New TSCA Chemical Risk Evaluation Procedures

July 26, 2017

As required under section 6(b)(4) of the Toxic Substances Control Act (TSCA), EPA has published a rule that establishes a process for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use. This process incorporates the science requirements of the amended statute, including best available science and weight of the scientific evidence. Risk evaluation is the second step, after Prioritization, in a new process of existing chemical substance review and management established under recent amendments to TSCA. This rule identifies the steps of a risk evaluation process including: scope, hazard assessment, exposure assessment, risk characterization, and finally a risk determination. This process will be used for the first ten chemical substances undergoing evaluation from the 2014 update of the TSCA Work Plan for Chemical Assessments (to the maximum extent practicable). Chemical substances designated as High-Priority Substances during the prioritization process and those chemical substances for which EPA has initiated a risk evaluation in response to a manufacturer request, will always be subject to this process. The final rule also includes the required "form and criteria" applicable to such manufacturer requests.

EPA is primarily establishing requirements on the Agency. However, this rule also includes the process and criteria that manufacturers (including importers) must follow when they request an Agency-conducted risk evaluation on a particular chemical substance. This action may, therefore, be of interest to entities that are manufacturing or importing, or may manufacture or import a chemical substance regulated under TSCA (e.g., entities identified under North American Industrial Classification System (NAICS) codes 325 and 324110). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities and corresponding NAICS codes for entities that may be interested in or affected by this action.

This final rule will become effective on September 18, 2017.

EPA Approves Limits on Mercury in California Waters

The EPA recently announced the approval of new water quality criteria for mercury in California waters. The new rules, developed by the State Water Resources Control Board, set mercury limits in fish tissue to protect human health and aquatic-dependent wildlife. New protections also have been added for tribal cultural use and subsistence fishing.

In California, Gold Rush-era mining operations released millions of pounds of naturally occurring mercury, a potent neurotoxin, into state waterways. Once there, the toxic metal builds up in fish tissue and is consumed by people and wildlife. To address that risk, the state’s new criteria set maximum mercury limits in fish tissue for various species caught for sport, subsistence and cultural practices.

“We commend the State Water Resources Control Board for working with numerous tribes and dischargers to develop and adopt water quality standards for protecting human health and wildlife throughout the state from the harmful effects of mercury,” said Alexis Strauss, EPA’s Acting Regional Administrator for the Pacific Southwest. “By focusing on mercury concentrations in fish tissue, these rules will have a direct and positive impact on public health and the environment.”

The state’s new rules set five new water quality criteria for mercury in fish tissue for tribal subsistence fishing, general subsistence fishing, prey fish, sport fish and for fish commonly consumed by the protected California Least Tern. The new criteria will help protect and inform the public about levels of mercury in popular sport fish like salmon, bass, sturgeon, and trout.

“Salmon, bass, sturgeon and other popular fish like trout are sought after as a key food source by California Native American tribes, and other groups that depend on fish for sustenance, but are often contaminated by mercury. Mercury is found in many fresh water bodies in California, and is largely a legacy of the Gold Rush era, and difficult to deal with, but cannot be ignored,” said State Water Board Chair Felicia Marcus. “This approval is an important step in focusing attention on what can be done to limit exposures.”

The new mercury criteria will apply to inland surface waters, enclosed bays, and estuaries of the state, except for water bodies where approved site-specific objectives already exist, such as: San Francisco Bay and Delta; Clear Lake; and portions of Walker Creek, Cache Creek, and Guadalupe River Watersheds.

New Drinking Water Standard for 1,2,3-Trichloropropane

The California State Water Resources Control Board recently adopted a drinking water standard for the regulation of the contaminant 1,2,3-Trichloropropane in tap water. Under the regulation, public water suppliers will be required to notify their customers and take corrective action when drinking water exceeds the allowable limit.

The man-made chemical, used historically in industrial cleaning solvents and some soil fumigant pesticides, is a recognized carcinogen that may cause cancer after long-term exposure. Commonly known as 1,2,3-TCP, it has been found in groundwater sources, primarily in the Central Valley.

“1,2,3-TCP is not naturally occurring and too many Californians have been exposed to it for far too long, which is why it has been our top priority for standard setting this year,” said Felicia Marcus, chair of the State Water Board. “This standard will better protect public health and allow communities and the state to get on with the job of getting it out of our water supplies.”

The State Water Board’s Division of Drinking Water set the standard for 1,2,3-TCP at 5 parts per trillion (ppt). The drinking water standard, also known as a maximum contaminant level, is a set limit on what’s an allowable concentration of a contaminant in tap water. This is the first drinking water standard adopted by the State Water Board since the Division of Drinking Water joined the Board from the Department of Public Health in July 2014.

Based on 2015 data, the Division of Drinking Water has estimated that 103 water systems serving approximately 920,000 Californians have detected 1,2,3-TCP above 5 ppt in at least one drinking water source. Communities in several counties within the Central Valley are particularly impacted due to their reliance on groundwater and past use of pesticides containing 1,2,3-TCP in many agricultural areas.

The regulation will require that more than 4,000 public water systems statewide begin quarterly sampling for 1,2,3-TCP in their drinking water sources in January 2018. Systems will be in or out of compliance with the new drinking water standard based on the average of four quarters of sampling.

If a water system’s four-quarter average is above the 5 ppt standard, it must publicly notify its customers of the violation and take corrective action to resolve the exceedance and avoid future violations of the standard. The Division of Drinking Water encourages systems with previous monitoring data indicating a high potential for future violations to begin taking corrective action prior to January 2018.

The State Water Board will assist water systems in violation of the 1,2,3-TCP standard reach compliance by offering technical help. In some instances for certain communities, funding assistance might be available through the State Water Board’s regular financial assistance programs.

Court Declines Request to Have EPA Decide on Chlorpyrifos Ban Petition

The 9th Circuit Court of Appeals recently declined to direct the EPA to decide on whether to ban chlorpyrifos, a widely used agricultural pesticide linked to damaging the developing brains of children with reduced IQ, loss of working memory and attention deficit disorders.

The ruling comes three months after Earthjustice, representing Pesticide Action Network and the Natural Resources Defense Council, asked federal appeals court judges to order the EPA to make a decision on their decade-long petition to ban the toxic chemical.

“EPA scientists have said for more than two years that this pesticide is unsafe, particularly to children. Any delay in banning this toxic chemical is a tragedy for families and farmworkers,” said Patti Goldman, Earthjustice managing attorney. “Based on science and the law, EPA must ban chlorpyrifos now.”

In late 2016, EPA said that all food exposures exceed safe levels, and that chlorpyrifos put children, workers and the environment in harm’s way. Last month, Earthjustice and partner organizations, as well as various states, filed an administrative appeal to the EPA and urged it to follow the law, the overwhelming science, and ban chlorpyrifos. The 1996 Food Quality Protection Act requires EPA to protect children from unsafe exposures to pesticides.

“Waiting until 2022 to take action on this brain-harming chemical is irresponsible,” said Kristin Schafer, Pesticide Action Network executive director. “It is also exactly what Dow Chemical requested, and it serves their bottom line well at the expense of children, farmers and rural families across the country.”

In March, the EPA refused to ban chlorpyrifos days before a court order deadline, even though the agency said in late 2016 that all food exposures to this chemical are toxic and exceed safe levels. The EPA also said then that chlorpyrifos harm children, workers and the environment. However, EPA Administrator Scott Pruitt said the science is “unresolved” and noted that, rather than make a decision, EPA would study the issue until 2022.

“It is long past time to permanently ban all uses of chlorpyrifos. The EPA and their scientists have repeatedly said that this pesticide is not safe,” said Erik Nicholson, National Vice President of United Farm Workers. “We are extremely disappointed in the courts and the EPA for not upholding the law and focusing on the well-being of workers and their children who live in areas surrounded by pesticides. Stop caving-in to corporate interests.”

Chlorpyrifos was banned from residential use 17 years ago. However, this organophosphate, which comes from the same chemical family as sarin nerve gas, is widely used on strawberries, corn, wheat, citrus, apples and other staple foods. While families across the country are at risk of dangerous exposure, farmworkers and children living in rural Latino communities face disproportionate risk.

House Passes Ozone Standards Implement Act

The House of Representatives passed H.R. 806, legislation known as the Ozone Standards Implement Act, that would permanently weaken the Clean Air Act and delay anti-smog protections that took more than a decade to achieve. According to the National Parks Conservation Association, the innocuous-sounding name is misleading: this legislation would systematically weaken the Clean Air Act.

The legislation would delay for ten years the right to safer air quality, and even the simple right to know if the air is safe to breathe. Corporations applying for air pollution permits would be free to ignore new ground-level ozone (aka smog) health standards during these additional ten years. For the first time the largest sources of air pollution would be allowed to exceed health standards. The bill would also excuse the parts of the country suffering the worst smog pollution from having backup plans if they do not reduce pollution.

The bill weakens health standards that the law has been founded on for 46 years. The bill would also double the law’s five-year review periods for recognizing the latest science and updating health standards, which are already frequently years late; this means in practice that unhealthy air would persist for longer than ten years.

The legislation weakens implementation of current clean air health standards, expands exemptions for “exceptional events” that are not counted towards compliance with health standards for air quality, even when air pollution levels are unsafe. Requirements meant to ensure progress toward reducing air pollution would shift from focusing on public health and achievability to economic costs. Despite the bland name “Ozone Standards Implementation Act,” this bill represents an extreme attack on the most fundamental safeguards and rights in the Clean Air Act.

Since 1970, the Federal Clean Air Act has been organized around one governing principle—that the EPA must set health standards based on medical science for dangerous air pollution, including smog, soot and lead, that protect all Americans, with “an adequate margin of safety” for vulnerable populations like children, the elderly and asthmatics. This legislation eviscerates that principle and protection. The National Parks and Conservation urged its members to oppose both H.R. 806 and S.263, the equivalent Senate bill.

DTSC Investigation Leads to Enforcement Action Against Metal Recycler

The Fresno County Superior Court has entered a judgment against SA Recycling, LLC, a metal recycler in Fresno, for hazardous waste management violations. This judgment on consent of the parties follows a Department of Toxic Substances Control (DTSC) investigation. Under the terms of the judgment, SA Recycling paid $255,000 to DTSC on Tuesday, July 11.

As a result of a DTSC inspection, SA Recycling was cited for failing to minimize the possibility of any release of hazardous waste to the environment, unlawfully disposing of hazardous waste, and failing to make a hazardous waste determination of the wastes it generates at its facility. DTSC sampled dirt, dust, debris and soil located throughout the property and each sample exceeded hazardous waste regulatory limits for heavy metals (lead, zinc, and/or cadmium).

SA Recycling is a scrap metal recycler that recycles ferrous and non-ferrous metals, cardboard, paper, glass and electronics. Its operations include shearing, sorting, bailing, torching and automobile crushing, as well as appliance decommissioning.

SA Recycling began addressing its contamination in 2014 as a result of DTSC issuing a Summary of Violations following the inspection. DTSC approved SA Recycling’s cleanup plan in March of 2016. SA Recycling spent over a million dollars to pave over its facility, made the appropriate corrections in order to manage hazardous waste properly and made sure that all waste would now go to the proper facility for disposal.

DTSC’s inspection of the facility was conducted as part of the CalEPA 2013 Environmental Justice Initiative. In 2013-14, the CalEPA Environmental Justice Task Force selected a portion of Fresno and its surrounding unincorporated area for its first initiative, with the goal of increasing compliance with environmental laws in the area. The EJ Task Force coordinates the compliance and enforcement work of CalEPA’s boards, departments and office in areas of California that are burdened by multiple sources of pollution and are disproportionately vulnerable to its effects.

View documents related to the case here. Click here for information about the CalEPA Environmental Justice Task Force.

Pan Am Railways, Boston and Maine Penalized $60,000 for Solid Waste Violations

The Massachusetts Department of Environmental Protection (MassDEP) has issued a demand notice, requiring Pan Am Railways (Pan Am) and Boston & Maine Corporation (B&M) to pay $60,000 in penalties for repeated violation of Solid Waste Management regulations at two locations in Northfield and Buckland. The violations are related to the historic abandonment of railroad ties along railroad tracks.

While responding to a complaint filed in 1999, MassDEP observed thousands of ties Pan Am and B&M abandoned along 7.5 miles of track within the Wachusett Reservoir watershed, a public water supply, located in Sterling and West Boylston.

In May 2005, MassDEP responded to another complaint and observed the evidence of two fires located along the railroad tracks in Deerfield. According to the Deerfield Fire Department, brushfires spread to the piles of abandoned railroads ties increasing the resultant air pollution and the difficulty in extinguishing the fires, which exposed first-responders to additional health and safety risks.

In February 2007, MassDEP responded to a third complaint and observed several piles of abandoned railroad ties along the tracks on the upper banks of the Deerfield River in Charlemont. MassDEP issued an order to address the ties and assessed a penalty to Pan Am and B&M in May 2007 for the above noted violations. Pan Am and B&M later appealed the order and penalty.

In 2013, with the assistance of the Office of the Attorney General, MassDEP and Pan Am and B&M entered into a consent agreement to resolve the violations and the pact established protocols for the proper management of railroad ties. Pan Am and B&M paid a penalty of $49,746.50 at that time; MassDEP agreed to suspend $10,000 of the penalty. The management protocols allow for temporary staging of used ties for recycling, stipulates conditions and limits the storage periods and requires storage of ties in a manner that minimizes fire hazard and threats to emergency response personnel.

In 2015, MassDEP was notified of three fires involving discarded rail ties. Fires involving rail ties occurred on April 19, 2015, in Buckland, May 8, 2015, in Athol and November 24, 2015, in Holyoke. On June 13, 2017, 11 fire departments from three states had to respond to a large rail tie pile fire in Northfield. The remainder of this pile continues to present an unacceptable fire hazard. In response to a complaint, on June 19, 2017, MassDEP inspected a large rail tie pile in Buckland, near the town center, that also presents an unacceptable fire hazard.

In both recent cases, the management of the ties is in violation of the approved management plan and solid waste regulations. As a result, MassDEP has issued a demand for stipulated penalties of $60,000 from Pan Am and B&M for solid waste violations and failure to comply with the consent agreement. MassDEP is also requiring Pan Am and B&M to come into compliance with the agreement.

"This has been a continuing conversation with the railroad and to date, their response has been completely inadequate," said Michael Gorski, director of MassDEP's Western Regional Office in Springfield. "It is critical that Massachusetts businesses manage their wastes in a manner that does not present an increased risk to the health and safety of the public or first-responders."

EPA, DOJ Reach Agreement with Cleveland Heights to Prevent Sewage Discharge to Lake Erie

The U.S. Department of Justice and the EPA recently proposed a partial settlement with the city of Cleveland Heights, Ohio, to resolve alleged Clean Water Act violations involving sewer overflows into Doan Brook and Dugway Brook, which flow to Lake Erie. The State of Ohio joined in the settlement lodged in U.S. District Court for the Northern District of Ohio.

“Keeping raw sewage out of U.S. waters and communities is a priority for EPA because overflows can present a significant threat to human health and the environment,” said EPA Region 5 Water Division Director Chris Korleski. “Today’s settlement will protect water quality and prevent the spread of disease-causing bacteria and viruses.”

The settlement requires Cleveland Heights to take immediate steps to upgrade its sewer system. The city has already begun to address locations where overflows are frequent. Other required steps include cleaning, inspections, enhanced monitoring and computer modeling as part of a comprehensive study to assess the sewer system’s overall capacity. The city estimates this work will cost about $12 million. By June 2021, the city must submit a master plan to eliminate sewer overflows to EPA for approval. At that time, EPA and Cleveland Heights expect to reach a second settlement to implement the master plan.

The United States filed a simultaneous complaint in federal court against the city and the State of Ohio. A Clean Water Act provision requires naming the state as a plaintiff or a defendant in such actions.

ADEM Partners with Piggly Wiggly to Reduce Diesel Emissions

The Alabama Department of Environmental Management is partnering with Piggly Wiggly Alabama Distributing Co., Inc., in Bessemer, Alabama, to utilize funding under the Diesel Emission Reduction Act (DERA) to reduce diesel emissions through an idle reduction project.

Piggly Wiggly will be replacing 12 of its refrigerated trailers equipped with diesel-only transport refrigeration units (TRUs) with new, more efficient trailers equipped with hybrid-electric TRUs. In addition to the new hybrid-electric TRUs, 51 electrified parking spaces will be installed.

The electrified parking spaces give the hybrid-electric TRUs the ability to refrigerate the trailers using electricity, which will reduce approximately five to ten hours per day of diesel engine idling per trailer.

ADEM has awarded Piggly Wiggly $328,000 through the State Clean Diesel Program to partially fund the project. The project is scheduled for completion by August 31.

Regionalized Approach to Reduce Stormwater Pollution in Luzerne County, PA

The Pennsylvania Department of Environmental Protection (DEP) Secretary Patrick McDonnell recently commended more than 30 communities working together to reduce pollution through the creation of the Regional Storm Water Management Program at an event with state and local leaders in Luzerne County.

“I want to praise the initiative and leadership that these local governments have taken to improve the water in their local streams and rivers,” said Sec. McDonnell. “By working together, these municipalities are reducing pollution less expensively than they could if they were each making these efforts separately. They are treating stormwater as a resource, rather than a waste.”

The regional program, led by the Wyoming Valley Sanitary Authority (WVSA), encompasses more than 30 municipalities and will allow local governments to submit a joint pollution control plan, as well as finance capital projects more easily. The WVSA estimates that the region will save $57 million over five years with this program.

In Pennsylvania, certain municipalities are required to control and reduce stormwater pollution under a Municipal Separate Storm Sewer System (MS4) permit. DEP’s MS4 program works with these municipalities to develop and implement stormwater management plans.

One of the most important goals of the MS4 program is to reduce sediment and nutrient pollution going into the Susquehanna River, which ultimately leads to the Chesapeake Bay. Over the next five years, municipalities must reduce pollutants in the Susquehanna River including sediment by 10%, phosphorous by 5%, and nitrogen by 3%.

“This work will pay dividends for years, if not generations to come, for the people and communities of the Wyoming Valley and places farther downstream,” said Sec. McDonnell. “The Wolf Administration is committed to the state doing its part in the Chesapeake Bay restoration and partnerships like this help tremendously in that effort. I am certain that the rest of the state will be looking at your exemplary leadership.”

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