LOGAN’S LEGAL CORNER
D.C. Circuit sides with EPA on MON Rule Challenge
Huntsman Petrochemical LLC v. EPA, Docket No. 23-1045 (D.C. Cir.)
On August 13, 2024, the D.C. Circuit Court issued its opinion that it was unpersuaded by ACC, LCA, and Huntsmans’ arguments challenging EPA’s MON Rule. The three-judge panel unanimously upheld EPA’s rule despite the petitioners raising concerns about the science supporting the EPA’s 2016 IRIS value for ethylene oxide. The D.C. Circuit noted that EPA is provided an “extreme degree of deference” when the court is tasked with evaluating scientific data, “particularly true for statistical and modeling analysis.” Despite the series of issues and flaws identified by the petitioners, the court concluded that the EPA provided reasonable explanations and successfully rebutted any concerns raised by the TCEQ’s 2020 study. The court also noted that the EPA did not err procedurally and properly considered and responded to the same arguments and comments submitted during the rulemaking phase.
Regarding the role of agency deference, the D.C. Circuit did not explicitly comment on the recent U.S. Supreme Court decisions, and actually dismissed the petitioners requests for additional briefing on their impact to this case. This rebuff indicates the D.C. Circuit views this type of scientific challenge of an agency rule as distinctly different from a statutory interpretation challenge, which was at issue in Loper Bright.
TCC is communicating with ACC to determine whether this D.C. Circuit decision will be appealed to the U.S. Supreme Court and how it may affect the HON Litigation, which contains similar legal arguments.
Texas and Louisiana join in challenging EPA’s HON Rule
Denka Performance Elastomer, LLC v. EPA, Docket No. 24-1135 (D.C. Cir.)
Louisiana, et al. v. EPA, Docket No. 24-1228 (D.C. Cir.)
State of Texas, et al. v. EPA, Docket No. 24-1246 (D.C. Cir.)
ACC, et al. v. EPA, Docket No. 24-1250 (D.C. Cir.)
On May 16, 2024, Denka Performance Elastomer LLC (Denka) filed a petition for review in the D.C. Circuit challenging EPA’s new HON rule that requires emissions reductions and fenceline monitoring for certain hazardous air pollutants, including ethylene oxide, and chloroprene. Denka owns and operates a neoprene manufacturing facility in Louisiana that uses chloroprene. The HON rule requires Denka’s facility to comply with the new emissions standards and fenceline monitoring for chloroprene within 90 days of publication while the other emission standards have a two-year deadline.
On May 28, 2024, Denka filed a motion to stay because it believes “there is no lawful basis for EPA’s disparate treatment of [its] facility.” Several NGOs have filed motions to intervene in support of the EPA’s rule and in opposition to a request for a stay. On June 26, 2024, the Court denied Denka’s request for a stay providing minimal analysis beyond asserting Denka had not satisfied the requirements necessary for a stay.
On July 1, 2024, the State of Louisiana and LDEQ joined Denka in challenging the HON rule and announced LDEQ will grant Denka an extension for compliance with this rule for up to two years. The EPA may seek to have that decision overturned.
On July 15, 2024, the State of Texas and TCEQ filed a petition challenging the HON rule for its use of the flawed EtO IRIS value and rejection of TCEQ’s EtO Assessment. On July 15, 2024, ACC, LCA, AFPM filed a joint petition challenging this rule as well. TCC will continue to monitor this case as substantive briefing is expected to begin this fall.
D.C. Circuit denies request for Stay of EPA’s Methane Rule
State of Texas, et al. v. EPA, et al., Docket No. 24-1054 (D.C. Cir.)
On March 8, 2024, the EPA published its final rule regulating methane and VOC emissions from the Crude Oil and Natural Gas source category. Immediately, this rule was challenged by the State of Texas in the D.C. Circuit, followed by 24 other Republican-led states and a litany of trade associations across the country. A 20-state coalition led by California intervened in support of the EPA’s rule.
The challengers requested the D.C. Circuit impose a stay on the rule pending litigation given the costs of the compliance and anticipated closure of regulated facilities. On July 9, 2024, the D.C. Circuit denied the motion to stay the effectiveness of the rule in a one-page order.
EPA grants Citizen Groups’ petition requesting ban on plastic containers under TSCA
On April 11, 2024, several NGOs submitted a joint petition requesting EPA establish rules under TSCA to prohibit the creation, use, and disposal of PFOA, PFNA, and PFDA that are formed during the fluorination of plastic containers. This petition follows EPA’s loss in March when the 5th Circuit declared that EPA exceeded its authority under TSCA Section 5 and vacated EPA’s order against Inhance Technologies LLC (Inhance) that would have stopped the production of its high-density polyethylene containers.
On May 17, 2024, two of the same NGOs submitted a notice of intent to sue the EPA for not prohibiting the manufacture and distribution of plastic containers made with PFOA, specifically targeting containers manufactured by Inhance. These citizen groups claim EPA has failed to take appropriate action based on its authority granted in TSCA to prevent or reduce the risks to human health posed by PFOA in these plastic containers. This notice started the 60-day clock before the NGOs can file suit.
On July 10, 2024, potentially as a result of the notice of intent to sue, EPA granted the NGOs’ petition submitted in April. EPA agreed with the NGOs that there is sufficient evidence to show PFOA, PFNA, and PFDA present risks of concerns, e.g. these three PFAS chemicals are “persistent, bioaccumulative, and toxic.” EPA will now commence actions under TSCA Section 6, which include requesting information on: the number, location, and uses of fluorinated containers; alternatives to the fluorination process that generate the three PFAS; and measures to address the risks of these three PFAS.
ACC Challenges TSCA Methylene Chloride Rule
On May 8, 2024, the EPA published its final rule regulating Methylene Chloride under the TSCA. The rule bans most uses of methylene chloride, except for 13 highly industrialized uses paired with a Workplace Chemical Protection Program. On May 24, 2024, two companies filed a petition for review in the 5th Circuit. On May 28, 2024, the Sierra Club filed a petition for review in the 9th Circuit.
On June 11, 2024, after the lottery process, all challenges were consolidated in the 5th Circuit. The 5th Circuit has already denied two motions to intervene by the Labor Council for Latin America and the AFL-CIO. On July 19, 2024, ACC filed its petition before the deadline to challenge expired. TCC will monitor the case as substantive briefing begins this fall.
EPA Proposes to Designate 5 Chemicals as High-Priority Substances
On July 25, 2024, the EPA proposed to designate the following chemicals as a High-Priority Substance under TSCA:
A High-Priority Substance is defined as a chemical substance that EPA determines, without consideration of costs or other non-risk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant by EPA.
If/when EPA finalizes this designation, then it may initiate the TSCA Risk Evaluation process to determine whether these chemical substances present an unreasonable risk under its conditions of use.
EPA will accept comments on this proposed rule until October 23, 2024.
D.C. Circuit pauses legal challenge of RMP Rule pending EPA reconsideration
State of Oklahoma, et al. v. EPA, Docket No. 24-1125 (D.C. Cir.)
On July 30, 2024, the D.C. Circuit issued an order pausing the legal challenge by a coalition of national trade associations and certain states, including ACC and Texas. The parties submitted a joint motion requesting a pause for 120 days because EPA plans to reconsider the RMP rule.
On May 10, 2024, the industry coalition submitted a petition for reconsideration to EPA regarding the RMP rule. Specifically, the petition stated the RMP rule was not reasonable or necessary “to ensure that covered facilities remain safe, reliable, and operating in an environmentally sound way” and instead imposes “undue burdens” through “highly prescriptive mandates” along with other deficiencies.
This is a positive sign that EPA may change key aspects of the RMP rule that present significant challenges for compliance and high costs for covered facilities. TCC will continue to monitor EPA’s activity as it reconsiders this rule.
TCEQ provides Guidance for Lead Service Line Inventory
No later than October 16, 2024, all community and non-transient, non-community water systems must submit initial lead service line inventories (LSLI) to the TCEQ as required by the Lead and Copper Rule Revisions (LCRR). To aid in conducting and reporting the inventories, TCEQ created an example standard operating procedure for LSLI investigations and form TCEQ-20943, a comprehensive spreadsheet for regulated entities to use a template. After the initial inventories are submitted, a regulated entity must issue a public notice within 30 days if any service lines contain lead, galvanized requiring replacement (GRR), or unknown.
These initial inventories will be important because the proposed Lead and Copper Rule Improvements (LCRI) rule is expected to be in October of this year. The LCRI rule continues to build from the LCRR rule. Notably, the LCRI rule lowers the lead action level to 10µg/L; requires the baseline inventories be updated annually; confirmation of the identify of any unknown service lines; and the creation of a replacement plan. The LCRI rule will also require 100% lead and GRR service line replacement within 10 years.
TCC will continue to provide updates on any additional guidance from the TCEQ regarding LCRR requirements and inform members when the LCRI rule is finalized.
TCEQ opens informal comment period for potential State Designations for the 2024 Primary Annual NAAQS for PM2.5
On May 6, 2024, EPA’s final rule that lowered the NAAQS for PM2.5 became effective. TCEQ has started the planning process on how the lowered standard will affect areas around Texas.
TCEQ has prepared a document identifying potential state designations at the county level and a preliminary map identifying Design Values around the state.
TCEQ is holding an informal comment period from July 30, 2024, through August 30, 2024, to solicit information relevant to the new primary annual PM2.5 NAAQS of 9.0 micrograms per cubic meter. TCEQ Air Quality Division staff are currently evaluating available data and potential designations to be considered by TCEQ in December 2024.
Comments can be submitted to SIPrules@tceq.texas.gov.
Once approved by TCEQ, the designations will be sent to the Governor Abbott for approval before submission to EPA by February 7, 2025.
More Info