Democrat-Led States Ask EPA to Keep Biden’s Ethylene Oxide Rule

Attorneys general representing more than a dozen states are asking the Environmental Protection Agency to kill plans to scrap a Biden-era regulation governing the release of a cancer-causing chemical.

The states, in their comment letter submitted to the EPA, said the agency’s proposal to end a 2024 rule regulating ethylene oxide emissions, a chemical used to sterilize medical tools, “would not only misapply the statute Congress enacted, but it would also result in seriously harmful consequences.”

“It would subject communities near sterilization facilities to unacceptable levels of cancer risk and thereby likely result in avoidable cancer fatalities,” the states, led by Illinois Attorney General Kwame Raoul (D), said. The comment period for the proposed rule ended May 15.

The EPA, in reversing the rule, has argued that the old rule violates the Clean Air Act because the Biden administration used an additional health risk analysis of ethylene oxide when crafting the rule, doubling the number of risk reviews permitted during an eight-year period.

The EPA didn’t immediately respond to a request for comment Tuesday.

When the Biden EPA finalized the rule in 2024, the agency said it wasn’t obligated under the CAA to do another risk review, but added that the agency “retains discretion to revisit” those when it finds it’s warranted. The agency specifically cited a 2016 evaluation on ethylene oxide’s carcinogenicity showing the chemical “to be significantly more toxic than previously known.”

The states, in their letter, said the agency’s move “inverts the purpose of the Clean Air Act, claiming that the statute requires the Agency to ignore these scientific advances.” They argue the EPA did have the authority “to revise an obsolete risk review” and that “it would have been wholly arbitrary for EPA to have declined to do so.”

Attorneys general for Arizona, California, Colorado, Delaware, Washington, DC, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Vermont, and Virginia, along with the California Air Resources Board, were all part of the coalition that sent the letter.

The Texas Commission on Environmental Quality also responded to the agency’s proposed rule, agreeing with the EPA that the agency previously overstepped in issuing its 2024 regulation.

“The plain language of the CAA only requires a one-time residual risk review and is silent as to allowing repeated reviews,” the commission stated. “EPA should not take Congress’s silence as conveying any authority and not “read into statutes words that aren’t there” especially when Congress provides similar authority elsewhere.”