States Say EPA Chemicals Approach ‘Unlawful’ as Lawsuits Loom

Feb. 11, 2020, 11:01 AM

Democratic attorneys general from 10 states are signaling they may sue the EPA regarding its oversight of chemicals, a half dozen lawyers said in recent interviews.

Their concerns come as the Environmental Protection Agency—for the first time—is routinely examining chemicals that have been used in the U.S. for years, preparing to give the substances a regulatory thumbs up or down.

Before they reach their conclusions, EPA officials should consider all the ways people breathe, ingest, or touch a substance, wrote the top law enforcement officials for Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Vermont, and Washington.

“EPA’s failure to consider all exposure pathways and hazards to human health and the environment created by such chemicals in its risk evaluations is unlawful and irrational,” the attorneys general wrote in comments submitted to the Environmental Protection Agency in December.

But the EPA’s draft examination of the solvent methylene chloride, for example, doesn’t do that, the attorneys general said. The EPA didn’t consider whether people’s health could be harmed after being exposed to the solvent through outdoor air they breathe, water they drink or swim in, or contaminated land where they grow food.

“If not corrected,” the attorneys general said, the EPA’s position of only studying some exposure pathways “would result in equally unlawful and irrational final rulemaking or other follow-on agency action, and would undermine protection of public health and the environment.”

TSCA Amendments

EPA oversight of chemicals hasn’t historically been challenged in the courts, because under the Toxic Substances Control Act of 1976, the EPA didn’t regulate most existing chemicals at all. Nor did the law require the EPA to examine whether chemicals made and used domestically had too much potential to injure people, plants, or animals.

But that is about to change: The TSCA amendments of 2016 require the EPA to start examining those risks, and to regulate chemicals with the greatest chance of hurting people or the environment.

That process is just now playing out. The EPA must release its final risk evaluations for the ongoing uses of the first 10 chemicals—methylene chloride among them—under the TSCA amendments by June. And that process could trigger lawsuits if a state concludes that the EPA’s analysis, and any subsequent regulations, wouldn’t protect its residents.

‘A Very Good Bet’

Just that fact that 10 states coordinated their comments suggests lawsuits are likely, according to Maureen Gorsen, a partner in Alston & Bird LLP’s Sacramento office.

“If the attorneys general of 10 states take the time to combine efforts, coordinate, and write a singular comment letter to a federal agency, it’s a very good bet that they feel quite strongly about the issue and will be willing to use their prosecutorial power to litigate to test if a court will agree with their view of the law,” Gorsen said.

Peter Hsiao, a partner at King & Spalding LLP’s Los Angeles office, said more state attorneys general are challenging the Trump EPA.

“Litigation is a real option here, as shown by the recent lawsuit filed by 14 states and the District of Columbia against EPA’s changes to its risk management program for chemicals in processing and manufacturing facilities,” he said.

A spokeswoman for the office of Massachusetts Attorney General Maura Healey, who took the lead on the letter, said her office will continue to evaluate all legal options. The offices of several other attorneys general signing the letter declined to comment, or didn’t reply to a query on whether they’re considering suing the EPA if it fails to examine more exposure routes in its final risk evaluations in June.

Chemicals and the Courtroom

Comments from the attorneys general referred to the EPA’s draft evaluation of methylene chloride and n-methylpyrrolidone (NMP), another solvent.

But their concerns applied to other chemicals the agency is examining and to the “systematic review” method the EPA uses to decide what scientific data will or won’t be used in chemical assessments, and how much weight to give different studies, they wrote.

California’s South Coast Air Quality Management District, that state’s Division of Occupational Safety and Health, the National Tribal Toxics Council, and the City of New York’s Law Department also had objections, according to letters they sent the EPA.

People living or working near sites where methylene chloride is made, processed, used, or disposed could face “substantial” risk from that hazardous air pollutant, according to the South Coast Air Quality Management District.

“When EPA fails to consider drinking water, air, and soil exposures, it often falls to state, local, and tribal governments to deal with the resulting pollution and to incur the costs of EPA’s flawed risk evaluations,” Jonathan Kalmuss-Katz, an attorney with Earthjustice, said by email.

“It is therefore unsurprising that those other units of government are pushing back, and if EPA continues to ignores them then these issues will ultimately be decided in court.”

State Preemption

States are positioning themselves to challenge the EPA’s evaluations, or any follow-on rules, because the EPA’s final decisions about a chemical can preempt states’ ability to regulate the same compound, said Cynthia AM Stroman, a partner working in King & Spalding LLP’s Washington and Houston offices.

The TSCA amendments gave the EPA authority that can preempt some state chemical regulations. For example, when the EPA decides a substance wouldn’t pose an unreasonable risk—or conversely, if it would pose too great a risk and must be restricted—the agency’s action can trump state regulations,

The TSCA amendments could preempt some state chemical regulations, whether the EPA decides a substance wouldn’t pose an unreasonable risk—or conversely, if it would pose too great a risk and must be restricted, the EPA says.

Yet, the amended law did grandfather in many existing state chemical regulations, and offers states several means to still manage chemicals they say pose a risk.

The issues and any potential lawsuits should become clearer after June, assuming the EPA meets its goal of completing its first 10 chemical risk analyses on time, said Steve Owens, a partner at Squire Patton Boggs LLP’s Phoenix office.

‘Controversy and Confusion’

Several of the states that object to the Trump administration’s strategy for managing chemicals had developed their own policies and regulations before the 2016 TSCA amendments and continue to be active in the chemical policy space, said Owens, who served as EPA’s assistant administrator of chemical safety and pollution prevention under former President Barack Obama.

Industries were spurred to support the TSCA amendments because they didn’t want states issuing divergent regulations. The new law was meant to create confidence in the EPA’s oversight of chemicals and support a uniform federal approach to controlling chemicals, he said.

Yet, “the path that EPA has followed” during the Trump administration, Owen said, “has generated more controversy and confusion, than given people assurances the process is working.”

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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