complete in accordance with the EPP. Enbridge will also conduct post-construction monitoring, including monitoring crossed waterbodies annually for five years to identify potential additional reclamation measures. Wetlands will also be monitored to evaluate the success of wetland revegetation to identify any additional restoration or reclamation activities that might be needed.
We look forward to meeting with you and your colleagues at your earliest convenience. Please provide me with EPA's availability for a meeting in Chicago, and I will coordinate with the Corps and WDNR to find a date that works for all parties.
Please also let me know if you would like any further information or have any questions that we could answer to help facilitate our discussion at our meeting. We, like EPA, remain committed to continuing to work diligently through a collaborative process to address your concerns.
I look forward to hearing from you
cc: David Pfeifer, Manager, U.S. EPA, Watersheds and Wetlands Branch Kerryann Weaver, U.S EPA, Wetland Section Supervisor Melissa Blankenship, U.S EPA, Environmental Scientist Jennifer Tyler, U.S. EPA, NEPA Coordinator Bill Sande, U.S. Army Corps of Engineers, Lead Project Manager Rebecca Graser, U S. Army Corps of Engineers, Deputy Regulatory Division Chief Ben Callan, Wisconsin Department of Natural Resources, NR Program Manager
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ENBRIDGE"
Director, Environment Projects
Tel 713-627-4102 Lisa.Connolly@enbridge.com
Energy Center Five 915 N. Eldridge Parkway Suite 1100 Houston, TX 77079
August 11, 2023
Debra Shore Regional Administrator & Great Lakes National Program Manager US EPA Region 5 77 West Jackson Boulevard Chicago, IL 60604
Tera L. Fong Division Director, Water Division US EPA Region 5 77 West Jackson Boulevard Chicago, IL 60604
Re: Enbridge Line 5 Wisconsin Segment Relocation - Enbridge Outstanding Request for a Meeting with EPA
Dear Regional Administrator Shore and Division Director Fong:
I am writing to renew Enbridge's request for a meeting with you and other appropriate EPA officials, together with officials from the U.S. Army Corps of Engineers ("Corps") and the Wisconsin Department of Natural Resources ("WDNR") to discuss our Line 5 Wisconsin Segment Relocation Project ("Relocation"). On March 6, 2023, I wrote to you both requesting a meeting to discuss our plan to address EPA's comments to the Corps, including how we intend to design and construct the Relocation in the least impactful manner to the environment and waters. Director Fong responded via email on April 10, 2023, indicating that EPA needed to contact other governmental parties to discuss the possibility of a meeting with Enbridge. While we have not heard further from you, in the intervening four months additional work has been done and more information has been compiled that we believe further addresses EPA's comments. We would like to share our project information with you and explain how it demonstrates that there will be no adverse impacts from the Relocation, including to downstream water resources on the Bad River Reservation. As you may know, the need for resolution of this matter and permitting of the Relocation has taken on some additional urgency given the June 16, 2023 injunction issued by the U.S. District Court for the Western District of Wisconsin that would require Line 5 to be closed on the Reservation by June 16, 2026.
We look forward to meeting with you and your colleagues at your earliest convenience. Once again, if you are able to provide me with EPA's availability for a meeting in Chicago, I will coordinate with the Corps and the Wisconsin Department ofNatural Resources to find a date that works for all parties.
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August 11, 2023 Page 2 of 2 I look forward to hearing from you.
olly Director, Environment Projects cc: David Pfeifer, Manager, U.S. EPA, Watersheds and Wetlands Branch
Kerryann Weaver, U.S. EPA, Wetland Section Supervisor Melissa Blankenship, U.S. EPA, Environmental Scientist Bill Sande, U.S. Army Corps of Engineers, Lead Project Manager Rebecca Graser, U.S. Army Corps of Engineers, Deputy Regulatory Division Chief Greg Pils, Wisconsin DNR, Director, Environmental Analysis & Sustainability Tammy Baldwin, U.S. Senator Ron Johnson, U.S. Senator Tom Tiffany, U.S. Representative
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essage
Noe, Paul [Paul_Noe@afandpa.org] 4/8/2025 9:34:19 PM Browne, Peggy [Browne.Peggy@epa.gov] Bradner, Kai [Kai_Bradner@afandpa.org]; Lanier, Lynsey [Lanier.Lynsey@epa.gov]; Kramer, Jessica L. [kramer.jessical@epa.gov]; Levine, Jesse [Jesse_Levine@afandpa.org]; Homra, Katherine [Katherine_Homra@afandpa.org] RE: Materials for AF&PA Meeting with EPA/OW Wed, April 9, 10am ttachments:O. AF&PA Combined EPA Slides040925_final.pdf; Flawed Rules Violating EOs AF&PA040325.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Dear Peggy et al:
As you know, our meeting with you tomorrow has been moved and consolidated with other offices to Wednesday, April 9 from 1lam-12:30pm in EPA North (Room 4045). Attached are copies of our revised consolidated slides we plan to use on Wednesday, as well as an analysis of how our rules of greatest concern (including air rules) violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs.
We have a strong showing of about 30 attendees who have expertise in how pulp, paper and wood products mills are affected by regulation.
We look forward to seeing you. If you have any questions, please let us know.
Thank you,
Paul
Paul Noe Vice President, Public Policy Paul_N oe@afandpa.org Office: (202) 463 - 2777 Cell: (703) 909 - 2895
601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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From: Noe, Paul
Sent: Friday, April 4, 2025 12:59 PM
To: brown.peggy@epa.gov Cc: Bradner, Kai <Kai_Bradner@afandpa.org>; lanier.lynsey@epa.gov; Kramer.JessicaL@epa.gov; Levine, Jesse <Jesse_Levine@afandpa.org>
Subject: Materials for AF&PA Meeting with EPA/OW Wed, April 9, 10am
Dear Peggy: Our members are very much looking forward to meeting with you and the EPA Office of Water team on Wednesday, April 9 at 10am in EPA North, Room 3530. We have a strong showing of over two dozen attendees who have expertise in how pulp, paper and wood products mills are affected by regulation. Attached are copies of our slides we plan to use on Wednesday, as well as an analysis of how our rules of greatest concern (including four water rules) violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs. As you will see, our slides discuss our top water regulatory priorities, including the WA HHWQC Rule, a related Biden EPA Region 10 midnight Approval Rule, the Tribal Reserved Rights Rule, the SDWA PFAS MCL, and the draft risk assessment for biosolids. Lynsey: If there will be other EPA attendees at the meeting, I would appreciate it if you could forward these materials to them. If you have any questions in the meanwhile, please let us know. We are grateful for the opportunity to meet with you. Best regards, Paul
Paul Noe Vice President, Public Policy Paul Noc(il:afandpa.or ~ Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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American Forest & Paper Association
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Overview
Key Priority Final Rules PM NAAQS (standard and air permit program) Good Neighbor Plan 3 MACT revisions (2 pulp and paper; 1 wood panels) CERCLA Listing of PFOA/PFOS CWA Rules {WA HHWQC, Approval Rule, Tribal Reserved Rights Rule) SDWA MCL on PFAS Biomass - Treasury Clean Electricity Tax Credits
Loper Bright Regulatory Framework
Market Failure Analysis; Benefit-Cost Analysis; Sound Regulatory Science
American
2
Forest & Paper
Association
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Administrator Zeldin's March 12 Deregulatory Initiatives
We support the Administrator's goal for common sense, achievable regulations.
We have a long track record seeking common sense solutions working with OAQPS
Want timely and lasting rules.
Our rules of greatest concern violate multiple EOs, including E.O. 14219, E.O. 14192, and E.O. 14154.
Ambitious agenda - how can we help?
3
American Forest & Paper Association
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1(a) PM NAAQS Standard
Please reconsider Biden EPA unattainable 9ug/m3 standard: near average U.S. background (8 ug/m3) - no "headroom" (typically 3 ug/m3) to allow modernizing U.S. manufacturing, even in attainment areas (pink on map).
Blocks efficiency upgrades that would both increase U.S. competitiveness and jobs+ reduce emissions per ton of production.
Use Loper Bright "best reading;" under CAA 109(d), consider "all relevant factors," including attainability and cost. Scientific uncertainty kept standard at 12 ug/m3 in 2020
American
4
Forest & Paper
Association
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Prior PM2_5 NAAQS (12 g/m3)
left room for economic growth
Projects in non-attainment areas (red) will require LAER, offsets/alternatives NSR analysis, and SI Ps with RACT.
Before construction is permitted, new projects must use EPA models to show attainment with NAAQS.
2020-2022 Annual PM2.5 DV Headroom to Threshold Ill Nonattainment 1-3 ug/m3 ~ 3+ uglm3
Map Notes/Approach: Used maximum PM 2_5 Design Values (DVs) for each monitored county Calculated non-monitored counties values using geospatial statistical interpolation ("kriging")
"fills-in" estimates for locations between the monitors. Five (5) closest monitored values used to estimate non-monitored county values using inverse-
distance weighted averaging method.
5
EPA's modeling guidelines represent continuous operation of all new and modified sources at the maximum allowable emission rate after best available controls and typically simulated a project's future annual PM 2_5 ambient contribution to be 1-3 ug/m 3.
Many areas of the country (green) have background levels of 6 to 9 ug/m3.
With a standard of 12 ug/m3, areas with background of 9 ug/m 3 or less will have enough "headroom" to accommodate the typical contribution from the project (e.g., 3 ug/m 3).
Impact: Most projects can be built.
American Forest & Paper Association
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Immediate Impact of PM2_5 NAAQS at 9.0 g/m3
New or expanded manu acturing projects unachievable in red + pink colored areas
Before construction is permitted, new projects must use EPA models to show attainment with the NAAQS.
EPA's modeling guidelines require assuming continuous operation of all new and modified sources at the maximum allowable emission rate using best available controls and typically simulate a project's future annual average PM 2_5 ambient concentration to be 1-3 ug/m3.
Many PM 2_5 "attainment" areas have background levels of 6 to 9 ug/m3.
2020-2022 Annual PM2.5 DV Headroom to To res hold
111111 Nonattainment 1-3 uglm3 ~ 3+ uglm3
With a standard of 9 ug/m3, attainment areas with background as low as 6 ug/m3 (pink) won't have enough "headroom" to
Map Notes/Approach:
Used maximum PM 2_5 Design Values (DVs) for each monitored county Calculated non-monitored counties values using geospatial statistical interpolation ("kriging") "fills-in"
accommodate the ambient concentration conservatively simulated for the project (e.g., 3 ug/m3).
estimates for locations between the monitors.
Impact: Violation of the NAAQS is
Five (5) closest monitored values used to estimate non-monitored county values using inverse-distance weighted averaging method.
predicted, which effectively stops the
project.
American
6
Forest & Paper
Association
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Failed Permits from PM2_5 NAAQS Changes
36 PSD permits from 13 industries in 19 states
Annual Average PM2.5 (g/m 3)
At 11 ug, 36% fail At 10 ug, 50% fail At 9 ug, 78% fail E At 8 ug, 86% fail Less than 8 ug
Massive investments and job losses at stake!
Bug/m3
9ug/m3
7
Percentage of Projects Impacted as PM2.5 Lowers
(36 PSD Permit Projects Total)
11 ug/m3
10ug/m3
American Forest & Paper Association
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1{b). Modernize PSD Air Permitting Program - Critical Steps
Adjust modeling receptors (considering true exposures based on time and duration); revise "ambient air" definition ("has access") Authorize variability of emissions and operations in modeling - use probabilistic tools Expand efforts to better estimate and measure PM emissions Expand efforts to accurately reflect ambient background for designations and PSD permitting, such as exceptional events/ "atypical events" and monitor bias (FEM)
American
8
Forest & Paper
Association
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2. Good Neighbor Plan: Paper Mill Boilers Reconsideration
Supreme Court stayed GNP (Ohio v. EPA, June 2024). Appreciate March 12 EPA announcement - states should be given more discretion on interstate transport and their SIPs. EPA arbitrarily included Paper Sector in GNP under NPRM's 2-prong test:
Not significant air quality contributors - impact fewer than 10 monitors Not cost-effective for Paper Sector to control NOx - $SOK/ton; >SX the threshold in the proposal ($7,500); $425 million in capital Possible controls for many gas and all coal boilers (SCR) are not proven. Poor quality inventory and assumptions for non-EGUs/paper mills. We recommend dropping paper boilers.
American Forest & Paper 9 Association
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3. MACT Reviews: Use Tools in MACT Tool Chest for Three Forest Products rules
Work practices and other approaches could result in cost-effective standards AND satisfy traditional "HAP gap-filling" requirement
CAA section 112(d)(6) says regulate as "necessary": EPA must consider fill
relevant factors, such as costs and risk, in deciding WHETHER to set new MACT standards.
Loper Bright and Michigan require EPA to balance costs and risk reduction benefits, whereas here, statute does not explicitly prohibit.
The data collection for pulp and paper mills needs a mid-course correction - less HAP testing and simpler questionnaire. EPA should finalize the wood products MACT with improvements.
American
10
Forest & Paper
Association
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Testing, monitoring (even fenceline), and new data (like IRIS values) as a sword/shield
Other Tools
Jobs, Economic Development and Global Competitiveness
lOl(b)(l): Promote air quality and productive capacity of the nation
statute, process and loper Litigation: Sustainable Rules
11
112(d)(6) "as necessary": relevant factors (cost and benefits)
Benefits and disbenefits
112 structure and goals risk and cost
American Forest & Paper Association ED_018475O_00003430-00011
4. CERCLA Listing of PFOA/PFOS
Host of adverse consequences, including preventing safe and beneficial use of papermill residuals as substitutes for fertilizers. CERCLA not right tool for the job. We recommend EPA withdraw final CERCLA rule.
Use Loper Bright "best reading 11 Consider all relevant factors, including costs (list as may be "a ppropriate11 ).
American Forest & Paper 12 Association ED_018475O_00003430-00012
S(a). WA HHWQC Rule
Biden EPA 2022 final rule on Human Health Water Quality Criteria for Washington State will lead to unattainable water permit limits for industrial and municipal facilities in Washington State. Would cause water permit gridlock, along with Tribal Reserved Rights Rule.
We recommend EPA repeal and replace the 2022 WA HHWQC rule, which is legally flawed and unattainable.
American Forest & Paper 13 Association ED_018475O_00003430-00013
Risk Level
Comparison of Risks of Dying to Regulatory Allowable Risk Levels
Risk of Death
Allowable Risk (Cancer Risk)
EPA 2000 Methodology
Washington Water Florida Proposed EPA Drinking
Quality
Water Quality
Water
EPA Superfund & State Cleanups
1 in 10 (1 X 10-1)
1 in 100 (1 X 10-2)
Falls (1 in 200) Casino worker (1 in 250)
1 in 1,000 (1 X 10-3)
Acrylamide in food (1 in 1,800) Bike accident (1 in 5,000)
1 in 10,000 (1 X 10-4)
1 in 100,000 (1 X 10-5)
1 in 1,000,000 (1 X 10-6)
1 in 100,000 General Population 1 in 1,000,000
Sub-population (1 in 1,000,000)
General population (1 in 1,000,000)
Arsenic (5 in 10,000)
t
EPA Drinking Water
1 in 10,000
t
EPA Superfund Range
+ 1 in 1,000,000
No action needed
1 in
Decreasing 10 000 000
Risk
' '
(1 X 10-7)
Benzene (1 in 10,000,000)
1 in 100,000,000 1 X 10-8
14
American Forest & Paper Association
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S(b). Midnight Approval Rule
On December 20, 2024, EPA - improperly and contrary to Clean Water Act requirements - issued a federal rule '"""""""'""""""""""'""""'""""""""""""""""""""""""""""""""""" approving an extreme Washington State regulation to revise the state water quality standards (state rule).
The Washington State regulation was issued in a highly truncated and rushed process, without any analysis of cost or attainability.
EPA never should have approved this state rule because, contrary to the Clean Water Act, the standards in this state rule are neither measurable, nor attainable even with cost-prohibitive control technology.
EPA should repeal this midnight approval rule.
American
Forest & Paper
15
Association
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S(c). Tribal Treaties Reserved Rights Final Rule
Biden EPA's final Tribal Reserved Rights Rule {RIN: 2040-AG17), like the WA HHWQC Rule, could lead to unattainable water quality standards in any states with tribal waters.
November 2024: AF&PA joined an industry coalition amicus brief supporting legal challenge to TRR rule by a group of states, led by ID, in U.S. District Court for the District of North Dakota.
February 2025: Court issued order granting States' motion to hold the case in abeyance for 90 days.
We recommend EPA propose and finalize a new rule to withdraw the Tribal Reserved Rights Rule, which is legally flawed and jeopardizes water permits needed to operate U.S. manufacturing and municipal facilities. In the ongoing litigation, EPA should confess legal error, as the rule exceeds EPA's statutory authority and is arbitrary.
American Forest & Paper 16 Association ED_018475O_00003430-00016
6. Safe Drinking Water Act PFAS Maximum Contaminant Level (MCL)
April 2024: EPA final rule establishing PFAS maximum contaminant levels, including for PFOA and PFOS levels set at 4 parts per trillion.
Rule applies to public water systems. Paper mills sometimes serve as small public water systems for workers and local communities.
Any drinking water MCL should be consistent with SDWA's requirements, including for quality of science and data, as well as consideration of costs to all categories of public water systems.
We recommend EPA ensure the National Primary Drinking Water Standards for PFAS are set at workable levels.
American Forest & Paper 17 Association ED_018475O_00003430-00017
7. Biomass - Treasury Clean Electricity Tax Credits
Pulp, paper and wood products mills are the largest industrial producers and users of highly efficient bioenergy (electricity and heat), including bioelectricity for the grid.
Since its 2010 Tailoring Rule, EPA created -- and left unresolved - lingering regulatory uncertainty for the carbon neutrality of our bioenergy. This leaves U.S. mills at a competitive disadvantage and impedes innovation.
In a midnight rule on clean electricity tax credits (RIN: 1545-BR-17), the Biden Treasury Department refused to include our mills, contrary to:
Loper Bright's required "best reading" of the Inflation Reduction Act,
Congressional intent,
Science and rational policy, and
President Trump's policy for U.S. energy dominance.
This disrupted a longstanding energy efficiency tax credit our industry had always qualified for.
Treasury should list energy systems at forest products mills as qualified facilities in its Annual Table and provide clarifying guidance.
American
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Forest & Paper
Association
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Loper Bright Regulatory Framework Part 1: Legal/Policy Overview
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Opportunity: New Loper Bright Framework Can Be Implemented Through Benefit-Cost Approach
American Forest & Paper 20 Association
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Loper Bright1 Part 2: Case Study Review of Three Regulations
American Forest & Paper . Association
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Case Study Overview
Loper-Bright requires courts to determine "best reading" of statutory
language. Some statutory text in the Clean Air Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Safe Drinking Water Act refer to the science of risk assessment and the use of data from underlying scientific disciplines such as toxicology and epidemiology. Some of the statutory text has technical and scientific meaning, which can be characterized from the technical and scientific Iite ratu re.
American Forest & Paper 22 Association
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A Practical Approach: Combining ''best reading'' and Science/Technical Information
1) analyze specific agency rulemakings to determine if scientific and technical elements are consistent with a 'best' scientific interpretation of the statute; 2) provide an example framework that can be used to examine additional rulemakings for scientific and technical aspects of 'best' interpretation of statute.
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- OAR, PM2.5 National Ambient Air Quality Standard (NAAQS)
- OLEM, CERCLA designation of PFOS and PFOA as hazardous substances
- Office of Water, Maximum Contaminant Levels (MCLs) for Per- and Polyfluoroalkyl Substances (PFAS)
American Forest & Paper Association
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Project Goals and Preliminary Results
Bring technical/scientific definitions to inform
interpretations of statutory text to guide how
rulemakings, analyses, and other technical information are
developed at EPA.
Assist stakeholders to offer a scientific perspective for
determining "best reading" of statutory text supporting regulatory decisions.
Preliminary results reviewing 12 scientifically-meaningful terms defined in the Clean Air Act (CAA) and an additional three from the Safe Drinking Water Act (SDWA) show inconsistent usage across key guidance and implementation materials. For example, of the 12 CAA terms, only two are found in key guidance materials.
American Forest & Paper 24 Association
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Market Failure Analysis; Benefit-Cost Analysis; Sound Science
American
Forest & Paper
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Association
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Market Failure Analysis
First principle of regulation: establish "compelling public need."
"material failures of private markets" (Clinton E.O. 12866, Sec. l(a}}
26
Consider whether an imperfect (but perhaps self-correcting} market is more or less preferable to potential distortions from government intervention.
If regulation is warranted, consider market-based mechanisms, performance-based standards, providing information, etc.
Foster efficiency and innovation.
E.g., EPA air emissions trading; FDA trans-fat labeling.
American Forest & Paper Association
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Improve Benefit-Cost Analysis1 and Regulatory Science
BCA: Address limits to current agency BCAs. E.g., EPA focus is only on engineering costs. Add, e.g.,: competitiveness benefits, job savings, efficiency gains that can improve performance (lower emissions per ton of production). Consider full opportunity cost (e.g., real return on investment), discount rate, etc.
Science: Address foundation of regulation - ensure process for determining whether a chemical/substance causes an adverse effect to health or environment includes systematic review to base decisions on evidence with acceptable confidence (i.e., sound statistical methods, model assumptions, and objectivity, minimizing uncertainty and bias).
American Forest & Paper 27 Association
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Flawed Rules Violating Executive Order 14219, "Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency 'Deregulatory
Initiative," and other Executive Orders (April 2024)
The American Forest & Paper Association looks forward to discussing how we can best support the Administration's deregulatory agenda. AF&PA has a long track record of working with EPA, 0MB, and other agencies on achievable, efficient regulations that can stand the test of time. To this end, we want to highlight how many of our regulations of greatest concern violate the criteria established by President Trump for rescinding unlawful regulations, as set forth in Executive Order 14219, "Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency' Deregulatory Initiative." These regulations also violate other Executive orders, such as undermining the President's goal to rescind or reform regulations that impose a substantial restraint on economic growth and global competitiveness under Executive Order 14192, "Unleashing Prosperity Through Deregulation," as well as regulations that place an undue burden on the development or use of domestic energy resources under Executive Order 14154, "UnleashingAmerican Energy."
Our review focuses on the criteria in Section 2(a) of E.O. 14219, as follows.
E.O. 14219, Section 2(a) Criteria:
i. unconstitutional regulations and regulations that raise serious constitutional difficulties, such as exceeding the scope of the power vested in the Federal Government by the Constitution;
ii. regulations that are based on unlawful delegations of legislative power; iii. regulations that are based on anything other than the best reading of the
underlying statutory authority or prohibition; iv. regulations that implicate matters of social, political, or economic
significance that are not authorized by clear statutory authority; v. regulations that impose significant costs upon private parties that are not
outweighed by public benefits; vi. regulations that harm the national interest by significantly and unjustifiably
impeding technological innovation, infrastructure development, disaster response, inflation reduction, research and development, economic development, energy production, land use, and foreign policy objectives; and, vii. regulations that impose undue burdens on small business and impede private enterprise and entrepreneurship. (Emphasis added.)
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1. PM NAAQS Rule
AF&PA Recommendation: We recommend that EPA reconsider the March 6, 2024, PM NAAQS --which dramatically lowered the standard from 12 ug/m3 to 9 ug/m3 (close to average U.S. background (8 ug/m3)) - through a flawed, legally dubious, and rushed review, including inadequate consideration of attainability, cost and scientific uncertainties, as well as the failure to provide a workable, attainable permit implementation plan. (RIN 2060-AV52). We are encouraged by Administrator Zeldin's March 12 announcement and look forward to supporting EPA in this effort.
Qualifying Criteria: "Best reading" (iii): o The March 2024 final PM NAAQS reconsideration rule and standard of 9 ug/m3 is not based on the "best reading" of the statute. It ignores the obligation to consider all relevant factors under CAA 109(d) ("as may be appropriate"), such as feasibility and attainability, when deciding whether to reconsider a standard. EPA also did not conduct a "thorough review" of the science and the scientific uncertainties.
Imposing significant costs that are not outweighed by public benefits (v): o Based on an industry study authored by AF&PA in 2022 and comments on the proposed rule, the best-case estimates is $2.6 billion in implementation costs for the pulp, paper and wood products industry alone, plus other impacts that are neglected, such as competitiveness and job impacts and unquantified opportunity costs from thwarted projects that often lower emissions per ton of production. Additionally, the health benefits of lowering ambient exposure to approach background levels remain uncertain, given the uneven quality of existing public health studies and the lack of a systematic review of the science.
Impeding economic development, energy production, and innovation (vi): o Nonattainment areas: The new PM NAAQS standard of 9 ug/m3 significantly expands nonattainment areas, which increases costs on and impedes existing and new manufacturing facilities. The additional cost burden impedes technology innovation, economic development and energy production. o Blocking permits even in attainment areas: But there is an additional major problem that has been unappreciated: the lack of permitting "headroom" - even in cleaner attainment areas where pulp and paper mills often are located immediately prevents new projects from being built, including many that would lower emissions per ton of production, and in turn harms U.S. job growth and
2
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global competitiveness. EPA's cost-benefit analyses focus only on the cost of engineering controls, but these neglected opportunity costs are large.
Undue burdens on small business, private enterprise and entrepreneurship (vii): o Small businesses and private enterprises in both non-attainment and attainment areas could be subject to stringent and expensive requirements that impede or block job creation, economic growth, innovation and entrepreneurship.
2. PM NAAQS Permit Implementation/New Source Review (NSR}
AF&PA Recommendation: We urge EPA to resolve the air permitting gridlock due to lack of permit "headroom" -- even in attainment areas -- by committing the necessary focus and resources. A credible NAAQS implementation program should be based on the best technical practices, including timely using within the next year more realistic receptor locations, as well as more realistic emissions, exposures, background adjustments, and modeling data. We applaud Administrator Zeldin's March 12 announcement to increase flexibility on NAAQS implementation and reform the NSR program as an important first step.
Qualifying Criteria: "Best reading" (iii): o The Clean Air Act authorizes EPA to adopt policies, air quality models, and measurement procedures that reflect best estimates of the true impact of new projects, but that direction is currently being ignored, ultimately harming U.S. capital investments, job creation, and competitiveness.
Imposing significant costs that are not outweighed by public benefits (v): o EPA's failure to modernize the permitting program imposes significant costs without commensurate benefits and causes lost opportunities for economic development and job growth that would help U.S. manufacturers compete in a global marketplace. o NSR policies unnecessarily and counterproductively force more projects through the burdensome permitting process without any commensurate public health gains. These guidances should be reviewed and modified, including accounting protocols, the ability to start parts of projects early, and inappropriate control technology assumptions.
Impeding economic development, energy production, and innovation (vi):
3
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o The current burdensome permitting policies impede technology innovation, economic development and energy production because of the arcane procedures that exacerbate the lack of permitting "headroom" in attainment areas, ultimately preventing new projects from being built (including ones that would lower emissions per ton of production) and hurting job growth and global competition.
3. Good Neighbor Plan Rule
AF&PA Recommendation: We are aligned with the steps taken by the EPA on March 10, 2025, to reconsider the Good Neighbor Plan. Ultimately, we recommend that EPA reconsider and withdraw the June 5, 2023, Good Neighbor Plan (RIN: 2060-AV51 ).
Qualifying Criteria: "Best reading" (iii): o EPA ignored its obligation under the Clean Air Act to only cover sources that (1) significantly impact downwind air quality, and (2) are cost-effective to control. EPA exceeded its statutory authority, failed to reasonably respond to public comments and the detailed data we provided, and was arbitrary and capricious in including paper mill boilers in its rule, contrary to its own two-pronged criteria for inclusion in the proposed rule.
Imposing significant costs that are not outweighed by public benefits (v): o The final rule could cost the pulp and paper industry nearly half a billion dollars while harming U.S. manufacturing competitiveness and jobs, create new emissions and not result in any measurable improvements in attainment of the ozone NAAQS.
Impeding economic development, energy production, and innovation (vi): o The rule would result in energy intensive controls that increase CO2, hurt competitiveness and redirect investment to non-productive activities.
4. Pulp and Paper Subpart MM and Subpart S MACT Reviews
AF&PA Recommendation: We recommend that EPA reconsider its plans to require pulp mills to undertake extensive HAP testing this spring by first determining whether new standards are "necessary" for each HAP-equipment combination -- considering all relevant factors, including public health risks, likely control costs, technical feasibility to accomplish testing, adequacy of current requirements, value of additional data and other relevant factors. Based on an assessment of public health benefits and costs (including any new test data) under section 112(d)(6), we recommend that EPA
4
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only set new standards (either work practices or limits) that are "necessary," reasonable, and achievable and complete this MACT review promptly.
Qualifying Criteria: "Best Reading" (iii): o EPA needs to first consider whether a hazardous air pollutant (HAP) gap needs to be addressed "as necessary'' under CAA section 112(d)(6) - taking into account costs, benefits, and other factors - before setting a standard. Imposing significant costs that are not outweighed by public benefits (v): o Given that EPA already determined that previous air pollution controls reduced risks to acceptable levels, any further obligations need to be the minimum necessary under the Clean Air Act, including use of flexible and cost-effective work practices. If EPA fails to use its statutory discretion, costs could be several billion dollars in added costs without any meaningful public health improvement.
5. CERCLA Listing of PFOA/PFOS as Hazardous Substances
AF&PA Recommendation: EPA should propose and finalize a new rule to withdraw the CERCLA Listing Rule. In the ongoing litigation, EPA also should confess legal error, including on its failure to reasonably consider costs. (RIN: 2050-AH09).
Qualifying Criteria: "Best reading" (iii): o The CERCLA Rule is not the best reading of the statute, as EPA's interpretation of CERCLA section 102(a) has no fixed boundaries, is inconsistent with the statutory text (list "as may be appropriate") and structure, and was inconsistent with prior agency interpretations.
Imposing significant costs that are not outweighed by public benefits (v): o As noted in AF&PA's comments, an economic analysis prepared for AF&PA indicates that the potential annualized costs of the rule for the pulp and paper industry alone, including potential need to send mill residuals to Subtitle C landfills and potential need to construct landfills at paper mills, could be $573 million to $776 million. In addition, the rule would lead to high truck traffic carrying residuals to landfills, resulting in increased truck exhaust emissions, burdening landfill space, and other adverse consequences to public health and the environment.
Undue burdens on small business and impede private enterprise (vii):
5
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o The CERCLA Listing Rule would impose high undue burdens on small businesses and harm private enterprise. AF&PA membership includes companies that meet the Small Business Administration's standard for small business paper mills. 13 C.F.R. 121.201.
Violating E.O. 14154, "Unleashing American Energy": o The CERCLA Rule also violates Section 2(h) of E.O. 14154 because EPA did not provide an adequate opportunity for public comment on its belated and flawed Regulatory Impact Analysis, nor provide for rigorous, peer-reviewed scientific analysis.
6. Washington Human Health Water Quality Criteria (HHWQC} Rule
AF&PA Recommendation: We recommend that EPA repeal and replace the HHWQC Rule for Washington State. (RIN 2040-AG21)
Qualifying Criteria: "Best reading" (iii): o November 2022 rule is not the best reading of the statute, as it ignores the obligation to consider cost and attainability.
Regulation that implicates matters of economic and political significance not authorized by clear statutory authority (iv): o EPA showed no treaty text or statutory provision sufficiently clear to support EPA's expansive claim of authority to impose billions of dollars of costs on regulated parties. Plaintiff's Complaint at p. 25, Association of Washington Business, et al., v. EPA, No. 1:23-cv-03605 (D.D.C.).
Imposing significant costs that are not outweighed by public benefits (v): o One major study concluded that the WA HHWQC Rule was technologically and economically unattainable, with about $6 billion to over $11 billion in compliance costs for major permittees, according to treatment technology review and assessment. See Northwest Pulp and Paper Association, et al., Comments on EPA Proposed HHWQC for State of Washington at p. 70 (Docket ID No. EPA-HQ-OW-2015-0174) (May 31, 2022).
Impeding economic development (vi): o The rule jeopardizes water permits essential for industrial and municipal sources to operate in Washington State.
6
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American Forest & Paper . Association
7. EPA's December 20, 2024, Action Approving Washington State's Revised Water Quality Criteria ("Approval Rule"}
AF&PA Recommendation: We recommend that EPA repeal this midnightapproval rule.
Qualifying Criteria: "Best reading" (iii): o The December 20, 2024, Approval Rule is not the best reading of the statute, as it ignores the obligation to consider cost and attainability.
Imposing significant costs that are not outweighed by public benefits (v): o One major study concluded that this regulatory approach was technologically and economically unattainable, with about $6 billion to over $11 billion in compliance costs for major permittees, according to treatment technology review and assessment. See Association of Washington Business, et al., Comments on State of Washington Proposed Human Health Water Quality Criteria at pp. 276-277 (CR 102 - WSR 24-19-075) (Oct. 25, 2024)
Impeding economic development (vi): o The rule jeopardizes water permits essential for industrial and municipal sources to operate in Washington State.
8. Tribal Reserved Rights Rule
AF&PA Recommendation: We recommend that EPA reconsider the Tribal Reserved Rights Rule. (RIN 2040-AG17)
Qualifying Criteria: "Best reading" (iii): o The Tribal Reserved Rights Rule is not the best reading of the statute, as the rule exceeds EPA's statutory authority, and failed to fully consider costs, including expected costs on regulated entities, and undermines cooperative federalism under the Clean Water Act.
Regulation that implicates matter of economic and political significance not authorized by clear statutory authority (iv): o The Tribal Reserved Rights Rule triggers the major questions doctrine and fails it. See Memorandum in Support of Plaintiff's Motion for Summary Judgment at pp. 19-27, Idaho, et al., v. EPA, No. 1:24-cv-00100 (D.N.D.).
Imposing significant costs that are not outweighed by public benefits (v):
7
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o As discussed in AF&PA's comments, we estimated the cost to the pulp and paper industry alone could be on the order of $828 million to $943 million per year. See Comments on EPA Tribal Reserved Rights Rule at p. 7 (Docket ID No. EPA-HQ-OW-2021-0791) (Mar. 6, 2023).
Impeding economic development (vi): o The rule could lead to unattainable water quality standards and unattainable limits in Clean Water Act NPDES permits needed for industrial and municipal sources to operate in states with tribal waters.
9. SOWA Maximum Contaminant Levels (MCLs}
AF&PA Recommendation: We recommend that EPA ensure the PFAS MCLs Rule is set at workable levels. (RIN: 2040-AG18).
Qualifying Criteria: Imposing significant costs that are not outweighed by public benefits (v): o As noted in comments from the PFAS Coalition, the rule failed to set MCLs at levels where costs are justified by the benefits, as required under the statute. PFAS Coalition, Comments on EPA Proposed PFAS National Primary Drinking Water Regulation at p. 15 (Docket ID No. EPA-HQ-OW-2022-0114) (May 30, 2023).
o In addition, comments from the U.S. Chamber of Commerce noted that for some rural non-transient, non-community water systems, the costs of the rule could threaten the viability of these systems. U.S. Chamber of Commerce and its Coalition, Comments on EPA Proposed PFAS National Primary Drinking Water Regulation at p. 34 (Docket ID No. EPA-HQ-OW-2022-0114) (May 30, 2023).
Undue burdens on small business and impede private enterprise (vii): o The PFAS MCL Rule would impose high undue burdens on small businesses and harm private enterprise. AF&PA membership includes companies that meet the Small Business Administration's standard for small business paper mills. 13 C.F.R. 121.201.
10. Treasury Clean Electricity Tax Credits Rule
AF&PA Recommendation: We urge Treasury to restore our industry's longstanding eligibility for the energy production and investment tax credits -which arbitrarily was effectively rescinded by a Bi den Treasury Department midnight rule -- consistent with
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President Trump's priority to ensure U.S. energy dominance and abundance and the global competitiveness of U.S. manufacturing (RIN 1545-BR17). Qualifying Criteria:
"Best reading" (iii): o The Clean Electricity Tax Credits Rule clearly is not the best reading of the statute, as the rule and preamble interpretation of Sections 45Y and 48E of the Internal Revenue Code is contrary to the plain language and structure of the statute, as well as Congressional intent.
Impeding technological innovation (vi): o By declining to provide regulatory certainty to pulp and paper mills' energy systems, the rule impedes technological innovation and energy production. o Replacing the Section 45 and Section 48 tax credits with a credit dependent on the "greenhouse gas emissions rate not greater than zero" approach -yet refusing to recognize an energy system that qualifies - is contrary to the law, Congressional intent, and science. It also undermines the ability of U.S. forest products mills to advance technological innovation and energy production. o For pulp and paper mills, the Biden Treasury rule unreasonably eliminated tax credits, which many of the industry's energy systems have long qualified for under Sections 45 and 48 tax credits, which promoted manufacturing competitiveness.
Violating E.0.14154, "Unleashing American Energy": o The Bi den Treasury Clean Electricity Tax Credits Rule also violates E.O. 14154, Sec. 3, because it places an undue burden on the development and use of bioenergy at U.S. forest products mills and creates an unlevel playing field between bioenergy and other energy sources such as wind, solar, etc.
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Louis Baer [lbaer@cement.org] 1/23/2025 3:34:44 PM Shaw, Betsy [Shaw.Betsy@epa.gov] ubject:Request for Meeting with EPA Political Staff
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Ms. Shaw:
I hope you are doing well and I am sure it is very busy in the first few days of the Administration. My name is Louis Baer and I am the Senior Director & Counsel, Government Affairs for the Portland Cement Association, which represents U.S. cement manufacturers. We work closely with the Office of Air & Radiation through the Energy Star Program and EPA Smart Sectors Staff in the Office of Policy. I am reaching out because I would like to request a meeting with you and political staff at EPA' s Air Office and potentially the Administrator's Office and it was suggested to me to reach out to you directly. We would like to meet with you and other political staff in EPA to discuss our advocacy and deregulatory priorities for the cement industry and how we can partner with EPA on President Trump's priorities. We would love the opportunity to meet with you and the political staff during the first week of February if there is availability because we have member leaders in town.. Please feel free to reply or call me at either my cell or office below. Thank you very much and I look forward to hearing from you.
Best, Louis
Louis A. Baer, Esq., CPEA Senior Director and Counsel, Government Affairs Portland Cement Association 200 Massachusetts Avenue NW, Suite 200 Washington, DC 20001 Office: 202-719-1981 Cell: 314-922-8041
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Howey, Preston (Cruz) [Preston_Howey@cruz.senate.gov] 3/14/2025 1:43:47 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]
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This has slipped, but the reason I'm following up is because we'd like to invite the Secretary to Midland, Texas in the Permian Basin. The Secretary agreed to visit during their meeting. We'd like to make that a reality.
r---------------
Call me if you have any questions'L.________ Ex._6__________!
From: Howey, Preston (Cruz) Sent: Wednesday, February 26, 2025 5:50 PM To: 'Tardif, Abigale (Abbie)' <Tardif.Abigale@epa.gov> Subject: RE: Phone call
Sure.
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Wednesday, February 26, 2025 3:41 PM To: Howey, Preston (Cruz) <Preston Howey@cruz.senate.gov> Subject: Re: Phone call
Preston-
So sorry we keep missing each other. It has been a very busy week. Do you availability tomorrow at 11:30am or at 2:30pm?
Best, Abbie
Get Outlook for iOS
From: Howey, Preston (Cruz) <Preston Howe cruz.senate. av> Sent: Monday, February 24, 2025 1:13:24 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: RE: Phone call
I
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EPA,
please
exercise
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open
Can we talk at 2:00?
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Friday, February 21, 2025 5:08 PM
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To: Howey, Preston (Cruz) <Preston Howe Subject: RE: Phone call
cruz.senate. av>
Preston-
Sorry we keep missing each other, let's talk on Monday at 11am.
Best, Abbie
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Howey, Preston (Cruz) <Preston Howe cruz.senate. av> Sent: Friday, February 21, 2025 1:38 AM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: RE: Phone call
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Can you talk tomorrow?
From: Howey, Preston (Cruz) Sent: Monday, February 10, 2025 2:32 PM To: 'Tardif.abigale@epa.gov' <Tardif.abigale@epa.gov> Subject: RE: Phone call
Hi Abby,
Following up on this note. DO you have time to chat today?
From: Howey, Preston (Cruz) Sent: Friday, February 7, 2025 10:31 AM To: 'Tardif.abigale@epa.gov' <Tardif.abigale@epa.gov> Subject: Phone call
Hi Abby,
Glad to see your at EPA. Do you have a second for a phone call?
Preston Howey Domestic Policy Advisor U.S. Senator Ted Cruz (R-TX)
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Will Hupman [HupmanWR@api.org] 3/12/2025 8:40:19 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Jordan Christman [ChristmanJ@api.org] ubject:API Statement on EPA's Regulatory Agenda
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Click here to read this release online
NE s ELE SE
API Statement on EPA's Regulatory Agenda
WASHINGTON, March 12, 2025 -American Petroleum Institute President and CEO Mike Sommers issued the following statement after the U.S. Environmental Protection Agency announced plans to reconsider several major rulemakings as part of a broader agenda to support American energy dominance. "Voters sent a clear message in support of affordable, reliable and secure American energy, and the Trump administration is answering the call by moving forward on many of the priorities in AP l's five-point policy roadmap. As this regulatory process moves forward, we are committed to working with Secretary Zeldin on commonsense policies that advance American energy dominance." AP l's five-point policy roadmap and EPA policy memo noted the importance of many of these regulatory actions to secure American energy leadership and protect consumer choice.< API represents all segments of America's natural gas and oil industry, which supports nearly 11 million U.S. jobs and is backed by a growing grassroots movement of millions of Americans. Our approximately 600 members produce, process and distribute the majority of the nation's energy, and participate in AP/ Energy Excellence, which is accelerating environmental and safety progress by fostering new technologies and transparent reporting. API was formed in 1919 as a standards-setting organization and has developed more than 800 standards to enhance operational and environmental safety, efficiency and sustainability. To learn more about API and the value of oil and natural gas, please visit APl.org.
Contact AP l's medin team at 202-682-8114 I press@api.org
Connect with us on:
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Burke, Ashley [ABurke@nma.org] 3/12/2025 6:04:50 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] National Mining Association Quote on Today's EPA Regulatory Actions
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lmportance:High
Hi Abbie-
I received a request to send you the quote we will be issuing in response to EPA's regulatory actions today, which you will find below.
Rich Nolan, President and CEO, National Mining Association: "The reliability alarms are blaring as power demand growth from AI and data centers is colliding with eroding generation; until now, our energy policy has turned a blind eye to that reality. Everyone from the authorities charged with keeping the lights on to the manufacturers driving our economy have been pleading for a stop to the closures of well-operating plants. When the experts-from FERC to NERC and even the RTOs-tell us we're teetering on the edge of failure, we must believe them. Urgent and decisive action to stop rules that were specifically designed to target and prematurely close well-operating coal power plants is not only appropriate, it's necessary and long overdue."
If there is anything else you need, please don't hesitate to let me know!
Best, Ashley
National Mining Association
Ashley Burke Senior Vice President, Communications National Mining Association 101 Constitution Ave. NW, Suite 500 East Washington, D.C. 20001 Phone: (202) 463-2600 Direct: (202) 463-2642 aburke@nma.org
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Leopold, Matt
[MLeopold@hunton.com]
3/12/2025 7:36:53 PM
Tardif, Abigale (Abbie)
[Tardif.Abigale@epa.gov]
ubject:
NGA Letter
ttachments:2025-03-10 NGA Letter to
EPA re AIM Act rules.pdf
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Hello Abbie,
Here is the letter of support from National Grocers Association.
Matt
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.corn
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NATIONAL GROCERS
ASSOCIATION
Administrator Lee Zeldin Environmental Protection Agency 1200 Pennsylvania Ave NW Washington, DC 20004
March 11, 2025
NationalGrocers.org
Dear Administrator Zeldin,
On behalf of the National Grocers Association (NGA), I write to you today to highlight two Environmental Protection Agency (EPA) regulations concerning hydrofluorocarbons (HFCs) that present significant challenges to the independent grocery industry. Grocers are currently grappling with the effects of unprecedented food price inflation, which has been exacerbated by soaring overhead costs. The additional burden of costly refrigerant regulations will further strain grocers and consumers alike. We urge the EPA to amend the Restrictions on the Use of Certain Hydrofluorocarbons under Subsection (i) of the American Innovation Act and support H.J. Res. 38/S.J. Res. 14 in Congress.
The National Grocers Association is the national trade association representing retail and wholesale grocers that comprise the independent sector of the food retail and distribution industry. America's 21,000 independent community grocers account for 33% of all annual grocery sales-exceeding $250 billion-and more than 1.14 million American jobs. Our members are at the heart oflocal communities and the U.S. economy, where they bring choice, convenience, and value to hard-working Americans in often underserved areas.
The Management and Technology Transitions Rules under the AIM Act of 2020 will significantly impact the operations of independent grocers and their customers. The mandated phase-down of HFCs requires the replacement of current refrigerants with alternatives that are not only more expensive but also necessitate substantial modifications to existing equipment. These changes impose significant financial burdens on independent grocers who are already struggling with high operational costs.
Furthermore, the complexity and cost of training employees to handle new refrigerants and the potential increased maintenance expenses add to the challenges. Small grocers, in particular, lack the economies of scale that larger chains benefit from, making the financial strain even more pronounced. The current economic climate, characterized by record inflation and ongoing supply chain disruptions, exacerbates these difficulties, threatening the viability of many independent businesses.
Our members actively participated in the comments to both EPA and 0MB, highlighting how the rules pose huge challenges for small grocers. Despite these concerns, the EPA has not addressed them, placing the transition burden on grocers and our customers.
601 Pennsylvania Ave, NW, North Building, Suite 375, Washington, DC 20004
At the Heart of the Community
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NATIONAL GROCERS
ASSOCIATION
NationalGrocers.org
The rules as currently written will have the following unintended consequences:
Besides increasing food waste and costs, both rules create health risks to consumers because they decrease reliability in our refrigerant systems.
The increased energy demands of CO2 systems offset the greenhouse gas reduction efforts.
These systems are incredibly complex and there is no national technician base to install and service them, especially in rural parts of the Country where maintenance for legacy systems is already challenging.
The currently available CO2 systems can dramatically increase water usage.
The impact of these rules would be felt most harshly in rural or urban areas without many if any other stores, who are the least able to absorb such a hit.
Independent grocers operate on a 1-2% profit margin; adding on significant additional costs from untested technology could likely lead many independent operators to shelve any plans for store expansions and without clarity removing any existing stores from compliance - no renovations of existing stores.
The only other systems that are available contain flammable refrigerants.
There is no fire, life safety codes in place for the installation for the new systems across the Country. As a result, our members are faced with the choice of putting in systems with no specifications in violation of local codes, presenting a safety and legal risk to our operations.
As such, we are respectfully requesting that EPA honor the commitment that the President has made in his EO "Delivery Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis" to eliminate unnecessary regulations that will drive up food prices. NGA stands with NACS, FMI, and several other food industry associations who are asking for a commonsense approach to make this transition possible and we ask that EPA amend the Technology Transitions Rule to allow for the industry to use refrigerants with a GWP up to 1400 until January 1, 2032, and that the Agency support the CRA resolutions for the Management Rule.
Sincerely,
4 ~ Greg Ferrara
President and CEO
National Grocers Association
601 Pennsylvania Ave, NW, North Building, Suite 375, Washington, DC 20004
At the Heart of the Community
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essage
Whiteman, Chad [CWhiteman@USChamber.com] 3/12/2025 9:28:50 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Szabo, Aaron [Szabo.Aaron@epa.gov] ubject:FW: PRESS RELEASE: U.S. Chamber Statement on EPA's Efforts to Rebalance Regulations
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Hi Abbie, Here is the U.S. Chamber of Commerce's statement on today's announcement. Best, Chad The following release has been shared with press and can be found online here.
U.S. Chamber Statement on EPA's Efforts to Rebalance Regulations
FOR IMMEDIATE RELEASE March 12, 2025
WASHINGTON, DC - Marty Durbin, Senior Vice President at the U.S. Chamber of Commerce, issued the following statement today regarding the Environmental Protection Agency's announcements to reshape major Biden Administration regulations, including Waters of the United States (WOTUS), Clean Power Plan, NAAQS, and vehicle standards.
"American businesses were crippled with an unprecedented regulatory onslaught during the previous Administration that contributed to higher costs felt by families around the country. The Chamber supports a more balanced regulatory approach that will protect the
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environment and support greater economic growth. We provided constructive feedback to the previous Administration about business concerns with rules like Waters of the United States, Clean Power Plan, air quality standards, risk management, and the social cost of carbon, as well as efforts to cooperatively work with states on compliance plans, among other areas of concern. We have been working with the Trump Administration to help bring commonsense reforms to the agency's regulations that will provide certainty to businesses and reduce regulatory costs and will continue to do so."
###
About the U.S. Chamber of Commerce The U.S. Chamber of Commerce is the world's largest business organization representing companies of all sizes across every sector of the economy. Our members range from the small businesses and local chambers of commerce that line the Main Streets of America to leading industry associations and large corporations. They all share one thing: They count on the U.S. Chamber to be their voice in Washington, across the country, and around the world. For more than 100 years, we have advocated for pro-business policies that help businesses create jobs and grow our economy.
### U.S. Chamber Press Contact Contact: Matt Letourneau 202-341-8244 PERMALINK
LJ LJ
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1615 H Street Northwest Washington, D.C. 20062 202.659.6000 ''U.S. Chamber" and "U.S. CHAMBER OF COMMERCE" are registered trademarks of the Chamber of COMMERCE of the United States of America
If you would rather not receive future communications from U.S. Chamber of Commerce, let us know by clicking here. U.S. Chamber of Commerce, 1615 H st NW, Washington, DC 20062 United States
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Landry, Julie [Julie_Landry@afandpa.org] 3/13/2025 2:37:13 AM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:AF&PA statement on EPA actions 3/12
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Hi Abigale - please see our statement below! Please let us know how we can support.
htt s://www.afand a.or ncws/2025/af a-a plauds-ovcrduc-c1 a-rcgulato y-rcconsidcrations
Thanks Julie
Julie Landry Vice President, Government Affairs Julie_Landry@afandpa.org Office: (202) 463 - 2465 Cell: (202) 297-7844
AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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Stein, Jeffrey Lieffrey.stein@bp.com] 3/17/2025 9:51:50 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]
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Abbie,
It was great seeing you last week and congrats again on the new position. As I mentioned, we are heading to Ann Arbor to meet with some of your team out there to talk, in a bit more specifics, some technical downstream fuels issues.
Thanks again for taking the time and please feel free to reach out ifwe can every answer any questions.
Best, Jeff
Jeff Stein Manager, Policy and Federal Government Affairs bp America Inc.
Direct +1 202 848 8599 80 M St. SE, Washington, DC 20003
ED_018475D_ 00003590-00001
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Mascarenhas, Brendan [Brendan_Mascarenhas@americanchemistry.com] 3/26/2025 10:16:20 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Quick q
Follow up
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Hi Abbie,
I had a couple additional questions come up that I wanted to run by you, in case you have a quick minute. If so, please let me know if you have a window tomorrow and I can give you a ring whenever you're free. Thanks!
Regards, Brendan
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American chemistry council, 700 - 2nd Street NE, Washington, DC 20002, https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.americanchemistry.com%2F&data=05%7C0 2%7Ctardif.abigale%40epa.gov%7Clc9d9dcld24743e7b54508dd6cb3da54%7C88b378b367484867acf976aacbeca6a7%7C0%7C 0%7C638786241907701920%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eUlhcGkiOnRydWUsilYiOiiwLjAuMDAwMCisilAiOiJXaW4zMi IsikFOijoiTWFpbCisildUijoyfQ%3D%3D%7C0%7C%7C%7C&sdata=yv3WUg9cJqW%2BfrwsKg0wqGNPI0%2BG0dosBK0505p6a9Y%3D& reserved=0
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Toomey, Megan A [Megan.Toomey@talenenergy.com] 3/31/2025 3:27:12 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:RE: Talen Energy Follow-Up
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Awesome - thanks, Abbie!
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Monday, March 31, 2025 10:48 AM To: Toomey, Megan A <Megan.Toomey@talenenergy.com> Subject: RE: Talen Energy Follow-Up
[External Email]
Megan-
Thank you for sending this over. I have reached out to my scheduling team to find time for us to chat. They should send you an email in the coming days.
Best, Abbie
n
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Toomey, Megan A <Megan.Toomey@talenenerg'i:i=QQl> Sent: Monday, March 31, 2025 8:24 AM To: Tardif, Abigale (Abbie) <Tardif.Abigale.@_~~.,_gg_y> Subject: Talen Energy Follow-Up
I
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exercise
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Good Morning, Abbie -
It was a pleasure meeting you last week.
Two things I wanted to make you aware of:
1)
The MATS 2yr exemption request for Colstrip was submitted on Friday (a copy is attached).
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2)
I'd like to schedule additional time with you to discuss MATS and other air reg priorities for Talen.
Regarding #2, please let me know what will work for your schedule.
Thanks!
Megan Toomey Vice President - Environmental Affairs I Talen Energy
Office: 610.601.0216 I Mobile: 816.872.7752 600 Hamilton Street, Suite 600 I Allentown, PA 18101
TALEN~ ENERGY
The information contained in this message is intended only for the personal and confidential use of the recipient(s) named above. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately, and delete the original message.
not open
content is
The information contained in this message is intended only for the personal and confidential use of the recipient(s) named above. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately, and delete the original message.
ED_0 18475D_ 00003595-00002
Lee Fuller [lfuller@ipaa.org] 4/3/2025 3:53:11 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]
Reconsideration
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Abbie,
Is there any effort underway to delay deadlines in Subparts OOOOb/OOOOc to reflect reconsideration, like the state planning process under Section lll(d) or to address issues like the RULOF limitations?
Lee
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Thursday, April 3, 2025 11:40 AM To: Lee Fuller <lfuller@ipaa.org> Subject: Re: Air Regulations Reconsideration
Lee-
Thank you for reaching, I would be meeting and sharing ideas with staff this spring.
Best, Abbie
Get Outlook for iOS
From: Lee Fuller <lfuller@ipaa.org> Sent: Thursday, April 3, 2025 11:06:34 AM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: Air Regulations Reconsideration
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Abigale,
Has there been any schedule of action released regarding the Subpart OOOOb/OOOOc and/or the Subpart W regulations reconsiderations?
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We have had some discussions with the technical staffs and are working on some ideas, but timing remains elusive. Thanks. Lee Fuller
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Lee Fuller [lfuller@ipaa.org] 4/7/2025 5:06:57 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Thanks
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Sent from my iPhone
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Toomey, Megan A [Megan.Toomey@talenenergy.com] 3/31/2025 12:23:42 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Talen Energy Follow-Up ttachments:Presidential Exemption - MATS Colstrip Units 3 and 4_FINAL.pdf
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Good Morning, Abbie -
It was a pleasure meeting you last week.
Two things I wanted to make you aware of:
1)
The MATS 2yr exemption request for Colstrip was submitted on Friday (a copy is attached).
2)
I'd like to schedule additional time with you to discuss MATS and other air reg priorities for Talen.
Regarding #2, please let me know what will work for your schedule.
Thanks!
Megan Toomey Vice President - Environmental Affairs I Talen Energy
Office: 610.601.0216 I Mobile: 816.872.7752 600 Hamilton Street, Suite 600 I Allentown, PA 18101
TALEN~ ENERGY
The information contained in this message is intended only for the personal and confidential use of the recipient(s) named above. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately, and delete the original message.
ED_0 18475D_ 00003600-00001
AL N~, ENERGY
March 28, 2025
To:
U.S. Environmental Protection Agency
VIA E-MAIL (AIRACTION@EPA.GOV)
From:
Talen Montana, LLC NorthWestern Corporation d/b/a NorthWestern Energy
Subject:
Request for Presidential Exemption from National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review of the Residual Risk and Technology Review, 89 Fed. Reg. 38508 (May 7, 2024): Colstrip Steam Electric Station, Units 3 and 4
Docket ID No.: EPA-HQ-OAR-2018-0794
I. EXECUTIVE SUMMARY
The emission standard subject to this Request for Presidential Exemption (Request) is the National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review ofthe Residual Risk and Technology Review, 89 Fed. Reg. 38508 (May 7, 2024) (2024 MATS Rule, or Rule). The 2024 MATS Rule set an emission limit of 0.010 lb/MMBtu limit for filterable particulate matter (fPM) emissions. Id. at 38530; see also 40 C.F.R. Pt. 63, Subpt. UUUUU, Tbl. 2 ("On or after July 6, 2027: 1.0E-2 lb/MMBtu").
The affected source is the Colstrip Steam Electric Station, Units 3 and 4, located in Rosebud County, Montana (Colstrip).
Talen Montana, LLC (Talen), the operator and part owner of Colstrip, and NorthWestern Corporation d/b/a NorthWestern Energy (NorthWestern), part owner of Colstrip, jointly request that Colstrip be exempt from the 2024 MATS Rule for two years, 1 running from the later of the Rule's compliance deadline of July 6, 2027, or July 6, 2028, if the State of Montana grants a oneyear extension permissible under Section 112 of the CAA.
The President should grant this request under Section 112(i)(4) ofthe Clean Air Act (CAA) because (1) the technology to implement the standard is not available, and (2) the extension is in the national security interests of the United States.
Technology. The technology to implement the 2024 MATS Rule for Colstrip is "not available" from an engineering, cost, and timing standpoint.
As applied to Colstrip, the Rule requires an untested and unproven sequencing of emission control technologies. Colstrip already employs wet venturi scrubbers, which presently achieve 99.6% control offPM. The Biden EPA's 2024 MATS Rule would require control
1 This two-year exemption may be extended for more than one additional period. 42 U.S.C. 7412(i)(4).
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TAL N~, ENERGY -2 -
March 28, 2025
efficiency to increase from 99.6% to 99.8%, which cannot be achieved by wet venturi scrubber technology. Colstrip would be required to install new fabric filters (also known as baghouses) downstream of the wet venturi scrubbers. This combination is unproven, untested, and raises significant risks to the operation of Colstrip and its ability to timely achieve compliance. For this reason alone, the technology necessary to increase Colstrip's PM control from 99.6% to 99.8% (as required by the 2024 MATS rule) is technologically "unavailable."
Moreover, based on recent developments in project schedule and costs, a project to install the baghouses would cost over $500 million. These costs are uneconomic, and with respect to NorthWestern, may be unrecoverable, or not fully recoverable in electric rates. Given these costs and technological uncertainty, there is danger that Colstrip would retire instead of installing controls that could cause severe operational issues. As a result, the installation ofbaghouses is economically "unavailable."
Additionally, even if Talen Montana and NorthWestern were to take the risk, there is a significant likelihood that the baghouses could not be installed and be operational to meet the compliance requirements until early 2029, far past the statutory deadline. These circumstances make the technology "unavailable" from a timing perspective for Colstrip.
National security. It would be "in the national security interests of the United States" to provide the requested exemption to Colstrip from the 2024 MATS Rule.
Multiple Executive Orders issued by the President have reaffirmed that removing any and all regulatory burdens restricting power plants' operation would advance various national security interests.
This is especially the case for Colstrip, a core facility that powers the western part of the United States and is a major economic driver for Montana. Colstrip is critical to grid reliability and resource adequacy, and disruption of operations or the plant's forced retirement in the face of the 2024 MATS Rule would harm the national security interests ofthe United States because replacement power could not be easily procured in the region. As but one example, reserve power margins are already low (10%, and are projected to worsen) in the western parts of the United States-which house numerous military bases, such as the Malmstrom Air Force Base near Great Falls, Montana. An energy emergency already exists in the western United States, as declared by one of the Executive Orders.
II. BACKGROUND
Section 112 ofthe CAA regulates hazardous air pollutants such as mercury or non-mercury metals. Power plants are subject to Section 112 only if EPA finds it "appropriate and necessary." 42 U.S.C. 7412(n)(l)(A). These standards undergo a review every eight years. Id. 7412(). EPA under the first Trump Administration completed this review and determined that changes to
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the existing standards were not "necessary." 85 Fed. Reg. 31286 (May 22, 2020). EPA under the Biden Administration agreed that the existing standards provide an adequate margin of safety, and further concluded that the Rule will impose far higher costs than quantifiable benefits. Nonetheless, the 2024 MATS Rule required coal-fired power plants to reduce fPM emissions by 66%. 89 Fed. Reg. 38508. Importantly, EPA admitted in the administrative record that almost half ofthe regulatory burden from the entire 2024 MATS Rule would fall on Colstrip. Id.at 38533 ("42 percent"). Talen Montana and NorthWestern encouraged EPA via the formal regulatory comment process to make changes to the Rule to avoid this outcome for Colstrip, their respective Comments included in this Request as Exhibits 1 and 2. Those calls for reasonable change were ignored by the Biden EPA.
Talen Montana and NorthWestern challenged the Rule. Talen Montana, LLC v. EPA, No. 24-1190 (D.C. Cir.); NorthWestern Corp. v. EPA, No. 24-1217 (D.C. Cir.); see also North Dakota v. EPA, No. 24-1119 (D.C. Cir.) (lead case). Talen Montana and NorthWestern requested the court to judicially stay the 2024 MATS Rule, but the court denied the request.
The legal challenges to the 2024 MATS Rule have been held in abeyance in light of the Trump Administration's swift action. But with no judicial stay of the Rule, Colstrip is expected to comply with all emission standards set by the 2024 MATS Rule by July 6, 2027, or one year later if the state provides a statutory extension. Because construction of control technologies takes significant time, power plants such as Colstrip must decide soon whether to make expensive and uncertain investments to comply with the Rule, with no assurance of timely compliance. Colstrip has diligently moved forward with the design of potential control technology, but it has not been able to develop assurance that it can effectively, economically, or in a timely manner comply with the Rule. Meanwhile, the time is soon coming for decisions to be made and expenditures to rise steeply. Moreover, the Colstrip owners face this major investment decision with significant challenges to complying with the Section 111 Greenhouse Gas Rule, 89 Fed. Reg. 39798 (May 9, 2024) (GHG Rule), on the horizon, in just a few short years after the 2024 MATS Rule compliance is due.
On March 12, 2025, EPA published the "Mercury and Air Toxics Standards (MATS): Powering the Great American Comeback Fact Sheet" (Fact Sheet). In this Fact Sheet, the Agency stated that it seeks to reconsider the 2024 MATS Rule. The Fact Sheet and EPA's Press Release issued the same day alerted the public and the regulated community to Section 112(i)(4) of the Clean Air Act (CAA), which allows the President of the United States to grant a compliance exemption of up to two years "if the President determines that the technology to implement such standard is not available and that it is in the national security interests of the United States to do so," 42 U.S.C. 7412(i)(4). EPA notified the public in the Fact Sheet that any source interested in such exemption from the 2024 MATS Rule "should provide their recommendations to EPA by March 31, 2025." EPA stated that sources only need to provide why the technology is unavailable and why it is in the national security interest for an exemption. EPA's Press Release further explained that the Agency is considering exemptions via CAA Section 112(i)(4) while the Agency goes through the rulemaking process to reconsider the Rule.
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III. REQUEST FOR EXEMPTION
In CAA Section 112(i)(4), Congress expressly provided the President the discretion to determine whether a technology is "not available" and whether exempting a stationary source would be in the "national security interests." In exercising this discretion, the President should consider technological unavailability and national security broadly.
As set forth in the Executive Summary, the control technology for Colstrip to meet the standard is unavailable for the following reasons:
The control technology is technologically unavailable. The application of new baghouses following wet venturi scrubbers is unproven and untested and comes with significant risks to the operation of Colstrip.
The control technology is economically unavailable. Applying baghouse technology to Colstrip is prohibitively expensive. When the Rule was finalized, Talen Montana estimated the compliance cost to be around $350 million. Currently the cost estimates exceed $500 million, plus operation and maintenance costs of $15 million annually. Market realities, such as difficulties in funding and rate recovery, make such a project uneconomic meaning that it is more likely that Colstrip will shut down.
The control technology is unavailable from a timing standpoint. At a minimum, the technology to control emissions to the levels required within the statutory timelines simply does not exist. No control technology could be installed by July 6, 2027, the compliance date set by the 2024 MATS Rule. A significant risk remains that even a one-year extension would not be enough due to the unique financial and technological constraints Colstrip faces.
The President should account for the following in determining that exempting Colstrip from the Rule would advance national security interests.
At least two Executive Orders have already declared that any emergency suspension of regulations hindering energy production would advance national security. See Executive Order 14154 & Executive Order 14156.
Exempting Colstrip from the Rule falls squarely within advancing national interests because Colstrip is essential in providing much needed, reliable electricity in the western region of the United States, where there is an abundance of critical military infrastructure. Colstrip is also a core economic driver for Montana.
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A. The technology to implement the 2024 MATS Rule specifically for Colstrip is unavailable.
Concerning technological availability, CAA Section 112(i)(4) states: "The President may exempt any stationary source from compliance with any standard or limitation under this section for a period of not more than 2 years if the President determines that the technology to implement such standard is not available." 42 U.S.C. 7412(i)(4). The President should exempt Colstrip pursuant to CAA Section 112(i)(4) because Colstrip does not have a practically available technology to implement the 2024 MATS Rule.
1. Application of baghouses to Colstrip is technologically unproven and untested given Colstrip's existing pollution control technology.
It is true that baghouses, for new power plants, are widely available because the control technology is installed after the combustion device (the boiler). But in the case of Colstrip, the baghouse must be installed after the already-existing wet venturi scrubbers, which the plant currently uses to control fPM emissions and sulfur dioxide (SO2). To utilize only a baghouse would require a complete redesign ofthe facility and likely a new stack, which would be cost prohibitive. The wet venturi scrubbers already capture 99.6% of the fPM, but to capture the remaining 0.2% as required by the 2024 MATS Rule, the baghouses would be needed as an addition to the backend of the wet venturi scrubbers, which would be a unique and unproven combination.
While this arrangement may be theoretically possible, it is challenging and untested in practice. The combination of wet venturi scrubbers followed by baghouses increases the risk that the condensed water droplets (from the scrubbers) would meet the fly ash emitted by the plant, creating particles similar to concrete on the filter bags, thereby crippling the baghouse. Effectively, the combination increases the likelihood that the entire facility gets clogged with concrete particles. Additionally, once the bags are plugged, they must be replaced, and a significant number of plugged bags could result in emission exceedances, the plant being derated, or the plant being forced offline. Talen Montana is unaware of such control technologies ever being applied together in this arrangement at any other facility in the entire United States. As such, there is no proof that such technology is available to capture the small, remaining amount of particulate that exists following the installed wet venturi scrubbers. And because of the short compliance deadline, Colstrip would be required to construct, test, and implement this unprecedented combination on the fly, potentially spending at least $500 million only to have the revamped control system fail. As a result, the technology to comply with the Rule is technologically unavailable.
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2. The technology is financially unavailable.
When Talen Montana requested a judicial stay of the 2024 MATS Rule, it submitted a supporting declaration (Lebsack Declaration), included in this request as Exhibit 3.2 In this declaration, Talen Montana stated that a project to comply with the emission standards would cost "$350 million,"3 with a "$15 million annually" in operation and maintenance costs. Lebsack Declaration~~ 16, 34. These cost figures already presented challenges to Colstrip, as reflected by the litigation and request for judicial stay.
With the Rule now in effect, Talen Montana has conducted further engineering studies to get a more accurate assessment of the project costs. The most recent, up-to-date engineering estimates exceed $500 million. This new projection accounts for sole source risk allowance, more accurate wage rates, structural steel install rates, scaffolding costs, duct installation costs, and total delivery costs-all of which were not accounted for in studies leading up to the Lebsack Declaration.
These costs will only increase. Because Colstrip cannot handle this project in-house, it must work with a third-party vendor. Colstrip is currently waiting on a turnkey proposal, but it is expected that costs will increase by up to 30%. This is because it will be the vendor that must procure the materials, assume liability, and hire contractors.
Such cost figures are exorbitant and burdensome to the point that it is more likely that some owners of Colstrip will forego installing the control technology altogether, and instead consider shutting down the plant. At least three market conditions cause the installation ofbaghouses to be financially unavailable.
First, a significant number of Colstrip' s co-owners might not be interested in funding such a project. As explained in the Lebsack Declaration, some of Colstrip's co-owners are located in the Pacific Northwest. And because of shifting political sentiments against coal in the region, these co-owners would not be interested in any involvement that would allow a coal-fired power plant to continue operating. For example, the public utility commissions in Oregon and Washington do not want any electricity powered by coal. In fact, the State of Washington passed a statute that would impose penalties on utilities that provide coal-fired electricity to certain Washington customers after December 31, 2025. Wash. Rev. Code 19.405.030(1)(a), (4) and 19.405.090(1)(a)(i). With express disapprovals from Pacific Northwest utility commissions, it
2 Of note, even opponents to the judicial stay carefully tailored their argument and implicitly recognized Colstrip's unique constraints and challenges. They claimed that any judicial stay in favor of Colstrip should not be extended to others. See, e.g., EPA Opp'n 50, Talen Montana, LLC v. EPA (D.C. Cir. filed July 22, 2024), ECF No. 2065849; Env't Intervenors Opp'n 13 (D.C. Cir. filed July 22, 2024), ECF No. 2065869.
3 The Lebsack Declaration includes an "Attachment A," which provides select excerpts from a report prepared by technical consultants that assessed the cost breakdown. Table 1-1 of Attachment A (located in page 1-9) provides a summary of the cost breakdown.
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would be difficult for these co-owners to justify any project that would let Colstrip to continue operate. Lebsack Declaration 9-10.
Second, it is possible that public utility commissions disapprove rate recovery for the project. This is exactly the conundrum NorthWestern currently faces as a regulated utility. In the comments submitted during the rulemaking period for the 2024 MATS Rule, NorthWestern expressly flagged this scenario as a grave area of concern. NorthWestern already planned on investing over $2.4 billion in electricity infrastructure improvements, which has spurred significant rate recovery controversy. When NorthWestern filed its comments, the Montana Public Service Commission was weighing a 28% residential electricity rate settlement that did not account for the 2024 MATS Rule. NorthWestern Comments 20-21. The Commission largely approved the settlement, allowing NorthWestern to recover for its past investments. However, to maintain the utility's health, NorthWestern filed another rate review in Summer 2024, seeking recovery of essential investments made through December 2024 to serve customers. There has been no final decision, and that filing presents no costs directly attributable to the construction of a baghouse itself.
Third, the future of EPA's GHG Rule further complicates the feasibility of such a project that the 2024 MATS Rule demands. While the Trump Administration has expressed intent to reconsider and possibly rescind the GHG Rule, it is still on the books. And as expressed by Talen Montana and NorthWestern, under this rule, Colstrip has no option but to shut down the plant by 2031. Lebsack Declaration ~~ 41-43.4 This is because Colstrip cannot switch to burning natural gas instead of coal as required by the GHG Rule. Nor could Colstrip switch to natural gas to comply with the 2024 MATS Rule. See id. Ifthe GHG Rule forces Colstrip to shut down, Colstrip's cost-recovery period for any technology installment would greatly decrease. While it is true that this particular concern may not materialize, it is still a financial uncertainty and a material factor that any investor must consider when deciding to commit to a project.
3. The technology is not available by July 6, 2027, and there is a significant risk that a one-year extension would be insufficient.
The 2024 MATS Rule directs all applicable facilities to comply with the new emission standard by July 6, 2027. See, e.g., 40 C.F.R. 63.9991 ("Before July 6, 2027, you must meet each operating limit in ... this subpart ...."); 89 Fed. Reg. at 38508 (setting the effective date of the 2024 MATS Rule to be "July 8, 2024"); 42 U.S.C. 7412(i)(3)(A) (directing EPA to "establish a compliance date ... in no event later than 3 years after the effective date of such standard"). This deadline could be extended by one year by a permitting authority. 42 U.S.C. 7412(i)(3)(B). Colstrip cannot meet the fPM emission standard of 0.010 lb/MMBtu unless it installs baghouses, a major infrastructure addition to the facility.
4 The Lebsack Declaration includes an "Attachment B," which is a separate declaration in support ofjudicially staying the GHG Rule. See West Virginia v. EPA, No. 24-1120 (D.C. Cir.).
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Meeting the July 6, 2027 compliance timeline always has been ambitious, ifnot impossible. Such a project, at an absolute minimum, would take 36 to 42 months to complete. Construction alone would take two years because the first year would be devoted solely to foundation work. The time necessary for preliminary investigation and design finalization prior to construction would add an additional two and a half years. This timeline tracks Colstrip's experience-the facility's engineers had commenced preliminary investigation on May 1, 2023, and only around now is the plant moving onto the design phase, projected to last another year.
When requesting a judicial stay of the 2024 MATS Rule, Talen Montana explained how the only way to meet the Rule's deadline is if detailed engineering and design work begin in the fall of 2024, and construction commences in the spring of 2025. "[E]ven if the project could begin in the fall of 2024, it will be a challenge to complete by the compliance deadline of July 8, 2027, and may still be tight for a compliance even if granted a one-year deadline extension under the rule." Lebsack Declaration ~ 37.
These have always been best-case projections with zero margin of error. Multiple complications could delay the project. Due to its location in Montana, any construction project for Colstrip is subject to weather extremes. Cold temperature often makes concrete pouring impossible. Staff would be unable to work for an extended period once temperatures fall to 30 degrees or below or once it snows extensively.
Labor availability is also an issue. The closest "large" city is Billings, Montana, 100 miles away. It is challenging to provide temporary lodging for all workers involved in a project of this scope. In fact, skilled labor in this specific field (of installing baghouses) is limited due to the fact that most projects of this kind occurred in 2012 (when the original MATS rule was promulgated), and specialists have either retired or moved on to work on other projects. Even if labor could be procured, it will be difficult to staffpersonnel in both the baghouse construction project and normal plant maintenance activities. Inherent tradeoffs must be made where allocating boilermakers to the baghouse could cause labor shortage in the normal operation of the plant.
Lastly, inherent supply chain uncertainty lingers. The project requires significant amounts of steel and electrical components (such as transformers, motors, and switch gear). All of these are imported, and procurement is becoming challenging due to market conditions.
And while Talen Montana has been diligent in its efforts to ensure Colstrip's compliance with the Rule, complications have pushed back these timelines. As discussed supra pages 6-7, there are significant challenges funding a project of such magnitude where the project has the potential to create severe technological complications and sufficient time does not exist to recover costs (due to the Biden EPA's GHG Rule). Additionally, because the co-owners hold divergent opinions on whether such funding is justified in the first place, any agreement would likely come in January 2026 at the earliest (after certain anticipated ownership changes). Colstrip's engineers project that, as soon as funding is available the first day of2026, the entire project could potentially be completed by Spring of 2029. That still misses the compliance deadline even if the Montana
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Department of Environmental Quality grants a one-year extension that is the maximum extension allowable under law. As a result, the project is unavailable within the regulatory timeframe.
B. It is in the "national security interests of the United States" to exempt Colstrip from compliance with the 2024 MATS Rule.
The statute requires the President to determine that exempting Colstrip from the 2024 MATS Rule "is in the national security interests of the United States." 42 U.S.C. 7412(i)(4).
As a threshold matter, Presidential determinations on national security receive the utmost deference. "[T]he Supreme Court has always been reluctant to second-guess the Executive Branch on matters of national security-especially where Congress has not acted to restrict it." Lee v. Garland, 120 F.4th 880, 889 (D.C. Cir. 2024); see also Haig v. Agee, 453 U.S. 280, 291 (1981) ("[I]n the areas of ... national security, ... congressional silence is not to be equated with congressional disapproval."); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (discussing "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations").5
And the President has spoken. Through Executive Order 14156, the President declared a "national energy emergency" concerning energy resources and costs. 90 Fed. Reg. 8433 (Jan. 29, 2025) ("Declaring a National Energy Emergency"). According to the President, "a reliable, diversified, and affordable supply of energy" is necessary for the nation's "defense industries" and "military preparedness." Id. Further, "an affordable and reliable domestic supply of energy is a fundamental requirement for the national and economic security of any nation," especially when "hostile state and non-state foreign actors have targeted our domestic energy infrastructure, [and] weaponized our reliance on foreign energy." Id.
The national security implications of reliable, unrestrained energy production echoes in Executive Order 14154 as well. 90 Fed. Reg. 8353 (Jan. 29, 2025) ("Unleashing American Energy"). Through this Executive Order, the President determined that various regulations have impeded resource development, "limited the generation ofreliable and affordable electricity," and inflicted high energy costs, all of which "weaken[s] our national security." Id. Thus, the President determined that it is "in the national interest to unleash America's affordable and reliable energy and natural resources" which, in tum, will "rebuild our Nation's economic and military security." Id.
As such, the President directed all agencies to "exercise any lawful emergency authorities" to facilitate "production, transportation, refining, and generation of domestic energy resources," including "in and through the West Coast of the United States." 90 Fed. Reg. at 8434. Likewise, the President directed all agencies to "suspend, revise, or rescind" all regulations that "impose an
5 Because CAA Section 112(i)(4) is fundamentally concerned with national security, this same high level of discretion must be afforded to Presidential determinations on all elements of the Section, including determinations that a particular control technology is "not available."
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undue burden" on the use of coal as "expeditiously as possible" in the interest of national security. See 90 Fed. Reg. at 8353-54 (discussing the Executive Order's policy goals of "reduc[ing] the global influence of malign and adversarial states," and "protect[ing] the United States's economic and national security and military preparedness by ensuring ... an abundant supply of reliable energy").
The slew of passages in the Executive Orders make clear: The President has already determined that any reduction of regulatory burden when it comes to energy productionincluding an emergency exemption of the 2024 MATS Rule for any power plant-would be in the national security interest. This is unsurprising. Coal still supplies 16% of America's electricity. U.S. Energy Information Administration, What is US. electricity generation by energy source? (Feb. 2024).6 This share is especially important because coal provides efficient, low-cost, reliable 24/7 baseload power. In doing so, it stabilizes electrical grids under increasing threats. Moreover, the United States has abundant coal reserves, providing a secure and reliable supply, and generating domestic jobs and economic activity.
The continued operation of Colstrip fits comfortably into President Trump's directives, as evinced by the Executive Orders discussed. Therefore, specifically exempting Colstrip from the 2024 MATS Rule would be in the national security interests of the United States.
As Talen Montana submitted in its comments to EPA when the 2024 MATS Rule was proposed, "Colstrip is one of Montana's most important energy assets, especially as demand for reliable baseload power in the western U.S. continues to grow." Talen Montana Comments 7. Colstrip "is vital to ensuring that Montanans have affordable and reliability electricity, especially during peak winter and summer months." Id.
NorthWestern, the largest public utility in Montana, also extensively commented on Colstrip's importance to the grid. In the lawsuit challenging the Rule and as part of the request for a judicial stay, NorthWestern submitted a declaration as well (Hines Declaration), included in this recommendation as Exhibit 4. Both these documents flag the importance of Colstrip to the nation's grid and electricity supply, and how the 2024 MATS Rule hinders national security by disrupting Colstrip's operations.
The 2024 MATS Rule will increase electricity rates for Montana ratepayers. Hines Declaration 7-10; NorthWestern Comments 21. In fact, the diversion of funds alone for compliance with the Rule would complicate meeting generation demand. NorthWestern Comments 2-3.
Replacement electrical generation and transmission capacity does not exist for Colstrip. In other words, Colstrip is truly irreplaceable from an electricity production standpoint, at
6 Available at https://www.eia.gov/tools/faqs/faq.php?id=427&t=3.
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least in the near future. Hines Declaration ~~ 45-52; NorthWestern Comments 13-16 ("Transmission limitations on the ability to import power").
"Colstrip plays a critical voltage-maintenance function." Hines Declaration~ 65. Without Colstrip and its uninterrupted operation, there is a significant blackout risks which would affect businesses and "important infrastructure." Id. ~~ 66, 67. This is especially the case because NorthWestern, as a regulated utility, made targeted capital investments improving grid reliability, which had not planned for the 2024 MATS Rule and its costs. NorthWestern Comments 21-22.
The economic consequences of grid disruptions are severe and well-documented, and they pose a national security concern in and of themselves. If Colstrip is forced to reduce or cease operations because it cannot timely comply with the 2024 MATS Rule, there would be an increased risk of the kinds of devastating disruptions that have recently hit California and Texas. Hines Declaration~~ 52, 64-67. All these issues warrant heightened attention when considering military readiness. Colstrip powers the northwestern region generally, including the military bases located in the area. The State of Washington alone is home to nine known military bases. And Oregon, Montana, and Idaho collectively house seven more. Any risk to power disruption in and around these bases affect core national security issues.
External sources confirm Talen Montana and NorthWestern's grid reliability concerns. The Western Power Pool projects that for July to August, the planning reserve margin falls below 10% for most of 2026 to 2029. The North American Electric Reliability Corporation (NERC) projects that reserve margins reach levels of 10% or below overall starting in 2031. NERC, 2024 Long Term Reliability Assessment 127 (Dec. 2024).7
Lastly, Colstrip is also vital to protecting "economic security" as expressed in the two Executive Orders discussed above. See 90 Fed. Reg. at 8433; 90 Fed. Reg. at 8353. Colstrip supports more than 3,000 jobs in the local economy, provides $240.3 million in income for Montana households, and about $102.8 million in state tax revenue to Montana. Indeed, it has been calculated that Montana benefits in economic activity worth over $1 billion from Colstrip in the form of electricity costs and reliability, inter-region trade, and lower state government spending. Lebsack Declaration~ 58 (including Attachment C);8 Talen Montana Comments 6-7.
7 Available at https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_Long%20Term%20 ReliabilitY/o20Assessment_2024.pdf. 8 The Lebsack Declaration includes an "Attachment C," which is a study of Colstrip 's economic contributions prepared by Dr. Patrick M. Barkey, Ph.D.
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IV. CONCLUSION
Talen Montana and NorthWestern appreciate the opportunity to submit its request to exempt Colstrip from the 2024 MATS Rule. Talen Montana and NorthWestern respectfully request that the President exercise his discretion to exempt Colstrip from the 2024 MATS Rule.
2 : : ~ General Counsel
Talen Energy Corporation Talen Montana, LLC
Shannon Heim General Counsel, Vice President,
Federal Governmental Affairs and FERC Compliance Officer NorthWestern Corporation d/b/a NorthWestern Energy
Enclosures:
Exhibit 1 - Talen Montana Comments Exhibit 2- NorthWestern Comments Exhibit 3 - Lebsack Declaration (including Attachments A to C) Exhibit 4 - Hines Declaration
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Mascarenhas, Brendan [Brendan_Mascarenhas@americanchemistry.com] 2/18/2025 7:49:22 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Lessard, Patrick [Lessard.Patrick@epa.gov] ubject:Thank You
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Hi Abbie and Patrick,
Thanks very much for the opportunity to chat today - it was great to connect with you both and we really appreciate the chance to touch base. If you have any follow-up questions or would like to further discuss the priority issues raised, please let me know. Thanks again!
Regards, Brendan
Brendan Mascarenhas Senior Director, Environment 0: (202) 249-6423 C: (703) 989-5269 brendan mascarenhas a1americanchemist .com 700 2nd Street NE I Washington, DC I 20002 www .americanchemist ) .com
I h
...
Ap,rll 14~16,.2025 Washington, DC
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essage
Noe, Paul [Paul_Noe@afandpa.org] 4/8/2025 9:29:32 PM Szabo, Aaron [Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Bradner, Kai [Kai_Bradner@afandpa.org]; Tim_hunt@afandpa.org; Hooper, Daniel [hooper.daniel@epa.gov]; Homra, Katherine [Katherine_Homra@afandpa.org] RE: Material for AF&PA-AWC Meeting with EPA/OAR, Wed April 9, 2:45pm ttachments:O. AF&PA Combined EPA Slides040925_final.pdf; Flawed Rules Violating EOs AF&PA040325.pdf
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Importance: High
Dear Aaron and Abbie:
As you know, our meeting with you tomorrow has been moved and consolidated with other offices on Wednesday, April 9 from 1lam-12:30pm in EPA North (Room 4045). Attached are copies of our revised consolidated slides we plan to use on Wednesday, as well as an analysis of how our rules of greatest concern (including air rules) violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs.
We have a strong showing of about 30 attendees who have expertise in how pulp, paper and wood products mills are affected by regulation.
We look forward to seeing you. If you have any questions, please let us know.
Thank you,
Paul
Paul Noe Vice President, Public Policy Paul_N oe@afandpa.org Office: (202) 463 - 2777 Cell: (703) 909 - 2895
601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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From: Noe, Paul Sent: Friday, April 4, 2025 4:01 PM To: Szabo.Aaron@epa.gov; tardif.abigale@epa.gov Cc: Bradner, Kai <Kai_Bradner@afandpa.org>; Hunt, Tim <Tim_Hunt@afandpa.org>; hooper.daniel@epa.gov Subject: Material for AF&PA-AWC Meeting with EPA/OAR, Wed April 9, 2:45pm
Dear Aaron and Abbie:
Our members are very much looking forward to meeting with you and the EPA Office of Air and Radiation team on Wednesday, April 9 at 2:45pm in EPA North (Room TBD). We have a strong showing of about 30 attendees who have expertise in how pulp, paper and wood products mills are affected by regulation. Attached are copies of our slides we plan to use on Wednesday, as well as an analysis of how our rules of greatest concern (including air rules) violate the principles that President Trump established for rescinding unlawful regulations under Executive Order 14219 and other EOs.
As you will see, our slides discuss our top air regulatory priorities, including (1) the PM NAAQS (both reconsidering the standard and reforming the air permit program), (2) the Good Neighbor Plan (which unreasonably included paper boilers), as well as (3) three MACT Reviews (Subpart MM and Subpart S for the pulp and paper sector, as well as the PCWP rule for the wood products sector). Since we are limited to 30 minutes, we included further details in an Appendix to the slide deck that you and your team can review at your convemence.
Dan: If there will be other EPA attendees at the meeting, I would appreciate it if you could forward these materials to them.
If you have any questions in the meanwhile, please let us know.
We are grateful for the opportunity to meet with you.
Best regards,
Paul
Paul Noe Vice President, Public Policy Paul Noc(il:afandpa.or ~ Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005 Error! Cannot read or display file.Error! Cannot read or display file.Error! Cannot read or display file. Error! Cannot read or display file.Error! Cannot read or display file. Error! Cannot read or display file. Error! Cannot read or display file.
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Boxerman, Samuel B. [sboxerman@sidley.com] 3/12/2025 3:27:36 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov]; Donahue,Sean [donahue.sean@epa.gov] Brittany Bolen [bbolen@sidley.com] ubject:RE: Good Neighbor Rule request
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Many thanks,
SAMUEL B. BOXERMAN
SIDLEY AUSTIN LLP +1 202 736 854 7 sboxerman@sidley.com
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Tuesday, March 11, 2025 10:59 AM To: Boxerman, Samuel B.<sboxerman@sidley.com>; Donahue, Sean <donahue.sean@epa.gov> Cc: Bolen, Brittany A. <bbolen@sidley.com> Subject: RE: Good Neighbor Rule - request
Sam-
Thank you for reaching out, I will pass your request along to my schedulers to find time for us to meet.
Best, Abbie
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Boxerman, Samuel B. <sboxerman@sidley.com> Sent: Friday, March 7, 2025 5:13 PM To: Donahue, Sean <donahue.sean@epa.gov>; Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Cc: Brittany Bolen <bbolen@sidley.com> Subject: Good Neighbor Rule - request
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Mr. Donahue and Ms. Tardif:
I am an attorney at Sidley, and we represent the Interstate Natural Gas Association of America (INGAA) and the American Petroleum Institute (API) in connection with the Good Neighbor Rule, including in the ongoing D.C. Circuit litigation and pending request to EPA for reconsideration where we are part of the group of industry stakeholder petitioners.
As I'm sure you know, the court recently denied the US motion to hold the Good Neighbor litigation in abeyance, requiring prompt briefing (US filing due March 10) on the supplemental notice on remand that EPA issued at the end of last year and a short timeline for oral argument on the merits (April 25). We would appreciate the opportunity to meet with you to discuss our perspective, particularly our views on the pending requests for reconsideration and how those could potentially address the challenge presented by the court's decision to deny the requested abeyance.
We would hope to discuss this with you at your earliest convenience.
We look forward to hearing from you.
Many thanks,
-Sam
SAMUEL B. BOXERMAN
SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 +1 202 736 8547
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Deziel, Dennis [Dennis_Deziel@americanchemistry.com] 3/24/2025 3:09:22 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:Hello and Mtg Request
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Hi Abbie,
You may not remember me, but I was RA in Region 1 under the first Trump administration and we spoke a few times. I work for Ryan Jackson now which is spectacular.
Would love to talk when you have a second about a meeting request for April 8 or 10 with some plastic industry leaders in town for a fly-in. My mobile is best 301-385-1284. I do not have your direct number hence the email.
Thank you! Dennis
erkan" Chemistry
undl
Dennis Deziel Senior Director, Federal Affairs 0: (202) 249-6142 C: (301) 385-1284 dermis deziel a;arnericanchemistr .com 700 2nd Street NE I Washington, DC I 20002 \\WW.amcricanchernistry.com
+++++++++++++++++++++++++++++ This message may contain confidential information and is intended only for the individual named. If you are not the named addressee do not disseminate, distribute or copy this email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message which arise as a result of email transmission. American Chemistry Council, 700 - 2nd Street NE, Washington, DC 20002, www.americanchemistry.com
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essage
Noe, Paul [Paul_Noe@afandpa.org] 3/4/2025 5:15:41 PM Szabo, Aaron [Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Bradner, Kai [Kai_Bradner@afandpa.org]; Hooper, Daniel [hooper.daniel@epa.gov]; OAR Invitations [OAR_I nvitations@epa.gov] RE: Meeting Request with OAR Wed April 9 ttachments:2025 EPA External Meeting Request Form OAR040925.pdf
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Thank you all. Attached is our completed meeting request form.
Kai can work to find a time on April 9 that is convenient for you.
Best regards,
Paul
Paul Noe Vice President, Public Policy Paul_N oe@afandpa.org Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
From: Szabo, Aaron <Szabo.Aaron@epa.gov>
Sent: Tuesday, March 4, 2025 9:50 AM
To: Noe, Paul <Paul_Noe@afandpa.org>; Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Cc: Bradner, Kai <Kai_Bradner@afandpa.org>; Hooper, Daniel <hooper.daniel@epa.gov>; OAR Invitations <0AR_lnvitations@epa.gov>
Subject: RE: Meeting Request with OAR Wed April 9
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Paul,
Thank you very much for your email. Abbie and I have added in the scheduling team to assist with this request.
Thanks,
Aaron Szabo Senior Advisor to the Administrator 202-564-7043 (office) 202-855-3241 (mobile)
From: Noe, Paul
Sent: Monday, March 3, 2025 4:43 PM
To: Tardif, Abigale (Abbie)
Szabo, Aaron
Subject: RE: Meeting Request with OAR Wed April 9
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Hi Abby: Sorry about the typo; I got bounce-back from you. Resending this meeting request so it goes through to you.
Thank you for your consideration.
Best,
Paul
Paul Noe Vice President, Public Policy
Office: (202) 463 - 2777 Cell: (703) 909 - 2895
601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
From: Noe, Paul
Sent: Monday, March 3, 2025 4:03 PM
To: ..:...c=.=.:..:.==:=:-..c:::.,::.=,.=,:;, Cc: Bradner, Kai Subject: Meeting Request with OAR Wed April 9
Dear Abby: On behalf of the American Forest & Paper Association, I would like to request a meeting with you and others on EPA's OAR team for Wednesday, April 9, when members of our Environment Policy Committee will be available to meet with your team in person.
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I am copying my colleague Kai who can help find a time convenient for you and your team. Thank you, Paul
Paul Noe Vice President, Public Policy Paul Noc(dafandQa.or_g Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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External Meeting Request Form
Today's Date: 3/4/25 Requesting Organization: American Forest & Paper Association Title of the Meeting: Meeting with OAR Leadership on AF&PA Air Regulatory Priorities Purpose: To discuss how to solve major Clean Air Act regulatory challenges to U.S. forest products manufacturers and U.S. manufacturing.
Background: Key air issues include: (1) PM NAAQS and air permit gridlock; (2) Pulp and Paper MACT reviews (Subparts MM and S); (3) Good Neighbor Plan; (4) biomass carbon neutrality; and (5) regulating under Loper Bright Enterprises (See AF&PA's 12/5/2024 letter to President Trump.) Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 4/9/25 Last possible date for the meeting: 4/9/25 Is the meeting urgent and if so, why: Yes Need to discuss soon most legally viable solutions. Requested Time Length: 60 minutes Have you met with anyone within EPA: Not yet in the Trump Administration. EPA participants requested: AA and Deputy AA (stationary sources) for OAR.
External Participants (including name [last, first], affiliation/organization, and email): AF&PA staff (Noe, Paul; AF&PA; Paul_Noe@afandpa.org; Hunt,Tim; AF&PA; Tim_Hunt@afandpa.org); Heidi Brock; AF&PA; Heidi_Brock@afandpa.org; plus AF&PA member Virtual, in-person, or hybrid meeting requested: Hybrid
Point of Contact for the Meeting: Kai Bradner, Kai_Brad ner@afand pa .org and cell[________________Ex. __6 ------- i
***Please email this form back to OAR_Invitations@epa.gov***
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Boxerman, Samuel B. [sboxerman@sidley.com] 3/24/2025 6:25:57 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:RE: Good Neighbor Rule request
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Abbie - With all of the briefing that is now ongoing on remand, etc. in the good neighbor litigation, events have overtaken our request for a conversation on behalf of our clients. I am grateful for your prompt response and look forward to meeting you in the future. Many thanks, -Sam
SAMUEL B. BOXERMAN
SIDLEY AUSTIN LLP +1 202 736 854 7 sboxerman@sidley.com
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Tuesday, March 11, 2025 1:59 PM To: Boxerman, Samuel B.<sboxerman@sidley.com>; Donahue, Sean <donahue.sean@epa.gov> Cc: Bolen, Brittany A. <bbolen@sidley.com> Subject: RE: Good Neighbor Rule - request
Sam-
Thank you for reaching out, I will pass your request along to my schedulers to find time for us to meet.
Best, Abbie
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Boxerman, Samuel B. <sboxerman@sidley.com> Sent: Friday, March 7, 2025 5:13 PM To: Donahue, Sean <donahue.sean@epa.gov>; Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov>
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Cc: Brittany Bolen <bbolen@sidley.com> Subject: Good Neighbor Rule - request
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Mr. Donahue and Ms. Tardif:
I am an attorney at Sidley, and we represent the Interstate Natural Gas Association of America (INGAA) and the American Petroleum Institute (API) in connection with the Good Neighbor Rule, including in the ongoing D.C. Circuit litigation and pending request to EPA for reconsideration where we are part of the group of industry stakeholder petitioners.
As I'm sure you know, the court recently denied the US motion to hold the Good Neighbor litigation in abeyance, requiring prompt briefing (US filing due March 10) on the supplemental notice on remand that EPA issued at the end of last year and a short timeline for oral argument on the merits (April 25). We would appreciate the opportunity to meet with you to discuss our perspective, particularly our views on the pending requests for reconsideration and how those could potentially address the challenge presented by the court's decision to deny the requested abeyance.
We would hope to discuss this with you at your earliest convenience.
We look forward to hearing from you.
Many thanks,
-Sam
SAMUEL B. BOXERMAN
SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 +1 202 736 8547
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immediately.
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Heidi McAuliffe [hmcauliffe@paint.org] 3/3/2025 10:18:00 PM OAR Invitations [OAR_I nvitations@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] RE:RESCHEDULE:Reque~ for a Meeting: American Coatings Association ttachments:ACA Aerosol Coatings Summary.pdf
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Dear Abbie,
I just received this message from the Scheduling Team, postponing our meeting until the end of March or early April. I cannot stress enough that this issue is urgent and requires immediate attention from the agency.
Our companies that are most impacted by this very short compliance timeframe need to have some resolution so that they can plan for their business. Every day that goes by makes it more difficult for them to determine how to protect their business relationships.
I know that your schedule is very busy but I hope that we can find some time to connect on this issue this week. My only blackout times are from 12 noon on Tuesday to 12 noon on Wednesday as we have members in town for a meeting. I would be happy to rearrange my schedule to be available any other time this week.
I am attaching a summary of the issue, which was prepared at Kaye Whitfield's request. I will send it to her as well.
I look forward to hearing from you.
Best regards,
Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs 202- 719-3686 I 202-329-1065 (m) I 202-263-1102 (fax) I ==="--",.;Ll"--'=='---'--'--"'CO I _cc_cc_cc_cA,C..==
901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
From: OAR Invitations <0AR_lnvitations@epa.gov> Sent: Monday, March 3, 2025 10:50 AM To: Heidi McAuliffe <hmcauliffe@paint.org> Cc: OAR Invitations <0AR_lnvitations@epa.gov> Subject: RESCHEDULE: Request for a Meeting: American Coatings Association Importance: High
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Good morning Heidi,
Due to scheduling conflicts, we will need to reschedule your meeting that is currently scheduled for March rh. The Senior Leadership Team is available on the following dates/times:
1.
March 27th 4-4:30pm
2.
April 1st 10:30am-11am
3.
April 2nd 2pm-2:30pm
Please let us know what works for your group.
Thank you for your flexibility.
OAR Scheduling Team
From: OAR Invitations <OAR lnvitations@e_p_~_g_Q_y_> Sent: Wednesday, February 26, 2025 9:06 AM To: Heidi McAuliffe <hmcauliffe@paint.org> Cc: OAR Invitations <OAR lnvitations@~_p_~_g_Q_y_> Subject: Confirmation: Request for a Meeting: American Coatings Association
Hi Heidi,
I'm emailing to confirm your 30-minute in-person meeting on Friday March rh at 10am. A valid government-issued ID is required for every in-person attendee. This information will be provided to security prior to your arrival.
Arrival instructions: Your meeting will be held at 1200 Pennsylvania Avenue NW in the North Building (William Jefferson Clinton complex). Please be sure to arrive no later than 15 minutes prior to the start of the meeting (9:45am) to get checked in and clear security. Upon your arrival, please call Emma Zinsmeister at 202-343-9043. She will meet you in the lobby and escort you through the building.
Metro: If you come by Metro get off at the Federal Triangle metro stop. Exit the metro station and go up two sets of escalators to the street level and turn right. You will see a short staircase and wheelchair ramp leading to a set of glass doors with the EPA logo - that is the William Jefferson Clinton Federal Building, North Entrance.
Car: Direct the car service to drop you off on 12th street NW, between Constitution and Pennsylvania Avenues, at the elevator for the Federal Triangle metro stop. Facing the EPA building (EPA logo and American flags), walk toward the building and enter the glass door on your right-hand side with the escalators going down to the metro on your left - that is the lobby of the William Jefferson Clinton Federal Building, North Entrance.
More information regarding visiting HQ: httr s://www.epa.gov/abouter a/visitin,-epa-headquarters
From: Heidi McAuliffe <hmcauliffe@raint.org> Sent: Tuesday, February 25, 2025 4:11 PM To: OAR Invitations <OAR lnvitations@epa.gov>
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Cc: Heidi McAuliffe <hmcauliffe@Eaint.org> Subject: RE: Request for a Meeting: American Coatings Association
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Thank you for your help in facilitating this meeting. Please reserve Friday, March 7 at 10am Eastern for a meeting with Abbie.
Much appreciated. Please let me know if I need to provide you any additional information.
Best regards, Heidi
Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs 202- 719-3686 I 202-329-1065 (m) I 202-263-1102 (fax) I hmcauliffc(Zi,paint.or ~ I www.paint.or"
901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
From: OAR Invitations <OAR lnvitations@e_p_~_g_Q_y_> Sent: Tuesday, February 25, 2025 4:07 PM To: Heidi McAuliffe <hmcauliffe@paint.org> Cc: OAR Invitations <OAR lnvitations@~_p_~_g_Q_y_> Subject: FW: Request for a Meeting: American Coatings Association
I You don't often get email from oar invitations@epa.gov. Learn why this is important
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Hi Heidi,
Thank you for submitting your meeting request (attached for reference). Abbie Tardif from the OAR Senior Leadership team can meet for a 30-minute in-person meeting. The available timeslots are listed below and will be held for 3 business days. Please let me know which timeslot works best for you.
1.
Tuesday March 4th 11am EST
2.
Friday March rh 10am EST
3.
Wednesday 19th 11:30am EST
Thanks!
From: Heidi McAuliffe <hmcauliffe@paint.org> Sent: Thursday, February 20, 2025 8:57 AM To: OAR Invitations <OAR Invitations@epa.gov> Subject: RE: Request for a Meeting: American Coatings Association
ED_0 18475D_ 00003621-00003
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Thank you for reaching out to me and providing the form. I have completed it to the best of my ability and will wait to hear from you regarding scheduling a meeting. Please do not hesitate to contact me if you have any questions at all. Best regards,
Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs 202- 719-3686 I 202-329-1065 (m) I 202-263-1102 (fax) I hmcauliffo({i:paint.org I www.paint.org 901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
From: OAR Invitations <OAR lnvitations@e2._~_g_~I{> Sent: Wednesday, February 19, 2025 3:53 PM To: Heidi McAuliffe <hmcauliffe@raint.org> Cc: OAR Invitations <OAR lnvitations@epi!,_g_~I{> Subject: FW: Request for a Meeting: American Coatings Association
I You don't often get email from oar invitations@er;2a.gov. Learn why this is imr ortant
Caution: This email originated from outside of American Coatings Association. Exercise care before clicking on links, opening and downloading attachments. When in doubt, contact IT Department. Hi Heidi, We were forwarded your email below regarding a meeting request for the Office of Air and Radiation (OAR) front office. Please fill out the attached external meeting request form, and we will get back to you shortly. Thanks, OAR Scheduling Team
From: Heidi McAuliffe <hmcauliffe@paint.org> Sent: Monday, February 17, 2025 11:24 AM To: Tardif, Abigale (Abbie) <Tardif.Abigale.@_~~.,.KQ..Y> Subject: Request for a Meeting: American Coatings Association
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Dear Abbie,
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Congratulations on your appointment to EPA. ACA' s Air Quality team is eager to meet with you to discuss the priorities of the paint and coatings industry. However, I have a more urgent request for a meeting due to a final rule for aerosol coatings issued on January 17, 2025. We worked very cooperatively with EPA' s rulemaking team on this effort, providing extensive comments over an extended rulemaking timeframe. The issue with the final rule is solely focused on the effective date. As I indicated above, the rule was published in the FR on January 17, 2025, and the effective date is July 17, 2025 - a mere six months. Six months does not give industry members the necessary time to conduct inventory audits, develop formula changes where required, audit labels and make the required changes, and ensure that the distribution chain is informed of the final rule changes. In addition, for companies who private label or toll manufacture aerosol coatings and are required to provide warranties and assurances of compliance with all applicable laws, the six-month compliance period is particularly problematic. Can we find a time to discuss this in person, or by a virtual means soon? The matter is particularly urgent due to the short time frame for compliance with the rule. I am happy to answer any questions and look forward to talking with you as soon as possible. Best regards, Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs 202- 719-3686 I 202-329-1065 (m) 1202-263-1102 (fax) I====_::,_:=== 1-""-""-""-"-"-== 901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
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American Coatings ASSOCIATIONSM
MEMORANDUM
TO: U.S. Environmental Protection Agency FROM: American Coatings Association DATE: March 3, 2025
RE: National Volatile Organic Compound Emission Standards for Aerosol Coatings Amendments - Compliance Deadline and Impact on Aerosol Coatings Manufacturers
BACKGROUND: On January 17, 2025, the United States Environmental Protection Agency (U.S. EPA) finalized amendments to the National Volatile Organic Compound Emission Standards for Aerosol Coatings (Final Rule), revising national emission standards for aerosol coatings under the Clean Air Act. This rule was the result of several petitions for rulemaking submitted by the American Coatings Association (ACA) and was fully supported by the aerosol coatings industry. The Final Rule contains the following changes:
1. Updated product-weighted reactivity limits by coatings category that align completely with CARB's coatings categories (see Table 1);
2. Updated MIR values for several aerosol coatings compounds that align with CARB's Table of MIR Values (see Tables 2A, 2B & 2C);
3. Added new compounds and reactivity factors in Tables 2A, 2B & 2C to align with CARB's Table of MIR Values
4. Revised default reactivity factor (18.50 g O3/g VOC instead of 22.04 g O3/g VOC) 5. Added new and updated definitions to better align with CARB's rule (when
appropriate and feasible) 6. Added electronic reporting provisions.
The compliance deadline for the Final Rule is July 17, 2025-six months from the date of publication.
ISSUE: It is impossible for many aerosol coatings manufacturers to comply with the rule by July 17, 2025. The impact on these coatings companies is extremely costly and will lead to significant costs, the risk of lawsuits, and the loss of business relationships.
Note that ACA is not objecting to, nor asking for relief from any other provision in the rule. It is only the compliance deadline that is problematic.
C.J0l NEW YORI< fl.\/[., NW I SUITE 300 W[':, I I W-6/:,HINCjTQN, DC 20001 I 202 462 6272 I www.pairit.org
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IMPACT ON AEROSOL COATINGS COMPANIES: The aerosol coatings industry includes companies that manufacture and package a large variety of aerosol coatings technologies. 1 While some of these technologies already meet U.S. EPA's revised emission limitations because they are sold in California (and thereby comply with CARB's emission limitations), many do not. For instance, a manufacturer who solely markets its products in the Midwest or otherwise outside of California has not yet needed to meet the applicable standards and requirements in CARB's rule.
The Final Rule requires aerosol manufacturers to reformulate any products that do not currently comply with the revised limits and ensure that all aerosol coatings products are labeled in compliance with the new categories and revised limits as well. Several ACA members have indicated that if products are not already in compliance with the revised limits, it will be impossible to meet the six-month deadline of July 17, 2025.
THE REFORMULATION PROCESS: Very generally speaking, the action items for aerosol manufacturers to determine compliance and come into compliance with the Final Rule include the following:
1. Audit the product line for compliance; 2. Determine the compliance status for revised categories and limits; 3. Develop a strategy to reformulate those SKU's that are not in compliance; 4. Identify substitute raw material inputs that will result in compliant reactivity values; 5. Create the new formulas; 6. Test for efficacy, performance characteristics, spray ability, etc.; 7. If the tests are successful, create product labels that are compliant with revised
categories and limits. 2 8. Begin the fill and labeling process; and 9. Initiate training for the distribution network/end users.
In addition to the time needed for product reformulation and to meet updated product labeling requirements, some members of the aerosol coatings industry face other compliance related challenges. For example, manufacturers that have a large number of private label customers will have additional steps for customer approval of the changes made to their products' formulation and labels. Similar to what was described above concerning product reformulation and labeling, this process is complicated and time consuming, and it cannot reasonably be accomplished in a six-month period of time. 3
1 Members ofthe aerosol coatings industry produce a wide range of aerosol products including those under its own brands, touch-up coatings for a variety of customers, and private label products for customers under their brands. Some companies also package coatings and other products supplied by customers into aerosols, as well as produce aerosol products for toll customers using their formulas and brands. 2 It is important to note that it was not possible to begin creating new product labels until the Final Rule was made effective, as the products' labels that were in commerce needed to remain in compliance with U.S. EPA's previous aerosol coatings rule. 3 In many cases, customers will need to perform acceptance testing of formula changes, and this could entail the drawnout process of having product samples sent to a third-party lab.
2
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Aerosol manufacturers that have a significant number of customers that supply either their own or third-party coatings for packaging into aerosols will be required to (1) communicate the updated requirements to its customers; (2) wait for the customers to reformulate their products, communicate with their third-party supplier to reformulate the third-party's coating, or find an alternative; (3) develop a "fill" process that sufficiently dilutes the coating so that it will be appropriately expressed from the aerosol can, and at the same time still retain its performance properties; and (4) develop and obtain customer approval of product labels that reflect the reformulated contents.
RISK MANAGEMENT AND COMPLIANCE CONSIDERATIONS: In addition to the time required to accomplish the above action items for product reformulation and relabeling, companies are also required to certify or otherwise verify that aerosol coatings products are in compliance with all federal and state regulations for the following:
1. Insurance contracts; 2. Federal, state, and local permits and applications; 3. Contracts with private label customers; 4. Product warranties; and 5. U.S. EPA's Triennial Report (due in 2025).
After July 17, 2025, many aerosol coatings manufacturers and fillers will not be able to certify compliance with federal and state laws, thereby jeopardizing their insurance coverage, their operating permits, and their value chain customers.
Lastly, after July 17, 2025, many aerosol coatings companies' customers and downstream users will be at risk, as their products may not be in compliance with the Final Rule's new standards.
THE RULEMAKING PROCESS: In the petition and during the rulemaking, the following parties submitted comments requesting a compliance deadline of two years from the effective date of the Final Rule: (1) ACA; (2) the National Aerosol Association; (3) the Household & Commercial Products Association; and (4) Raymond Regulatory Resources, LLC. All of these comment letters consistently stressed that it would take two years for aerosol manufacturers to complete all the steps necessary to come into compliance with the Final Rule. ACA explained that a two-year compliance period would allow aerosol manufacturers adequate time to (1) adjust product formulations, (2) modify supply chain processes, and (3) communicate modifications with any product distributors and/or retail customers.
In addition, the six-month compliance deadline was never "noticed for comment." The Notice of Proposed Rulemaking, published in the Federal Register on September 17, 2021, did not include this short compliance timeframe and consequently, there was no opportunity for ACA and/or other stakeholders to comment directly on this issue. All industry commenters did, however, affirmatively address the issue which further indicates the importance of the desired two-year timeframe.
3
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CONCLUSION: ACA supports the vast majority of U.S. EPA's Final Rule - it is merely the timeframe for compliance that is problematic. There is no need to re-write this entire rule or reopen the rulemaking process. The appropriate solution is an extension of the time for compliance to two years from the date of publication. This allows for the appropriate time to reformulate aerosol coatings products as well as meet the industry's need to certify compliance with all federal and state laws for operational and risk management purposes.
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essage
Lee Fuller [lfuller@ipaa.org] 3/13/2025 4:07:06 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Phone Call Follow Up ttachments:2025 Producers Association-EPA Meeting on Reconsideration 0310.pdf; 2025 IPAA Methane Regulation Marginal Wells.pdf
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Thank you again for reaching out on the reconsideration initiatives.
As I mentioned, IPAA is a Washington based, federally focused trade association representing upstream components of the oil and natural gas industry. Its membership spreads across this portion of the industry including independent producers from large publicly traded companies to small marginal well producers and the supporting industries like drilling and fracturing companies. Because of this scope and the presence of other trades representing large companies, IPAA tries to assure that the small producer interests are heard.
IPAA has been actively involved in the development of the Subpart 0000 group of regulations and with Subpart Wand its application to the MERP Waste Emissions Charge. In many of these efforts, IPAA leads a group of producers (Producers Association). In this context, we filed litigation challenging the Subpart 0000b regulations and Subpart 0000c emissions guidelines and challenging revisions to Subpart W and the Waste Emissions Charge. We also submitted petitions for reconsideration on Subparts 0000b and 0000c and on Subpart W.
This week, we had a video conference with EPA staff on Subparts 0000b and 0000c. I am attaching the outline we used for that conversation. On February 14, we had a video conference with EPA staff on Subpart W. We did not provide an outline for that meeting but I can provide a summary of our issues if it would be helpful.
I am also attaching an outline on marginal well impacts that IPAA used for a document sent to the Trump Transition team.
Because we are engaged on the implications of regulation under Subpart 0000c on existing sources, we have been particularly concerned about the structure of the planning process under Section 111 (d). Section 111 (d) was never written for a pool of existing sources that approaches one million and are as diverse as oil and natural gas production. Consequently, the deadlines for state plans and the structure of the Remaining Useful Life and Other Factors (RULOF) provisions can have critical impacts on small producers. Estimates of the impact on these
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operations if the Subpart OOOOc Emissions Guidelines are implemented as written suggest that 300,000 of these wells will have to shut down. Certainly, we would like to discuss these issues more thoroughly. Please let me know if I can provide more information. Lee Fuller
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Producers Association-EPA Meeting on Reconsideration of Subparts OOOOb and OOOOc, March 10, 2025
Existing Source Issues
1. Understanding marginal wells a. There are about 750,000 marginal wells roughly divided equally between oil and natural gas. i. 600,000 are six boe/d and less. ii. 300,000 are one boe/d and less. b. As these wells deplete and move to lower production, their operating characteristics change. c. Oil wells differ from natural gas wells. 1. Natural gas wells can operate more closely to 24 hours per day, but many must have natural gas sucked from the well because its internal pressure has diminished. 11. Oil wells, particularly as they reach the 0-2 b/d production volumes do not operate 24/7. 1. They may be on automatic pumping a few hours per day or they may one or a few days per week. 2. Their methane emissions are associated gas which has diminished throughout the life of the well. 111. These dynamics affect their emissions profiles and their ability to meet the requirements of the federal methane regulations and emissions guidelines. d. A thorough understanding of the emissions profiles of these wells does not exist; the DOE Marginal Wells Study is the only effort that tries to raise these issues but its database is limited. e. Analyses of the Subpart OOOOb regulations and, particularly, the Subpart OOOOc Emissions Guidelines conclude that about 300,000 marginal wells will be shut down as a result of their requirements. 1. These consequences are primarily a result of the pneumatic controller and Leak Detection and Repair (LDAR) requirements. 11. They can be avoided or significantly mitigated if cost effective measures are chosen. 111. Much can be learned from the DOE Marginal Wells Study.
2. Assessing the DOE Marginal Wells Study a. EPA's reference to the DOE study largely focuses only on its conclusion that marginal wells can account for half of US methane emissions. 1. It fails to observe that its estimates are 25 percent of the EDF studies. ii. It fails to address the key information on the nature of the emissions.
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b. The DOE study identified numerous factors that can affect emissions and help develop profiles.
c. For industry, the most significant factor affecting their operations is the production rate while EPA focuses primarily on component counts.
d. The DOE study reports that 90 percent of emissions come from 10 percent of operations, but more information can be derived from the details of the study i. The predominant sources are leaking tanks (open thief hatches and leaking seals), failure of some pneumatic controllers and failure to close vents.
e. Focusing a control strategy on these components would dramatically reduce marginal wells emissions and such a strategy can be crafted far more cost effectively than the current EPA regulations/emissions guidelines.
f. A rough evaluation of the emissions data presented in the DOE study indicates that by addressing the high emissions sources with cost effective actions, average marginal well emission can drop by about 1 ton/year to about 0.5 tons/year, with some as low as 0.1 tons/year.
3. Natural Gas Pneumatic Controllers a. Marginal wells have a limited number of pneumatic controllers, and the overwhelming majority will be intermittent controllers. 1. In EPA's analysis of BSER for pneumatic controllers for both Subpart OOOOb and OOOOc, EPA assumes that for "small" facilities there would be 2-4 intermittent bleed controllers. b. However, EPA's emissions calculations are based on flawed emissions factors and inconsistent application of the factors given the EPA regulatory framework. c. Depending on the iteration of the OOOOc regulatory proposal, EPA used either 13.5 scf/h or 8.8 scf/h as the emissions factor for intermittent controllers. Neither of these reflects EPA's approach to assessing emissions from intermittent controllers that would now use a mix of emissions factors with one for failed controllers (24.1 scf/h) and one for properly operating controllers (0.3 scf/h). Based on experienced analysis of failure rates, this analysis shows that the natural gas pneumatic controllers replacement technologies were not cost effective for any sized production facility - and therefore least effective for small facilities. d. Even this analysis overstates the emissions amounts because under the EPA LDAR requirements, quarterly monitoring is required which would identify failed pneumatic controllers within three months. Based on this approach a properly operating pneumatic controller would emit less than 0.05 tons/year of methane. e. These analyses are consistent with information supplied by the API that it would take 15 to 30 pneumatic controllers at a site to reach EPA's test for cost effectiveness - clearly a number that would never be present at a marginal well. f. Use of a cost effective LDAR program can readily manage pneumatic controller emissions at marginal wells.
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4. Leak Detection and Repair a. EPA's LDAR program is not cost effective for marginal well sites. b. EPA's focus on component counts as its basis for creating LDAR categories produces unrealistic collections of well sites in inappropriate categories. 1. Most notably, EPA's component count approach forces marginal wells into the LDAR category designed for large facilities. 11. This result is critical in the analyses showing that 300,000 marginal wells will be shut down because of this action. c. The key issue relates to EPA's Category 3 LDAR requirements and definition. 1. The Category 3 requirements of quarterly OGI LDAR are far more costly than the small well site quarterly AVO LDAR. 11. The component count structure of Category 3 captures the substantial majority of marginal wells. 1. A brief review of marginal well sites at facilities across the country indicates that approximately 70 to 90 percent of marginal wells will fall into Category 3. d. EPA argues that Category 3 was created because these component counts reflect the types of facilities that produce Super Emitters. 1. EPA's definition of a Super Emitter amounts to an emissions rate of about 130 mcfd. 11. The maximum production rate of a marginal well is 90 mcfd; the average marginal natural gas well produces 22 mcfd; the tier of marginal natural gas wells most affected by the excessive LDAR requirement would be about 6 mcfd. 111. It is impossible for marginal wells to emit at the rate of a Super Emitter. e. The Producer Associations raised the potential for this consequence in its 2022 comments on the proposed Subpart OOOOb/OOOOc regulations and recommended some options. 1. For example, it suggested for a small well site that the criteria should be: A booster compressor or a well site with production of 6 boe/day based on definition at 26 USC 613A(c)(2)(A) and no more than 220 components with no more than 2 uncontrolled tanks, no other component limitations. 11. Other recommendations that mixed production rates for marginal wells and component counts would also provide a more realistic assessment of the emissions profile of marginal wells.
5. Associated Gas a. EPA's initial analysis of associated gas did not consider different volumes from older wells; EPA later developed its lower emissions existing source emissions guidelines for facilities emitting less than 40 tons/year of methane. i. Requires flaring as a minimum technology.
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11. EPA's initial BSER analysis assumed emissions of 344 tons/year which is about 45 mcfd; even at 40 tons/year the emissions are about 5 mcfd.
b. Low production wells are a different emissions profile than EPA's model. 1. Low production oil wells in the 0-6 boe/d range contain many wells that do not operate continuously. 1. Wells may operate on a timer (3 hours/day) or limited days per week (3 days/week; one day/week). 11. Associated gas volumes diminish with production depletion; no emissions without production. 1. DOE study indicates that the entire site emissions for oil wells from 0-6 boe/d would range from 0.017 mcfd to 0.24 mcfd.
c. EPA states that it believes flaring is the minimum requirement for all oil well associated gas emissions. i. EPA never evaluated the application of flaring to associated gas volumes that small wells intermittently produce.
d. 2022 RTC indicates that EPA recognizes potential small well issues on flaring but dumps issue to RULOF determination.
6. Section 111 (d) a. BSER 1. EPA chose to meet its responsibility to develop its existing source BSER for oil and natural gas facilities by paralleling its designated facilities to its NSPS BSER affected facilities. 11. This choice allowed EPA to avoid creating a cost benefit analysis that reflected the full impact of the collective regulations on marginal wells. 1. Separating the LDAR requirements from the pneumatic controller requirements prevented the calculations that now show that collectively they will result in the shutdown of 300,000 wells. b. Subcategorization 1. EPA chose not to use its authority to subcategorize existing sources thereby preventing the flexibility that would have been available for marginal wells 11. The oil and natural gas production industry and its ancillary industries like gathering and boosting operations are a clear example of the opportunity to use subcategories to regulate effectively. 1. Oil wells differ from natural gas wells, large wells differ from small ones, conventional wells differ from unconventional wells. 2. Subcategorization could use these differences to more realistically devise control requirements.
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111. EPA's failure to subcategorize results in devising control requirements across the universe of wells that result in inappropriate technology applications.
c. RULOF determination 1. Section 111 (d) provides for the differentiation of control requirements based on the remaining useful life of facilities and other factors, but its availability is questionable the way EPA has constrained its use. 11. Process 1. Subpart Ba provides that RULOF can be applied to facilities or classes of facilities but there is no clarity regarding the creation of classes of facilities. 2. The state planning process in Subpart Ba and Subpart OOOOc appears to require that states make their RULOF determinations at the time of submission of their plans. a. This process is unworkable for the oil and natural gas production industry because of the thousands of marginal wells that are threatened by the emissions guidelines requirements. 3. If there is no subcategorization/no classes of facilities, it will not be possible for states to make their RULOF decisions in the time period of the planning process.
111. Requirements 1. Subpart Ba provides that states may use trading and averaging as part of their state plans, but EPA forbids trading in Subpart OOOOc and limits averaging to use within designated facilities a. EPA created its myriad designated facilities - decisions that put in jeopardy at least 300,000 marginal wells - and then forbids logical averaging options to reduce compliance costs. 2. EPA constrains the use ofRULOF by arguing that it cannot be applied unless there is significant capital expenditures while knowing that the most significant regulatory challenge in the Subpart OOOOc emissions guidelines for marginal well will be the LDAR regulations.
New/Modified Source Issues
1. Storage Tanks a. Storage tank batteries are essential to oil and natural gas production to manage oil, natural gas liquids and even produced water.
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b. Storage tank batteries or on-site tanks are developed to manage the initial production at a facility. Sometimes, they must be expanded as production at the facility increases. But, over time, as production decreases, there is more capacity than is necessary. However, many times, tanks are not removed because they may be useful in the future.
c. Tank usage can shift moving production from one tank to another based on production or maintenance needs. Additionally, it is common in conventional marginal well fields to drill new wells as old ones are taken out of service. These wells may operate at a higher production level for some months before they decline to marginal well status.
d. EPA's storage tank regulations create significant operational problems for little or no environmental benefits, particularly over the long term. 1. EPA's requirement that a tank is considered modified and subject to Subpart 0000b requirements if a tank receives production from a new well - whether that is an actual new well or an existing well routed to a different tank - results in costly, perhaps infeasible requirements. 11. Old tanks - those not subject to Subpart 0000 - supporting marginal well production cannot be modified to recover vapors safely if they are not structurally designed for it.
e. EPA needs to revise these regulations to recognize the complexity of their operations and produce cost effective requirements.
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Methane Regulation - Marginal Wells
Industry Background
There are approximately one million oil and natural gas wells producing in the United States with roughly 20,000 added each year.
All oil and natural gas wells deplete over time with their production dropping as they age; essentially, all wells will become marginal wells if they operate long enough.
Approximately 750,000 American wells are marginal wells (producing 15 boe/d or less) and are roughly equally divided between oil and natural gas. o Of these about 600,000 are 6 boe/d and less; 330,000 are one boe/d and less.
The industry is divided between larger companies that produce the bigger wells and the larger share of production and thousands of smaller producers of these marginal wells. Marginal wells account for about 7-8 percent of US production of both oil and natural gas. o The economics of production differ significantly. Newer wells are now generally sites with multiple well using hydraulic fracturing while most marginal wells are small with one or two wells per site in conventional formations. o The smaller marginal oil wells do not consistently operate continuously; some operate several hours per day, some several days per week, some one day per week. o Many of the smallest natural gas wells need compressors to pull the gas from the well. o These differences affect marginal wells emissions profiles.
EPA Methane Regulations
New Source Performance Standards (NSPS)/Existing Source Emissions Guidelines (EG) - the Clean Air Act (CAA) requires EPA to develop NSPS for significant industry categories. o EPA has created NSPS for oil and natural gas production facilities in 2012 (Subpart 0000) and 2016/2020 (Subpart OOOOa) o The 2021 Congressional Review Act resolution mandates that EPA regulate methane emissions for oil and natural gas facilities using NSPS/EG. This Congressional mandate separates oil and natural gas production regulation from other Greenhouse Gas programs derived from an endangerment finding.
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EPA promulgated Subpart OOOOb (NSPS) and Subpart OOOOc (EG) in 2024. Subpart OOOOc is the first time that the EPA NSPS regulatory program addresses existing sources.
NSPS becomes effective on a schedule in the regulations; EG requires states to develop implementation plans in 24 months and implement them in 36 months thereafter.
o EPA's use of its authority in developing the regulations in key areas produces the regulatory threats for marginal wells. Facility Definition - oil and natural gas producers generally consider a well site or a well site with storage tanks as a facility. EPA in Subpart OOOOb divides the well site into five separate facilities -wells, controllers, pumps, storage vessels and well sites (only for LDAR1). It uses these same definitions for Subpart OOOOc. This allows EPA to assess the cost benefits of the controls for each type of facility without considering the collective impacts. Best System of Emissions Reductions (BSER) - EPA is charged with determining the technology that meets the requirements of the NSPS, a task that should require EPA to identify and validate technologies. Instead, EPA has relied on studies by others, primarily environmental advocacy groups, and assumed they are valid. Emissions Guidelines - In developing its BSER for existing sources, EPA has the flexibility to distinguish between different types of sources based on the nature of the industry, such as marginal wells differing from large, fractured wells, but it has not created a subcategory. More significantly, it should be making its technology decisions on existing sources, not applying the new source requirements. By dividing the well site into multiple facilities, EPA argues that the existing source technology is the same as the new sources. State Plans under Section 111 (d) - The CAA provides that states regulate existing sources through plans approved by EPA. The framework of Section 111 (d) was designed for a regulatory action that might affect two or three sources in a state, not the thousands of oil and natural gas wells that these regulations cover.
1 Leak Detection and Repair
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The CAA also provides flexibility to states to consider unique factors; a key element is consideration of "remaining useful life and other factors" (RULOF).
EPA's revisions to the Section 111 (d) process are designed to limit the states' statutory authority to develop a flexible plan to address marginal wells. For example, EPA asserts that RULOF should not be available unless significant capital costs are required knowing that its LOAR requirements are the most threatening regulations and LOAR essentially increases operating costs not capital expenditures.
Marginal Well Issues o Because of EPA's action to divide the well site into multiple facilities, the aggregate economic impact on marginal wells is disguised. o Because marginal wells are older, they have depleted not only their production, but the internal forces that would drive emissions. o Studies of marginal well emissions, notably one by the Department of Energy, show that the dominant emissions sources are tanks (where hatches have been left open or seals leak), pneumatic controllers that have not been maintained, and vents that have been left open. All of these can be addressed through cost effective LOAR actions. o EPA's requirements do not reflect the differences between new and marginal wells. LOAR- EPA is fixated on developing its LOAR regulations based on facility component counts while industry believes that production throughput should be a significant factor. EPA use of component counts is partly driven by its focus on Super-Emitters (well sites emitting over 130 mcfd). EPA uses two forms of LOAR -AVO (Audio-Visual-Olfactory) which is inexpensive and OGI (Optical Gas Imaging) which is expensive. EPA created four LOAR categories. Using its component count approach that requires OGI for "large" well sites, 70 to 90 percent of marginal well sites will fall into the large category, compelled to quarterly OGI LOAR. (The largest marginal natural gas well is 90 mcfd; the average is 22 mcfd -they cannot be Super-Emitters.)
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Controllers - Historically, process controllers have been operated using a slip stream of produced gas. EPA bans this technology for new sources and applies that ban to existing sources. It would require marginal wells to replace their controllers at substantial cost for limited environmental benefit. Emissions estimates for pneumatic controllers have shown that proper maintenance can minimize their emissions.
Associated Gas Controls- EPA wants to terminate emissions from gas generated as a part of crude oil production by forcing it to sales, use at the site, or injection back into the formation. If these are infeasible, EPA requires flaring. In developing its requirements, EPA never considered that marginal wells do not operate continuously- and do not generate gas continuously. Without continuous gas, flares shut down.
Storage Tanks - EPA generally requires new and modified storage tanks to recover vapors but recognizes that existing ones may not be structurally capable of adding controls. However, its definition of modification opens the potential that existing tanks could be covered.
Compressors - EPA requires compressor controls at centralized production facilities but not at well sites, but its definitions for these facilities are confounding and can capture small compressors used to produce natural gas that are separated from the well site to be considered as centralized production facilities.
Recordkeeping- EPA's recordkeeping requirements are extensive and excessive for marginal wells.
Marginal Well Alternatives o EPA should use its authority under the CAA to create a subcategory for marginal wells and establish EG that reflect their differences from new sources. o EPA should alter its Section 111 (d) regulations to give states adequate flexibility to design regulations reflecting the differences between new and marginal wells. o Minimum changes to the EG should include: LDAR-AVO should be the LOAR requirements for marginal wells. EPA's quarterly AVO requirements should be applied to all marginal wells producing 6 boe/d or less.
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As existing wells deplete to this production rate, the LOAR requirement should be revised accordingly.
Controllers - Existing well pneumatic controllers should be allowed with these controllers included in the scope of the AVO LOAR program to assure proper maintenance.
Associated Gas Controls- EPA needs to recognize the intermittent operation of marginal wells allowing venting of associated gas where it is technologically and economically infeasible to recover or flare it.
Storage Tanks - EPA needs to assure that normal business operations such as consolidating production into fewer tanks does not trigger a modification under the regulations.
Compressors - EPA needs to assure that small compressors essential to producing marginal well natural gas are considered part of the well site.
Record keeping- EPA needs to limit record keeping requirements on small business producers.
EPA Methane Tax
Congress passed a Methane Tax in 2022 to single out and punish the oil and natural gas industry despite its already burdensome EPA regulatory framework. o This tax is based on the Greenhouse Gas Reporting Program (GHGRP) that requires producers to report emissions under Subpart W of the Code of Federal Regulations. Subpart W was never designed to accurately estimate emissions; it utilizes general emissions factors to develop emissions estimates. The Methane Tax elevates this reporting tool beyond its capabilities and makes it the basis for collecting taxes. EPA was directed to improve Subpart Wand make it more empirically based but EPA did little more than revise the emissions factors to higher numbers without validating their accuracy. o A key component of the calculation is the facility definition used in tax. Subpart W uses a facility definition that is inconsistent with the CAA. Subpart W defines a facility as all the producer's operations in a petroleum basin; for states like West Virginia or Michigan, the basin is the entire state. o Marginal well producers that frequently own hundreds of small wells must aggregate all of them as one facility.
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Conversely, in the CAA an oil and natural gas facility is typically a single well site or adjacent well sites under common control.
While Congress stated it did not intend to tax small facilities, if EPA uses the SubpartW GHGRP facility definition, these marginal wells will be at risk of being taxed.
o A second impact of the Methane Tax relates to its inclusion as part of the CAA. This gives EPA's Office of Enforcement and Compliance Assurance (OECA) essentially unfettered authority to harass small businesses by auditing their calculations of emissions and threatening them with huge daily fines.
Marginal Well Alternatives o EPA should use a facility definition comparable to its other definitions in the CAA for oil and natural gas production operations that would exclude marginal wells from the definition. o EPA needs to establish clear constraints on OECA to assure it does not harass small producers.
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essage
Noe, Paul [Paul_Noe@afandpa.org] 3/3/2025 9:43:01 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Bradner, Kai [Kai_Bradner@afandpa.org]; Hooper, Daniel [hooper.daniel@epa.gov]; Szabo, Aaron [Szabo.Aaron@epa.gov] RE: Meeting Request with OAR Wed April 9 ttachments:EPA Meeting Request Air AF&PA030325.pdf; AFPA Trump Letter and Attachment.pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Abby: Sorry about the typo; I got bounce-back from you. Resending this meeting request so it goes through to you.
Thank you for your consideration.
Best,
Paul
Paul Noe Vice President, Public Policy Paul_N oe@afandpa.org Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
From: Noe, Paul <Paul_Noe@afandpa.org>
Sent: Monday, March 3, 2025 4:03 PM
To: Tardif.Abigaile@epa.gov Cc: Bradner, Kai <Kai_Bradner@afandpa.org>; hooper.daniel@epa.gov; Szabo.Aaron@epa.gov
Subject: Meeting Request with OAR Wed April 9
Dear Abby: On behalf of the American Forest & Paper Association, I would like to request a meeting with you and others on EPA's OAR team for Wednesday, April 9, when members of our Environment Policy Committee will be available to meet with your team in person.
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I am copying my colleague Kai who can help find a time convenient for you and your team. Thank you, Paul
Paul Noe Vice President, Public Policy Paul Noc(dafandQa.or_g Office: (202) 463 - 2777 Cell: (703) 909 - 2895 AMERICAN FOREST & PAPER ASSOCIATION 601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005
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American Forest & Paper . Association
March 3, 2025
Abigale Tardif Principal Deputy Assistant Administrator U.S. Environmental Protection Agency, Mail Code 6103A 1200 Pennsylvania Avenue, N.W. WJ Clinton Building Washington, DC 20460
Dear Principal Deputy Assistant Administrator Tardif:
On behalf of the American Forest & Paper Association (AF&PA), I am writing to request a meeting with you, Aaron Szabo and other leaders in EPA's Office of Air and Radiation to discuss key regulatory priorities of our industry. Members of our Environment Policy Committee will in Washington, DC to meet with you on Wednesday, April 9, 2025, preferably between the morning to late afternoon. Please find enclosed our December 5 letter to President Trump, which provides a summary of AF&PA's key regulatory concerns and recommended reforms, many of which relate to EPA air regulations, including the National Ambient Air Quality Standards for fine particulate matter (PM NAAQS, RIN: 2060-AV52); the ongoing reviews of both the Pulp MACT (Subpart MM NESHAP) and Paper MACT (Subpart S NESHAP); and the Good Neighbor Plan (RIN: 2060-AV51).
AF&PA represents U.S. manufacturers of pulp, paper, packaging, tissue and wood products with fact-based public policy and marketplace advocacy. More than 75 percent of forest products industry facilities are located in predominantly rural counties across America and are often the economic driver for their communities, large and small. The approximately 925,000 family wage jobs represent a $65 billion annual payroll, making our industry among the top 10 manufacturing sector employers in 43 states. AF&PA member companies make products essential for everyday life from renewable and
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Abigaile Tardif March 3, 2025 Page 2
recyclable resources and are committed to continuous improvement through the industry's sustainability initiative - Better Practices, Better Planet 2030.
We will be in touch with your office shortly, but in the meantime, feel free to have your staff please contact Kai Bradner at 202-463-2721 or Kai Bradner@afandpa.org with your availability. Thank you for your consideration.
Best Regards,
Enclosure
Paul R. Noe Vice President, Public Policy
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American Forest & Paper Association
December 5, 2024
Office of the President
Dear President-elect Trump,
On behalf of the American Forest & Paper Association (AF&PA) and our member companies, we congratulate you on your election to the Presidency. We look forward to working with you and your Administration to accomplish your agenda of growing the American manufacturing economy, creating new, high-paying jobs throughout our country, particularly in rural America, and ensuring that regulations are sustainable and do more good than harm. The forest products industry accounts for approximately 5% of the total U.S. manufacturing GDP, manufactures about $350 billion in essential products annually and employs about 925,000 people. The industry meets a payroll of about $65 billion annually. We are U.S. Manufacturing!
AF&PA serves to advance U.S. paper and wood products manufacturers through fact-based public policy and marketplace advocacy. The forest products industry is circular by nature. AF&PA member companies make essential products from renewable and recyclable resources, generate renewable bioenergy and are committed to continuous improvement through the industry's sustainability initiative - Better Practices, Better Planet 2030: Sustainable Products for a Sustainable Future.
Manufacturing Excellence and Value to Rural Communities The forest products industry is a top ten manufacturing employer in 43 states - such as Wisconsin, Georgia, Pennsylvania, North Carolina, Michigan, Virginia, South Carolina and Ohio. Over 75 percent of our member company facilities are in counties that are overwhelmingly rural. Our facilities and our member companies provide good, high-paying, family-wage jobs, and our employees are the backbone of these communities.
We are proud of the hard-working men and women in our industry who work every day to bring essential products to all Americans, and we maintain strong relationships with our labor partners. The facilities and workers generate a strong tax base for these communities and support multiple small businesses, landowners, and others throughout the forest products industry supply chain. We estimate that each forest products industry job supports 3.25 additional jobs in supplier industries and in local communities across rural America.
Cumulative Burden of Regulations Undermine U.S. Innovation and Job Growth We believe the American free enterprise system has been a significant engine for prosperity and can deliver a promising future for the United States and the world. The U.S. manufacturing sector has been a fundamental driver of this success, but our nation faces growing challenges in a highly competitive global economy. The cost, complexity and volume of regulations is greater than ever. As a result of our cumbersome air and water permitting processes, manufacturers that want to expand and create jobs with cleaner, more efficient technology are often stymied.
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At the same time, we recognize that reasonable, evidence-based regulations can provide important benefits, such as the protection of the environment, health, and safety for our country, communities and employees. Unfortunately, poorly designed regulations that fail to balance costs and benefits and disregard the best available science unintentionally can cause more harm than good, waste limited resources, undermine sustainable development, and erode public confidence in government.
The U.S. Supreme Court recently made clear that regulators must follow the best reading of statutes; they must only act within the boundaries of their statutory authority, and consider all relevant factors, including balancing costs and benefits. Accordingly, it is essential that regulations be designed to provide net benefits to the public based on best available scientific and technical information through a transparent and accountable rulemaking process, with due consideration of the cumulative regulatory burden.
Your administration and Congress have an historic opportunity to dramatically improve the regulatory process to better serve the public interest, create jobs, and strengthen the competitiveness of American manufacturing. We welcome the opportunity to talk with your team about systemic reforms to our regulatory process. In addition, while not exhaustive, we have attached a list of over a dozen of our top priority regulations we request be considered for immediate attention. In addition, priority issue areas for our members include:
Carbon Neutrality of Biomass One of the primary policy challenges for our industry is ensuring the federal government recognizes the carbon neutrality of our biomass energy. The pulp and paper industry is a leading producer of carbon-neutral bioenergy, and our efficient use of forest products manufacturing residuals provides two-thirds of the energy used at our pulp and paper mills and also provides bioelectricity for the grid. For many years, the Environmental Protection Agency (EPA) had treated biomass as carbon neutral, in line with the rest of the world, but in 2010, EPA issued its Tailoring Rule which for the first time failed to recognize the carbon benefits of our bioenergy and created regulatory uncertainty that impedes investment planning and growth. Since then, the EPA has done extensive work on bioenergy, and in 2017, came very close to formally recognizing the carbon neutrality of biomass. Unfortunately, the rule was never made final, and we have continued to work extensively with federal agencies and Congress to resolve this lingering regulatory uncertainty.
Tax Reform Our industry is made up of both (-corporations and pass-through entities, which invest heavily in equipment and improvements, making our industry one of the most capital-intensive among all US manufacturing. The paper and wood products industry invests roughly $16 billion per year in plant and equipment items such as recovery boilers, turbine generators, paper machines, and environmental controls that are critical to maintaining technologically advanced manufacturing facilities that compete in an extremely competitive global marketplace.
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As an industry that is a key economic driver, especially in rural communities, we support several key elements of the US tax code including the 21 percent corporate rate enacted as part of the 2017 Tax Cuts and Jobs Act (TCJA), restoring 100 percent full expensing for investments in new and used property, maintaining the TCJA's original interest deduction limitation provision, and restoring the full research and development tax credit as enacted. Finally, as a globally competitive industry, it is crucial that we ensure the United States is on a level playing field with other countries -TCJA had a number of provisions designed to encourage businesses back to the United States and make them competitive with other countries. We need to ensure those provisions are preserved.
Trade U.S. forest products exports account for a significant piece of the industry's total sales and in 2023, the industry's global exports totaled over $9 billion. AF&PA strongly supports free but fair trade and in today's globalized market, it is critical for the U.S. forest products manufacturing sector to achieve unrestricted access to international markets and level the playing field among international competitors by eliminating both tariff and non-tariff barriers such as restrictive import regulations.
AF&PA member companies procure the vast majority of their fiber from healthy, American forests but our companies also procure some fiber from key trading partners and additional tariffs would negatively impact the U.S. forest products industry's ability to compete with other international forest products producers. Additionally, some paper manufacturing machinery and equipment that is used by our member companies to produce our essential products comes from other countries and cannot currently be made in the United States. While we support domestic manufacturing policies that will ultimately make that possible, we oppose tariffs on machinery and pieces of equipment our companies use that objectively cannot be made in the U.S.
In 2023, the European Union (EU) enacted the EU Deforestation-free Regulation (EUDR), a regulation that aims at eliminating products sold in the EU that are linked to deforestation, is unworkable and disadvantages the U.S. forest products industry, small U.S. family forest owners, and threatens to disrupt trade with the EU valued at more than $3.5 billion. The U.S. forest products industry is among the most responsible suppliers of forest fiber in the world, and a strong proponent of international efforts to suppress deforestation and forest degradation. The prescriptive requirements of the regulation, however, will unjustifiably increase compliance costs and weaken U.S. producers' market access to established EU trading partners.
The U.S. forest products industry does not contribute to global deforestation or forest degradation, and we will need your direct engagement with EU government authorities to ensure U.S. wood, pulp and paper producers and our supply chain, which includes nearly 11 million small, private landowners, can remain competitive and continue to ship our essential products into the EU without disruption.
601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005 (202) 463 2700 afandpa.org
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Recycling Policy Paper recycling is a success story, no matter how you measure it. Paper is one of the most widely recycled materials in America, and paper recycling rates in the U.S. have consistently increased in recent decades. In fact, the paper industry recycles nearly 60% more paper today than it did in 1990, when the industry set its first recycling rate goal. In 2023, the paper recycling rate was 65-69% and the rate for cardboard recycling was 71-76%. In the United States, paper is recycled into new products every day.
The success of paper recycling has been accomplished through our industry's voluntary leadership and investment in market-based solutions. The use of recycled paper in manufacturing is driven by availability, performance, and cost, allowing recovered paper to be directed toward its highest-value end use. While nearly half of our industry's fiber needs are satisfied from recycled fiber, fresh fiber from sustainably managed forests is also a crucial source of material to sustain the fiber supply. We do not support government mandates for postconsumer recycled content in specific products. We support the U.S. EPA waste hierarchy, which recognizes a clear distinction between recycling and energy recovery and prioritizes recycling.
Conclusion Again, we want to congratulate you on your election victory. We look forward to working with you over the next four years to enact policies that will allow pulp, paper, packaging and wood products manufacturers to continue as an American success story. Please let us know how we can assist your team in this endeavor.
Sincerely,
Heidi Brock President and CEO American Forest & Paper Association
Cc: Vice-President elect J.D. Vance
Attachment
601 Thirteenth Street NW, Suite 1000 N Washington, D.C. 20005 (202) 463 2700 afandpa.org
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American Forest & Paper Association
Summary of Key Regulatory Concerns of AF&PA and Recommended Reforms (Dec. 2024)
The regulations and recommended reforms summarized below cut across many regulatory areas, such as the environment, energy and product-specific issues. While each regulation has its own technical aspects, a common thread across them all is the adverse impacts they have on the competitiveness of U.S. pulp, paper and wood products manufacturers, which must operate efficiently to successfully compete in our global marketplace. The U.S. forest products industry provides family wage jobs that support rural communities across America. Our industry employs 925,000 hard-working people who make essential paper and wood products that over 330 million Americans, as well as billions more around the world, depend on in their daily lives.
Environmental Protection Agency:
Carbon Neutrality of Biomass: Paper and wood products mills are the largest producers and users of carbon-neutral bioenergy of any other industrial sector. Unfortunately, EPA's policy shift in 2010 on biogenic CO2 emissions has created counterproductive regulatory uncertainty for the industry that has lingered for almost 15 years.
We recommend that bioenergy produced by pulp, paper and wood products mills be considered carbon neutral in rules and policies by EPA, as well as in the clean electricity tax credit rules and policies by the Department of Treasury, and by other relevant agencies.
Air Permit Gridlock and PM NAAOS: Every five years, EPA must decide whether its National Ambient Air Quality Standards (NAAQS) are sufficiently protective of public health. Over time, as NAAQS (for particulate matter (PM), ozone, sulfur dioxide and nitrogen oxides) have been lowered close to background levels, it has become increasingly difficult to get permits approved for projects to modernize, expand, or build state-of-the-art American manufacturing plants. Given extremely stringent NAAQS recently issued by EPA, especially the PM NAAQS, a broad array of American industries, in addition to ours, across our country now face permitting gridlock. EPA should modernize its air permitting process based on credible approaches and adjust its modeling criteria to reflect actual impacts. The challenges with the ever-lower NAAQS are exacerbated by a lack of a credible
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implementation plan, including inappropriate emission measurement methods, poor estimates of emissions, use of unrealistic air dispersion models, and several unduly rigid permitting policies.
We recommend that EPA withdraw and reconsider the recent PM NAAQS due to its flawed and legally questionable rushed review, the failure to provide a workable implementation plan, and the scientific uncertainties. (RIN 2060-AV52)
We recommend that EPA address the air permitting gridlock given the lack of "headroom" by committing sufficient resources to develop a credible NAAQS implementation program based on the best technical practices, including using more realistic receptor locations and emissions, exposures, and modeling data within the next year.
PFAS Regulations (CERCLA Listing of PFOA/PFOS as Hazardous Substances; SDWA Maximum Contaminant Level (MCL)):
In paper products manufacturing, sustainable materials management includes the beneficial use of paper mill residuals, largely composed of tree fiber, as a fertilizer. These mill residuals can be beneficially used for agricultural or forest lands, providing reduced soil erosion, less need for irrigation, increased soil nutrient-holding capacity, and reduced soil compaction, all of which significantly improves plant growth. It is important to ensure that the listing of PFOA and PFOS as hazardous substances under CERCLA does not lead to unintended outcomes, including impeding or preventing the safe and beneficial use of paper mill residuals as fertilizer.
Paper mills also sometimes serve as small drinking water systems for workers and local communities, and any drinking water MCLs under the Safe Drinking Water Act (SDWA) should be consistent with the law's requirements, including requirements for quality of science and data, as well as consideration of cost to all categories of public water systems.
We recommend that EPA reconsider the CERCLA Rule, which is legally flawed and could produce a host of unintended outcomes (RIN: 2050-AH09).
We recommend that EPA reconsider the PFAS MCL Rule, to ensure it is consistent with the law's requirements for quality of science and data and the consideration of cost (RIN: 2040-AG18).
Water Permit Gridlock and Human Health Water Quality Criteria (HHWOC): Under the Clean Water Act, states have the primary responsibility for issuing water quality standards and establishing acceptable risk levels in those standards. Based on a novel and far-reaching legal theory, EPA has established extraordinarily stringent water policy in two rules, the HHWQC Rule for Washington State and the Tribal Reserved Rights Rule. Both rules will lead to unattainable water quality standards and unattainable
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limits in Clean Water Act NPDES permits needed to operate U.S. manufacturing facilities.
We recommend that EPA reconsider the HHWQC Rule for Washington State (RIN: 2040-AG21) and the Tribal Reserved Rights Rule (RIN: 2040-AG17).
Pulp and Paper MACT Risk and Technology Reviews: The pulp and paper industry has invested billions of dollars to significantly reduce hazardous air pollutants (HAPs) from its operations due to stringent Maximum Achievable Control Technology (MACT) requirements set under section 112 of the Clean Air Act. EPA determined that the remaining public health risk at both pulp and paper mills is acceptable based on a thorough analysis of post-MACT emissions. In 2020, a federal circuit court remanded back to EPA the "Pulp MACT" (Subpart MM National Emissions Standard for Hazardous Air Pollutants (NESHAP)), ruling EPA failed to revise the MACT as required under section 112(d)(6). See Louisiana Environmental Action Network v EPA, 955 F.3d 1088 (2020) ("LEAN'').
EPA recently has misinterpreted their obligation under LEAN (and section 112(d)(6)) to set standards for more HAPs and more equipment at facilities. Section l 12(d)(6) obligates EPA to "review and revise as necessary," which is broad language that courts have interpreted in similar situations as requiring the consideration of all relevant factors, including costs, and balancing costs and benefits before imposing any new obligations. The recent Supreme Court Loper Bright Enterprises decision provides further support that EPA should change its approach to reviewing NESHAPs such as the Pulp and Paper MACTs.
In November 2024, EPA initiated its review of the Pulp MACT by sending a comprehensive survey of pulp mill operations and equipment to seven major companies. Once responses are evaluated, EPA plans to require about 200 HAP tests at 45 mills costing several million dollars. (EPA is simultaneously reviewing the "Paper MACT," so called the Subpart S NESHAP, and plans to send out a similar survey in 2025 and mandate additional HAP testing in 2026.) Unfortunately, much of the HAP testing data will be hard to assess due to poor quality and variability.
We recommend that EPA reconsider its plans to require pulp mills to undertake extensive HAP testing next spring by first determining whether new standards are "necessary" for each HAP-equipment combination -considering all relevant factors, including public health risks, likely control costs, technical feasibility to accomplish testing, adequacy of current requirements, value of additional data and other relevant factors.
Based on an assessment of public health benefits and costs (including any new test data) under section 112(d)(6), we recommend that EPA promptly complete its review of the pulp and paper MACT and only set new standards
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(either work practices or limits) that are "necessary" and reasonable and achievable.
Formaldehyde Risk Evaluation Under TSCA as amended, EPA's evaluation of priority chemicals has focused mainly on hazards and making unduly conservative assumptions about exposures, which leads to unnecessarily stringent and unworkable regulation. EPA routinely relies on conservative hazard determinations rather than the weight of the scientific evidence, as TSCA requires. EPA also is creating occupational exposure levels for existing chemicals in commerce even if the chemical has been adequately regulated by OSHA, which has led to confusing regulatory duplication.
An example of the problems in the chemical risk evaluation process under TSCA is its current draft Risk Evaluation for Formaldehyde. EPA calculated an extremely stringent occupational exposure level that is below background concentrations of formaldehyde in the air. Even facilities that do not use formaldehyde directly in manufacturing will have difficulty meeting the EPA level, which is far lower than the existing and protective OSHA permissible exposure level and much lower than occupational levels developed in Europe and other countries. EPA must incorporate the best available science in rulemaking to comply with TSCA and to ensure the U.S. is on a level playing field with its competitors around the world.
We recommend that EPA revise its formaldehyde risk evaluation under TSCA.
We recommend that EPA use the best available science when evaluating chemicals such as formaldehyde and rely on the work of authoritative scientific bodies instead of operating independently and ignoring the weight of the scientific evidence.
Good Neighbor Plan: In 2023, EPA promulgated the so-called Good Neighbor Plan regulation under the Clean Air Act to impose control requirements for nitrogen oxide (NOx) emissions in 23 states from fossil fuel boilers in power plants -- and for the first time -- seven manufacturing industries, including paper mills. EPA ignored AF&PA's comments showing that the paper industry should have been excluded from the rule, both because the paper industry's emissions were below EPA's emissions threshold and because its very high control costs exceeded EPA's cost threshold.
States, AF&PA, and other industries challenged the rule. In June 2024, the U.S. Supreme Court issued a rare stay of the rule pending review on the merits by the D.C. Circuit Court of Appeals. See Ohio v EPA, 144 S. Ct. 2040 (2024), which found that industry petitioners likely would succeed on the merits.
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We recommend that EPA withdraw and reconsider the Good Neighbor Plan (RIN: 2060-AVSl)
Department ofLabor, Occupational Safety and Health Administration (OSHA):
OSHA Heat Injury and Illness Prevention Proposed Rule: AF&PA recognizes the importance of protecting workers from heat-related injury and illness and wants to accomplish this objective in a practical, reliable, and scientifically sound manner. We understand OSHA's desire to establish a baseline for workplaces to address this hazard, but the scope of the rulemaking covers a very broad range of industries (including both outdoor and indoor work), regional climates, and worker populations. The rule needs to provide significant flexibility across workplaces to effectively manage the hazard of heat. AF&PA members already employ many controls outlined in the proposed rule and effectively protect workers from heat on a site-specific basis. Like other industries, we are concerned that certain aspects of the proposed rule are unreasonably prescriptive, burdensome, and unnecessary - and could be counterproductive.
We recommend that OSHA carefully review the proposed heat rule (RIN:1218-AD39) to add flexibility and recognize the effective efforts currently underway.
Securities and Exchange Commission (SEC) and Federal Acquisition Regulatory (FAR) Council
Greenhouse Gas Reporting and Goals Rules (SEC Climate Disclosure Rule; FAR Council Proposed Rule on Greenhouse Gas (GHG) Emissions Reporting and Goals for Federal Contractors):
As part of the Biden Administration's "whole of government" approach to climate regulation, the SEC finalized a rule requiring publicly listed companies to extensively report on their GHG emissions. In addition, the FAR Council (the General Service Administration, the Department of Defense, NASA, and OMB's Office of Federal Procurement Policy) proposed an extraordinarily far-reaching rule to require both GHG emissions reporting as well as GHG reduction goals by major federal contractors. Both rules raised a host of legal and practical concerns, and the SEC final rule currently is under legal challenge.
We recommend that the SEC reconsider and revise its climate disclosure rule (RIN: 3235-AM87) to ensure it is within the bounds of its statutory authority and is not arbitrary and capricious or counterproductive.
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We recommend that the FAR Council withdraw its GHG emissions reporting and goals proposed rule (RIN: 9000-AO32) given its host of legal flaws and potential unintended outcomes.
Department of Treasury Clean Electricity Tax Credits: Under the Inflation Reduction Act, the Department of Treasury was required to issue regulations to implement the production tax credit and investment tax credit under sections 45Y and 48E of the Internal Revenue Code. Under the IRA, qualified facilities have a greenhouse gas emissions rate of not greater than zero. AF&PA filed with Treasury extensive comments and many scientific studies showing that the energy systems at pulp and paper mills should be included as qualified facilities in Treasury's final rule and annual table. If pulp and paper mills' energy systems are not included as qualified facilities in the final rule (RIN: 1545-BRl7) and annual table, we recommend that the final rule and annual table be withdrawn and reconsidered.
Federal Trade Commission (FTC) Green Guides Update: The Green Guides provide guidance to help marketers avoid making environmental claims that mislead consumers. The FTC is in the process of finalizing an update to the Green Guides. AF&PA supports the update of the Green Guides and looks forward to the opportunity to comment on the proposed updates. Updating the Green Guides to reflect current trends and concerns in the marketplace is important to ensure consistency across states and avoiding a potential patchwork of state regulation of marketing claims.
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Stein, Jeffrey Lieffrey.stein@bp.com] 2/18/2025 5:22:57 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:from bp, connecting and congrats
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Abbie,
Congrats on the new posting over at EPA. Would love to find some time to connect on all things downstream from bp when you have a chance in the coming weeks.
I'm sure you're completely swamped now, but would you have any time the week of March 10th?
Thanks and hope all is well-appreciate all the expertise you're bringing with you.
Jeff
Jeff Stein Manager, Policy and Federal Government Affairs bp America Inc.
Direct +1 202 848 8599 80 M St. SE, Washington, DC 20003
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Troy Bredenkamp [tbredenkamp@ethanolrfa.org] 4/15/2025 7:31:05 PM Szabo, Aaron [Szabo.Aaron@epa.gov]; Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] ubject:RE: RFA meeting request to discuss E15 and SREs
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Hi Aaron and Abbie-
I am bumping this back up to the top of your inbox.
Let me know when you may have availability for a virtual meeting with RFA.
Best,
Troy Bredenkamp
Senior Vice President, Government & Public flffairs Renewable Fuels Association 607Pennsylvania five, NW North Building, Ste 200 Washington, DC 20004
202-289-3835 (Office) 402-370-8038 (Mobile)
From: Troy Bredenkamp Sent: Monday, April 7, 2025 4:21 PM To: Szabo, Aaron <Szabo.aaron@epa.gov>; Tardif.abigale@epa.gov Subject: RFA meeting request to discuss E15 and SREs
Hi Aaron and Abbie-
I hope all is well on your end.
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On behalf of myself and RFA CEO Geoff Cooper, we would request a meeting with the both of you to discuss the options for emergency waivers this summer and also to discuss options regarding the pending list of small refinery exemptions. We have some ideas on both of these issues and would like to share them with you. In order to maximize convenience for all, we would welcome a virtual meeting with both of you at your earliest convenience either this week or next week. Please let me know what might work on your end and we can get a zoom or teams meeting on the calendar. Thanks in advance for considering our request. Best,
Troy Bredenkamp
Senior Vice President, Government & Public flffairs Renewable Fuels Association 607Pennsylvania five, NW North Building, Ste 200 Washington, DC 20004 202-289-3835 (Office) 402-370-8038 (Mobile)
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Heidi McAuliffe [hmcauliffe@paint.org] 2/20/2025 2:13:13 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] RE: Request for a Meeting: American Coatings Association ttachments:ACA.2024 EPA External Meeting Request Form.pdf
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Hi Abbie,
I received the meeting request form from OAR Invitations and have already sent it back to them. Thank you for forwarding my meeting request.
In addition to the information provided on the form, I want to provide you some additional background on this issue. The very short compliance deadline is the only part of the rule that is problematic for the industry. We worked very hard with EPA over the last 7-8 years to get this rule finalized. It began with a petition for a rulemaking to EPA in 201 7, during President Trump's first term but was just published as final on January 17, 2025. Most of the requirements of the rule, with the exception of the compliance deadline, are appropriate and science-based. The industry is not asking for any changes to the substantive parts of the final rule. However, the very short compliance deadline has made it impossible for some companies to produce compliance coatings before July 17, 2025.
While it is true that some companies are already in compliance with the newly finalized requirements, this is not true across the industry. EPA acknowledges this in the preamble to the rule in Section IV Response to Significant Comments.
Companies who private label aerosol coatings or toll manufacture these products are particularly at risk with this very short compliance deadline. Typically, those companies have a large inventory of SKUs and there isn't enough time to complete an audit of these private label products to determine if they are in compliance and then reformulate, test, and relabel them if they are not.
We are searching for the most appropriate way to address the sole issue of the compliance deadline.
Here is a link to the rule: federal Register:: National Volatile Or ,anic Compound Emission Standards for Aerosol Coatin1~s Amendments
During the rulemaking, the rule manager at EPA was Kaye Whitfield at EPA.
I am looking forward to talking with you about this issue and will wait to hear from your scheduling team. Please do not hesitate to reach out to me if you have additional questions prior to our meeting.
Best regards,
Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs 202- 719-3686 I 202-329-1065 (m) I 202-263-1102 (fax) I hmcauliffe(a;paint.org I www.paint.org
901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
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From: Heidi McAuliffe Sent: Monday, February 17, 2025 11:24 AM To: Tardif.Abigale@epa.gov Subject: Request for a Meeting: American Coatings Association Dear Abbie, Congratulations on your appointment to EPA. ACA' s Air Quality team is eager to meet with you to discuss the priorities of the paint and coatings industry. However, I have a more urgent request for a meeting due to a final rule for aerosol coatings issued on January 17, 2025. We worked very cooperatively with EPA' s rulemaking team on this effort, providing extensive comments over an extended rulemaking timeframe. The issue with the final rule is solely focused on the effective date. As I indicated above, the rule was published in the FR on January 17, 2025, and the effective date is July 17, 2025 - a mere six months. Six months does not give industry members the necessary time to conduct inventory audits, develop formula changes where required, audit labels and make the required changes, and ensure that the distribution chain is informed of the final rule changes. In addition, for companies who private label or toll manufacture aerosol coatings and are required to provide warranties and assurances of compliance with all applicable laws, the six-month compliance period is particularly problematic. Can we find a time to discuss this in person, or by a virtual means soon? The matter is particularly urgent due to the short time frame for compliance with the rule. I am happy to answer any questions and look forward to talking with you as soon as possible. Best regards,
Heidi K. McAuliffe, Esq. American Coatings Association Senior Vice President, Government Affairs
202- 719-3686 I202-329-1065 (m) I202-263-1102 (fax) I====,==== I_00_00_00_0"'--==
901 New York Ave. NW, Suite 300 West Washington, DC 20001 Coatings protect. Coatings preserve. Coatings provide.
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External Meeting Request Form
Today's Date: 2/20/25 Requesting Organization: American Coatings Association Title of the Meeting: Solutions for Compliance Deadline for Aerosol Coatings Final Rule Purpose: To discuss impact of the very short compliance deadline as well as possible solutions for industry compliance
Background: The Aerosol Coatings Final Rule was the result of a petition for rulemaking submitted by ACA in 2017. The rulemaking process was long and protracted. The final rule was published on January 17, 2025 with a compliance deadline of July 17, 2025. During the rulemaking, a compliance Is this meeting related to ongoing litigation: No Earliest possible date for the meeting: 2/24/25 Last possible date for the meeting: Is the meeting urgent and if so, why: Yes Final Rule for aerosol coatings only provides for 6 months for compliance. Manufacturers that Requested Time Length: 60 minutes Have you met with anyone within EPA: Not since the rule was published EPA participants requested: Abbie Tardif; Others that she deems necessary
External Participants (including name [last, first], affiliation/organization, and email): Heidi McAuliffe, ACA, hmcauliffe@paint.org; Rhett Cash, ACA, rcash@paint.org; Annebelle Klein, ACA, aklein@paint.org Virtual, in-person, or hybrid meeting requested: Hybrid Point of Contact for the Meeting: Heidi McAuliffe, hmcauliffe@paint.org, 2023291065
***Please email this form back to OAR_Invitations@epa.gov***
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Message
From: Sent: To: CC: Subject:
Lee Fuller [lfuller@ipaa.org] 4/4/2025 6:31:36 PM Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] Dan Naatz [dnaatz@ipaa.org]; Jeff Eshelman [jeshelman@ipaa.org] IPAA Board Meeting
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Abbie,
Following up on our conversation, I am requesting that you speak to the Independent Petroleum Association of America board meeting on Monday, April 7 at the Mayflower Hotel in Washington, DC. The meeting runs from 12:30 to 3:30 and we can accommodate you at whatever is convenient for you.
IPAA is a national trade association representing independent American oil and natural gas producers. The board is comprised of executives of these companies. The EPA air regulations, particularly subparts
oooob/c and subpart w, can significantly affect these operations.
Please let me know what additional information you need. I am copying Dan Naatz and Jeff Eshelman on this email. They can provide specific meeting information.
Thank you for your willingness to consider this invitation.
Lee Sent from my iPhone
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Message
From:
Sent: To: CC: Subject:
Tardif, Abigale (Abbie) [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =614765729C3C41C388C 1BA499F25F2ED-EBF081BF-E1] 3/11/2025 5:53:35 PM Stanko, Joseph [jstanko@hunton.com] Buchholz, Abbey [ABuchholz@hunton.com] RE: Meeting Request for the NAAQS Regulatory Review & Rulemaking Coalition
Joe-
Thanks for reaching out, I have sent your request to my scheduling team. They should reach out to you shorty.
Best, Abbie
n
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Stanko, Joseph <jstanko@hunton.com> Sent: Monday, March 10, 2025 3:09 PM To: tardif.abbie@epa.gov; Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Cc: Buchholz, Abbey <ABuchholz@hunton.com> Subject: Meeting Request for the NAAQS Regulatory Review & Rulemaking Coalition
I
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Abbie:
On behalf of the NAAQS Regulatory Review & Rulemaking Coalition (NR3), I would like to request a meeting with you and the appropriate OAQPS staff regarding ongoing implementation of the PM 2.5 NAAQS. The NR3 Coalition is an ad hoc association of industry groups and companies supportive of NAAQS implementation that provides protection consistent with the Clean Air Act, use technically accurate modeling and assumptions, and recognizes the role of states as EPA's co-regulators. Over the last decade, NR3 members have met regularly with EPA on implantation policy, both at the OAQPS staff and OAR AA level. We believe that EPA shares our joint goal of increasing the accuracy of modeling and other key implementation tools while ensuring continued air quality.
I appreciate your consideration of this request; from our side we value the discussions we have had over the years with EPA on these shared policy goals.
Please feel free to have your staff reach out to me or my assistant Abbey Buchholz (copied on this email) for any questions or scheduling information.
Sincerely, Joe
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Joseph Stanko Partner jstanko@hunton.c<im p 202.955.1529 bio vCard Linkedln Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037 Hunton.corn
This communication is confidential. If you are not an intended recipient, please advise by return email immediately and then delete this message, including all copies and backups.
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Message
From:
Sent: To: Subject:
Tardif, Abigale (Abbie) [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =614765729C3C41C388C 1BA499F25F2ED-EBF081BF-E1] 3/13/2025 12:43:54 PM Geoff Cooper [GCooper@ethanolrfa.org] RE: Thank you and statement
Geoff-
It was great meeting with you yesterday and it was a great opportunity to meet with members.
Thank you for sending your message on light-duty. Best, Abbie
n
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Geoff Cooper <GCooper@ethanolrfa.org> Sent: Wednesday, March 12, 2025 9:17 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: Thank you and statement
I
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Abby- thanks again for meeting with us today. Was great to see you and sorry ifthere was a disconnect on our end about attendees from RFA. That was our fault. In the meantime, we had a chance to look at all the good stuff epa released today and wanted to share this statement for your use on the tailpipe rule:
"The Renewable Fuels Association applauds the Trump administration and EPA for taking decisive action to roll back the overreaching light-duty tailpipe emissions rule. The original regulation effectively mandated a transition to electric vehicles while ignoring the proven emissions-reducing benefits of ethanol and other renewable fuels. By reconsidering, the EPA can restore fairness to its regulatory framework and recognize that low-cost liquid fuels like ethanol must be part of securing America's energy future. We look forward to working with the administration to protect consumer choice and boost domestic energy production."
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Message
From:
Sent: To: Subject:
Tardif, Abigale (Abbie) [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =614765729C3C41C388C 1BA499F25F2ED-EBF081BF-E1] 2/10/2025 11:48:41 PM Howey, Preston (Cruz) [Preston_Howey@cruz.senate.gov] RE: Phone call
Preston-
Sorry I am just now getting back to you. The past few days have been very busy. Let's plan to connect tomorrow afternoon.
Best, Abbie
From: Howey, Preston (Cruz) <Preston_Howey@cruz.senate.gov> Sent: Monday, February 10, 2025 2:32 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: RE: Phone call
I
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Hi Abby,
Following up on this note. DO you have time to chat today?
From: Howey, Preston (Cruz) Sent: Friday, February 7, 2025 10:31 AM To: 'Tardif.abigale@epa.gov' Subject: Phone call
Hi Abby,
Glad to see your at EPA. Do you have a second for a phone call?
Preston Howey Domestic Policy Advisor U.S. Senator Ted Cruz (R-TX)
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From:
Sent: To: Subject:
Tardif, Abigale (Abbie) [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDI BO HF 23SPDLT)/CN =RE Cl Pl ENTS/CN =614765729C3C41C388C 1BA499F25F2ED-EBF081BF-E1] 4/14/2025 4:47:54 PM Leopold, Matt [MLeopold@hunton.com]; Szabo, Aaron [Szabo.Aaron@epa.gov] RE: Meeting Request
Matt-
Thank you for flagging, I will connect with staff to make sure this gets scheduled.
Best, Abbie
n
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Leopold, Matt <MLeopold@hunton.com> Sent: Monday, April 14, 2025 12:44 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov>; Szabo, Aaron <Szabo.Aaron@epa.gov> Subject: RE: Meeting Request
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Hi Abbie,
Hope you're off to a good start this week. I wanted to check in on this request for the Waste-to-Energy Association. I've been emailing with the OAR scheduling but haven't yet received potential dates for a meeting. The client is eager to meet given the timing on this rule. Let me know if you need any additional information.
Best, Matt
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Monday, March 31, 2025 8:00 PM To: Leopold, Matt <MLeopold@hunton.com>; Szabo, Aaron <Szabo.Aaron@epa.gov> Subject: Re: Meeting Request
This llllessagels From An l:xtemal. Sender
H~nton Andrews Kurth warning:. This message came ftom outside the firm.
MattHappy to work with the scheduling team to see if we can make something work this week.
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Best, Abbie
Get Outlook for iOS
From: Leopold, Matt <MLeopold@hunton.com> Sent: Monday, March 31, 2025 6:09:12 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov>; Szabo, Aaron <Szabo.Aaron@epa.gov> Subject: Meeting Request
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Hello Aaron and Abbie,
I represent the Waste-to-Energy Association (WETA) with respect to the rule on Large Municipal Waste Combustors (LMWC): New Source Performance Standards (NSPS) and Emissions Guidelines. WETA would like to request a meeting at your earliest convenience to discuss the rule that EPA is preparing. As you may know, EPA is under a court order to complete the rulemaking later this year. If there happen to be any times later this week, WETA would make themselves available, but we will accommodate your schedule.
Best, Matt
Matthew Z. Leopold Partner mleopold@hunton.com p 202.419.2041 m 202.527.1371 bio vCard Linkedln
Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037
Hunton.corn
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Tardif, Abigale (Abbie) [Tardif.Abigale@epa.gov] 2/26/2025 11:20:12 PM Howey, Preston (Cruz) [Preston_Howey@cruz.senate.gov] Re: Phone call
Preston-
I just had a meeting pop on my calendar at that time, I'm currently taking the air nominee to an EPW meeting.
I'm available at 2:30 and 3:00pm tomorrow.
Best, Abbie
Get Outlook for iOS
From: Howey, Preston (Cruz) <Preston_Howey@cruz.senate.gov> Sent: Wednesday, February 26, 2025 5:50:57 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: Phone call When: Thursday, February 27, 2025 11:30 AM-12:00 PM. Where: Microsoft Teams Meeting
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Microsoft Teams Need help?
!____Join__the__meetinq__no~
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Dial in by phone
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From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Wednesday, February 26, 2025 3:41 PM To: Howey, Preston (Cruz) <Preston_Howey@cruz.senate.gov> Subject: Re: Phone call
Preston-
So sorry we keep missing each other. It has been a very busy week. Do you availability tomorrow at 11:30am or at 2:30pm?
Best, Abbie
Get Outlook for iOS
From: Howey, Preston (Cruz) <Preston Howe cruz.senate. av> Sent: Monday, February 24, 2025 1:13:24 PM To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: RE: Phone call
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Can we talk at 2:00?
From: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Sent: Friday, February 21, 2025 5:08 PM To: Howey, Preston (Cruz) <Preston Howey@cruz.senate.gov> Subject: RE: Phone call
Preston-
Sorry we keep missing each other, let's talk on Monday at 11am.
Best, Abbie
Abigale Tardif Principal Deputy Assistant Administrator Office of Air and Radiation U.S. Environmental Protection Agency Office: (202) 564-7017
From: Howey, Preston (Cruz) <_P_re_s_to_n_H_o_w_e~_c_r_uz_._se_n_a_t_e~.~o_v> Sent: Friday, February 21, 2025 1:38 AM
ED_018475O_00003661-00002
To: Tardif, Abigale (Abbie) <Tardif.Abigale@epa.gov> Subject: RE: Phone call
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Can you talk tomorrow? From: Howey, Preston (Cruz) Sent: Monday, February 10, 2025 2:32 PM To: 'Tardif.abigale@epa.gov' <Tardif.abigale@epa.gov> Subject: RE: Phone call Hi Abby, Following up on this note. DO you have time to chat today? From: Howey, Preston (Cruz) Sent: Friday, February 7, 2025 10:31 AM To: 'Tardif.abigale@epa.gov' <Tardif.abigale@epa.gov> Subject: Phone call Hi Abby, Glad to see your at EPA. Do you have a second for a phone call?
My 11 i ! . -------------1
ce j5 Ex. 6 Personal Privacy (PP) '------------------------.
Preston Howey Domestic Policy Advisor U.S. Senator Ted Cruz (R-TX)
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Alexandra Dunn [adunn@croplifeamerica.org] 2/9/2025 3:32:16 PM Voyles, Travis [voyles.travis@epa.gov] ubject:RE: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
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Thanks Travis, and to be perfectly candid, ifhe can't do it, we'd love to have you. But this is a really good one for him to address the pesticide industry on efficiency and getting registrations out. I can give you a total run down of what the group would like to hear.
We also asked for Mr. Zeldin at our Board Meeting which is with the CEOs nationally on March 19 from 9-930. Let me know if asking for two is too much. I think we should decide which audience is better for him vs. you.
l_______________________________Ex..6.Personal__Privacy (P_P)_______________________________:
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687
ropl_.if
1"AME":~llCA
From: Voyles, Travis <voyles.travis@epa.gov> Sent: Sunday, February 9, 2025 12:31 AM To: Alexandra Dunn <adunn@croplifeamerica.org> Subject: RE: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
I You don"t often get email from voyles.travis@epa.gov. Learn wh} this is important
Thanks for this Alex! I know they have added it to the list for consideration. Let me know ifl can helpful.
Travis Voyles Assistant Deputy Admnistrator Office of the Administrator U.S. Environmental Protection Agency
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C: (202) 787-0595
From: Alexandra Dunn <~Q.!!!lf1@croplifeamerica.org> Sent: Tuesday, February 4, 2025 4:13 PM To: Carpenter, Wesley <Carpenter.Wesley@_~P.9_,RQ_\{_>; Amidon, Eric <Amidon.Eric@eP.9_,fill_\l:> Subject: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
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Dear Mr. Amidon and Mr. Carpenter,
On behalf of CropLife America and RISE, the nation's associations for agricultural and specialty pesticides respectively, we are pleased to invite the Administrator to deliver the Keynote Address at our Winter Joint Boards Meeting in Arlington, VA at 9 am on March 19, 2025 at the Westin. More details are in the attached letter regarding this opportunity to address over 40 CEOs ofleading American companies. While we are certain that the Administrator is receiving many requests to speak at this time, we hope he is able to accept. As the letter notes, if he is not able to accommodate us, we would be happy to receive a surrogate from his office.
Please contact me if you have any questions about this invitation!
Regards,
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687
ropLif
*AMEf?.!CJ\
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essage
Michael Formica
[formicam@nppc.org]
2/4/2025 3:59:02 AM
Voyles, Travis
[voyles.travis@epa.gov]
ubject:
Meeting Request
ttachments:20241219 - EPA NAEMS
AP42 Models Request
Extension of Time to
File Comment (Ag
Coalition).pdf; 5.3.24
Barnyard ACA
Questions.pdf; RE:
OECA Responses
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mportance: High
Mr. Voyles
As discussed, I would like to request a meeting with Senior leadership at EPA to discuss a number of issues that are fast approaching regarding the nation's livestock farmers. Attendees would include representatives of the American Farm Bureau Federation, Dairy Industry, United Egg Producers, US Poultry and Egg Association, and US Pork Industry. The issues include:
1.
EPA' s pending Meat and Poultry Effluent Limitation Guidelines (ELG) in the Office of Water which are due to
be finalized in August. https://www.cpa.gQyfcg/mcat-and-poultry--r roducb-cffl ucnt-gu idclincs-2024-proposcd-ru le
As proposed by the Biden Administration, this rule carries a cost of over $1.16 billion a year, will lead to over 75, mostly small and medium sized, processing plants having to shut down according to EPA's own data, and result in the loss of hundreds of thousands ofjobs throughout the supply chain. It would also eliminate markets for many livestock farmers, risking localized farm crisis.
2.
The status of the National Air Emissions Monitoring Study, and in particular the work of the agency on
development oflong overdue emission estimating methodologies. https://www.cpa. ,ov/afos-air/national-air-cmissions-
monitorin ',-study#nacms-~1udy
There is currently a comment period open on the latest draft ofEPA's models. I requested an extension of the comment period in December, which was partly granted a couple of days prior to President Trump's inauguration. As laid out in the attached extension request letter, there are a number of issues that will be triggered by this process which we believe EPA needs to be more engaged on.
3.
The CAPO Rule ELG, the ongoing work of the Animal Ag Water Quality subcommittee that is operating under
the Farm Ranch and Rual Communities FACA Committee, and nutrient issues associated with CAFOs in general.
4.
PFAS and its impact on agriculture.
Thank you and I look forward to discussing these with you and your team.
Michael Formica Chief Legal Strategist 122 C Street, NW Suite 875
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Washington, DC 20001 M: 202.680.3820
National Pork Producers -... CouncilT..
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This message contains confidential information belonging to The National Pork Producers Council and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by email if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses and The National Pork Producers Council does not accept liability for any errors or omissions in the contents of this message which arise as a result of e-mail transmission. If verification is required please request a hard-copy from: The National Pork Producers Council, 10676 Justin Dr., Urbandale, IA 50322. Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of The National Pork Producers Council.
From: Michael Formica Sent: Friday, December 20, 2024 1:12 PM To: Regan.Michael@epa.gov; NAEMS@epa.gov; enobakhare.rosemary@epa.gov; Cope.Grant@epa.gov; Utech.Dan@epa.gov Cc: Lauren Lurkins <lauren@lurkinsstrategies.com>; Paul Bredwell (pbredwell@uspoultry.org) <pbredwell@uspoultry.org>; Christian Richter (crichter@thepolicygroup.com) <crichter@thepolicygroup.com>; cdetlefsen@nmpf.org; Tom Hebert <tom.hebert@bayardridge.com>; dschilling@fb.org; rjlayher@fb.org; Courntey Briggs <courtneyb@fb.org>; chaduep@unitedegg.com Subject: Extension of Time Request: Livestock AP42 Air Emissions Estimating Methodologies Importance: High
Administrator Reagan and NAEMS Research Group
On behalf of the National Pork Producers Council, National Milk Producers Federation, US Poultry and Egg Association and the United Egg Producers, please find the attached letter requesting a 180 day extension of time to comment on the draft AP-42 Air Emissions Estimating Methods for Animal Feeding Operations. In addition to this request for time, we are also asking that EPA's Office of General Counsel provide adequate responses to the multiple questions we've raised concerning implementation of the these EEMs, the legal obligations that will arise for signatories under the air consent agreements, and the agencies plan to communicate with the individual farmers who may unknowingly face a series of rapid legal obligations under the air consent agreements.
If you have any questions, please do not hesitate to contact me.
Hope you and your families all have a safe and happy Holidays.
Thank you
Michael Formica Chief Legal Strategist 122 C Street, NW Suite 875 Washington, DC 20001 M: 202.680.3820
ED_018475O_00003700-00002
National Pork Producers -... CouncilT..
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This message contains confidential information belonging to The National Pork Producers Council and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by email if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses and The National Pork Producers Council does not accept liability for any errors or omissions in the contents of this message which arise as a result of e-mail transmission. If verification is required please request a hard-copy from: The National Pork Producers Council, 10676 Justin Dr., Urbandale, IA 50322. Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of The National Pork Producers Council.
ED_018475O_00003700-00003
December 20, 2024
The Honorable Michael S. Regan Administrator United States Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460
National Air Emissions Monitoring Study Group Office ofAir Quality Planning and Standards United States Environmental Protection Agency 109 T.W. Alexander Drive Research Triangle Park, NC 27709
Dear Administrator Reagan and NAEMS Research Group:
On behalf of the undersigned organizations representing swine, dairy, poultry and egg producers across the United States, and the several thousand signatories to the Air Consent Agreements, we are writing to request a 180-day extension of time, until at least August 15, 2025, to provide meaningful comment on the draft AP-42, Chapter 9, Section 4 and Air Emissions Estimating Methods for Animal Feed Operations ("EEMs"), which were released for public comment by the United States Environmental Protection Agency ("EPA") on November 14, 2024.
The additional time is necessary for livestock and poultry producers to study, function test and understand the newly revised modeling that EPA recently released. Following the initial release of earlier draft models in 2021, it took participants in the Air Consent Agreements nearly 2 and years to test and understand the operation of the models, to identify multiple critical failure points in the operations of those models, and to draft research papers explaining these concerns.
With EPA's recent release of these newly updated models, EPA staff have indicated a number of changes were made to the models necessitating new testing and study on the part of the industry. Unfortunately, those changes are not immediately evident in the newly released documents. In addition to the extension of time, we request that EPA staff work with industry researchers to understand the precise changes made in order to help expedite further review and development of meaningful comments and input to the Agency.
Further, it is our understanding that when completed, in addition to the EEMs, that EPA intends to also release a farmer-facing emissions estimating webtool that will rely on the models for the information it generates. We request that EPA provide access to that webtool and the ability to fully "beta test" it in order to understand its capabilities, operation and accuracy. That testing, and the opportunity to provide comment on it, should be allowed to happen during the comment period of the draft EEMs.
1
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Finally, as we look to evaluate the models, we are disappointed in the failure of the EPA's Office of Enforcement and Compliance Assurance ("OECA") to adequately respond to the multiple concerns we have raised regarding the legal obligations livestock farmers will face once the EEMs are finalized. In light of the significant, nearly 20-year passage of time since those agreements were signed, fundamental notions of due process demand that the process not be completed until there is a clear understanding of the obligations farmers will face.
On April 8, 2024, representatives of the undersigned organizations met with EPA staff, including a staff member from OECA. At that meeting, the parties discussed the numerous questions that livestock farmers have raised regarding EPA's plans to finalize and implement the EEMs, as well as how EPA intends to provide notice to the farmers and other parties who will face rapid deadlines for action under the nearly 20-year old Air Consent Agreements. EPA staff were not prepared to answer the questions of the signatory representatives during the meeting, and instead, asked that the signatory representatives follow up with questions in writing. The signatory representatives did as requested and provided the communication to EPA (attached) on May 3, 2024. That communication raised over 30 different questions covering the logistics of EPA's rollout process, EPA's outreach plans to signatories, and the substance of the Air Consent Agreements and the obligations under them.
While waiting for a response from OECA, representatives from the pork industry, including a number of farmers, followed up and met in person with EPA Headquarters staff on September 10, 2024, to raise the same concerns again. At that meeting, the pork producers made clear that a response from OECA to the posed questions was integral to informing responses to the draft EEMs. On September 24, 2024, a response to those questions finally arrived, but it was completely inadequate, and does not, on its face, appear to have been the product of either OECA or the EPA's General Counsel's Office, and simply cannot be relied upon in any manner.
Finally, last week the National Pork Producers Council Environmental Policy Committee, made up of pork producers, technical experts and research scientists, met in Research Triangle Park with representatives of the NAEMS Research Group in EPA's Office ofAir Quality Planning Standards ("OAQP"). In a discussion regarding the EEM's and timing, OAQPs made clear that many of the questions would need to be answered by OECA.
We strongly urge EPA to respond to the 30 questions raised in our May 3, 2024 communication prior to the close of the comment period so that we can understand EPA's position with regard to those questions and provide comments on them as well.
We request this reasonable extension of time to allow for a better understanding of the science and the long-delayed models that EPA will rely on, and to understand both the plans for EPA's implementation and release of these models, as well as the significant legal liability their final publication will trigger. While livestock farmers remain eager for this process to conclude, a slight additional delay to ensure the modeling and science does not suffer from serious defects is essential to seeing the process through to completion.
2
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We thank you for your time and consideration. As long partners in this process, we truly value the hard and difficult work that EPA staff are undertaking on this project and look forward to continuing to work constructively and cooperatively with the Agency and its staff. If you have any questions, please do not hesitate to contact Michael Formica, National Pork Producers Council, at 202-347-3600 or by email at formicam@nppc.org. Sincerely, American Farm Bureau Federation National Milk Producers Federation National Pork Producers Council United Egg Producers U.S. Poultry & Egg Association cc: Rosemary Enobakhare, cnobakharc.roscmary(ci(cQa.gov
Grant Cope, Copc.Grant(w,92.~.,gQY. Dan Utech, Utcch.Dan@f.Q~_,gQY.
3
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Outlook
Barnyard ACA Questions
From Lauren Lurkins <lauren@lurkinsstrategies.com> Date Fri 5/3/2024 12:13 PM To Fried, Gregory (he/him/his) <fried.gregory@epa.gov>; Schrock, Bill <Schrock.Bill@epa.gov>; Do, Bebhinn (she/her/hers) <do.bebhinn@epa.gov>;
Rodney Snyder <Snyder.Rodney@epa.gov>; Venus Welch-White <WelchWhite.Venus@epa.gov> Cc Tom Hebert <tom.hebert@bayardridge.com>
EPA friends,
On behalf of the "barnyard" group, thank you for meeting with us a few weeks back regarding the Air Consent Agreement. following are some questions we have at this moment. We look forward to working with you on this issue. Thank you, Lauren Lurkins
As promised, the
o Logistics
After almost 20 years, some producers may not be able to locate their ACAs. Is there a process where they could, independently or through a representative, get a copy of the agreement in EPA's file?
How will EPA verify the identify of those asking for the information?
How will EPA protect confidential business information?
How will EPA handle the ACAs with agreements covering several facilities?
How will EPA handle the various changes of ownership and management of contract facilities throughout the past 17 years?
What if the original respondent no longer owns the farm/emission unit that was included in Attachment A?
Can EPA notify all ACA holders prior to the issuance of final emission factors that, once those final factors are issued,
the ACA holders are relived of their obligation to notify EPA in writing that using the factors, their facilities do not
trigger CAA, CERCLA or EPCRA permitting or reporting requirements?
j
For facilities that do determine CAA requirements are triggered, what can the agency do to allow flexibility on the 120day deadlines?
How will EPA notify respondents if EPA determines that it cannot develop EEM for any emission units? They need to ID (individually or by category) emission units, sources or facilities for which EEM cannot be developed. Is there a way to do this by US Mail in a way that can be streamlined?
o Outreach
Can guidance be provided at the point of EEM proposal and finalization with regard to the ties to the ACA and the deadlines therein?
What guidance has been, or will be given, to state and local air permitting authorities about this? What about Regional EPA offices?
o Substance
We note that the ACA defines the term "permitting authority" to mean "the local, State or Federal government entity with jurisdiction to require compliance with the permitting requirements of the Clean Air Act." Just to confirm, in those states where the state agency is responsible for CAA implementation and permitting, an ACA holder looking to understand their CAA permitting obligations in light of their estimated emissions should look to that state authority and their implementing measures to determine if the ACA holder has a permitting obligation in that state, correct?
What are the permitting requirements? The ACA language contemplates both construction and operating permits.
For operating permits, what is the "federally enforceable limit or conditions that limits PTE"?
For construction permits, what is Best Achievable Control Technology (BACT) or Lowest Achievable Emissions Reduction (LAER)?
What if modifications were made to facilities in the past two decades?
What if those changes involved a new animal housing and manure/air management system? What if no emissions factors corresponding to that new system were developed by EPA?
What if the system largely stayed the same, but increased emissions?
What if the system largely stayed the same, but decreased emissions?
What if the facility was torn down and an entirely new facility was constructed at the location?
ED_018475O_00003702-00002
What if facilities changed ownership?
What if the facility is no longer in operation?
What if the emission units have changed?
Annual emissions from source are to be determined on respondent's "current operating methods" and based on max number of animals housed at source at any time over the 24 months prior to EPA's publication of applicable EEM. What is the Agency's guidance to facilities on this calculation?
At this time, there are no reporting obligations for air emissions from animal waste at farms under either CERCLA or EPCRA. If, however, EPA promulgates a EPCRA reporting requirement, would the new deadline to report under EPCRA (in paragraph 28(C)(ii)) be 120 days from the effective date of a new EPCRA rule or some other date?
When is an EEM "published" for purposes of triggering the deadlines in paragraph 28? When a final EEM is posted on EPA's website? When a notice of a final EEM is published in the Federal Register?
What would EPA's intention be to "publish methodologies on rolling basis as soon as developed"?
EPA noted (70 FR at 4959) that an important issue under the CAA is whether emissions from different areas at AFOs should be treated as fugitive or nonfugitive. EPA says it plans to issue regulations or guidance on this issue after the conclusion of the monitoring study. Is there a current guidance doc or regulation setting forth EPA's interpretation? If not, does EPA intend to define "fugitive emissions" differently than it has previously under the NSR program?
The ACA does not define the scope of the term "source" as it relates to animal agriculture and farm activities, though EPA said (70 FR at 4959} that it would provide guidance on this issue at the conclusion of the monitoring study. Are there existing guidance documents or applicability determinations that EPA plans to rely on in further defining/interpreting the term "source"? Or does EPA intend to issue new guidance in conjunction with finalizing EEMs?
What can ag trade associations to help?
o Most of the trade associations have lists of the initial parties that signed the ACA. We could cross-reference those lists with the EAB information and EPA's list to make sure our lists are complete.
o We could communicate with our respective trade associations of the existence of that list (given turnover, etc), the fact that it has been validated by EPA, and then help with next steps.
o We could continue to work with EPA to develop processes for growers to access their file.
o We could continue to work with EPA to develop processes to batch scenarios for farms - those who are no longer covered by the agreement, those who do not have EEMs that cover their operations, those who do not trigger requirements when the EEMs are run, those who do trigger requirements when EEMs are run.
o Continue to communicate questions from producers to EPA. o Continue to help communicate the process to our producers. Lauren lurkins Lurkins Strategies, LLC 1905 Redbud Lane Bloomington, Illinois 61704 (309) 530-0398 lauren@lurkinsstrategies.com
ED_018475O_00003702-00004
Message
From: Sent: To: CC: Subject: Attachments:
Welch-White, Venus [WelchWhite.Venus@epa.gov] 9/24/2024 6:41:46 PM Michael Formica [formicam@nppc.org]; Afanador Beltran, Felipe [AfanadorBeltran.Felipe@epa.gov] Lauren Lurkins (lauren@lurkinsstrategies.com) [lauren@lurkinsstrategies.com] RE: OECA Responses image001.jpg; BarnyardCo_questions_finalDraft_9.24.24.docx
Hi Michael,
Thanks so much for your email. I needed to confirm some information so I appreciate your patience. Please see the attached and let me know if there is anything additional needed at this time.
Kindest Regards,
Venus
Venus Welch-White, Ph.D. Director (Acting) Office of Agriculture and Rural Affairs Office of the Administrator Environmental Protection Agency 703-328-9865
From: Michael Formica <formicam@nppc.org> Sent: Tuesday, September 24, 2024 1:27 PM To: Welch-White, Venus <WelchWhite.Venus@epa.gov>; Afanador Beltran, Felipe <AfanadorBeltran.Felipe@epa.gov> Subject: OECA Responses
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EPA,
please
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deciding
whether
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Venus, Felipe
Hope you are doing well on what seems like the first fallish kind of day of the year. Wanted to follow up and see if you had the responses from OECA to the questions we had submitted regarding how to engage with the signaoties of the air consent agreements and their obligations under those agreements once final air emissions estimating factors are published. When we met a couple of weeks ago, you indicated that you had responses back and would be able to share them.
We have a meeting of our environmental committee this week and was hoping to be able to share those responses and begin to understand them and get a head start on working on how the EEMs will be implemented when finally released.
Thanks!
Chief Legal Strategist 122 C Street, NW Suite 875
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Washington, DC 20001 M: 202.680.3820
National Pork Producers -... CouncilT..
Connect with us!
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Consent Decree
Questions and Answers
Logistics
After almost 20 years, some producers may not be able to locate their ACAs. Is there a process where they could, independently or through a representative, get a copy of the agreement in EPA's file? o Setup email box.
How will EPA verify the identify of those asking for the information? o EPA will only mail agreements to the address included in signup and only for those participants that request the information.
How will EPA protect confidential business information? o Full agreements (including CBI) will be mailed only to the address/entity that signed up, per request.
How will EPA handle the ACAs with agreements covering several facilities? o If the entity signed up multiple facilities it will receive (if requested) all Attachment A's included in the signup.
How will EPA handle the various changes of ownership and management of contract facilities throughout the past 17 years? o EPA can set up an email inbox to respond to inquiries regarding change of ownership issues, keeping in mind that volume and CBI concerns may limit our ability to respond to provide adequate and timely responses.
What if the original respondent no longer owns the farm/emission unit that was included in Attachment A? o Similar to our response above, OECA can set up an email inbox to address individual requests relating to changes in ownership.
Can EPA notify all ACA holders prior to the issuance of final emission factors that, once those final factors are issued, the ACA holders are relived of their obligation to notify EPA in writing that using the factors, their facilities do not trigger CAA, CERCLA or EPCRA permitting or reporting requirements? o We need to look into the feasibility of sending out paper mailings given the volume of participants. We would also consult with OAR to determine if there are email addresses associated the farms that we could send electronic notifications.
For facilities that do determine CAA requirements are triggered, what can the agency do to allow flexibility on the 120-day deadlines? o The ability to provide flexibility, if at all, will be determined on a case-bycase basis.
How will EPA notify respondents if EPA determines that it cannot develop EEM for any emission units? They need to ID (individually or by category) emission units, sources, or facilities for which EEM cannot be developed. Is there a way to do this by US Mail in a way that can be streamlined?
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o As part of the final EEM issuance, EPA will make any determinations that they could not develop an EEM for a particular source.
Outreach
Can guidance be provided at the point of EEM proposal and finalization with regard to the ties to the ACA and the deadlines therein? o Yes.
What guidance has been, or will be given, to state and local air permitting authorities about this? What about Regional EPA offices? o Guidance will be given to state/locals on the Agreement requirements.
Substance
We note that the ACA defines the term "permitting authority" to mean "the local, State or Federal government entity with jurisdiction to require compliance with the permitting requirements of the Clean Air Act." Just to confirm, in those states where the state agency is responsible for CAA implementation and permitting, an ACA holder looking to understand their CAA permitting obligations in light of their estimated emissions should look to that state authority and their implementing measures to determine if the ACA holder has a permitting obligation in that state, correct? o Correct. If the permitting authority has questions they will follow up with EPA Regions/Headquarters.
What are the permitting requirements? The ACA language contemplates both construction and operating permits. o Potentially both. ACA holders are required to submit all required Clean Air Act permit applications within 120 days after EPA has published the applicable EEMs. This potentially includes both construction and operating permit applications.
For operating permits, what is the "federally enforceable limit or conditions that limits PTE"? It varies by area of the country (attainment status) and pollutant. o A facility's permitting authority will be able to confirm this information but generally it is 100 tpy of an air pollutant, e.g., particulate matter, including precursors, and volatile organic compounds. Lower thresholds apply in certain nonattainment areas.
For construction permits, what is Best Achievable Control Technology (BACT) or Lowest Achievable Emissions Reduction (LAER)? o BACT and LAER are a case-by-case decision made by state or local permitting authorities.
What if modifications were made to facilities in the past two decades? o A facility's permit status must be determined based on its current configuration and not simply the units signed up for the ACA.
What if those changes involved a new animal housing and manure/air management system? What if no emissions factors corresponding to that new system were developed by EPA? o Similar to the previous answer, a facility's permit requirements must be based on all units at the facility, if new emission units were added that were
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not covered by the original ACA the facility must make their best effort to estimate emissions. What if the system largely stayed the same, but increased emissions? o Increased their emissions from what? Need more info to answer. What if the system largely stayed the same, but decreased emissions? o Decreased their emissions from what? Need more info to answer. What if the facility was tom down and an entirely new facility was constructed at the location? o EPA would consider the facts of each particular case to evaluate whether the new source requirements apply. What if facilities changed ownership? o EPA would consider ownership changes on a case-by-case basis. What if the facility is no longer in operation? o Again, we would consider this on a case-by-case basis and would need additional information as to whether the facility was permanently shut down. What if the emission units have changed? o An answer cannot be provided without specific information. As stated above, a facility is required to include all emission units in a permit determination regardless of whether those units were included in the ACA Attachment A. Annual emissions from source are to be determined on respondent's "current operating methods" and based on max number of animals housed at source at any time over the 24 months prior to EPA's publication of applicable EEM. What is the Agency's guidance to facilities on this calculation? o This doesn't seem unclear-maybe the question could be re-worded. At this time, there are no reporting obligations for air emissions from animal waste at farms under either CERCLA or EPCRA. If, however, EPA promulgates a EPCRA reporting requirement, would the new deadline to report under EPCRA (in paragraph 28(C)(ii)) be 120 days from the effective date of a new EPCRA rule or some other date? o This would depend on the timing of the EPCRA rulemaking. If the effective date for the EPCRA rulemaking is before the final EEMs are published, then I believe the 120 days after the final EEMs are published or when the EPCRA rulemaking requires-whichever is later. If the EPCRA rulemaking is effective after the EEMs are finalized, then the reporting timeline would be whatever is required in the EPCRA rulemaking. When is an EEM "published" for purposes of triggering the deadlines in paragraph 28? When a final EEM is posted on EPA's website? When a notice of a final EEM is published in the Federal Register? o The Agency has not determined if the final published deadline will be a Federal Register notice or just a webpage update. Either way, Agency outreach will attempt to ensure all parties are aware of the final issuance. What would EPA's intention be to "publish methodologies on rolling basis as soon as developed"? o When the Agency crafted the ACA, it was envisioned that the EEMs would possibly be rolled out as they were completed. As the EEM development has progressed only the draft EEMs have been published on a rolling basis. It is now expected that all the EEMs will be finalized at the same time.
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EPA noted (70 FR at 4959) that an important issue under the CAA is whether emissions from different areas at AFOs should be treated as fugitive or nonfugitive. EPA says it plans to issue regulations or guidance on this issue after the conclusion of the monitoring study. Is there a current guidance doc or regulation setting forth EPA's interpretation? If not, does EPA intend to define "fugitive emissions" differently than it has previously under the NSR program? o The Agency is developing a guidance document to help answer these types of questions. We are not planning on changing our regulatory framework for deciding whether emissions are fugitive or non-fugitive. The guidance will simply illustrate how this existing framework could apply to different types of ag operations.
The ACA does not define the scope of the term "source" as it relates to animal agriculture and farm activities, though EPA said (70 FR at 4959) that it would provide guidance on this issue at the conclusion of the monitoring study. Are there existing guidance documents or applicability determinations that EPA plans to rely on in further defining/interpreting the term "source"? Or does EPA intend to issue new guidance in conjunction with finalizing EEMs? o This information is part of the guidance document referred to in the previous question. We are not planning on changing our regulatory framework for source definition. The guidance will simply illustrate how this existing framework could apply to different types of ag operations.
What can ag trade associations to help?
Most of the trade associations have lists of the initial parties that signed the ACA. We could cross-reference those lists with the EAB information and EPA's list to make sure our lists are complete. o The EAB list is public but doesn't include number of facilities signed up so not sure of exactly how helpful this would be.
We could communicate with our respective trade associations of the existence of that list (given turnover, etc), the fact that it has been validated by EPA, and then help with next steps. o The EAB list is public so if they want to communicate this info that is OK by EPA.
We could continue to work with EPA to develop processes for growers to access their file. o Yes.
We could continue to work with EPA to develop processes to batch scenarios for farms - those who are no longer covered by the agreement, those who do not have EEMs that cover their operations, those who do not trigger requirements when the EEMs are run, those who do trigger requirements when EEMs are run. o Unclear what is meant by batch scenarios.
Continue to communicate questions from producers to EPA. o Yes.
Continue to help communicate the process to our producers. o Yes.
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essage
Alexandra Dunn [adunn@croplifeamerica.org] 2/14/2025 7:13:22 PM Voyles, Travis [voyles.travis@epa.gov] ubject:Re: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Travis, just an update, we have sent our form in with all the details about this event. I think this is very much worth his time and I look forward to talking with his scheduler. I'll let you know if we have any issues. Hope you're doing great over there! Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone: 202-872-3850 Cell: 703-848-5687 Email: adunn(a:poplifcamcrica.org Sent from my iPhone
On Feb 9, 2025, at 12:30 AM, Voyles, Travis <voyles.travis@epa.gov> wrote:
You don't often get email from voyles.travis@epa.gov. Learn why this is important
Thanks for this Alex! I know they have added it to the list for consideration. Let me know ifl can helpful.
Travis Voyles Assistant Deputy Admnistrator Office of the Administrator U.S. Environmental Protection Agency C: (202) 787-0595
From: Alexandra Dunn <~Q.!!!lfl@croplifeamerica.org> Sent: Tuesday, February 4, 2025 4:13 PM To: Carpenter, Wesley <Carpenter.Wesley@.epa.gov>; Amidon, Eric <Amidon.Eric@epa.gov>
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Subject: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
I
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Dear Mr. Amidon and Mr. Carpenter,
On behalf of CropLife America and RISE, the nation's associations for agricultural and specialty pesticides respectively, we are pleased to invite the Administrator to deliver the Keynote Address at our Winter Joint Boards Meeting in Arlington, VA at 9 am on March 19, 2025 at the Westin. More details are in the attached letter regarding this opportunity to address over 40 CEOs ofleading American companies. While we are certain that the Administrator is receiving many requests to speak at this time, we hope he is able to accept. As the letter notes, if he is not able to accommodate us, we would be happy to receive a surrogate from his office.
Please contact me if you have any questions about this invitation!
Regards,
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687 Email: ===c."--"-"...;:..i;c.c:.=..:.=:..:.=.c..c:..:--'-"'-~
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essage
Alexandra Dunn [adunn@croplifeamerica.org] 2/20/2025 7:02:10 PM Voyles, Travis [voyles.travis@epa.gov] FW: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025 ttachments:2025 EPA Event Information Form .pdf
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Travis, Here is everything for the speaking engagement that we sent to Administrator Zeldin. Per my text, I hope you can come in his stead, March 19 at 9 am to 930.
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687
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From: ZeldinScheduling <ZcldinSchcduling(c~9.Q<!,.8QY> Date: February 5, 2025 at 10:46:24 AM EST To: Alexandra Dunn <adunnca:croplifcamcrica.org> Subject: FW: Invitation to Administrator Zeldin to Deliver Keynote Address at CropLife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
You don't often get email from zcldinschcduling(!.<::fll!,_gQ}'.- Learn whv this is important
Hello Alexandra,
Please complete the attachment. Thank you.
Ashley
From: Alexandra Dunn <adunn@croplifeamerica.org> Sent: Tuesday, February 4, 2025 4:13 PM
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To: Carpenter, Wesley <Carpenter.Wesley@_~Q.9_,RQ.\I>; Amidon, Eric <Amidon.Eric@eQ.9_,fill_\l:> Subject: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
I
Caution: This email originated whether to open attachments or
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outside EPA, please on provided links.
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Dear Mr. Amidon and Mr. Carpenter,
On behalf of CropLife America and RISE, the nation's associations for agricultural and specialty pesticides respectively, we are pleased to invite the Administrator to deliver the Keynote Address at our Winter Joint Boards Meeting in Arlington, VA at 9 am on March 19, 2025 at the Westin. More details are in the attached letter regarding this opportunity to address over 40 CEOs ofleading American companies. While we are certain that the Administrator is receiving many requests to speak at this time, we hope he is able to accept. As the letter notes, if he is not able to accommodate us, we would be happy to receive a surrogate from his office.
Please contact me if you have any questions about this invitation!
Regards,
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687 Email: adunn cvcro lifcamcrica.or,
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EPA ADMINISTRATOR EVENT INFORMATION FORM
This form assists in planning participation in events and activities. Please be complete to minimize need for follow up. This is not a confirmation of attendance.
Basic Background Event official title: Event host(s)/organizer(s): Event date (flexible?): Time, duration, and time zone of event: Deadline for acceptance:
Will you accept a surrogate?
Event location and physical address: Type of event:
Host(s) relationship to the EPA?
Event sponsor(s):
Winter Joint Boards Meeting
CropLife America and RISE (Responsible Industry for a Sound Environment) Wednesday, March 19, 2025 - notflexible
Meet in lobby at 8:45am EDT - holding room available. Speakinf!. eventfrom 9:00am throuf!.h 9:30am EDT March 5
Yes, ifAdministrator Zeldin is unable to accept our invitation, we would be very open to a senior surrogate from the Administrator's Office in consultation with our CLA CEO, Alexandra Dunn, who served as an EPA Regional Administrator and as an EPA Senate confirmed position during the first Trump Administration. Westin Arlington, 801 North Glebe Road; Arlington, VA 22203. Winter Board Meeting/Conference
CropLife America is the national trade association that represents the manufacturers, formulators, and distributors ofagricultural pesticides. RISE is the national trade association that represents manufacturers, formulators, and distributors ofspecialty pesticides and fertilizers. There are no monetary sponsors for this event.
Event Description and Role of the EPA Official
Purpose of event: Brochure/website/invitation/ and/or other event materials: Run of show/agenda:
Timing for EPA official's role:
Annual Winter Meeting oftop US CEOs and senior leaders of pesticide companies (agricultural and non-agricultural) to discuss current events and set priorities for the year as well as to observe National Ag Day on Capitol Hill. https://claandrise.swoogo.com/2025Winterboards/begin
See attached itinerary. We will coordinate with hotel security and the Administrator's security detail as directed. For Administrator Zeldin, arrive at the hotel at 8:45am EDT and Ms. Dunn will greet you and bring you to a holding room until our meeting begins. The Administrator speaks at 9: 00am. 8:45am EDT arrival
Role of the EPA official at the event:
Keynote Speaker
Requested presentation topic (if speaking):
Our members would welcome your insights as the new EPA Administrator on policy and priorities for the Agency and your plans for interacting with the U.S. Department ofAgriculture and increasing the timeliness and predictability ofpesticide registrations by regulators in the EPA Office ofPesticide
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ED_018475O_00003768-00001
EPA ADMINISTRATOR EVENT INFORMATION FORM
This form assists in planning participation in events and activities. Please be complete to minimize need for follow up. This is not a confirmation of attendance.
Requested presentation format: Name and title of person introducing EPA official: Audience make up?
Event held weekly, monthly, annually?
Programs (OPP). We look forward to beginning a productive working relationship with Administrator Zeldin and also learning about the deregulatory agenda, Agency restructuring and staffing, and technology innovations on the horizon to improve productivity ofthe Agency. Your remarks will be followed by a panel ofleaders from OPP andfrom the Office ofA7.riculture and Rural Affairs. Keynote followed by Q&A ifdesired by the Administrator. Discussion moderated by Darren Dillenbeck, FMC, CropLife America Chairman, and Neil Cleveland, PEI Gordon, RISE Governin7. Board Chair. Darren Dillenbeck, Board Chairman, CropLife America (FMC Corporation -- Vice President and President ofNorth America)
About 100 are expected in attendance, including CLA and RISE Board members and senior leaders, staff, and industry association CEOs by invitation only, and approximately five large scale US zrowerslfarmers who serve on CLA 's Grower Advisory Panel. Annual Winter Meeting
Event Preparation Other EPA speakers?
Does EPA need to submit materials prior to event? Expected prep and timing for prep calls or meetings: Registration fee charged? How much? Describe entity hosting EPA official:
EPA personnel, depending on availability and subject to continuing resolution: Venus Welch-White, Acting Director of EPA 's Office ofAgriculture and Rural Affairs; Ed Messina, Director ofEPA 's Office ofPesticide Programs; and OPP Office Directors. We annually meet with the OPP Office Directors due to the high volume ofpesticide registrations our member companies submit to this office. Photo and short bio
A 20-minute prep call will be scheduled with the Administrator's designee.
$500 for CLA members to cover partial meeting costs. $0 for RISE members. $0 for invited guests.
50J(c)(6)
Is the entity also a Federally Registered Yes Lobbyist?
Are you giving a gift, award or anything No else of value? Amount?
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EPA ADMINISTRATOR EVENT INFORMATION FORM
This form assists in planning participation in events and activities. Please be complete to minimize need for follow up. This is not a confirmation of attendance.
Are you providing a meal? Amount?
At the Event and Other Event Logistics
Is there a private holding room available Yes for the Administrator?
Open press/closed press?
Closed
Will you be issuing a press release?
Person to contact for media purposes:
Dress code:
Room setup:
Notable/honorable guests attending (including elected officials): Are you recording the event? Website URL for recording (if event is recorded and posted): Security contact:
Directions to event (include relevant information about parking, the specific building, best entrance to use)
Where to meet contact:
No press release. We will summarize our meeting in our Friday newsletter which is emailed to our members and allies. Rebecca Meredith, rmeredith@croplifeamerica.org, Communications Manager, (908) 892-0711 Business attire
We have the traditional stage set up with chairs for the panel discussions, podium for any remarks, screens for presentations and lavalier mies. NIA
We are not recording the event.
Name & Title; Email; Office Number, Cell Number We will provide this information after the hotel confirms its security detail.
Follow I-66 W to VA-120 SIN Glebe Rd in Arlington. Take exit 71 from I-66 W. Continue on VA-120 S. Drive to N Glebe Rd. Turn left onto Fairfax Dr., take a quick right, then another quick right onto N Glebe Rd. Hotel is on the right. Information on parking, best entrance, and the specific building will be confirmed after we receive security details from the hotel. After we receive the security information from the hotel, we will confirm the exact entrance and meeting spot at 8:45am. Alex Dunn will greet you and take you to our conference meeting room.
Contact Information Your name and position: Phone (best & alternate): Email address:
Lisa Bockelman for logistics, Executive Assistant to Alex Dunn Alexandra Dunn or on-site event, CLA President and CEO Lisa Bockelman for logistics, 571-531-8663 cell phone, 202-872-3849 office phone lbockelman@croplifeamerica.org
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ED_0 184 75D_ 00003 768-00003
EPA ADMINISTRATOR EVENT INFORMATION FORM
This form assists in planning participation in events and activities. Please be complete to minimize need for follow up. This is not a confirmation of attendance.
Mailing address:
Are you the point-of-contact at the event? If not, contact details:
CropLife America, 4201 Wilson Boulevard, Suite 700, Arlington, VA 22203 Alexandra Dunn for on-site event, 703-848-5687 cell phone adunn a,cro li eamerica.or
Please return this completedform to zeldinscheduling@epa.gov, and copy brown.ashley@epa.gov
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ED_0 184 75D_ 00003 768-00004
Cropl.ife
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Winter Boards Meeting Croplife America and RISE
March 18 - 19, 2025
Westin Arlington 801 North Glebe Road
Arlington, VA 22203
CLA/RISE Offices 4201 Wilson Blvd, Suite 700
Arlington, VA 22203
Unless Otherwise Noted, All Events are Open to All Registered Attendees Draft -Some Details Subject to Change; Start and End Times Firm
Wednesday, March 19, 2025 7:30 AM - 9:00 AM Breakfast Available Location: Westin Arlington 8:00 AM - 8:45 AM Briefing for registered attendees by CLA and RISE Staff. Location: Westin Arlington
9:00 AM - 10:00 AM Dialogue with EPA Office of Chemical Safety and Pollution Prevention (OCSPP) / Transition Team Members moderated by Darren Dillenbeck, FMC, Croplife America Chairman and Neil Cleveland, PBI Gordon, RISE Governing Board Chair Location: Westin Arlington
BREAK
10:10 AM -11:45 AM Dialogue with EPA Office of Pesticide Programs (OPP) moderated by Alexandra Dunn, Croplife America President and CEO and Megan Provost, RISE President Location: Westin Arlington
ED_0 18475D_ 00003 768-00005
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February 4, 2025
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The Honorable Lee M. Zeldin Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20004
Dear Administrator Zeldin:
Congratulations on your confirmation as EPA Administrator! Croplife America (CLA) and RISE (Responsible Industry for a Sound Environment) will host our joint Winter Boards Meeting on March 1819, 2025, at the Westin Arlington (801 North Glebe Street, Arlington, VA). Croplife America is the national trade association that represents the manufacturers, formulators, and distributors of agricultural pesticides. RISE is the national trade association that represents manufacturers, formulators, and distributors of specialty pesticides and fertilizers.
We understand that you have familiarity with agriculture and pesticide issues from interactions with growers in your home district of Suffolk County. As such, we are truly pleased to invite you to speak to our joint boards to open our EPA Dialogue session on Wednesday, March 19 for 30 minutes, beginning at 9:00am Eastern. Our members would welcome your insights as the new Administration's key leader in environmental policy and priorities for the agency and your plans for interacting with the U.S. Department of Agriculture and increasing the timeliness and predictability of pesticide registrations by regulators in the EPA Office of Pesticide Programs (OPP). Your remarks will be followed by a panel of leaders from OPP and from the Office of Agriculture and Rural Affairs.
The EPA Dialogue session is an essential part of two days of activities with the CLA Board of Directors and RISE Governing Board, who represent the top leaders of their companies in the U.S. and companies with which you are likely very familiar. The event provides an opportunity for both organizations' board members and leaders, from the agriculture and non-agricultural pesticide industries, to engage in policy discussions, share ideas, and participate in strategic planning.
Thank you for considering our request. If you are unable to accept our invitation, we would be very open to a senior surrogate from the Administrator's Office. If you have any questions, please do not hesitate to contact us at (202) 872-3850 or via email at _a_d_u_n_n~-~----~
Best regards,
flt
Alexandra Dapolito Dunn President and CEO Croplife America
Megan J. Provost President RISE
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essage
Alexandra Dunn [adunn@croplifeamerica.org] 2/20/2025 4:30:14 PM Voyles, Travis [voyles.travis@epa.gov] ubject:FW: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Hi Travis, Any help you can give here? These are our Boards of Directors and we definitely would like the Administrator. If he is not available due to travel, would you be willing to be the Keynoter?
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687
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From: Lisa Bockelman <lbockelman@croplifeamerica.org> Sent: Thursday, February 20, 2025 9:39 AM To: Alexandra Dunn <adunn@croplifeamerica.org> Subject: FW: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
From: Brown, Ashley <Brown.Ashley~..Q~.:EQ.Y> Sent: Wednesday, February 19, 2025 7:08 PM To: Lisa Bockelman <lbockelman@croplifeamerica.org> Subject: RE: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Hi Lisa,
Thank you so much for your patience. We will not be able to make this speaking event work this time, but happy to schedule a meeting some time in the future.
Ashley Brown
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U.S. Environmental Protection Agency Director of Scheduling - Office of Administrator
From: Lisa Bockelman <lbockelrnan@croplifeamerica.org> Sent: Thursday, February 13, 2025 11:44 AM To: ZeldinScheduling <ZeldinScheduling@epa.gov> Cc: Brown, Ashley <Brown.Ashley@)e_p_~.,_gg_y_> Subject: FW: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Caution: This email originated from outside EPA, please exercise additional caution when deciding whether to open attachments or click on provided links.
Good morning!
I conferred with Alex Dunn and attached for your review is the request form for Administrator Zeldin to speak at the Croplife America and RISE Joint Winter Boards Meeting on Wednesday, March 19th at 9:00am at the Westin Arlington. Also included in the PDF is the itinerary before and after Administrator Zeldin would speak as well as the original speaker request letter. We have all details except the security information - and when we hear back from the hotel, we will update the form and send it back to you.
Thank you for your consideration.
Sincerely,
Lisa
Lisa F. Bockelman, Executive Assistant Croplife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone: 202-872-3849 Cell: 571-531-8663 Email: lbockelman@croplifeamerica.org
I
*AMERI
From: Alexandra Dunn <adunn@croplifeamerica.org> Sent: Wednesday, February 5, 2025 4:52 PM To: Lisa Bockelman <lbockelman @cro lifeamerica.or >
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Subject: Fwd: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
Can you work on this tomorrow? Or Friday? Many thanks!
Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone: 202-872-3850 Cell: 703-848-5687 Email: adunn a:cro lifcamcrica.or
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Begin forwarded message:
From: ZeldinScheduling <ZcldinSchcduling(c~9.Q<!,.8QY> Date: February 5, 2025 at 10:46:24 AM EST To: Alexandra Dunn <adunn({1,croplifcamcrica.or ~> Subject: FW: Invitation to Administrator Zeldin to Deliver Keynote Address at CropLife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
You don't often get email from zcldinschcdulinp,(a q_)a.g_ov. Learn why this is imr ortant
Hello Alexandra,
Please complete the attachment. Thank you.
Ashley
From: Alexandra Dunn <~9..!!!".lf1@croplifeamerica.org> Sent: Tuesday, February 4, 2025 4:13 PM To: Carpenter, Wesley <Carpenter.Wesley@e_f29...:gQ_1>; Amidon, Eric <Amidon.Eric@_~f29...:@_I{> Subject: Invitation to Administrator Zeldin to Deliver Keynote Address at Croplife America and RISE Board Meetings, Arlington, VA, 9 am, March 19, 2025
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Dear Mr. Amidon and Mr. Carpenter,
On behalf of CropLife America and RISE, the nation's associations for agricultural and specialty pesticides respectively, we are pleased to invite the Administrator to deliver the Keynote Address at our Winter Joint Boards Meeting in Arlington, VA at 9 am on March 19, 2025 at the Westin. More details are in the attached letter regarding this opportunity to address over 40 CEOs ofleading American companies. While we are certain that the Administrator is receiving many requests to speak at this time, we hope he is able to accept. As the letter notes, if he is not able to accommodate us, we would be happy to receive a surrogate from his office.
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Please contact me if you have any questions about this invitation! Regards, Alexandra Dapolito Dunn, Esq. President and CEO CropLife America 4201 Wilson Boulevard, Suite 700 Arlington, VA 22203 Phone:202-872-3850 Cell: 703-848-5687
Email: ==========
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