1 

June 30, 2015 

Donn J. Viviani 

4907 Yorktown Blvd 

Arlington, VA 22207 

Email: oceanpetition@gmail.com 

Gina McCarthy 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Email: McCarthy.Gina@epa.gov 

Re: Supplement to the Petition for Rulemaking Pursuant to section 21 of the Toxic Substances 

Control Act, 15 U.S.C. 2620, Concerning the Regulation of Carbon Dioxide 

Dear Administrator McCarthy, 

On June 30, 2015, the Environmental Protection Agency (EPA) received a petition to regulate 

carbon dioxide (CO2) from cradle to grave under section 6 of the Toxic Substances Control Act 

(TSCA) or in the alternative to develop a testing rule for CO2. The petition provides information 

concerning the devastating risk to the marine environment and wildlife, and risk to human health 

from ocean acidification. Accordingly, EPA must make a determination as to whether CO2 presents or may present an unreasonable risk of injury to the environment or human health due to 

the severe environmental consequences of ocean acidification. As a cosigner of that petition, I 

submit this supplement to the petition under my signature. 

US EPA section 21 guidance states: “The key findings relating to unreasonable risk must be 

made both when a new regulation is proposed, and when an existing regulation is amended or 

repealed. Petitioners should provide data to support these finds.” This supplement provides additional information supporting the unreasonable risk find. I respectfully request that EPA consider the data and information provided in this supplement to the petition in making its determination on our petition.

Petitioners demonstrated that the acidification of the open ocean has a single cause but multiple 

effects. That the decreasing ocean pH is being inexorably driven by the increase in the atmospheric concentration of carbon dioxide from anthropogenic emissions and is the incontrovertible 

result of the second law of thermodynamics. That this physical and chemical dynamic has been 

observed, monitored, documented, and is straightforward to predict into the future. 1

 That it has 

many harmful effects on the ecology of the ocean, some of the harmful effects are well established, others lack conclusive information or are more speculative. Many of these are significant 

 

1

Caldeira and Wickett, Nature 425, 2003 and Journal of Geophysical Research 110, 2005; Orr et al. 2005 Nature 

437; Raven et al. 2005 ,The Royal Society. 
2 

effects, and some could be catastrophic. That these harmful effects are exacerbated in near shore 

areas by NOx and SOx emissions, runoff, temperature rise and other effects.2 

Climate Impacts 

According to scientific experts: “Reducing CO2 emissions is the only way to minimise [sic] longterm, large-scale risks” (IBGP et al. 2013). So any abatement will by necessity also abate Climate change disamenities. 

Under TSCA the reasonableness of the risk depends on whether the costs of the ecological and 

health disamenities outweigh the benefits from mitigation, minus the costs of mitigation. To the 

extent possible the costs and benefits must be quantified to make this determination. According 

to USEPA Benefit Assessment Guidelines action to mitigate ocean acidification would be classified as a “significant regulatory action” ...the ... “ economic analysis of regulatory or policy options should present all identifiable costs and benefits that are incremental to the regulation or 

policy under consideration. These should include directly intended effects and associated costs, 

as well as ancillary (or co-) benefits and costs.” 

In EPA regulations, ancillary benefits can be much larger than direct benefits. (For example, 

Agency regulations to control NOx emissions are premised on the enormous ancillary particulate 

matter and ozone reduction benefits that result indirectly from the NOx reduction and control). 

This is also the case for ocean acidification (Although ocean acidification mitigation has enormous human health and environmental benefits in it’s own right). Mitigation options for ocean 

acidification have by necessity the ancillary effect of slowing global temperature rise and preventing the disamenities associated with a global rise in temperature. Therefore this supplement 

presents both ocean acidification and climate information relevant to the reasonable risk finding. 

Mitigation Under TSCA Includes Sequestration of Legacy Carbon 

While current emissions may be the immediate cause of the increase in ocean acidification, past 

emissions are the proximate cause. The oceans have absorbed from about a third of the 500 plus 

billion tons of past or legacy carbon emissions, lessening Climate impact. However, these emissions have eroded, i.e., “used up” the buffering capacity of the oceans. This buffering capacity is 

what keeps ocean pH in a narrow, bio-friendly range. As the buffering capacity lessens, smaller 

and smaller amounts of CO2 will result in larger and larger decreases in pH. The absorption by 

the ocean of legacy emissions over the past decades have caused the rapid current decrease in pH 

and have made the projected future decrease in pH to carbonate unsaturation levels possible, and 

have caused it to accelerate. Since legacy emissions are the proximate cause of both the current 

level and the acceleration in the decrease in pH, these emissions must be part of the design and 

funding of any remedy, or an undue burden is placed on the current emitters to remedy the damage caused by past emitters. The courts have held, e.g., in CERCLA cases that requirements 

stemming from past actions (which were legal at the time) isn't retroactive, but rather a reimbursement obligation.3

 

2

Duarte et al. Coastal and Estuarine Research Federation 2013 

3

 UNITED STATES v. MONSANTO COMPANY, 858 F.2d 160 (4th Cir. 1988) 
3 

Again, the oceans absorb about a third of the anthropogenic emissions. This means that for decades rent seekers have extracted the benefits of fossil energy without paying for the environmental damages of the carbon emission, including the loss of the buffering capacity of the ocean and 

the attendant damages from ocean acidification. This is a classic “tragedy of the commons” situation. EPA has a long standing tradition and policy of making the polluter pay for environmental injury. Petitioner asks that both legacy and current emissions be included in determining the 

remedies and who must comply, based on the contributory proportion to the harm from ocean 

acidification, using, for example, the Emission Inventory. (The Agency has the authority to ignore small emitters when transactional costs of including them are too large) 

CO2 Poses an Unreasonable Risk to Human Health

Petitioner asks the Agency to consider not only the well documented health effects from climate 

change4

 discussed in the petition but also the direct health impact from ocean acidification. Some 

of these are very significant and can be quantified. 

The body of the petition cites increased mortality and morbidity from loss of fisheries and declines in marine based diets. These human health effects are in addition to the increased toxicity 

of algal blooms mentioned in the body of the petition, which can cause paralytic shellfish poisoning in humans. The loss of fisheries from ocean acidification, and the resultant scarcity of seafood also has significant human health impacts. For example, in a Harvard School of Public 

Health comprehensive analysis of fish and health, combining the evidence for major health effects of omega-3 fatty acids, while accounting for the health risks of mercury, and health risks of 

PCBs and dioxins in both adults and infants/ young children: results show that the benefits of 

eating a modest amount of fish per week--about 3 ounces of farmed salmon or 6 ounces of 

mackerel--reduced the risk of death from coronary heart disease (CHD) by 36%. By combining 

results of randomized clinical trials, the investigators also demonstrated that intake of fish or fish 

oil reduces total mortality--deaths from any causes--by 17%. 5

USEPA consumption surveys find that about 10% of the US population consumes at least 

enough fish to garner the benefit.6

 Depending on price elasticity of demand this could translate 

into up to half a million premature deaths/year from loss of fisheries and the resultant scarcity of 

seafood.7

 In addition, increase in seafood prices will result in a loss of consumer surplus. Petitioner asks that the Agency develop a deterministic or a probabilistic assessment to quantify mortality and morbidity from the decreased availability and consumption of seafood that would result from ocean acidification fishery damage, as mentioned in the body of the petition (e.g., effects on salmon from plankton impacts). This will help the risk assessment to capture this significant human health impact as required in EPA’s Benefit Assessment Guidelines. 

There are also indirect effects and economic consequences, which after consideration of the effect on the national economy, small business, technological innovation, the environment, and 

 

4

 National Climate Assessment, U.S. Global Change Research Program, 2014 

5

JAMA. 2006;296(15):1885-1899;] 

6

 Estimated Per Capita Fish Consumption in the United States, USEPA August 2002 

7

 Am J Public Health. 2010 February; 100(2): 216–222 
4 

public health as required under TSCA, are reasonably ascertainable.8

 These include other effects 

on Fisheries. It is probable that wild catch seafood loss, at least in part, will be replaced by aquaculture (currently about half of the world’s seafood is farmed9

). Farmed fish are fed fishmeal, 

soy and grain. It has been well established that fisheries have and will be increasingly negatively 

affected by ocean acidification. This will cause scarcities of fishmeal, both driving up the price 

of farmed fish (and negatively affecting consumption) and causing more reliance on grain and 

soy. 

The substitution of grain and soy for fishmeal, and the additional amounts of grain and soy needed for the increased farmed fish to replace the decreasing availability of wild catch may itself 

result in increased cost and, in some cases substitution may not be not possible due to grain and 

soy yield limitations. A recent Nature Communication article 10 shows robust evidence of yield 

plateaus due to biophysical limitations for rice, wheat and maize, which together account for 

~85% of global cereal production and contribute a majority of human calories eaten directly as 

staple foods, or indirectly through consumption of livestock fed with grain. Seafood accounts for 

about 15% of the global dietary protein from animal sources. Both farmed seafood and livestock 

will be stressed by the plateauing grain yields. 

Aside from increasing demand, grain costs will also increase due to greater input requirements11

as marginal lands are brought into production to keep up with the increased demand. This demand and cost increase will be exacerbated by population growth, currently changing global increases in dietary animal protein, and increased labor costs from the fine tuning of many different facets of management in the production system required to increase or maintain yields. 

Another factor to be considered is the dietary exposure effect of using increased soy and grain 

for aquaculture. The Food Quality Protection Act (FQPA) requires EPA to assess the cumulative 

risks of pesticides that share a common mechanism when developing tolerances. EPA has issued 

guidance relative to assessing that risk.12 13 Pesticides with common mechanisms (organophosphates (OPs), N-methy carbamates, triazines, chloroacetanides, pyrethrins/pyrethroids) all have 

grain and soy tolerances. This will change cumulative exposure, and under FQPA requirements 

EPA must reassess tolerances if these exposure pathways become larger contributors. Additionally, the metabolic pathways for the degradation products will have to be determined if they are 

different for aquatic species. 

Petitioner requests EPA address this through its FIFRA information gathering authority and tolerance reassessment program, or explain why it's not necessary to do so. Petitioner asks that the 

additional exposure and risk be shared with the public if tolerances are maintained at current levels, and that these risks to human health be included in the benefits assessment. If tolerances are 

 

8

 TSCA section 6(c) 4 

9

 State of the World Fisheries and Aquaculture, FAO, 2010 10 Nature Communications 4, Article number: 2918 doi:10.1038 

11 CGIAR Research Priorities for Marginal Lands. FAO 1997 

12 General Principles For Performing Aggregate Exposure And Risk Assessments USEPA, 2001 

13 Guidance on Cumulative Risk Assessment of Pesticide Chemicals That Have a Common Mechanism of Toxicity. 

Office of Pesticide Programs, USEPA 2002 
5 

lowered, petitioner asks that any costs to growers or loss of consumer surplus be also included in 

the assessment. 

As FQPA requires local effects be considered, USEPA should consider whether farm location 

relative to runoff of these pesticides need be considered in the assessment, perhaps using the 

monitoring protocols and mathematical models that OPP typically relies on to generate exposure 

estimates for water quality assessments. As more of the US population become locovores14, local 

fish farming and local crops may expose special populations to increased cumulative risk. 

Executive Order 12898 requires that "each Federal agency shall make achieving environmental 

justice part of its mission by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of its programs, policies, and activities on 

minority populations and low-income populations”. EPA’s Framework for Human Health Risk 

Assessment to Inform Decision Making15 recommends including social considerations and environmental justice in informing decisions on risk. In addition, under either NEPA’s (National 

Environmental Policy Act) guidance or TSCA’s “functional equivalence”16 the analyses should 

consider the effects on a community by addressing the full range of consequences of a proposed 

action as well as other environmental stresses which may be affecting the community, including 

diets, or differential patterns of consumption of natural resources, which may suggest increased 

exposures to environmental pathways presenting potential health risk. To comply with these 

goals petitioner asks that EPA consider the Environmental Justice implications of whether the 

increased cost of seafood high in omega-3’s will result in a more unhealthy ratio of omega-3 to 

omega-6 oils in certain low income communities. This ratio has been shown to be an important 

driver in mortality and morbidity studies. 

Petitioner asks that the Agency consider the net effect on diet from ocean acidification and include the expected morbidity and mortality from all the changes in diet described above. 

Market Failure 

Petitioner endorses the President’s Counsel of Economic Advisors’ statement that “The emission 

of greenhouse gases such as carbon dioxide (CO2 ) harms others in a way that is not reflected in 

the price of carbon-based, energy, i.e., CO2 emissions create a negative externality. Because the 

price of carbon-based, energy does not reflect the full cost or economic damages, of CO2 emissions, market forces result in a level of CO2 emissions that is too high. Because of this market 

failure, public policies are needed to reduce CO2 emissions and thereby limit the damage to 

economies and the natural world from further climate change.”17 One of these “harms” is Ocean 

Acidification. The petition and the options presented herein provide vehicles for implementing 

the public policy called for by the Counsel necessary to rectify the market failure.

 

14 R.E. Galt Counting and Mapping Community Supported Agriculture, ACME: An International E-Journal for Critical Geographies, 2011, 10 (2), 131 - 162 

15 Framework for Human Health Risk Assessment to Inform Decision Making, April 5, 2014, U.S. Environmental 

Protection Agency 

16 489 F.2d 1247 (D.C. Cir. 1973). 

17 The Cost of Delaying Action to Stem Climate Change, CEA, July 2014. 
6 

Emission Reduction and Sequestration 

Given the magnitude of the ocean acidification problem, the mitigation prescription to address 

this market failure must also be large. Nature maintains carbon dioxide atmospheric concentrations within a narrow band, by balancing emissions with sequestration. Nature efficiently removes atmospheric carbon by transforming it into biomass and minerals, or “storing” it in the 

oceans (the source of the ocean acidification problem). Unlike the natural cycle which is in dynamic equilibrium, the anthropogenic carbon cycle is not in equilibrium and is unbalanced. Man 

takes Gigatons of fossil carbon and puts it in the air, but takes very little back. In excess of a 

third of this increase in atmospheric carbon ends up in the ocean and lowers the ocean pH. The 

economics of the anthropogenic carbon cycle don’t take in account the externalities of ocean 

acidification (or climate change) so the economic carbon cycle is skewed towards emissions and 

away from sequestration. While the amount of the imbalance is relatively small when compared 

to the annual amount of carbon nature moves into and out of the atmosphere, it is consistently 

biased in one direction and over the years has almost doubled the baseline atmospheric carbon. 

While the Administration has not directly attempted to regulate ocean acidification it has attempted to reduce carbon emissions because of Climate considerations. The Administration’s 

recent Climate Initiative and in fact, almost all of USEPA’s climate and carbon initiatives to 

date, are and have focused on reducing emissions. Almost none of the efforts focus on sequestering carbon. Petitioner stresses that the carbon cycle can’t presently be balanced by reducing 

emissions only, since, in the foreseeable future, there will continue to be a large net bias towards 

carbon emissions over carbon removal stemming from increasing energy demand, as well as 

wealth and population effects and the fossil fuel requirements of the extant energy infrastructure. 

(Petitioner observes that if you can’t turn a sink faucet off, then you must open the drain to avoid 

an overflow...our energy infrastructure is a “faucet” and sequestration can be the “drain”) 

This is a market failure, because the environmental cost of emissions is not included in the price 

of energy, and therefore the environmental benefit of sequestration is not valued. Petitioner recommends that the Agency include options in the cost analysis that can significantly affect this 

bias, i.e., options which sequester carbon as well as options which reduce emissions. In any case, 

in order to determine if a risk is unreasonable under TSCA, the Agency must determine the efficacy, efficiency and supply function of all significant mitigation remedies. 

Remedies 

Determining whether a risk is unreasonable under TSCA is a function of government. However, 

as the Agency’s Petition Guidance points out, petitioners have an obligation to present as much 

information as possible, e.g, to identify relevant aspects of the unreasonable risk determination 

and demonstrate that these aspects are knowable. Petitioner believes the Agency is both knowledgeable and active concerning carbon emission reduction, but less well versed and less active in 

sequestration. It’s beyond the petitioner’s responsibility and ability to provide an exhaustive, 

quantitative list of sequestration options. Rather examples are provided herein to demonstrate 

that sequestration opportunities to offset both legacy carbon and current emissions exist. The 

list is limited and not meant to be definitive of sequestration opportunities. 
7 

TSCA requires that the Agency consider “the reasonably ascertainable economic consequences 

of the rule, after consideration of the effect on the national economy, small business, technological innovation, the environment, and public health” (emphasis added). 18 Some of the sequestration opportunities mentioned below are currently being employed, others are in small demonstration or pilot stages and may require additional technological innovation to become economically 

competitive. (Irrespective of their current status all rely on the same chemical, physical or biological mechanisms / processes that nature uses effectively to sequester large volumes of carbon.) 

There is considerable literature on the ability of both Market Pull policies or Technology Push 

policies to increase the rate of innovation.19. While not all of these sequestration technologies/methods are available at the current time to provide significant mitigation, they could be in 

the near future given the proper market. In any case, the Agency has a successful history of setting regulatory “reach” targets (e.g., CAFE standards). 

If information on the efficacy of sequestration technologies is inadequate to determine if the risk 

is unreasonable, Petitioner asks that the Agency use TSCA Section 4 to remedy the inadequacy. 

The Agency has in the past required TSCA test rules for many chemicals already released and in 

the environment in high volumes (such as dyes, plasticizers, flame retardants) to determine if 

treatment/mitigation methods (for example aerobic digestion) are sufficient to reduce the risk to 

human health and the environment to a reasonable level. Petitioner asks the Agency to assess the 

information available on the efficiency and cost of sequestration technology and methods to 

treat/mitigate released CO2 to determine the adequacy of data for the purpose of a robust unreasonable risk determination. Petition asks that the Agency by rule require that testing be conducted to address any inadequacy. 

Petitioner suggests costs for testing (and for remedies under sections 6 or 9, vide infra) be apportioned among CO2 emission contributors according to the cumulative CO2 emission inventory 

information the Agency has collected. This could be structured similar to the sponsorship format 

used in TSCAʼs High Production Volume (HPV) Program (a more complex format than for a 

single chemical, i.e., CO2 , it covered thousands of chemicals and thousands of tests from both 

foreign and domestic sources). 20 

Since any carbon emissions that result from sequestration actions must be subtracted to calculate 

net carbon sequestration, the Agency should in particular examine options that rely (completely 

or substantially) on alternative energy, such as biosequestration relying on solar power. Nature 

removes an order of magnitude more carbon out of the atmosphere every year using natural processes. By increasing the process area, volume, or efficiency of these naturally occurring processes gigatons of carbon can be sequestered. For example, grass pastures can build soil carbon 

slowly through microbial processes. Legume-based pastures that fix N and drive higher biomass 

 

18 TSCA section 6a (4) 

19“Impact of Renewable Energy Policy and Use on Innovation”A Literature Review, Felix Groba and Barbara 

Breitschopf 2013, Deutsches Institut für Wirtschaftsforschung 

20 EPA, High Production Volume (HPV) Challenge; http://www.epa.gov/chemrtk/index.htm 
8 

production of associated grasses, drive a more rapid carbon accretion.21 Marginal lands can be 

managed to trap a ton of carbon per hectare a year to equilibrium with proper management. Enhanced soil carbon is beneficial not only from it’s increased productivity but also because it enables greater infiltration and retention of rainfall and this compensates for expected increases in 

temperature and more uncertain rainfall. In the oceans, microalgae can be fertilized sequestering 

carbon and then removed- harvested for products. For example the nutritional value of micro algae22, and it’s potential as a biodiesel source23 have been extensively researched. Including ancillary benefits like these with the net sequestration benefit will provide a more complete analysis. 

Recently, the World Bank investigated the capacity of different agricultural land use management practices to sequester carbon. Biomass, and especially it’s soils, sequester carbon out of the 

atmosphere and this role as a carbon sink and as a carbon store can be strategically optimized 

through proven farming techniques and methods that simultaneously reduce emissions. These 

technical elements of climate-smart agriculture are well understood, and in addition to their technical feasibility, they can be highly productive and profitable. In the Report they estimate a 

enormous capacity of agriculture to sequester carbon and in turn provide marketable carbon offsets. Looking at different scenarios, that are based on different levels of international integration 

and ecological concern, the employment of land use and management techniques in Asia, Africa 

and Latin America could sequester between 12 and 18 Gt of carbon, with net positive welfare 

benefits, of between 1.4 and 1.6 trillion dollars by 2030. 24

More aggressively, it has been proposed that lignin rich crops, which sequester carbon 

refractorially, might be used directly as a soil amendment to enrich and provide carbon to 

desertified or otherwise depleted lands, enabling the growth of more lignin crops to produce additional fertile soils, geometrically magnifying the sequestration.25 Climate change may worsen 

desertification because of temporal changes in radiation, wind, temperature, rainfall and other 

parameters driven by the increased energy in the atmosphere26. Another economically beneficial use for tree, litter and other forestry and agricultural high lignin sources (>15%) would be 

for erosion control necessitated by the expected increase in rainfall in many areas from the rising 

temperatures.27 

Sustainable biocharring has both an energy and a sequestration component. biocharring can be 

used to produce fuels and the char itself can be used to increase soil fertility and NPP, enabling 

sequestering more carbon. Researchers estimate that up to 12% of anthropogenic emissions can 

be offset by biochar. 28

 

21 Dalal, RC, Strong, WM, Weston, EJ, Cooper, JE, Lehane, KJ, King, AJ, Chicken, CJ (1995). Australian Journal 

of Experimental Agriculture, 35 22 FAO Fisheries Technical Paper 361 

23 NREL/TP-580-24190 

24 Carbon Sequestration in Agricultural Soils, The World Bank, REPORT NO. 67395-GLB, 2012 

25pp 150-168, Viviani, Bioenergy and Biobased Products, DOE National Bioenergy Center Strategic Partnerships 

Workshop April 11-12, 2001 Colorado 

26 World Meterological Oraganization, Climate_Change Desertification, 2007. 

27Trees, Crops, and Soil Fertility: Concepts and Research Methods edited by G. Schroth, Fergus L. Sinclair 28 Nature Communications 1: 56 doi:10.1038/ncomms1053 
9 

Reforestation and reducing deforestation can also play enormous roles and most importantly, 

they provide a relatively straightforward remedy that can be paid for directly by those found responsible under TSCA for the legacy carbon in the oceans. Reforestation to combat desertification is underway in Mongolia by the Mongolian government and South Korean29

Additionally, “blue” or coastal carbon can also play a very significant role. NOAA is encouraging the conservation of these coastal sinks and points out that current studies suggest that mangroves and coastal wetlands annually sequester carbon at a rate two to four times greater than 

mature tropical forests and store three to five times more carbon per equivalent area than tropical 

forests.30 Most coastal blue carbon is stored in the soil, not in above-ground plant materials (biomass), as is the case with tropical forests. 

The Agency should also examine options which produce (and net) carbonates from carbon dioxide31, especially those producing salable products, such as carbon mineralization processes making carbonate building materials from carbon dioxide, e.g., green bricks and green cement, and 

can net energy. Building materials comprise an enormous market, as there are about 30 billion 

tons of concrete produced and used each year alone. Concrete accounts for about 7% of global 

carbon emissions. Sequestering CO2 into green cement provides multiple opportunities and benefits: potential increases in concrete’s strength, reductions in emissions, carbon sequestration, and 

provides significant opportunities for offset purchase. 

The use of timber in high rises (to 40 stories or some cases more) to replace some of the concrete 

and steel can also reduce the carbon footprint of construction drastically (as both concrete and 

steel are carbon intensive) and can sequester atmospheric carbon at the same time. A cubic meter 

of wood substituted for other construction material can result in savings of 0.75 to 1 ton of 

CO2.

32 This can reduce the carbon footprint of buildings by two thirds. 

Practice and performance based economic incentives could be used to encourage sequestration in 

the building and forestry/agricultural sectors. Banked credits could be sold to offset any added 

cost from the differing practices/products. In the US, government construction accounts for about 

a quarter of new projects. These projects could account for significant sequestration if additional 

green construction were required to be incorporated in design. In government directed economies it could be higher. 

3D printers, which can and do use biological materials (containing carbon harvested from the 

atmosphere) as substrates can produce myriad consumer products. This is particularly helpful 

because increased consumer expenditures and economic growth is almost always associated with 

increased energy/resource use and drive carbon emissions. In this case consumer purchases can 

 

29 Min-Kyung Kang et al, Jour. Korean For. Soc. Vol. 99 No. 5, pp 655-663 (2010) 

30 http://www.habitat.noaa.gov/coastalbluecarbon.html

31 Annu Rev Chem Biomol Eng. 2013;4:103-17. doi: 10.1146/annurev-chembioeng-062011-080951. Epub 2013 Feb 

28. 

32 International Institute for Environment and Development, Using Wood Products to Mitigate Climate Change, 

2004 
10 

actually reduce net atmospheric carbon. Other research demonstrates direct storage of CO2 into 

nonbiological compounds which can also be accessed to make consumer products33

These sort of options help bring the economic carbon cycle more into balance, providing value 

by removing carbon from the atmosphere. CO2 not only becomes an essentially limitless resource, which can be both reduced or oxidized to produce products and/or energy, it also couples 

sequestration with population and economic growth. 

The Agency, through TSCA section 9’s access to other Federal programs, could use economic 

incentives to foster growth of some these options by the general population. For example, DOE 

and EPA’s Energy Star program has prevented 1.8 billion tons of GHG emissions, by providing 

information that helps consumers select energy efficient devices. A similar program could be established that provides information about the net amount of atmospheric carbon sequestered in 

products. 

Providing information to consumers concerned about ocean acidification (and climate change) 

enables them take direct action to mitigate these problems, and also provides a marketing incentive to companies to develop and sell these products. There is already a trend in the US for development of biocarbon products substituting for petroleum or mineral based products. Examples 

range from large volume products, such as home foam insulation based on soy, to smaller niche 

products, such as wetsuits made using biorubber rather than petroleum based neoprene (Patagonia). 

As mentioned above, Nature cycles atmospheric carbon primarily by storing it in the ocean, reducing it into biological materials and oxidizing it into minerals. This latter process also provides 

sequestration opportunities. The IPCC 34estimates that magnesium and calcium silicate deposits 

are sufficient to fix all the CO2 that could be produced from the production of all fossil fuels resources. There have been demonstration and pilot projects that have sequestered carbon at a costs 

ranging from $50 to $300/ ton.35 Some of these processes also have the advantages of yielding 

salable product. For example olivine has been used as an amendment to replenishing beach sand, 

and the weathering of the sand from the ocean waves has the potential to raise the pH of the waters.36

There are high volume industrial waste materials, such as ‘red mud’ from aluminum production37

as well as steel and blast furnace slag, fly ash and waste concrete that can sequester atmospheric 

carbon, and in some cases produce salable products38

 

33 CO2 Coordination by Inorganic Polyoxoanion in Water, Guanggang Gao et al, JACS communications, 2008 

34IPCC Special Report Carbon Dioxide Capture and Storage, 2005 

35Chem. Soc. Rev., 2014, 43, 8049 

36International Journal of Greenhouse Gas Control 4 (2010) 855–856 

37Peterson et al. Science of The Total Environment Volume 338, Issue 3, 15 February 2005 

38 Coal Combustion Residual Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard USEPA, 

February 2014 
11 

IntraAgency Coordination 

Petitioner is aware that the Agency has operated cross-Agency programs, i.e., initiatives that all 

media program and other offices are required to participate in. Examples include, P2 Pollution 

Prevention, the IntraAgency Integration Program and the Priority Pollutant Program, all of which 

required coordination to achieve an environmental goal(s). Almost every Agency action, initiative, grant, etc. has carbon implications. Petitioner asserts that Ocean Acidification is, at the very 

least, on a par with the problem these programs were designed to address. If this is not already 

being done, the petitioner asks the Agency to require that all significant actions take carbon benefits explicitly into account. 

The Economic Costs of CO2 and Discount Rate 

The discount rate is critical in the unreasonable risk determination, as benefit estimates depend 

heavily on the discount rate applied. There is debate as to applicability of current methodologies 

to derive these rates when applied to distant events and transgenerational effects. As Cowen and 

Parfit pointed out “Why should costs and benefits receive less weight, simply because they are 

further in the future? When the future comes, these benefits and costs will be no less real. Imagine finding out that you, having just reached your twenty-first birthday, must soon die of cancer 

because one evening Cleopatra wanted an extra helping of dessert”.39. Or putting it in terms of 

dollars instead of baklava: Frank Partnoy, ( University of San Diego) observed “A human life is 

often estimated to be worth around $10 million. But if you apply a three percent discount rate to 

this, that means that a human life five hundred years from now is only worth $3.81 today.”

Further, the basis for a discount rate is the opportunity cost of taking action today to avoid future 

effects, i.e., the discount used must reflect the profitability of the best alternative investment opportunity. However, global warming, and even ocean acidification will have such enormous effects on agriculture, real estate, water availability, fisheries, etc, that investments in many sectors 

could well have limited or even negative discount rates without mitigation action. People may 

well be poorer in the future because of ocean acidification and climate change and have less rather than more resources to mitigate and adapt40. 

To use an ocean acidification example, an investment in ocean property in Florida could well 

have a negative return (if not for the owner, than for federal government which guarantees flood 

insurance) when the coral reefs erode and flatten (as discussed in the body of the petition) and 

fail to provide adequate buffer for storm surges, as could investments in commercial fisheries. 

Climate change effects on investment returns would be even larger. For example, the IPCC predicts a 2% net decrease in agricultural production per decade from global warming. Petitioner 

asks the Agency to take into account how ocean acidification and climate change will affect return on capital investment when setting a discount rate in their assessment of benefits as recommended in USEPA’s Guidelines for Preparing Economic Analysis. OMB Guidance on regulatory 

analysis states “ In some instances, if there is reason to expect that the regulation will cause resources to be reallocated away from private investment in the corporate sector, then the oppor-

 

39Tyler Cowen and Derek Parfit, Against the Social Discount Rate, in Peter Laslett and James S. Fishkin, eds, Justice Between Age Groups and Generations 144, 145 (Yale 1992). 

40 Johnson et al, Journal of Environmental Studies and Sciences September 2012, Volume 2, Issue 3, pp 205-221 
12 

tunity cost may lie outside the range of 3 to 7 percent. ” 41 The same logic must apply when it is 

not the regulation but the effect itself that provides an economic distortion in the absence of 

regulation. 

Petitioner asks the Agency to consider and explain the choice of using either a Willingness to 

Pay (WTP), or a Willingness to Accept (WTA) in the economic valuation of benefits. This seems 

germane relative to the loss of oceanic buffering capacity due to past absorption by the 600 billion tons of carbon emissions from the burning of fossil fuels. Like many other effects of Ocean 

Acidification this loss of capacity is not presently included in the calculation of the SCC. If the 

Agency decides to use a Contingent Valuation Method to value the lost buffering capacity, then 

WTA may be appropriate as this capacity is a public good. 42 

Low Probability Catastrophic Impact Effects 

Current climate cost and benefit estimates do not take into account many low probability effects 

with catastrophic impacts. For example, there is research to estimate probability densities for 

positive feedback and/or climactic tipping points, such as unstable methane deposit releases from 

permafrost43, the collapse of the marine food web, impacts to cloud albedo44, or alterations in 

ocean circulation45. These may be low probability events, but have enormous consequences. 

Many of these can have catastrophic Earth System effects and once they occur are essentially 

irreversible. Because of this, current cost and benefit estimates must be considered conservative.46 

This is one of the reasons why the President’s Council of Economic Advisors recommended 

treating Climate Change prevention action as an insurance investment. Current regulations, proposed regulations, and planned regulations, do not address these severe Earth System potential 

impacts and do not, measurably decrease their likelihood of occurrence. Petitioner agrees with 

the President’s Council that Climate Change be treated as an insurance investment, and asks that 

the potential cost of these low probability, very high impact effects, be valued to inform the 

TSCA section 6 unreasonable risk decision. In lieu of a better Agency alternative, Petitioner 

suggests the Agency estimate the cost of an insurance premium using occurrence and impact 

probability of these tipping points/catastrophic events as basis, much like insurance premiums in 

 

41 OMB Circular A-4 

42Kahneman et al, Journal of Environmental Economics and Management, 22 57-70, 1992 

43Schaefer, K., T. Zhang, L. Bruhwiler, and A. P. Barrett (2011), Amount and timing of permafrost carbon release in 

response to climate warming, Tellus Series B: Chem. Phys. Met., DOI: 10.1111/j.1600-0889.2011.00527.x.; oven 

teal, Analysis of Permafrost Thermal Dynamics and Response to Climate Change in the CMIP5 Earth System Models, JOURNAL OF CLIMATE 

2013

44 Six K.D., Kloster S., Ilyina T., Archer S.D., Zhang.K, Maier-Reimer,E., Global warming amplified by reduced 

sulphur fluxes as a result of ocean acidification. Nature Climate Change, doi:10.1038/nclimate1981, 2013. 45 Rahmstorf, S., Box, J., Feulner, G., Mann, M., Robinson, A., Rutherford, S., Schaffernicht, E. (2015): Evidence 

for an exceptional 20th-Century slowdown in Atlantic Ocean overturning. Nature Climate Change (online) [DOI: 

10.1038/nclimate2554 ] 

46Weitzman, Martin L. 2009. Review of Economics and Statistics 91(1): 1-19. 
13 

the nuclear energy industry against catastrophic incidents are calculated and apply that as a surrogate for the cost of not reducing carbon emissions to mitigate ocean acidification and accompanying climate benefit. 

Other Insurance Considerations 

Petitioner asks that the Agency consider as a cost any direct insurance impact from Climate 

change: “Climate change can also adversely impact the prevalence of vector-borne diseases, food 

poisoning, water quality, aeroallergens, and the health of natural systems that can cause economic losses for humans, sometimes insured” “Changing weather patterns and rising ocean temperatures as a result of climate change will also likely continue to put financial stress on the National 

Flood Insurance Program (NFIP). Currently, the NFIP has a $19 billion deficit, and this deficit 

may increase each year because of $900 million in subsidies to properties that are not paying actuarially based rates. In addition, the cost to the NFIP of servicing its debt consumes much of its 

revenue. ... millions of Americans depend upon the NFIP for flood coverage ...“ 

According to Dr Evan Mills ( US Department of Energy’s Lawrence Berkeley National Laboratory) “there is growing acknowledgement among insurers that the impact of climate change on 

future insured losses is likely to be profound. The chairman of Lloyd’s of London has said that 

climate change is the number- one issue for that massive insurance group. And Europe’s largest 

insurer, Allianz, stated that climate change stands to increase insured losses from extreme events 

in an average year by 37 per cent within just a decade. Losses in a bad year could top US$1 trillion. Insurers increasingly recognise that it is the lack of action to combat climate change that is 

the true threat to their industry and the broader economy; engaging with the problem and mounting solutions represents not only a duty to shareholders but also a boon for economic growth. 

The insurance sector thus finds itself on the front lines of climate change. The response of many,

particularly in the United States, has been to focus on financial means for limiting their exposure 

to high-risk areas along the coastlines and areas prone to wildfires. Allstate, for instance, has said 

that climate change has prompted it to cancel or not renew policies in many Gulf Coast states, 

with recent hurricanes wiping out all of the profits it had garnered in 75 years of selling homeowners insurance. 47The company has cut the number of homeowners’ policies in Florida from 

1.2 million to 400,000 with an ultimate target of no more than 100,000. The company has curtailed activity in nearly a dozen other States.” 

EPA Can Use TSCA to Complement Existing Federal Laws 

Petitioner asks that, as required under TSCA, the Agency determine if relief is more efficient under any other Federal statute and if so, to use that authority as is required under TSCA § 9. 

Choosing a regulatory strategy and determining what actions are required to mitigate unreasonable risks is, again, inherently a governmental function. However, the cost and the efficiency of 

the mitigation options that are considered during regulatory development and assessment drive 

the determination of whether a risk is “unreasonable” and the array of alternatives considered 

need to be robust. 

 

47 Conley 2007 in "Insurance in a Climate of Change: Availability & Affordability." Berkeley Lab, U.S. Department 

of Energy. 
14 

Because of the magnitude of Ocean Acidification risk, Petitioner believes good government demands the Agency consider a complete array of options using all authorities and tools available 

to efficiently address the problem. Petitioner will show that in addition to requiring relief under 

TSCA § 6, the Agency can use the TSCA § 9 authority to require action under either, or both, the 

Clean Air Act (CAA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorities. Relief under these statutes should also be considered in determining the cost, benefit and the most efficient remedies to mitigate the harm and risk from 

Ocean Acidification. 

Petitioner is aware that the Agency has recently planned and initiated several emission reduction 

actions aimed at slowing the rate at which carbon emissions are increasing. These actions by 

themselves while laudable, will not stabilize atmospheric CO2 at a level that prevents widespread 

harm from ocean acidification. Consider that even with a successful implementation of the 

Agency’s planned emission reduction regulations, atmospheric concentration will pass 450 ppm 

around 2030, a tipping point likely to induce aragonite undersaturation in surface waters. Petitioner believes that a combination of aggressive emission reduction and sequestration is necessary to mitigate the unreasonable risk and harm caused by ocean acidification. Both CERCLA 

and the CAA can provide relief. 

Petitioner asks that the Agency consider whether that CERCLA and/or CAA authorities present 

efficient opportunities for remediating ocean acidification. 

1) Remedies under the Clean Air Act (CAA) 

There are several remedies under the CAA either directly accessible or accessible under 

TSCA section 9. Title 42 § 7415 of the Clean Air Act addresses endangerment of public health 

or welfare in foreign countries from pollution emitted in United States, and directs “the Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency”...to have... “ reason to believe that any air pollutant or pollutants emitted in the United States 

cause or contribute to air pollution which may reasonably be anticipated to endanger public 

health or welfare in a foreign country ...the Administrator shall give formal notification thereof 

to the Governor of the State in which such emissions originate. The notice of the Administrator 

shall be deemed to be a finding under section 7410 (a)(2)(H)(ii) of this title “ 

There have been many reports addressing the endangerment of public health or welfare from 

ocean acidification that have been published by duly constituted international agencies and of 

which the Agency is well aware and in some cases participated in. These include: the Royal Society48; The European Union’s European Project on Ocean Acidification (EPOCA) published 

over a hundred scientific papers detailing the effects; the UN’s Climate Change and Ocean 

Acidfication Synegies and opportunities within the UNFCCC, Harrould-Kolieb and Herr; and 

Australia’s GBRMPA published Climate Change and the Great Barrier Reef: A Vulnerability 

Assessment in association with 85 scientific and management experts; as well as numerous IPCC 

Reports, in which the Agency and other Departments of the Federal Government actively participate. 

 

48Royal Society (Ocean acidification due to increasing atmospheric carbon dioxide, 30 June 2005 
15 

The Columbia Journal of Law49 describes the applicability of Section 115 to CO2 regulation for 

ocean acidification mitigation, including the legislative history and how SIPs under section 7410 

are mandated. The Agency’s current Proposed Rule for Electric Utilities using section 7411, can 

serve as a template. The flexibility for State SIPs in the Rule includes by reference, their current 

State programs as applicable to compliance with the Rule. Some of these cited include provisions 

for, and allow “offsets” or carbon sequestration to be counted in reaching program goals, using 

for example, Cap and Trade. State by State assessment of legacy carbon could be calculated by 

the Agency from the Emission Inventory and these could be included in State Implementation 

Plans. 

§ 7415 includes the requirement that a reciprocity finding that the affected foreign country gives 

the U.S. "essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country”. This requirement directly addresses the often 

raised argument against US EPA action that posits: since Ocean Acidification has a global cause, 

only international action can address it successfully. Implementation of State plans would presuppose a concurrent implementation internationally. The Montreal Protocol (which found it’s 

genesis in a TSCA action) could serve as a template for coordinating international plans for 

ocean acidification mitigation. The European Union’s REACH (Registration, Evaluation, Authorization and Restrictions of Chemicals) regulation serves as an example of how a large attractive market (like the EU or the US) can induce foreign companies and government directed 

economies who wish to have continued access to the markets, to comply with environmental 

regulation. 

Recently the US and China, which account for almost 40% of global carbon emissions, jointly 

announced new targets to cut emissions. Germany, Finland and other industrialized counties are 

also drastically cutting emissions. The foundation for a reciprocity agreement with the nations 

that account for most of the legacy and current emissions is already in place. 

Alternatively, the CAA emission trading mechanism, which offers an often used, efficient market approach might also be accessed directly through TSCA section 9 to mitigate ocean acidification. 

Under TSCA section 6: (1) A requirement ...." (B) limiting the amount of such substance or mixture which may be manufactured, processed, or distributed in commerce.” ...clearly gives the 

Agency authority to limit current emissions, and Section 6’s: "Any manufacturer or processor 

subject to a requirement to replace or repurchase a chemical substance or mixture may elect either to replace or repurchase the substance or mixture and shall take either such action in the 

manner prescribed by the Administrator.” gives authority for trading options. While ‘repurchase’ is sequestration, "replace" is trading. 

Since EPA has treated air pollutants like CO2 as fungible in order to efficiently regulate when the 

“net” pollution is key, replacing carbon emitting facilities with new facilities that rely on renewable sources will reduce the net carbon in the atmosphere and thereby reduce the amount in the 

oceans. This would be one way for facilities to “pay down” their legacy carbon debt. The 

 

49Cap-and-Trade Under The Clean Air Act?: Rethinking Section 115 , H Chang, April 2010 
16 

Agency could consider a current carbon emitting facility’s development of green (e.g. solar or 

wind) energy capacity to replace (not augment) fossil energy as a legacy offset. (Assuming this 

is not double counting, i.e., being used to bring the facility into compliance for current emissions 

under another requirement). The new energy production from the no- or low- emitting source 

would “replace” the carbon that would be emitted from the existing energy production source, 

leading to a net reduction in carbon emissions. This type of offset also has the advantage of 

helping to build the market base for green energy and eventually lower costs for additional facilities, accelerating the needed energy infrastructure change. This is an approach the German State 

is pursuing through subsidies. 

2) Remedies under CERCLA Under the 42 U.S. Code § 9604 Response authorities 

Whenever (A) any hazardous substance is released or there is a substantial threat of such a release into the environment, or (B) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger 

to the public health or welfare, the President is authorized to act (under 42 U.S. Code § 9621), 

consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any 

time (including its removal from any contaminated natural resource). 

CO2 can meet the CERCLA definition of “hazardous substance in in either of two ways: 1) under 

9602 “The Administrator shall promulgate and revise as may be appropriate, regulations designating as hazardous substances... such elements, compounds, mixtures, solutions, and substances 

which, when released into the environment may present substantial danger to the public health or 

welfare or the environment, or, 2) by definition: “any imminently hazardous chemical substance 

or mixture with respect to which the Administrator has taken action pursuant to section 7 of the 

Toxic Substances Control Act”. 

If the Administrator takes action under TSCA §7 based on the imminent hazard to coral reefs and 

marine life, as explained in the petition, CERCLA becomes applicable50. While some risks to 

marine organisms from ocean acidification may be uncertain, many are not. Also, the risk to the 

coral reefs which provide protection to life and property along America’s coastlines as well as 

significant recreational and nutritional benefits is both manifest and well documented and the 

risk is “imminent” within the definition of TSCA. (Alternatively, these same dangers might be 

used by the Administrator to directly designate CO2 as a hazardous substance)

The imminence stems not from the point in time when the threat will be completely manifest but 

rather from the point in time when action must be begun to effectively mitigate or avoid the 

threatened effect(s). That time is now, primarily because of the enormous inertia in the carbon 

economic cycle. The infrastructure of energy use relies on fossil fuel combustion. There are no 

alternatives of sufficient capacity in the near term. To avoid reaching the point, mid to late century (given the current trajectory) where the oceans are undersaturated in carbonate and shells 

and coral begin dissolving wholesale, either a robust sequestration program must be developed, 

 

50 CERCLA section 101(14) 
17 

and/or significant energy alternatives must be made available. These are both long term programs that require decades, and must begin now.

Scientists are well aware of the enormous risk posed by ocean acidification. A recent study 

in Science found that the largest extinction event on earth was caused by ocean acidification51. 

Dr. Jane Lubchenco, The head of the National Oceanic and Atmospheric Administration 

from 2008 -2013 has called ocean acidification global warming's "equally evil twin.” Unfortunately, unlike the risk from Climate Change, the magnitude of the risk to the oceans from acidification is not well known or understood by the general public. A TSCA § 7 Notice informing 

the public of the serious risks to coral reefs, provides the information needed to decide if changes 

in personal energy use, and consumption is warranted. (TSCA § 7 grants EPA authority to "require warning labels and/or instructions on containers or products”. USEPA could encourage 

consumer choice by labeling products with large embedded carbon volume). 

Changes in energy use and consumption can begin to retard the ongoing increase in atmospheric 

CO2 and to lessen the effect of acidification on coral reefs. Changes in consumer choice toward 

less carbon intensive products could build markets for those products, making them less expensive and spurring innovation. Information on the risks can help localities plan as well. Notification of risks is one of the TSCA § 7 remedies. A TSCA § 7 Notice explaining the risks would 

help inform decisions concerning where to live in order to be secure in life and property, given 

the inevitable loss of protection to some coastal areas from extreme weather events (coincidently 

expected to increase with climate change) which will occur with the loss of reefs.

It also seems reasonable that, to the extent the US is harmed, it can use CERCLA to fund remedies from transboundary actors, as was the case in the Trail Smelter Arbitration.52 Wherein the 

downstream Confederated Tribes of the Colville Reservation, and the State of Washington, in the 

US sued a Canadian smelter for dumping into the Columbia River upstream in Canada under 

CERCLA. This is a successful resolution of an international dispute that provided an important 

principle of international customary law concerning state responsibility and transboundary pollution. (Again, a TSCA § 7 action for CO2 effect on coral reefs would define CO2 as hazardous 

under CERCLA.)

Another important theory of international law is the polluter-pays principle. This theory stands 

for the proposition that nations should focus on internalizing environmental costs for purposes of 

public interest by making the polluter bear the cost of pollution. By mandating that the responsible party bear these costs, the polluter-pays principle achieves the effect of encouraging individual responsibility for environmental harm. The countries attending the Rio Convention, including 

the US and Canada, reaffirmed this principle in Article 16 of the 1992 Rio Declaration”53 

CERCLA’s strict, joint and several liability, holds polluters responsible for damage. 

The oceans have essentially been a “dump site” for CO2 emissions, so CERCLA is a natural vehicle for seeking remedy. CERCLA has been applied to other water bodies, e.g., the upper 40 or 

 

51 Clarkson et al. Science 10 April 2015: Vol. 348 no. 6231 pp. 229-232 

52 United States District Court for the Eastern District of Washington, April 4, 2012 53 Greenfield: CERCLA’S applicability abroad, Emory International Law Review;Fall2005, Vol. 19 Issue 3, p1697 
18 

so miles of the Hudson are a NPL site for pcb contamination. CERCLA is an excellent tool for 

seeking remedy from multiple, diverse parties, i.e., “CERCLA casts a wide net in bringing in responsible parties. Through the broad definition of hazardous substance (§101(14) - liability is 

extended to anything that presents an "imminent and substantial danger"), the loose interpretation of "release" (there is no time constraint on this) and the wide scope of liability (each party 

involved may be responsible for the entire clean up) the statute seeks to fund the clean up of these sites. Although there have been challenges to the apparently retroactive nature of this (because 

people are being held liable for actions that predate the statute), and as noted above, the courts 

have held that as the waste is continuing to cause problems, and the statute is not a punishment 

but rather a reimbursement obligation, the statute is not retroactive, and thus not unconstitutional. 

And again, small contributors can be and are routinely ignored if transaction costs are high. 

Summary

Ocean acidification and its effects are complex and the state of knowledge is uneven. Depending on what USEPA knows and believes about the effects of ocean acidification there are a 

number of decisions that the Agency must make and actions associated with those decisions. In 

the introduction and in the body of the petition, petitioners ask USEPA to take several actions 

under TSCA § 4 and 6, and in this supplement petitioner asks the Agency to take additional appropriate actions under other federal statutes through TSCA § 9 and other TSCA authority, in 

order to mitigate the human health and environmental risk from ocean acidification caused by 

CO2 emissions. 

The following describes the different paths the Agency can take in responding and what the petitioner believes the public deserves in each case. While mentioned below is the possibility of taking action under TSCA § 7, petitioner understands that § 21 cannot be used to for § 7 action, 

however, petitioner believes that the threat to coral reefs presented in the petition and as discussed herein make a compelling case for § 7 action.

1) EPA could decide that the current state of knowledge concerning ocean acidification is sufficient to decide that the risk(s) of ocean acidification are not unreasonable. This requires evidence 

that the demonstrated loss of the coral reefs, decrease in shell fish harvests, loss of competitiveness of pteropods and other organisms that secrete calcium carbonate and other ecological and 

health effects are known to the Agency, as are the ancillary climate benefits that occur with atmospheric carbon controls, are either outweighed by the cost of mitigation, which is also known 

to the Agency, or are not significant effects. In this case, petitioner asks that the Agency publish 

and share this information with the public.

2) EPA could decide that all or some of the information necessary to make the unreasonable risk 

finding is either not sufficient or not available, but this lack of data does not meet the criteria for 

action under TSCA § 2(b)(1) and/or TSCA § 4 . Petitioner expects in this case, an explanation of 

why the triggers are not met by the information presented in the petition. Since much of the risk 

cited in this petition come from EPA, NOAA, and other government sources, petitioner asks if 

USEPA has information that supersedes or discounts these conclusions, and if so to publish and 

share this information with the public.
19 

3) EPA could decide that all or some of the information necessary to make the unreasonable risk 

finding is either not sufficient or not available, and take action under TSCA § 4. Petitioner expects in this case that the Agency will explain what information is sufficient and what is not, and 

develop test rules to gather information sufficient to make an unreasonable risk finding in a timely fashion.

4) EPA could decide that some of the risks from ocean acidification are unreasonable and take 

action under TSCA §ʼs 6, 9 and other statutes, but that some information is lacking for other 

risks and write a TSCA § 4 rule to develop the missing information. Petitioner expects in this 

case that the Agency will explain what information is sufficient and what is not, develop test 

rules to gather information sufficient to make an unreasonable risk finding for the risks that are 

uncertain, and take action for the risks that are unreasonable.

5) The Agency, in combination with any of the above options, could publish a TSCA § 7 Notice 

informing the public of the serious risks to coral reefs associated with ocean acidification, itʼs 

causes, and what must be done to mitigate it. As explained above this information is needed by 

the public to judge the severity of the risk, adequacy of governments response to protect human 

health and the environment, and what precautions, if any, are necessary to take.

6) EPA could grant the petition and propose rules to mitigate ocean acidification using TSCA, 

CERCLA, CAA and/or other Agency and Federal authorities as appropriate. Petitioner endorses 

this action.

Sincerely, 

/s/ Donn J. Viviani

Donn J. Viviani PhD. 

Donn J. Viviani is a retired U.S. Environmental Protection Agency scientist. He was the Director 

of the Climate Policy Assessment Division in the Office of Policy, Economics and Innovation. He 

also served as Chairman of the Great Lakes Water Quality Board's Toxic Substances Committee, 

and as a member of the Science Coordinating Committee for the International Joint Commission 

for the Great Lakes. Dr. Viviani greatly enjoys the ocean and cosigns the petition and submits 

this supplement, in part, so his grandchildren will be able to enjoy it as well.