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New Air Pollutant Listings Bring ‘Domino Effect’ to Industry (1)

Feb. 14, 2022, 11:00 AMUpdated: Feb. 14, 2022, 2:56 PM

Federal focus on a chemical in degreasing and dry-cleaning products has attorneys keeping a close eye out for more air toxics scrutiny from the EPA—and wondering when it will ever come.

The Environmental Protection Agency added 1-bromopropane to its list of Hazardous Air Pollutants, or HAPs, last month, the first chemical the agency has added since the list was created in 1990.

The add has a “domino effect” of regulatory implications for industry already operating under HAP standards, according to Holland & Hart LLP partner Emily Schilling.

“You may be subject to specific standards for 1-BP in the future, but the fact that you emit right now could have substantial regulatory impacts for you starting immediately,” she said.

The move is also the start of other chemical standards to come—a “grand trend” in environmental law along with climate change and environmental justice, King & Spalding LLP partner Doug Henderson told Bloomberg Law.

“It’s really a signal for the next 20 years, there will be intense focus on all chemicals and substances, where there has not been either any analysis or the analysis may be 30 or 40 years old to see how toxic a substance may be,” he said.

Interim Preparation

The EPA lists new HAPs after years-long risk evaluations that determine certain concentrations “are known to cause or may reasonably be anticipated to cause adverse effects to human health or the environment.”

Now that 1-BP is on the roster of more than 180 chemicals, the EPA still needs to propose and finalize regulations—another lengthy process. EPA plans to issue a “regulatory infrastructure” on what compliance will look like for new chemical additions, which will likely be finalized in 2023.

Adding to the toxics list dredges up multiple considerations for industry, despite the long slog and regulatory uncertainty that comes with it.

Federal scrutiny can spur focus on how to implement new replacement chemicals to offset risk, or how to better incorporate environmental, social and corporate governance concerns, according to Henderson.

To prepare in the meantime, companies emitting 1-BP should assess their emissions potentials and get a handle on how they could affect their compliance, according to Hunton Andrews Kurth LLP partner Matt Leopold, who served as EPA general counsel during the Trump administration.

“You should consider, if you’re not already a major source, whether or not those 1-BP emissions would put you over the threshold into becoming a major source,” he said.

TSCA Roadmap

“Important” legislation passed in 2016 provides some focus for the agency as it looks at new air toxics, according to Henderson. The law—called the Frank R. Lautenberg Chemical Safety for the 21st Century Act—required the EPA to look at new chemicals for coverage under the Toxic Substances Control Act, or TSCA, under deadline.

“Once TSCA did its risk evaluation, it would seem that that would be all the information, basically, that you would need to list a chemical under the Clean Air Act,” according to Gary Timm, who was head of the chemical testing branch in the EPA’s toxics program for nearly a decade starting in 1983.

Looking at what’s being reviewed under TSCA is a good place to see if there could be any overlap with hazardous air pollutant considerations, especially since environmental groups will likely be doing the same review to see where they can petition for new additions, Schilling said. Individuals can petition for new additions to the list under the Clean Air Act, which the EPA will evaluate, if requested.

“I would have my finger on the pulse of somebody at EPA with respect to what petitions they’re receiving from environmental groups, and then there’s always the opportunity for industry to respond to those petitions,” she said.

The Long Haul

Part of the holdup, particularly for air toxics, is the red tape. It takes years to identify hazardous emissions, where they’re concentrated, what health risks they pose and in what concentrations.

Just because a substance is added as a regulatable air toxic doesn’t mean it carries an unreasonable risk across the board. It takes time to assess the health problems it does pose and find what’s known as the maximum achievable control technology or other requirements to mitigate it.

A tough job and an agency short on staff is a recipe for decades-long delays, Timm said. But once EPA staffs up, will be improvement on deadlines, he said.

As of now, the agency is still “underwater,” and Schilling wonders how quickly EPA will be able to act on this listing.

“There’s no obligation in the Clean Air Act, from a timing perspective, for them to list the source categories and set the standards and they’re already totally backlogged on all of these other chemicals,” she said.

(Adds context in 8th and 15th paragraphs.)

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com