## American" 

# Chemistry Council

September 8, 2015

Wendy Cleland-Hamnett,Director (7401M) Office ofPollution Prevention and Toxics Office ofChemical Safety and Pollution Prevention Environmental Protection Agency 1200 Pennsylvania Avenue,N.W. Washington,DC 20460 Re: Comments of the American Chemistry Council on Section 21 Petition Regarding Carbon Dioxide Dear Ms. Cleland-Hamnett: Attached please find the comments ofthe American Chemistry Council on the petition submitted on July 10, 2015 by the Center for Biological Diversity asking EPA to conduct rulemakings under section 4 and 6 ofthe Toxic Substances Control Act. If you have any questions or comments,please contact me at (202)249-6132,or at ~udah~rero(a~americanchemistry.com. Sincerely,



# ~~~ ~~ / ~ Judah Prero Assistant General Counsel Attachment

americanchemistry.Com~ 700 Second St.,NE ~ Washington,DC 20002 ~ (202)249.7000 ~~

## American" 

# Chemistry Council

Comments of the American Chemistry Council on the Section 21 Petition Regarding the Regulation of Carbon Dioxide

September 8,2015

OfCounsel: Mark N.Duvall Beveridge &Diamond,P.C. 1350 I Street,N.W. Washington,DC 20005 (202)789-6090 mduvall(c~bdlaw.com Judah Prero Assistant General Counsel American Chemistry Council 700 Second Street, N.E. Washington,DC 20002 (202)249-6132 j udah~rerona,americanchemistry.com

~~ americanchemistry.Com~ 700 Second St., NE ~ Washington,DC 20002 ~ (202)249.7000 ~~

### Table of Contents Pale

EXECUTIVE SUMMARY ..................................................................................................... 1 DISCUSSION .......................................................................................................................... 1 1. ACC Statement of Interest .......................................................................................... 1 2. The Petition Fails to Meet the Criteria for EPA to Take Action Under TSCA ........... 2

a. Section 21 Puts the Burden ofProofon the Petitioners...................................... 2 b. The Requested Section 6 Rulemaking ................................................................ 2

c. The Requested Section 4 Rule ............................................................................ 3 3. EPA Should Not Use TSCA to Regulate Byproducts ................................................. 4 4. Under Section 9, EPA Should Use Its Other Statutory Authorities to Address Any Concerns About CO2.................................................................................................... 5 CONCLUSION ........................................................................................................................ 7EXECUTIVE SUMMARY

The American Chemistry Council (ACC) urges EPA to deny the citizens' petition entitled "Petition for Rulemaking Pursuant to Section 21 ofthe Toxic Substances Control Act, 15 U.S.C. § 2620,Concerning the Regulation ofCarbon Dioxide"(the Petition). The Petition asks EPA to adopt a rule under section 6 ofthe Toxic Substances Control Act (TSCA) to require manufacturers and processors ofcarbon dioxide to mitigate their emissions of carbon dioxide (CO2). In the alternative, it asks EPA to adopt a rule under section 4 ofTSCA to require testing to determine the toxicity,persistence,and other characteristics ofCO2. The Petition fails to meet the requirement ofsection 2lthat the petitioners demonstrate that the issuance ofa section 6 rule is "necessary to protection health or the environment against an unreasonable risk ofinjury to health or the environment." The petition also fails to demonstrate that testing is "necessary to develop" the requested data as required under section 4 ofTSCA. The Petition is highly unusual in that it requests EPA to take regulatory action under TSCA with respect to CO2 that is generated primarily as a byproduct ofmanufacturing or processing activities. EPA has rarely taken regulatory action on byproducts under TSCA because other authorities are better able to address the special circumstances ofbyproducts. That sound approach should be followed here. It is entirely unclear from the Petition how the petitioners would have EPA require manufacturers and processors ofCO2 to mitigate their CO2 emissions in a manner which would not duplicate EPA's actions to address CO2 emissions under the Clean Air Act. Under section 9(b)ofTSCA,EPA should not use TSCA to address COZ emissions reduction efforts in light of its considerable actions under the Clean Air Act to reduce these emissions. DISCUSSION 1. ACC Statement ofInterest ACC members apply the science ofchemistry to make innovative products and services that make people's lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care,common sense advocacy designed to address major public policy issues, and health and environmental research and product testing. The business ofchemistry is an $812 billion enterprise and a key element ofthe nation's economy. It is the nation's largest exporter,accounting for twelve percent ofall U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns ofACC members,and they have intensified their efforts, working closely with government agencies to improve security and to defend against any threat to the nation's critical infrastructure. Some ACC member companies,and hundreds ofother firms,produce COZ for a wide range of commercial uses, such as reactants, incorporation into articles, and packaging. Like other

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### manufacturers and processors,ACC members emit CO2 as a byproduct oftheir manufacturing or

processing activities and thus would be affected were EPA to initiate rulemaking under TSCA in response to the Petition. Petitioners admit that the vast majority ofCOZ emissions sought to be regulated under the petition is a byproduct ofthe combustion offossil fuels. ~ 2. The Petition Fails to Meet the Criteria for EPA to Take Action Under TSCA

a. Section 21 Puts the Burden ofProof on the Petitioners Section 21(b)(3)mandates that EPA either agree to initiate actions requested in a petition or deny the petition within 90 days ofreceipt. During that time EPA may hold a public hearing,conduct an investigation, or complete a proceeding,per section 21(b)(2),but the time available is very limited. Accordingly, section 21 puts the burden ofproofon the petitioner to provide sufficient information to enable EPA to make a decision. (Note that under section 21(b)(4(B), "the petitioner" must demonstrate to a court that the requested actions met the applicable requirements.) As discussed below,the petitioners fail to carry their burden ofproofthat the requested actions are reasonable and appropriate, and have not otherwise met the TSCA criteria for taking action.

b. The Requested Section 6 Rulemakin~ EPA's recent response to a different section 21 petition for a section 6 rulemaking on discarded polyvinyl chloride (PVC)is equally applicable to the Petition's request for a similar rulemaking: [T]he TSCA section 21 petition's primary deficiencies are its failure to specify the risk management action sought and its failure to discuss several major issues intrinsic to an unreasonable risk determination (i.e.,risk reduction that would be accomplished by such action and the reasonably ascertainable economic and other social consequences ofthe action). Section 21 ofTSCA authorizes any person to petition EPA for the "issuance ... ofa rule" under TSCA section 6. As EPA interprets this provision, asking for a rule entails telling EPA,with reasonable specificity, what action is sought in the TSCA section 21 petition. Simply citing to general legal authority and stating a desired outcome does not define an action, and thus fails this threshold requirement under TSCA section 21. EPA's interpretation is consistent with the short 90-day deadline for responding to such rulemaking petitions,as well as with TSCA's grant ofde novo judicial review to petitioners. In any such proceeding, it would be necessary to supply the court with a specific description ofthe reliefsought to inform any requested injunction that EPA "initiate the action requested by the petitioner." See 15 U.S.C. 2620(b)(4)(B). Since the court's de novo review is itselfa rehearing ofthe Agency's prior review ofthe TSCA

~ Petition at 4.



### -2-section 21 petition, it follows that the TSCA section 21 petition itselfmust supply the

specific description ofthe reliefsought.2 In this case,the Petition cites to legal authority under section 21,describes what it characterizes as health or environmental risks, and concludes that current regulatory activities aze insufficient. The Petition lacks any explanation as to how the petitioners would have EPA exercise its section 6 authority. Instead, it makes vague suggestions about what EPA could do,simply reiterating the list ofregulatory actions possible under section 6.3 These suggestions have no specificity. Importantly,the Petition is silent on how the exercise ofregulatory authority under TSCA would operate to require "responsible parties [to] mitigate mast CO2 emissions."4 The Petitioners appear to suggest that sweeping,economy -wide control measures —such as land use and agricultural practices —are potentially available to EPA under TSCA,but the Petition fails to provide any insight into the use ofsuch measures beyond a simple statement that the controls will reduce CO2 emissions. The Petition is also silent on how any section 6 risk management measures would meet the section 6 criteria for rulemaking. Such deficiencies are fatal to a section 21 petition, as EPA stated in its response to the PVC petition: Though offering some limited information ..., the TSCA section 21 petition largely omits the sort ofinformation that would be relevant to acost-benefit and regulatory alternatives analysis for a proposed rule to require the substitution ofthe chemical substances currently used in the manufacture ofPVC. The TSCA section 21 petition provides almost no information on the usefulness and effectiveness ofparticular substitutes,their relative toxicity, cost,degree ofavailability, and potential to reduce risk. The TSCA section 21 petition also does not include any information on the costs and benefits of regulatory alternatives to explain why the petitioner believes any particular risk management action is the least burdensome requirement that adequately protects against an unreasonable risk. For example,the TSCA section 21 petition lacks a meaningful discussion ofthe feasibility and implications ofreplacing vinyl chloride, any particular phthalate currently used as a plasticizer in PVC,or any particular heat stabilizer currently used in PVC.S

c. The Requested Section 4 Rule Section 21(b)(4)(B)(i)requires "the petitioner" to demonstrate that information available to EPA is insufficient to permit a reasoned evaluation ofthe health and environmental effects ofa chemical,and that in the absence ofsuch information,the chemical may pose an unreasonable risk or that the chemical is produced in substantial quantities and it enters or may enter the environment in substantial quantities, or that there is or may be substantial or significant human

Z 79 Fed. Reg.64722,64724 (Oct. 31,2014)(denial ofsection 21 petition on PVC waste). 3 Petition at 29-30. 4 Petition at 31 (emphasis added). 5 Id. at 64724-25.

-3-exposure. In addition,EPA has determined that the petitioner must establish that the requested

testing is necessary to develop the data.6 As with its request for a section 6 rule,the Petition's request for a section 4 rule must be denied for reasons similar to those found by EPA in denying the PVC petition's request for a section 4 rule: EPA is denying the request for rulemaking under TSCA section 4 because the TSCA section 21 petition does not set forth sufficient facts for EPA to find that the toxicity information available to the Agency is insufficient to permit a reasoned evaluation ofthe health or environmental effects ofthese chemical substances, or for EPA to conclude that toxicity testing is necessary to develop any missing data. The Petition at issue here has not provided sufficient information for EPA to make any ofthese findings. Instead,the Petition suggests a hodge-podge ofideas for testing, including testing CO2 reduction strategies; conducting a vulnerability assessment for marine and coastal species and ecosystems; forecasting species' responses to ocean acidification; determining the economic value ofecosystems that are at risk from ocean acidification; and determining the cost of reducing CO2 emissions. It also references existing research plans ofvarious state and federal entities. Petition at 36-37. The Petition does not explain why the information available to EPA is insufficient for its needs under TSCA. EPA's actions under the Clean Air Act to reduce CO2 emissioMs, including the voluminous administrative record supporting the Agency's "endangerment" finding for these action, suggests that EPA believes that it has sufficient information. Neither does the Petition explain why it would be necessary to develop the data that would come from such testing. 3. EPA Should Not Use TSCA to Regulate Bvnroducts The Petition is virtually unique in asking EPA to regulate a byproduct$ offossil fuel combustion for manufacturing or processing operations. CO2 byproduct emissions have no commercial purpose. TSCA is the wrong statute for regulating such byproducts. As an aside,it is not clear ifthe Petitioners are seeking the further regulation ofCO2 only as a byproduct, or also as a chemical substance that is intentionally manufactured,or ifthe regulation ofsuch manufacture would have a significant impact on CO2 emissions. EPA has exempted persons who manufacture or process byproducts having no commercial purpose from most ofits TSCA regulations, including the following:

• Reporting requirements under section 8(a), 40 C.F.R. § 704.5(b)(any byproduct)

6 72 Fed. Reg. 72886,72887 (Dec. 21,2007)(denial ofsection 21 petition on air fresheners) 79 Fed. Reg. at 64725. 8 EPA defines "byproduct" to mean "a chemical substance produced without separate commercial intent during the manufacture or processing ofanother chemical substance or mixture." 40 C.F.R. §§ 7073,7103(d), 712.3(a), 716.3, 7203(d),761.3,791.3(c).

-4-• Inventory requirements under section 8(b),40 C.F.R. § 710.4(d)(2)(any byproduct that

has no commercial purpose) • CDR requirements under section 8(a), 40 C.F.R. § 711.10(c)(any byproduct that is not used for commercial purposes) • PAIR requirements under section 8(a), 40 C.F.R. § 712.25)(d)(1)(any byproduct that is not used or sold) • PMN requirements under section 5(a), 40 C.F.R. § 720.30(h)(2)(any byproduct that is not used for commercial purposes) • SNUR requirements under section 5(a), 40 C.F.R. § 721.45(e)(any byproduct that is used only for limited commercial purposes) EPA has authority to restrict byproduct manufacture and processing. The Agency has regulated manufacturers and processors ofbyproducts for some limited purposes, including PCBs under section 6(e); section 8(d)reporting; and some test rules (where byproduct manufacturers are typically classified in Tier 2(not initially required to comply with the test rule). Nevertheless, for the most part EPA has chosen not to exercise its TSCA authorities with respect to byproducts. Chiefamong the reasons for this choice is that other authorities besides TSCA are better suited for addressing byproducts.9 EPA should not use TSCA to regulate manufacture and processing ofbyproduct CO2. 4. Under Section 9.EPA Must Use Its Other Statutory Authorities to Address Anv Concerns About CO2 Emissions EPA has undertaken a number ofsignificant rulemaking actions under the Clean Air Act to restrict and reduce CO2 emissions. 1 The Petition asserts that such actions "are insufficient,"11 but it does not argue that EPA's authority under the Clean Air Act is legally insufficient such that EPA must use TSCA to address CO2 emissions. Indeed,the Petition admits: [E]xisting domestic laws including the Clean Air Act,Energy Policy and Conservation Act, Clean Water Act,Endangered Species Act and others provide authority to executive branch agencies to require greenhouse gas emissions reductions from virtually all major sources in the United States[.] However,it claims that "these agencies are either failing to implement or only partially implementing these laws for greenhouse gases."12 Nowhere does the Petition explain why EPA should use TSCA instead ofthose other authorities to address CO2 emissions,however.

9 See, e.g., 42 Fed.Reg. 84572,64587 (Dec. 23, 1977)(comment 52) (referring to plans to address hazardous byproducts under the Resource Conservation and Recovery Act(RCRA)). to Examples related to stationary sources include the Clean Power Plan,the Greenhouse Gas Tailoring Rule, and the PSD permitting program as applicable to greenhouse gases. Examples related to mobile sources include standards to cut greenhouse gas emissions and fuel use in new motor vehicles and the renewable fuels standard program. See generally, EPA,"Climate Change Regulatory Initiatives," http://www.epa.goy/climatechange/EPAactivities/re ug latorv-initiatives.hhnl. " petition at 38. '2 Id.

-5-Under section 9(b)ofTSCA,EPA must coordinate any actions under TSCA with those under

other statutes administered by EPA: The Administrator shall coordinate actions taken under this Act with actions taken under other Federal laws administered in whole or in part by the Administrator. There is nothing in the Petition to facilitate such coordination. Furthermore,under section 9(b) EPA must use its other authorities, and not TSCA,ifthose other authorities would be adequate to address a concern,unless EPA finds that the public interest requires use ofTSCA: Ifthe Administrator determines that a risk to health or the environment associated with a chemical substance or mixture could be eliminated or reduced to a sufficient extent by actions taken under the authorities contained in such other Federal laws,the Administrator shall use such authorities to protect against such risk unless the Administrator determines, in the Administrator's discretion,that it is in the public interest to protect against such risk by actions taken under this Act The Petition makes no showing that the other authorities it cites are inadequate,or that the public interest mandates use ofTSCA. Indeed,with its emphasis on the use ofchemicals rather than manufacturing processes, TSCA is poorly designed for addressing COZ emissions,particularly those from byproduct sources. EPA denied the PVC waste section 21 petition in part because,as here, other authorities would be adequate to address a concern: Finally, while the petitioner acknowledges that PVC disposal might also be regulated under other EPA statutory authorities, such as RCRA,it has not explained why it believes it would be preferable to address the risks ofdisposal under TSCA,rather than through other statutory authorities. The petitioner's views on this question are especially difficult to infer given the absence ofinformation about the particular TSCA risk management action sought. This omission is an impediment to assessing whether a TSCA section 6 rule would be an appropriate means ofreducing potential risks related to the disposal of PVC,and (ifso)how such action could be coordinated, consistent with TSCA section 9(b),with other actions that EPA has already taken with respect to these chemical substances under other statutes that EPA administers. For example,the petitioner did not explain why it believes vinyl chloride poses an unreasonable risk that should be addressed under TSCA despite the impact ofmultiple rules regulating this chemical substance under the Clean Air Act (42 U.S.C. 7400 et seq.), including one that was recently estaBlished in 2012 (Ref. 3). See 40 CFR part 61,subpart F,and 40 CFR part 63,subparts DDDDDD and HHHHHHH. 13 13 ~9 Fed.Reg. at 64724. See also 77 Fed. Reg.42181,42183 (July 18,2012)(denial ofsection 21 petition to require EPA to use TSCA to address PCBs that leach from ships sunk through a U.S.Navy program where EPA had "determined under TSCA section 9(b)that such regulation should be under [the Marine Protection,Research,and Sanctuaries Act],not TSCA .... The petitioners do not present any new information that would cause EPA to reconsider this determination" despite complaints that current actions under the other statute have proven to be insufficient); 60 Fed. Reg. 39169, 39170 (Aug. 1, 1995)(denial ofsection 21 petition on burning ofhazardous waste-derived fuel)("Releases to air, water and land from cement kilns are regulated under the Clean Air Act (Continued ...)

~'~

### Similarly, EPA should deny the Petition because it fails to explain why other EPA-administered

statutory authorities are inadequate to address CO2 emissions and why use ofTSCA for that purpose is necessary. CONCLUSION EPA should deny the Petition for the foregoing reasons.

(Continued ...) (CAA),Clean Water Act(CWA),and Resource Conservation and Recovery Act(RCRA). In 1992,23 ofthe 111 domestic cement-producing plants burned WDF to supplement traditional fossil fuels (FF) (Ref. 3,p.7367). Air emissions and disposal ofresidues from kilns burning WDF are regulated under the Boiler and Industrial Furnace (BIF)regulations issued under RCRA.").



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