American"

Chemistry

Council

September 8, 2015

Wendy Cleland-Hamnett, Director (7401 M)

Office of Pollution Prevention and Toxics

Office of Chemical 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 of the 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 of the 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

Of Counsel:

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 of Proof on 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........................................................................................................................ 7
EXECUTIVE SUMMARY

The American Chemistry Council (ACC) urges EPA to deny the citizens' petition entitled

"Petition for Rulemaking Pursuant to Section 21 of the Toxic Substances Control Act, 15 U.S.C.

§ 2620, Concerning the Regulation of Carbon Dioxide" (the Petition).

The Petition asks EPA to adopt a rule under section 6 of the Toxic Substances Control Act

(TSCA) to require manufacturers and processors of carbon dioxide to mitigate their emissions of

carbon dioxide (CO2). In the alternative, it asks EPA to adopt a rule under section 4 of TSCA to

require testing to determine the toxicity, persistence, and other characteristics of CO2.

The Petition fails to meet the requirement of section 2lthat the petitioners demonstrate that the

issuance of a section 6 rule is "necessary to protection health or the environment against an

unreasonable risk of injury 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 of TSCA.

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 of manufacturing or processing

activities. EPA has rarely taken regulatory action on byproducts under TSCA because other

authorities are better able to address the special circumstances of byproducts. That sound

approach should be followed here.

It is entirely unclear from the Petition how the petitioners would have EPA require

manufacturers and processors of CO2to 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) of TSCA, 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 of Interest

ACC members apply the science of chemistry 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 of chemistry is an $812 billion enterprise and a key element of the nation's

economy. It is the nation's largest exporter, accounting for twelve percent of all U.S. exports.

Chemistry companies are among the largest investors in research and development. Safety and

security have always been primary concerns of ACC 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 of other firms, produce COZ for a wide range of

commercial uses, such as reactants, incorporation into articles, and packaging. Like other

-1-
manufacturers and processors, ACC members emit CO2as a byproduct of their 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 of COZemissions sought to be

regulated under the petition is a byproduct of the combustion of fossil fuels. ~

2. The Petition Fails to Meet the Criteria for EPA to Take Action Under TSCA

a. Section 21 Puts the Burden of Proof 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 of receipt. 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 of proof on 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 of proof that 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 of the

action).

Section 21 of TSCA authorizes any person to petition EPA for the "issuance ... of a

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 of de novo judicial review to

petitioners. In any such proceeding, it would be necessary to supply the court with a

specific description of the relief sought 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 itself a rehearing of the Agency's prior review of the TSCA

~ Petition at 4.

-2-
section 21 petition, it follows that the TSCA section 21 petition itself must supply the

specific description of the relief sought.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 of regulatory actions possible under section 6.3 These suggestions have no specificity.

Importantly, the Petition is silent on how the exercise of regulatory 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 of such 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 of information that would be relevant to acost-benefit and regulatory alternatives

analysis for a proposed rule to require the substitution of the chemical substances

currently used in the manufacture of PVC. The TSCA section 21 petition provides

almost no information on the usefulness and effectiveness of particular substitutes, their

relative toxicity, cost, degree of availability, 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 of the feasibility and implications of replacing 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 of the health and environmental effects of a

chemical, and that in the absence of such 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 of section 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 of the

health or environmental effects of these 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 of these

findings. Instead, the Petition suggests a hodge-podge of ideas 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 of ecosystems that are at risk from ocean acidification; and determining the cost of

reducing CO2 emissions. It also references existing research plans of various 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$ of fossil 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 if the Petitioners are seeking the further regulation of CO2only as a

byproduct, or also as a chemical substance that is intentionally manufactured, or if the regulation

of such manufacture would have a significant impact on CO2emissions.

EPA has exempted persons who manufacture or process byproducts having no commercial

purpose from most of its 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 of section 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 of another 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 of byproducts 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. Chief among 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 of byproduct CO2.

4. Under Section 9. EPA Must Use Its Other Statutory Authorities to Address

Anv Concerns About CO2Emissions

EPA has undertaken a number of significant 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 of those 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) of TSCA, 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, if those other authorities would be adequate to

address a concern, unless EPA finds that the public interest requires use of TSCA:

If the 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 of TSCA. Indeed, with its emphasis on the use of chemicals 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 of disposal under TSCA, rather than through

other statutory authorities. The petitioner's views on this question are especially difficult

to infer given the absence of information 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 of reducing potential risks related to the disposal of

PVC, and (if so) 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 of multiple

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 of section 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 of section 21 petition on burning of hazardous

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 CO2emissions and why use of TSCA 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 of the 111

domestic cement-producing plants burned WDF to supplement traditional fossil fuels (FF) (Ref. 3, p.7367). Air

emissions and disposal of residues from kilns burning WDF are regulated under the Boiler and Industrial Furnace

(BIF) regulations issued under RCRA.").

-7-