Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Proposed Rules 60577 

are not the subject of an adverse 

comment. 

For additional information, see the 

direct final rule which is located in the 

Rules Section of this Federal Register. 

Dated: September 21, 2015. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2015–25333 Filed 10–6–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Chapter I 

[EPA–HQ–OPPT–2015–0487; FRL–9934–77] 

Carbon Dioxide Emissions and Ocean 

Acidification; TSCA Section 21 

Petition; Reasons for Agency 

Response 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Petition; reasons for Agency 

response. 

SUMMARY: This document provides the 

reasons for EPA’s denial of a petition it 

received under section 21 of the Toxic 

Substances Control Act (TSCA) from the 

Center for Biological Diversity and Donn 

J. Viviani, Ph.D. The petitioners 

requested EPA to initiate rulemaking 

under TSCA to address risks related to 

carbon dioxide emissions, particularly 

those associated with ocean 

acidification, or, in the alternative, that 

EPA initiate rulemaking under TSCA to 

require testing to determine toxicity, 

persistence, and other characteristics of 

carbon dioxide emissions that affect 

human health and the environment. 

After careful consideration, EPA denied 

the TSCA section 21 petition for the 

reasons discussed in this document. 

DATES: EPA’s response to this TSCA 

section 21 petition was signed 

September 25, 2015. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Cindy 

Wheeler, National Program Chemicals 

Division (7404), Office of Pollution 

Prevention and Toxics, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460–0001; 

telephone number: (202) 566–0484; 

email address: wheeler.cindy@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCA-Hotline@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general. This action may, however, be 

of interest to sources of carbon dioxide 

emissions, such as power plants, cement 

plants, pulp and paper mills, and 

various types of mobile sources. Since 

other entities may also be interested, the 

Agency has not attempted to describe all 

the specific entities that may be affected 

by this action. 

B. How can I access information about 

this petition? 

The docket for this TSCA section 21 

petition, identified by docket 

identification (ID) number EPA–HQ– 

OPPT–2015–0487, is available at 

http://www.regulations.gov or at the 

Office of Pollution Prevention and 

Toxics Docket (OPPT Docket), 

Environmental Protection Agency 

Docket Center (EPA/DC), West William 

Jefferson Clinton Bldg., Rm. 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the OPPT 

Docket is (202) 566–0280. Please review 

the visitor instructions and additional 

information about the docket available 

at http://www.epa.gov/dockets. 

II. TSCA Section 21 

A. What is a TSCA Section 21 petition? 

Under TSCA section 21 (15 U.S.C. 

2620), any person can petition EPA to 

initiate a rulemaking proceeding for the 

issuance, amendment, or repeal of a rule 

under TSCA section 4, 6, or 8 or an 

order under TSCA section 5(e) or 

6(b)(2). A TSCA section 21 petition 

must set forth the facts that are claimed 

to establish the necessity for the action 

requested. EPA is required to grant or 

deny the petition within 90 days of its 

filing. If EPA grants the petition, the 

Agency must promptly commence an 

appropriate proceeding. If EPA denies 

the petition, the Agency must publish 

its reasons for the denial in the Federal 

Register. A petitioner may commence a 

civil action in a U.S. district court to 

compel initiation of the requested 

rulemaking proceeding within 60 days 

of either a denial or the expiration of the 

90-day period. 

B. What criteria apply to a decision on 

a TSCA Section 21 petition? 

Section 21(b)(1) of TSCA requires that 

the petition ‘‘set forth the facts which it 

is claimed establish that it is necessary’’ 

to issue the rule or order requested (15 

U.S.C. 2620(b)(1)). Thus, TSCA section 

21 implicitly incorporates the statutory 

standards that apply to the requested 

actions. In addition, TSCA section 21 

establishes standards a court must use 

to decide whether to order EPA to 

initiate rulemaking in the event of a 

lawsuit filed by the petitioner after 

denial of a TSCA section 21 petition (15 

U.S.C. 2620(b)(4)(B)). Accordingly, EPA 

has relied on the standards in TSCA 

section 21 and in the provisions under 

which actions have been requested to 

evaluate this TSCA section 21 petition. 

III. TSCA Sections 6 and 4 

Of particular relevance to this TSCA 

section 21 petition are the legal 

standards regarding TSCA section 6 

rules and TSCA section 4 rules. 

A. TSCA Section 6 Rules 

To promulgate a rule under TSCA 

section 6, the EPA Administrator must 

find that ‘‘there is a reasonable basis to 

conclude that the manufacture, 

processing, distribution in commerce, 

use, or disposal of a chemical substance 

or mixture . . . presents or will present 

an unreasonable risk’’ (15 U.S.C. 

2605(a)). This finding cannot be made 

considering risk alone. Under TSCA 

section 6, a finding of ‘‘unreasonable 

risk’’ requires the consideration of costs 

and benefits. Furthermore, the control 

measure adopted is to be the ‘‘least 

burdensome requirement’’ that 

adequately protects against the 

unreasonable risk (15 U.S.C. 2605(a)). 

In addition, TSCA section 21(b)(4)(B) 

provides the standard for judicial 

review should EPA deny a request for 

rulemaking under TSCA section 6(a): ‘‘If 

the petitioner demonstrates to the 

satisfaction of the court by a 

preponderance of the evidence that . . . 

there is a reasonable basis to conclude 

that the issuance of such a rule . . . is 

necessary to protect health or the 

environment against an unreasonable 

risk of injury,’’ the court shall order the 

EPA Administrator to initiate the 

requested action (15 U.S.C. 

2620(b)(4)(B)). 

Also relevant to the issuance of 

regulations under TSCA section 6, 

TSCA section 9(b) directs EPA to take 

regulatory action on a chemical 

substance or mixture under other 

statutes administered by the Agency if 

the EPA Administrator determines that 

actions under those statutes could 

eliminate or reduce to a sufficient extent 

a risk posed by the chemical substance 

or mixture. If this is the case, the 

regulation under TSCA section 6 can be 

promulgated only if the EPA determines 

that it is in the ‘‘public interest’’ to 

protect against that risk under TSCA 


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rather than, or in addition to, the 

alternative authority (15 U.S.C. 2608(b)). 

B. TSCA Section 4 Rules 

To promulgate a rule under TSCA 

section 4, EPA must find that data and 

experience are insufficient to reasonably 

determine or predict the effects of a 

chemical substance or mixture on health 

or the environment and that testing of 

the chemical substance is necessary to 

develop the missing data (15 U.S.C. 

2603(a)(1)). In addition, EPA must find 

either that: (1) The chemical substance 

or mixture may present an unreasonable 

risk of injury; or (2) The chemical 

substance is produced in substantial 

quantities and may either result in 

significant or substantial human 

exposure or result in substantial 

environmental release (15 U.S.C. 

2603(a)(1)). 

In the case of a mixture, EPA must 

also find that ‘‘the effects which the 

mixture’s manufacture, distribution in 

commerce, processing, use, or disposal 

or any combination of such activities 

may have on health or the environment 

may not be reasonably and more 

efficiently determined or predicted by 

testing the chemical substances which 

comprise the mixture’’ (15 U.S.C. 

2603(a)(2)). 

IV. Summary of the TSCA Section 21 

Petition 

A. What action was requested? 

On June 30, 2015, the Center for 

Biological Diversity and Donn J. Viviani, 

Ph.D., petitioned EPA under TSCA 

section 21 to determine that carbon 

dioxide (CO2) presents an unreasonable 

risk of injury to health or the 

environment and initiate rulemaking to 

control CO2 (Ref. 1). The petitioners 

point to TSCA section 6(a) for options 

that EPA may exercise in order to 

protect against unreasonable risk and 

ask that EPA take into consideration the 

harm caused by past CO2 emissions. 

If EPA determines that the available 

data and information are insufficient to 

permit EPA to reasonably determine or 

predict the effects of CO2 emissions on 

human health and the environment, the 

petitioners request that EPA initiate 

rulemaking for testing under TSCA 

section 4 to fill the information gaps. 

The petitioners suggest that EPA 

consider requiring the following tests or 

studies under TSCA section 4: 

D Tests of CO2 emission reduction, 

capture, and sequestration strategies. 

D Vulnerability assessments for 

marine and coastal species and 

ecosystems. 

D Forecasts, using modeling, of 

species’ responses to ocean 

acidification. 

D Assessments of the economic values 

of ecosystems at risk and the costs of 

reducing CO2 emissions to protect those 

ecosystems. 

Petitioner Viviani submitted a 

supplement supporting all actions 

requested in the petition and including 

additional information and requests 

(Ref. 2). The supplement requests 

further that, with any TSCA section 6 or 

TSCA section 4 action, EPA also 

consider health effects from climate 

change and ocean acidification, direct 

and indirect economic impacts, 

insurance impacts, and environmental 

justice implications. Petitioner Viviani 

also suggested that EPA include, in any 

TSCA section 6 rule, options to 

sequester carbon emissions, including 

sequestration that relies on alternative 

energy and/or produces net carbonates, 

as well as the use of economic 

incentives to encourage sequestration 

efforts by the private sector. Alternately, 

the Viviani supplement specifically asks 

that EPA use TSCA section 4 to gather 

information on sequestration 

technologies and offers a suggested cost 

apportionment method. 

The supplement includes a variety of 

additional requests and observations. 

For example, the supplement urges EPA 

to consider making an imminent hazard 

finding under TSCA section 7 in order 

to complement other Agency actions 

and to inform the public on the risks, 

causes, and methods for mitigating 

ocean acidification resulting from 

anthropogenic CO2 emissions. The 

supplement urges EPA to address the 

impacts of ocean acidification on 

pesticide tolerances by taking into 

account the increased fish farming that 

will be needed as a result of ocean 

acidification. Finally, the supplement 

asks EPA to use other programs and 

authorities to address ocean 

acidification, such as the Clean Air Act 

(CAA) and the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA). 

B. What support do the petitioners offer? 

The petitioners contend that CO2

emissions cause ocean acidification, and 

that ocean acidification is a severe 

threat to the marine environment and 

the health of people who depend on 

oceans and coasts. According to the 

petitioners, about 28% of the CO2

emissions from power generation, 

cement production, industry, and other 

sources are absorbed by the ocean, 

which causes the seawater to become 

more acidic and corrosive to sea life. 

The petitioners state that, since the 

industrial revolution, man-made CO2

emissions have increased the acidity of 

the oceans on average by 30%, and that, 

by the end of the century, the oceans 

will become 150–170% more acidic if 

anthropogenic CO2 emissions continue 

unabated. The petitioners provide 

numerous examples of the potential 

adverse effects of ocean acidification, 

some of which they say are already 

apparent, such as the loss of oyster 

larvae in the Pacific Northwest, the poor 

condition of pteropod (a type of 

zooplankton) shells along the West 

Coast, and the decline in calcification 

rates at coral reef locations in the Pacific 

and the Caribbean. Other adverse 

impacts to be expected from ocean 

acidification, according to the 

petitioners, are impairment of sensory 

abilities and behavior in fish, decreased 

metabolic rate and activity levels in 

squid, increased toxicity of algal 

blooms, and loss of species diversity 

across ocean ecosystems. 

In addition to describing the 

environmental impacts of ocean 

acidification, the petitioners provided 

some socioeconomic information to 

establish that the impacts will be more 

widespread and may include our 

nation’s food security. The petitioners 

cited the United Nations Convention on 

Biological Diversity for a 2014 

prediction that the oceans will lose 

more than $1 trillion in value annually 

from ocean acidification by 2100 (Ref. 

3). The petitioners also cited a 2010 

report from the United Nations 

Environment Programme that ocean 

acidification’s impact on marine 

organisms is a threat to food security for 

the billions of people that have a 

marine-based diet (Ref. 4). The 

petitioners contend that the US 

economy is dependent on the health of 

the ocean, citing 2009 information from 

the National Oceanic and Atmospheric 

Administration (NOAA) that estimated 

that the ocean economy contributes over 

$223 billion annually to the gross 

domestic product and provides more 

than 2.6 million jobs (Ref. 5). 

V. Disposition of TSCA Section 21 

Petition 

A. What is EPA’s response? 

After review and consideration of the 

support provided, EPA denied the 

petition. EPA has acknowledged the 

impacts of CO2 and other greenhouse 

gas emissions on ocean acidification 

and the potential impacts of ocean 

acidification on marine ecosystems in 

its 2009 greenhouse gas endangerment 

finding (Ref. 6). However, the 

petitioners provided neither adequate 

specifics on the relief sought under 

TSCA, nor sufficient information on the 

costs and benefits associated with a 


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requested regulatory option to allow 

EPA to make the unreasonable risk 

finding specified in TSCA section 6(a). 

In addition, actions to address CO2

emissions under authorities other than 

TSCA could reduce the risk posed by 

CO2 more efficiently and effectively at 

this time. Finally, the petitioners do not 

present EPA with information sufficient 

to establish that testing under TSCA 

section 4 is necessary to develop data 

that would allow EPA to determine 

whether anthropogenic CO2 emissions 

present an unreasonable risk of injury 

under TSCA. A copy of the Agency’s 

response, which consists of a letter to 

the petitioners, is available in the docket 

for this TSCA section 21 petition. 

B. What is EPA’s reason for this 

response? 

1. Background on federal action. 

Ocean acidification refers to the 

decrease in the pH of the Earth’s oceans 

caused by the uptake of CO2 from the 

atmosphere. Ocean acidification 

presents a suite of environmental 

changes that would likely negatively 

affect ocean ecosystems, fisheries, and 

other marine resources. 

EPA and other parts of the federal 

government are working diligently on 

many fronts to address climate change 

and related concerns, including ocean 

acidification. The Federal Ocean 

Acidification Research and Monitoring 

Act of 2009 created the Interagency 

Working Group on Ocean Acidification 

(IWG–OA), which is chaired by NOAA 

and consists of a dozen federal agencies 

including EPA. Over the past several 

years, the member agencies have 

conducted and funded research into the 

effects of acidification on ocean 

ecosystems and the economy. The IWG– 

OA released its Strategic Plan for 

Federal Research and Monitoring of 

Ocean Acidification in 2014 (Ref. 7). 

The group’s Third Report on Federally 

Funded Ocean Acidification Research 

and Monitoring Activities, a report to 

Congress issued in April 2015 (Ref. 8), 

highlights the wide variety of research 

aimed at understanding the impacts of 

acidification, including the following 

activities undertaken or funded by EPA: 

D A study of coastal acidification 

impacts on shellfish in Narragansett 

Bay. 

D Studies of plankton community 

and macro-algal responses to 

acidification. 

D Support for the development of 

biophysical models and new 

methodologies to determine the 

economic and intrinsic value of coral 

reefs and shellfish. 

D Research to assess the economic 

impacts of ocean acidification on US 

mollusk fisheries to support 

quantification of the damages resulting 

from greenhouse gas emissions. 

D Support for monitoring 

acidification in National Estuary 

Program study areas. 

D Support for the development of 

computational models that will predict 

changes in biogeochemical parameters 

of coastal waters. 

The current Administration has 

focused on ocean policy 

comprehensively, including ocean 

acidification. In 2009, President Obama 

established an Interagency Ocean Policy 

Task Force charged with developing 

recommendations to enhance national 

stewardship of the ocean, coasts, and 

Great Lakes. The Task Force received 

and reviewed nearly 5,000 written 

comments from Congress, stakeholders, 

and the public before issuing final 

recommendations. On July 19, 2010, 

President Obama signed Executive 

Order 13547, adopting the final 

recommendations of the Task Force and 

establishing a national policy for the 

stewardship of the ocean, coasts, and 

Great Lakes. This National Ocean Policy 

recognizes the importance of marine 

and lake ecosystems in providing jobs, 

food, energy resources, ecological 

services, transportation, and recreation 

and tourism opportunities. In April of 

2013, the final plan for implementing 

the National Ocean Policy was issued, 

after additional opportunities for 

stakeholders and the general public to 

comment (Ref. 9). The implementation 

plan describes specific actions Federal 

agencies will take to address key ocean 

challenges, while at the same time 

giving states and communities greater 

input in Federal decisions, streamlining 

Federal operations, and promoting 

economic growth. In relation to ocean 

acidification, the implementation plan 

(and its appendix) focus on information 

development and dissemination, as well 

as coastal resiliency and adaptation. 

President Obama released a Climate 

Action Plan in 2013 which laid out a 

vision for reducing greenhouse gases 

based on three key pillars, namely 

domestic greenhouse gas reductions, 

preparations for future impacts, and 

leading international efforts to address 

climate change (Ref. 10). Reductions of 

CO2 emissions through domestic and 

international actions will contribute to 

the amelioration of ocean acidification. 

Domestic actions under the Climate 

Action Plan that will lead to CO2

reductions include regulatory activities, 

promoting renewable energy, supporting 

innovation in the energy and vehicle 

sectors, and improving efficiency at 

multiple levels. CO2 is a globally wellmixed gas, one of the greenhouse gases 

that are sufficiently long-lived in the 

atmosphere such that, once emitted, 

concentrations of each gas become well 

mixed throughout the entire global 

atmosphere (Ref. 6). Therefore, global 

reductions are also necessary, and the 

Administration is pursuing multiple 

avenues to work with and in other 

nations to reduce emissions and 

deforestation and promote clean energy 

and energy efficiency. 

Much of the domestic regulatory 

activity has been under the authority of 

the CAA. In 2009, under CAA section 

202(a), the Administrator determined 

that six well-mixed greenhouse gases 

(CO2, methane, nitrous oxide, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride) in the 

atmosphere threaten the public health 

and welfare of current and future 

generations and that the combined 

emissions from new motor vehicles and 

new motor vehicle engines contribute to 

the greenhouse gas pollution which 

threatens public health and welfare (Ref. 

6). [Note: Although this finding was 

supported by a record that included 

extensive scientific assessment 

literature on climate change and its 

impacts, including ocean acidification, 

particularly of the US Global Change 

Research Program (USGCRP), the 

National Research Council (NRC) of the 

US National Academies of Science and 

the Intergovernmental Panel on Climate 

Change (IPCC), the EPA notes that its 

actions under the CAA are governed by 

different statutory provisions and 

different standards than the standard for 

making a finding of unreasonable risk 

under TSCA sections 6(a) or 4. As such, 

the Agency’s determinations on this 

petition under TSCA are separate from 

and would not affect EPA’s 

determinations under other statutory 

authorities.] 

Subsequently, EPA promulgated 

emissions standards for light duty 

vehicles for model years 2012–2016 

(Ref. 11) and model years 2017–2025 

(Ref. 12) controlling emissions of CO2, 

methane, nitrous oxide, and 

hydrofluorocarbons from the light duty 

fleet. EPA has also promulgated 

standards for these same air pollutants 

for new heavy duty vehicles and 

engines for model years 2014–2018 (Ref. 

13), and recently proposed a second 

phase of standards for these vehicles 

and engines for model years 2018–2027 

(Ref. 14). Together, the enacted and 

proposed standards are expected to save 

more than six billion barrels of oil 

through 2025 and reduce more than 

3,100 million metric tons of CO2

emissions. 

Also with respect to mobile sources, 

EPA is required to set annual standards 


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for the Renewable Fuel Standard (RFS) 

program for each year that ensure that 

transportation fuel sold in the U.S. 

contains a minimum volume of 

renewable fuel. By 2022, the RFS 

program will reduce greenhouse gas 

emissions by 138 million metric tons, 

about the annual emissions of 27 

million passenger vehicles, replacing 

about seven percent of expected annual 

diesel consumption and decreasing oil 

imports by $41.5 billion. 

While mobile sources are important 

contributors to greenhouse gas 

pollution, power plants are the largest 

stationary source of carbon pollution in 

the United States and about one third of 

all greenhouse gas pollution comes from 

the generation of electricity by power 

plants. On August 3, 2015, EPA issued 

the Clean Power Plan, which includes 

standards for new and existing power 

plants (Ref. 15). Under the authority of 

CAA section 111(b), the Plan sets carbon 

pollution standards for new, modified, 

and reconstructed power plants. 

Emission limits, based on the best 

adequately demonstrated system of 

emission reduction for the type of unit, 

are set for new, modified, and 

reconstructed stationary combustion 

turbines as well as new, modified, and 

reconstructed coal-fired steam 

generating units. Under the authority of 

CAA section 111(d), the Clean Power 

Plan also establishes interim and final 

CO2 emission performance rates for 

fossil fuel-fired electric steam generating 

units and for natural gas-fired combined 

cycle generating units. To maximize the 

range of choices available to states in 

implementing the standards and to 

utilities in meeting them, the Clean 

Power Plan also includes interim and 

final statewide goals. States will then 

develop and implement plans that 

ensure that their power plants, either 

individually, together, or in 

combination with other measures, 

achieve the interim CO2 emissions 

performance rates over the period of 

2022 to 2029 and the final CO2 emission 

performance rates or goals by 2030. EPA 

estimates that by 2030, when the Clean 

Power Plan is fully effective, the CO2

emission level from fossil-fuel fired 

electric power plants will be lower than 

the 2005 level by about 32 percent, 

which is 870 million tons of CO2. 

In addition, since January of 2011, 

under the CAA, EPA has required that 

the construction of large stationary 

sources of air pollution (including 

power plants) incorporate the best 

technology available for controlling 

emissions of greenhouse gases, 

including CO2. Under CAA section 

165(a), a major emitting facility may not 

commence construction without 

obtaining a Prevention of Significant 

Deterioration (PSD) permit that limits 

the emissions of ‘‘each pollutant subject 

to regulation’’ under the Act to the 

maximum degree achievable through 

the application of the Best Available 

Control Technology (BACT) (42 U.S.C. 

7475(a)(4); 7479(3)). This requirement 

became applicable to greenhouse gas 

emissions when EPA’s light-duty 

vehicle standards for this pollutant first 

took effect 2011 (Ref. 16). In 2010, EPA 

took several steps to ensure that EPA 

and state permitting authorities were 

able to apply the PSD BACT 

requirement to greenhouse gas 

emissions from the largest stationary 

sources and to incorporate those 

requirements into operating permits for 

stationary sources under Title V of the 

Clean Air Act. EPA first issued a rule 

that phased-in the requirements of these 

CAA permitting programs and initially 

limited covered facilities to the nation’s 

largest greenhouse gas emitters: power 

plants, refineries, and cement 

production facilities (Ref. 17). EPA also 

issued several rules to ensure that either 

EPA or a state permitting authority was 

in a position to implement these 

requirements in every state (Refs. 18– 

20). 

EPA has developed many programs 

and projects that partner with industry 

and others to reduce greenhouse gas 

emissions. Examples include ENERGY 

STAR, the Green Power Partnership, 

and the Combined Heat and Power 

Partnership. Through voluntary energy 

and climate programs, EPA’s partners 

reduced over 345 million metric tons of 

greenhouse gases in 2010 alone 

(equivalent to the emissions from 81 

million vehicles). 

In addition to taking actions to reduce 

CO2 emissions, EPA has been working 

on ocean acidification issues under the 

Clean Water Act (CWA). In 2009, EPA 

published a Notice of Data Availability 

(NODA) containing data and 

information on the potential effects of 

ocean acidification on aquatic life and 

requested data and information from the 

public that could be useful to EPA in 

deciding whether to reevaluate and 

revise the recommended marine pH 

water quality criterion under section 

304(a)(1) of the CWA (Ref. 21). EPA 

carefully reviewed all of the information 

received during the public comment 

period as well as additional information 

from NOAA. EPA determined that, at 

the time, the available data did not 

indicate a need to revise the national 

recommended criteria for marine pH to 

address the natural variability in pH 

across coastal regions. 

In addition, EPA issued a March 2010 

request for comment on consideration of 

the effects of ocean acidification in the 

implementation of the program for 

listing of impaired waters under CWA 

section 303(d) (Ref. 22). Under that 

section, states, territories, and 

authorized tribes develop lists of 

impaired waters and develop Total 

Maximum Daily Loads (TMDLs) for the 

pollutant(s) causing the impairment. In 

the notice, EPA asked for comment on 

what considerations to take into account 

when deciding how to address the 

listing of waters as threatened or 

impaired for ocean acidification under 

the 303(d) program. In November 2010, 

EPA distributed a memorandum entitled 

‘‘Integrated Reporting and Listing 

Decisions Related to Ocean 

Acidification’’ (Ref. 23). Among other 

things, the memorandum explained that 

states should continue to list waters that 

do not attain applicable water quality 

standards, including marine pH water 

quality criteria, on the lists of impaired 

waters submitted to EPA, and should 

continue to solicit existing and readily 

available information on ocean 

acidification using the current section 

303(d) listing program framework. EPA 

also committed to providing additional 

guidance to states, territories, and tribes 

when future ocean acidification 

research efforts provide the basis for 

improved monitoring and assessment 

methods. 

In 2012, EPA took actions to approve 

the 2010 list of impaired waters for the 

State of Washington and to establish the 

2010 list of impaired waters for the State 

of Oregon. Neither of those lists 

included waters impaired due to 

pollutants associated with or conditions 

attributable to ocean acidification, and 

EPA’s actions were challenged in court. 

In 2015, the court upheld EPA’s 

determination that existing and readily 

available data and information, 

including confounding and incomplete 

data that might otherwise support 

listing the States’ coastal and estuarine 

waters as impaired, did not require 

listing of such waters as impaired due 

to ocean acidification (Ref. 24). 

2. Rationale for petition denial. To 

regulate CO2 to address ocean 

acidification under TSCA section 6 in 

addition to other authorities, EPA 

would have to make the unreasonable 

risk finding specified in TSCA section 

6(a). The TSCA section 21 petition 

asserts that ‘‘CO2 pollution is changing 

ocean chemistry and harming the 

marine environment’’ and that there 

will be ‘‘severe and detrimental impacts 

on marine ecosystems, the economy, 

and public health if this pollution is 

unabated’’ (Ref. 1). However, the 

petitioners’ argument as to the existence 

of unreasonable risk under TSCA 


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section 6 is hindered by a nearly 

complete lack of detail as to the TSCA 

risk management sought. Under TSCA 

section 21, the public can petition EPA 

for the issuance, amendment or repeal 

of ‘‘a rule’’ under section 6. The 

petitioners have not identified a 

particular rule that they believe EPA 

should issue. Rather, they have 

identified a global environmental 

concern and asked that EPA, during the 

90 days available to it under section 21, 

identify a rule that would address the 

concern and then assess the costs and 

benefits of such a rule to determine 

whether the identified risk is 

unreasonable. Section 21 requires 

considerably more specificity than 

petitioners have provided. 

While the petitioners stated an overall 

goal of mitigating ocean acidification 

under TSCA, and suggested a variety of 

actions that could be used to achieve 

this goal, e.g., mandatory emission 

reductions or ‘‘repurchasing relief using 

sequestration,’’ the petitioners did not 

describe, in any reasonable manner, 

what specific action available under 

TSCA section 6 the petitioners seek in 

order to achieve that outcome (Ref. 1). 

For example, although the petitioners 

state that ‘‘stabilizing atmospheric 

concentration to prevent further 

acidification of the oceans would 

require about an 80% decrease in all 

emissions,’’ the petitioners did not 

specify a regulatory approach for 

achieving such a reduction in the 

United States (EPA clearly could not 

require emission reductions abroad 

under TSCA), or estimate the costs and 

benefits of such a regulation (Ref. 1). 

Among the costs EPA would want to 

evaluate would be the impacts of further 

emission reductions on energy and 

transportation reliability and 

affordability. Similarly, although the 

petitioners argue that EPA has the 

authority to require the mitigation of 

past emissions through sequestration, 

and identify a variety of methods for 

sequestering carbon, the petitioners 

provided no specifics on how EPA 

might impose mandatory carbon 

sequestration actions on current and 

past emitters of CO2 that are subject to 

TSCA. 

The finding of unreasonable risk 

under TSCA section 6 encompasses 

both the anticipated benefits of 

regulatory action as well as the 

anticipated costs. As noted above, EPA 

has acknowledged that greenhouse gas 

emissions impact ocean acidification 

and the petitioners have provided 

evidence that CO2 contributes to ocean 

acidification and therefore poses a risk 

to the environment within the meaning 

of TSCA. The petitioners have also 

provided information on the benefits 

that might be expected from reductions 

in CO2 emissions and/or mitigation or 

sequestration of past CO2 emissions 

globally. However, the petitioners 

present minimal information on CO2

emission controls or the costs of 

reducing CO2 emissions or sequestering 

past emissions. The petitioners 

conclude that ‘‘many industries could 

employ existing technology to achieve 

meaningful emissions reductions 

affordably,’’ and cite a couple of EPA 

documents that review available 

technologies for reducing greenhouse 

gas emissions (Ref. 1). While these 

documents are indeed useful as a survey 

of the state of the industry on emission 

controls and reductions, they do not 

provide the kind of evidence or data 

EPA would need in order to estimate the 

costs of any rule that EPA might impose 

under TSCA section 6 to regulate CO2

emissions. In addition, the petitioners 

provide no basis for EPA to estimate the 

benefits of any particular rule that EPA 

might impose. While the combined 

effects of global CO2 emissions create 

significant environmental and human 

health concerns, and the elimination or 

reduction of those emissions would 

have substantial benefits, any particular 

TSCA rule could address only a portion 

of those emissions. The analysis EPA 

would have to undertake in assessing 

the unreasonableness of the identified 

risks would involve assessing the costs 

and benefits of particular rulemaking 

actions under TSCA, and the petitioners 

simply have not provided sufficient 

information about either the rule they 

think EPA should promulgate or the 

likely costs and benefits of such a rule 

to enable EPA to perform such an 

analysis. 

In addition to a TSCA section 6 rule 

regulating CO2 emissions, the 

petitioners suggest that EPA could use 

its authority under TSCA section 

6(a)(7)(C) to require emitters to take 

steps to mitigate or sequester past CO2

emissions. According to the petitioners, 

this provision, which gives EPA the 

authority to require manufacturers and 

processors to replace or repurchase 

chemical substances or mixtures, also 

gives EPA the authority to ‘‘remediate 

existing harm by requiring that 

responsible parties mitigate past CO2

emissions’’ (Ref. 1). The petitioners go 

on to discuss a wide variety of 

mitigation and sequestration methods 

and processes that EPA should evaluate 

and potentially impose under this 

authority, including land use and 

agricultural practice changes, programs 

directed at consumer choice (like EPA’s 

existing ENERGY STAR program), and 

sequestration of CO2 in products, 

infrastructure and waste management. 

The petition supplement provides 

additional detail on mitigation and 

sequestration methods, including biochar, the use of more structural timber 

in buildings, and sequestration in 

products such as ‘‘green’’ cement and 

foam insulation (Ref. 2). 

The petitioners’ suggestion to 

consider TSCA section 6(a)(7)(C) is 

misplaced. While EPA agrees that this 

provision gives EPA some authority to 

address past harms, it is intended to 

address chemical substances and 

mixtures that move in the stream of 

commerce, not air pollution that is a 

byproduct of industrial and other 

activity on a global scale. According to 

the statute, when the appropriate 

findings are made, EPA can require 

manufacturers or processors to 

repurchase or replace chemical 

substances or mixtures, but the 

regulated manufacturers and processors 

must be permitted to decide whether to 

repurchase or replace. In EPA’s view, 

the authority to require replacement or 

repurchase of a chemical substance or 

mixture does not include the authority 

to require extraction from the 

environment of widely dispersed 

chemicals. EPA reads this provision as 

applying when a distinct person or 

persons who received the chemical 

substance or mixture and from whom 

the manufacturer or processor can elect 

to repurchase or replace can be 

identified. Applying this provision to 

past anthropogenic CO2 emissions does 

not make sense where emitted CO2 has 

mixed throughout the global atmosphere 

and there is no way to connect the CO2

with any one entity for repurchase. 

In addition, TSCA section 9(b) 

requires EPA’s Administrator to 

coordinate actions taken under TSCA 

with actions taken under other laws 

administered by EPA. When EPA 

determines that actions under other 

authorities can eliminate or reduce a 

risk to health or the environment to a 

sufficient extent, the Administrator 

must use the other authorities unless 

she determines it is in the public 

interest to protect against the risk by 

action taken under TSCA. While the 

petitioners recognize that anthropogenic 

CO2 emissions are being regulated under 

the CAA, they assert that those efforts 

are inadequate to protect marine species 

from climate change and ocean 

acidification. However, even if 

petitioners had requested a TSCA rule 

with reasonable specificity, EPA would 

likely determine that actions related to 

ocean acidification taken under other 

laws administered by EPA, both those 

already underway and those planned for 


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the future, could reduce the risks to a 

sufficient extent under TSCA section 

9(b). Because CO2 is a global pollutant, 

domestic actions alone cannot eliminate 

the risks, but the Administration has 

engaged in a set of coordinated domestic 

actions and international negotiations to 

reduce CO2 emissions in order to reduce 

the risks of climate change and ocean 

acidification. EPA sees no sound reason 

to exercise authorities available under 

TSCA to further address any such risk 

or to deviate from EPA’s regulatory 

efforts and programs already underway. 

The CAA is the comprehensive 

federal law designed to regulate air 

emissions from stationary and mobile 

sources. As discussed above, EPA has 

issued rules under the CAA that address 

CO2 emissions from a variety of sources, 

including power plants and mobile 

sources. The Clean Power Plan, for 

example, represents real action and 

leadership on climate change by 

ensuring meaningful reductions in 

carbon pollution from power plants 

while maintaining energy reliability and 

affordability. EPA does not understand 

why the petitioners seem to believe that 

TSCA, which is intended to address 

toxic substances generally, would be an 

appropriate vehicle for addressing 

emissions of CO2 when the Agency is 

already doing so under the federal 

statute specifically designed to regulate 

air emissions. In fact, the petitioners 

acknowledge that ‘‘full implementation 

of our flagship environmental laws, 

particularly the Clean Air Act, would 

provide an effective and comprehensive 

greenhouse gas reduction strategy’’ (Ref. 

1). The petitioners go on to contend 

that, due to the alleged nonimplementation of these laws, ‘‘existing 

domestic regulatory mechanisms must 

be considered inadequate to protect 

marine species from climate change and 

ocean acidification’’ (Ref. 1). The 

Agency notes that the CAA and the 

Administrative Procedures Act (APA) 

provide mechanisms to ask the Agency 

to take administrative action, see APA 

553(e), 5 U.S.C. 553(e) (providing the 

right to petition an agency for issuance, 

amendment or repeal of a rule), and 

avenues to seek judicial redress where 

the Agency has unreasonably delayed in 

responding to such requests. See APA 

706(1), 5 U.S.C. 706(1) (establishing 

claim for unreasonable delay), and CAA 

304(a), 42 U.S.C. 7604(a) (establishing 

jurisdiction and notice requirements for 

unreasonable delay claims). One of the 

petitioners, the Center for Biological 

Diversity, has regularly participated in 

development of EPA actions to address 

the concerns related to those in the 

petition. 

In addition to the CAA, the CWA 

provides some limited authorities that 

may be used to reduce the risk 

associated with ocean acidification. As 

noted above, EPA has explained that 

states should continue to list waters that 

do not attain applicable water quality 

standards, including marine pH water 

quality criteria, on the lists of impaired 

waters submitted to EPA, and should 

continue to solicit existing and readily 

available data and information regarding 

pollutants contributing to and 

conditions associated with ocean 

acidification using the current CWA 

section 303(d) listing program 

framework. Where such data and 

information supports a finding that a 

water body is impaired, the state must 

establish a total maximum daily load for 

relevant pollutants and implement a 

plan to control the pollutants from 

contributing sources. Thus far, neither 

EPA nor any states have listed any water 

bodies as impaired due to pollutants 

contributing to nor conditions 

associated with ocean acidification. 

The petitioners also requested that 

EPA promulgate a test rule under TSCA 

section 4 if EPA was unable to 

determine, based on available data, 

whether anthropogenic CO2 emissions 

present an unreasonable risk to human 

health and the environment within the 

meaning of TSCA. EPA notes that it did 

not construe the petitioners’ request for 

rulemaking under TSCA section 4 as a 

strictly contingent request, and EPA has 

independently reviewed the TSCA 

section 21 petition itself to determine 

whether it sets forth facts sufficient to 

justify the initiation of rulemaking to 

require testing under TSCA section 4. 

In order to promulgate a test rule 

under TSCA section 4, EPA must find 

that data and experience are insufficient 

to reasonably determine or predict the 

effects of a chemical substance or 

mixture on health or the environment 

and that testing of the substance or 

mixture with respect to such effects is 

necessary to develop the missing data. 

EPA must also find that either the 

chemical substance or mixture may 

present an unreasonable risk or that it 

is produced in substantial quantities 

and may either result in significant or 

substantial human exposure or result in 

substantial environmental release. EPA 

does not dispute that anthropogenic CO2

emissions are produced in substantial 

quantities and result in substantial 

environmental releases. However, the 

petitioners have not made the case that 

testing of the chemical substance is 

necessary to develop missing data. The 

fact that atmospheric CO2 affects ocean 

pH is not in dispute, and there are 

numerous studies documenting the 

effect of ocean pH on marine organisms 

(Refs. 21, 22). TSCA section 4 testing 

authority primarily speaks to testing of 

a chemical substance’s or mixture’s 

effects on health and the environment. 

Much of the testing recommended by 

the petitioners does not fit this 

description and probably could not be 

required by EPA under TSCA section 4. 

For instance, development of 

information on the costs and 

effectiveness of CO2 emission control 

technology is not a test of the effect of 

a substance on health or the 

environment. 

Regardless of whether the information 

described by the petitioners is 

information that can be developed using 

the authority of TSCA section 4, EPA 

and other federal agencies are working 

diligently to further our collective 

understanding of the impacts of ocean 

acidification. Some research underway 

matches the petitioners’ 

recommendations for information to 

seek under TSCA section 4. For 

example, the petitioners suggest 

conducting vulnerability assessments 

for marine and coastal species and 

ecosystems. In the National Ocean 

Policy Implementation Plan, NOAA, the 

Department of the Interior (DOI), EPA, 

the Department of Defense and the 

Department of Transportation were 

tasked with developing best practices 

for climate change and ocean 

acidification vulnerability assessments 

for Federally-funded and/or Federallymanaged coastal and ocean facilities 

and infrastructure in high-hazard areas 

(Ref. 9). In August of 2014, EPA issued 

‘‘Being Prepared for Climate Change: A 

Workbook for Developing Risk-Based 

Adaptation Plans’’ (Ref. 25). This 

document provides guidance for 

conducting risk-based climate change 

vulnerability assessments and 

developing adaptation action plans. In 

addition, EPA and NOAA have 

collaborated on studies of coastal 

acidification impacts on shellfish in 

Narragansett Bay, and EPA is working 

with the University of Rhode Island on 

studies of plankton communities and 

macroalgal responses to acidification. 

The petitioners suggest studying the 

economic values of ecosystems that are 

at risk from ocean acidification. In 

recent years, NOAA and EPA have 

allocated funding for socioeconomic 

studies related to ocean acidification. 

EPA supported the development of 

biophysical models and new 

methodologies to determine the 

economic and intrinsic value of coral 

reefs and shellfish. EPA has also 

conducted research to assess the 

economic impacts of ocean acidification 


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on US mollusk fisheries for the purpose 

of including these impacts in monetary 

estimates of damages from greenhouse 

gas emissions. Further, the National 

Ocean Policy Implementation Plan calls 

for developing data on job trends to 

assess the economic impact of ocean 

acidification (Ref. 9). NOAA’s Digital 

Coast Web site provides access to two 

datasets containing coastal and ocean 

job trends (Ref. 8). 

Several other EPA actions were 

requested in the supplement. The 

petitioners suggest action under the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) would be triggered if EPA 

issues a TSCA section 7 ‘‘notice 

informing the public of the serious risks 

to coral reefs associated with ocean 

acidification, its causes, and what must 

be done to mitigate it’’ (Ref. 1). As an 

initial matter, under TSCA section 21, a 

petitioner is limited to requesting relief 

under TSCA sections 4, 5, 6, or 8. In 

addition, the action authorized under 

TSCA section 7 is for EPA to bring a 

civil action in district court to seize an 

imminently hazardous chemical or seek 

other relief. Section 7 does not provide 

authority to make a finding of imminent 

hazard independent of a civil action. 

The supplement also outlines 

potential EPA actions under other 

statutes, such as Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA), and the CAA (Ref. 2). EPA is 

asked to reevaluate pesticide tolerances 

based on the increased grain 

consumption that will occur as fish 

farming increases due to ocean 

acidification. To the extent that fish 

farming increases grain consumption, 

EPA will consider that in any need for 

changes to pesticide tolerances during 

the Agency’s regular reassessment of 

those tolerances. 

The supplement also discusses the 

possibility of giving formal notification 

under section 115(a) of the CAA to the 

Governors of States found to emit 

pollution that endangers public health 

and welfare in other countries. The 

supplement, however, does not seek to 

demonstrate that the prerequisites for 

action under CAA section 115 have 

been met at this time or that any specific 

notifications are warranted. Moreover, 

to the extent that the discussion of 

potentially available CAA remedies 

constitutes a request for action, EPA 

denies the requests because they are not 

actions that can be petitioned for under 

TSCA section 21. The relief that may be 

requested under TSCA section 21 is 

limited to actions under TSCA sections 

4, 5, 6, or 8. 

VI. References 

The following is a listing of the 

documents that are specifically 

referenced in this document. The docket 

includes these documents and other 

information considered by EPA, 

including documents that are referenced 

within the documents that are included 

in the docket, even if the referenced 

document is not physically located in 

the docket. For assistance in locating 

these other documents, please consult 

the technical person listed under FOR

FURTHER INFORMATION CONTACT. 

1. Center for Biological Diversity and Donn 

J. Viviani, Ph.D. Petition for Rulemaking 

Pursuant to Section 21 of the Toxic 

Substances Control Act, 15 U.S.C. 2620, 

Concerning the Regulation of Carbon 

Dioxide. June 30, 2015. 

2. Donn J. Viviani, Ph.D. 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. June 

30, 2015. 

3. Secretariat of the Convention on Biological 

Diversity. An Updated Synthesis of the 

Impacts of Ocean Acidification on 

Marine Biodiversity (Eds: S. Hennige, 

J.M. Roberts & P. Williamson). Technical 

Series No. 75. 2014. 

4. United Nations Environment Programme 

(UNEP). UNEP Emerging Issues: 

Environmental Consequences of Ocean 

Acidification: A Threat to Food Security. 

2010. 

5. National Oceanic and Atmospheric 

Administration (NOAA). Coastal 

Services Center, National Summary: The 

United States Ocean and Great Lakes 

Economy. 2011. 

6. EPA. Endangerment and Cause or 

Contribute Findings for Greenhouse 

Gases under Section 202(a) of the Clean 

Air Act. Federal Register. 74 FR 66496, 

December 15, 2009 (FRL–9091–8). 

7. Interagency Working Group on Ocean 

Acidification. Strategic Plan for Federal 

Research and Monitoring of Ocean 

Acidification. March 2014. 

8. Committee on Environment, Natural 

Resources, and Sustainability of the 

National Science and Technology 

Council. Third Report on Federally 

Funded Ocean Acidification Research 

and Monitoring. April 2015. 

9. National Ocean Council. National Ocean 

Policy Implementation Plan. April 2013. 

10. Executive Office of the President. The 

President’s Climate Action Plan. June 

2013. 

11. EPA, Department of TransportationNational Highway Traffic Safety 

Administration (DOT–NHTSA). LightDuty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel 

Economy Standards; Final Rule. Federal 

Register. 75 FR 25324, May 7, 2010 

(FRL–9134–6). 

12. EPA, DOT–NHTSA. 2017 and Later 

Model Year Light-Duty Vehicle 

Greenhouse Gas Emissions and 

Corporate Average Fuel Economy 

Standards; Final Rule. Federal Register. 

77 FR 62624, October 15, 2012 (FRL– 

9706–5). 

13. EPA, DOT–NHTSA. Greenhouse Gas 

Emissions Standards and Fuel Efficiency 

Standards for Medium- and Heavy-Duty 

Engines and Vehicles; Final Rule. 

Federal Register. 76 FR 57106, 

September 15, 2011 (FRL–9455–1). 

14. EPA, DOT–NHTSA. Greenhouse Gas 

Emissions and Fuel Efficiency Standards 

for Medium- and Heavy-Duty Engines 

and Vehicles—Phase 2; Proposed Rule. 

Federal Register. 80 FR 40138, July 13, 

2015 (FRL–9927–21–OAR). 

15. EPA. Carbon Pollution Emission 

Guidelines for Existing Stationary 

Sources: Electric Utility Generating 

Units; Final Rule. Signed August 3, 2015 

and pending publication in the Federal 

Register. Until publication, a prepublication version of the signed 

document is available at: http://

www2.epa.gov/sites/production/files/

2015-08/documents/cpp-final-rule.pdf. 

16. EPA. Reconsideration of Interpretation of 

Regulation That Determine Pollutants 

Covered by Clean Air Act Permitting 

Programs; Final Rule. Federal Register. 

75 FR 17004, April 2, 2010 (FRL–9133– 

6). 

17. EPA. Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule. Federal 

Register. 75 FR 31514, June 3, 2010 

(FRL–9152–8). 

18. EPA. Action to Ensure Authority to Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: 

Finding of Failure to Submit State 

Implementation Plan Revisions Required 

for Greenhouse Gases; Final Rule. 

Federal Register. 75 FR 81874, December 

29, 2010 (FRL–9244–7). 

19. EPA. Action to Ensure Authority to Issue 

Permits under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan; Final Rule. 

Federal Register. 75 FR 82246, December 

30, 2010 (FRL–9245–3). 

20. EPA. Determinations Concerning Need 

for Error Correction, Partial Approval 

and Partial Disapproval, and Federal 

Implementation Plan Regarding Texas’s 

Prevention of Significant Deterioration 

Program; Final Rule. Federal Register. 76 

FR 25178, May 3, 2011 (FRL–9299–9). 

21. EPA. Ocean Acidification and Marine pH 

Water Quality Criteria; Notice of Data 

Availability (NODA). Federal Register. 

74 FR 17484, April 15, 2009 (FRL–8892– 

5). 

22. EPA. Clean Water Act Section 303(d): 

Notice of Call for Public Comment on 

303(d) Program and Ocean Acidification; 

Request for Public Comment. Federal 

Register. 75 FR 13537, March 22, 2010 

(FRL–9128–8). 

23. EPA. Integrated Reporting and Listing 

Decisions Related to Ocean 

Acidification. November 15, 2010. 

24. Center for Biological Diversity v. EPA, 

2015 U.S. Dist. LEXIS 25945 (W.D. 

Wash. March 2, 2015). 


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25. EPA. Being Prepared for Climate Change: 

A Workbook for Developing Risk-Based 

Adaptation Plans. August 2014. 

Authority: 15 U.S.C. 2601 et seq. 

Dated: September 25, 2015. 

James J. Jones, 

Assistant Administrator, Office of Chemical 

Safety and Pollution Prevention. 

[FR Doc. 2015–25164 Filed 10–6–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Chapter I 

[EPA–HQ–OPPT–2015–0626; FRL–9934–71] 

Mercury; TSCA Section 21 Petition; 

Reasons for Agency Response 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Petition; reasons for Agency 

response. 

SUMMARY: This document provides the 

reasons for EPA’s denial of a petition it 

received under Section 21 of the Toxic 

Substances Control Act (TSCA). The 

TSCA section 21 petition was received 

from the Natural Resources Defense 

Council (NRDC) and the Northeast 

Waste Management Officials’ 

Association (NEWMOA) on June 24, 

2015. The petitioners requested EPA to 

‘‘promulgate a TSCA section 8(a) rule 

that requires persons who manufacture, 

process, or import into the United States 

mercury, mercury compounds, or 

mercury-added products to keep records 

of and submit information to EPA 

concerning such manufacture, 

processing, or importation of mercury.’’ 

After careful consideration, EPA denied 

the TSCA section 21 petition for the 

reasons discussed in this document. 

DATES: EPA’s response to this TSCA 

section 21 petition was signed 

September 21, 2015. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Thomas 

Groeneveld, National Program 

Chemicals Division (7404M), Office of 

Pollution Prevention and Toxics, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001; telephone number: 

202–566–1188; email address: 

groeneveld.thomas@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCA-Hotline@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general. This action may, however, be 

of interest to those persons who 

manufacture, process, or distribute in 

commerce mercury, mercury 

compounds, or mercury-added 

products. Since other entities may also 

be interested, the Agency has not 

attempted to describe all the specific 

entities that may be affected by this 

action. 

B. How can I access information about 

this petition? 

The docket for this TSCA section 21 

petition, identified by docket 

identification (ID) number EPA–HQ– 

OPPT–2015–0626, is available at 

http://www.regulations.gov or at the 

Office of Pollution Prevention and 

Toxics Docket (OPPT Docket), 

Environmental Protection Agency 

Docket Center (EPA/DC), West William 

Jefferson Clinton Bldg., Rm. 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the OPPT 

Docket is (202) 566–0280. Please review 

the visitor instructions and additional 

information about the docket available 

at http://www.epa.gov/dockets. 

II. TSCA Section 21 

A. What is a TSCA section 21 petition? 

Under TSCA section 21 (15 U.S.C. 

2620), any person can petition EPA to 

initiate a rulemaking proceeding for the 

issuance, amendment, or repeal of a rule 

under TSCA section 4, 6, or 8 or an 

order under TSCA section 5(e) or 

6(b)(2). A TSCA section 21 petition 

must set forth the facts that are claimed 

to establish the necessity for the action 

requested. EPA is required to grant or 

deny the petition within 90 days of its 

filing. If EPA grants the petition, the 

Agency must promptly commence an 

appropriate proceeding. If EPA denies 

the petition, the Agency must publish 

its reasons for the denial in the Federal 

Register. A petitioner may commence a 

civil action in a U.S. District Court to 

compel initiation of the requested 

rulemaking proceeding within 60 days 

of either a denial or the expiration of the 

90-day period. 

B. What criteria apply to a decision on 

a TSCA section 21 petition? 

Section 21(b)(1) of TSCA requires that 

the petition ‘‘set forth the facts which it 

is claimed establish that it is necessary’’ 

to issue the rule or order requested. 15 

U.S.C. 2620(b)(1). Thus, TSCA section 

21 implicitly incorporates the statutory 

standards that apply to the requested 

actions. In addition, TSCA section 21 

establishes standards a court must use 

to decide whether to order EPA to 

initiate rulemaking in the event of a 

lawsuit filed by the petitioner after 

denial of a TSCA section 21 petition. 15 

U.S.C. 2620(b)(4)(B). Accordingly, EPA 

has relied on the standards in TSCA 

section 21 and in the provisions under 

which actions have been requested to 

evaluate this TSCA section 21 petition. 

III. Summary of the TSCA Section 21 

Petition 

A. What action was requested? 

On June 24, 2015, NRDC and 

NEWMOA petitioned EPA to 

‘‘promulgate a TSCA section 8(a) rule 

that requires persons who manufacture, 

process, or import into the United States 

mercury, mercury compounds, or 

mercury-added products to keep records 

of and submit information to EPA 

concerning such manufacture, 

processing, or importation of mercury’’ 

(Ref. 1). In describing the framework for 

the envisioned rule, the petitioners offer 

definitions for various terms and 

modifications to exemptions to TSCA 

section 8(a) information-gathering rules 

(see 40 CFR 704.5); describe persons 

who would be required to report in the 

envisioned information collecting and 

reporting apparatus; explain why 

existing quantity- and sales-based 

reporting thresholds should or should 

not apply to the persons who must 

report; establish the minimal amounts of 

information EPA should request via sets 

of example questions applicable to 

mercury, mercury compounds, mixtures 

containing mercury, and mercury-added 

products; and set forth their preferred 

frequency and format for reporting, as 

well as certification and recordkeeping 

requirements (Ref. 1). 

B. What support do the petitioners offer? 

The petitioners state that a ‘‘lack of 

comprehensive data on mercury 

production and use in the United States 

has been acknowledged by virtually all 

of the federal and state agencies 

involved in tracking or regulating the 

chemical in commerce’’ (Ref. 1). The 

petitioners state that there is ‘‘no 

mechanism in place to obtain such 

data,’’ which is underscored by 

describing data gaps in the Interstate 

Mercury Education Reduction 

Clearinghouse (IMERC) and discussing 

the limitations of Agency resources, 

including the September 2014 ‘‘EPA 

Strategy to Address Mercury-Containing 


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