Climbing Compliance Costs

During the last year, the the U.S. Environmental Protection Agency (EPA) has been actively proposing and finalizing many chemical regulations intended to promote the protection of health and the environment. . The new regulations will not only affect allowable quantities of chemicals released to air, water, and land from regulated commercial and industrial facilities, but they will also influence the cleanup and management of hazardous wastes and closure of waste management facility components, such as tanks, container storage areas, and surface impoundments.


The new arsenic MCL will affect site closures and Nationals Pollutant Discharge Elimination System (NPDES) permitting.

On January 22, 2001, EPA published a final rule that reduced the allowable level of arsenic in drinking water from 50 to 10 parts per billion (ppb). The rule was one of a number ofmany "midnight" environmental regulations EPA attempted to rush through before President Clinton left office. . On March 20, 2001, EPA Administrator Christie Todd Whitman announced that EPA would withdraw the pending arsenic standard to seek independent review of both the science behind the standard and the estimates of the costs associated with implementing the rule. On April 19th, EPA announced that it would delay the decision on how much arsenic would be permitted in drinking water. The Agency said that a new rule would call for at least a 60% reduction from the current allowable level, which would result in a Maximum Contaminant Level (MCL) of 20 ppb, twice the level proposed on January 22 of this year. Although Administrator Whitman asked the National Academy of Sciences (NAS) to review a range of three to 20 ppb; on July 27, 2001, the U.S. House of Representatives voted on July 27th to require the Bush Administration to keep restrictions on the amount of arsenic allowed in drinking water at least as strict aswater to those set under the Clinton Administrationthe 10 ppb after all.

Costs and the Arsenic Drinking Water Rule

The arsenic rule could be one of the most expensive drinking water regulations ever. . The costs associated with this rule, however, go far beyond those borne by water suppliers and their customers since because maximum contaminant levels (MCLs) are used within many other EPA and sState regulatory programs. For example, For example, some state risk-based corrective action (RBCA) programs rely on MCLs as groundwater cleanup standards, as the starting point for calculating soil cleanup standards that are protective of underlying groundwater, and surface water quality criteria. The arsenic drinking water rule making does not necessarily trigger a change in risk-based cleanup criteria; however, s ome states have already implemented the new arsenic MCL in RBCA programs (e.g., California and Texas) even though water suppliers are not required to comply until 2006. Therefore, the new arsenic MCL may alsowill affect site closures and National Pollutant Discharge Elimination System (NPDES) permitting. Costs associated with implementing more stringent cleanup criteria or NPDES requirements that may potentially be affected by the new arsenic standard were not considered in the cost benefit analyses conducted in support of the 10 ppb drinking water standard set by the Clinton Administration. permitting.

Dioxin

EPA has been in the process of conducting a scientific reassessment of dioxin toxicity for the past decade. EPA released external review drafts of the Health Assessment for 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and Estimating Exposure to Dioxin-Like Compounds documents in 1994 and took public comment, followed by a Science Advisory Board (SAB) review in 1995. In June 2000, EPA released revised versions of three sections of its dioxin reassessment document. . The SAB provided final comments to EPA in May 2001. While admitting that there are significant limitations in current knowledge about the health effects of dioxin, the

SAB concluded that research is unlikely to bridge many of these important scientific data gaps in the foreseeable future and that EPA should, therefore, expeditiously complete and release the dioxin reassessment.

EPA's reassessment estimates that dioxin's cancer potency is six to 70 times higher than previously estimated. While agreeing that dioxin causes cancer in laboratory animals, the SAB committee split over whether to classify the chemical as a "known human carcinogen.".

There has been a push by the committee Chair to use the reassessment document to further limit dioxin emissions although industry representatives on the 17-member panel have questioned the science behind the report's conclusions. While EPA scientists and officials say they are confident of the report's findings, the study has drawn such intense opposition from industry groups and congressional Republicans that it could be held up for several more years.

Apparently, the panel plans to send the report to Administrator Christine Whitman this summer, but she has declined to comment on the report or how the Agency intends to use it.

There has also been another development in EPA reporting requirements that is expected to compound the effect of the newest dioxin toxicity reassessment. In October 1999, the dioxin and dioxin-like compounds category was added to the list of toxic chemicals subject to the Toxic Release Inventory (TRI) reporting requirements of Section 313 of the Emergency Planning and Community Right to Know Act (EPCRA).

The dioxin reassessment, if fully confirmed and adopted, could lead to more challenging regulations and controls for facilities that are sources of dioxin releases. Affected industries must recognize, however, that pollution control technologies targeted at a single pollutant and single medium, especially conventional end-of-the-pipe treatment technologies, can inadvertently transfer pollutants and risks to different media, different locations and different receptors. This can unintentionally create new and different risks in the process of controlling the targeted risk. Given the current understanding of dioxin sources, health effects, and patterns of exposure, it may be wise to consider how much more the nature of any additional regulatory action shouldto be taken in the face of so much uncertainty about the costs and benefits of those actions.

Lead

EPA announced on April 17, 2001, that it would proceed with its TRI rule to significantly expand the information available to the public about lead emissions in their communities. The decision marked a Clinton Administration regulation that has been upheld by the Bush aAdministration. The first reports are required July 1, 2002, for the 2001 reporting year. The TRI lead rule lowers the reporting thresholds for lead and lead compounds from 10,000 pounds (lbs.) per year to 100 lbs. because lead and lead compounds are persistent bioacumulative toxic (PBT) compounds. The agency estimates that lowering the lead reporting threshold will add close to 10,000 industrial plants to the TRI.

To the extent that EPA procedures for estimating TRI releases do not accurately reflect actual releases, which is a common criticism, the TRI database may misinform the public about releases of environmental contaminants to their communities. Furthermore, the TRI reporting requirements are onerous and could divert often scarce time and resources away from more fruitfulaction-oriented pollution management and control efforts.

On January 22, 2001, the Agency published a proposed rule which includes procedures for notifying the Agency: 1) prior to commencement of lead-based paint abatement activities; 2) prior to providing lead-based paint activities training courses; and 3) following completion of lead-based paint activities training courses.

Lead-based paint activity training programs must now be accredited by EPA. While the benefit of such accreditation programs in terms of standardizing training are readily apparent, a common practical reality is that such accreditation programs are often heavy on "red tape" and slow to issue certifications of accreditation. The new lead-based paint activity notification requirements may also complicate abatement work and could increase its cost, which may hamper lead paint removal nationwide.

As part of EPA's ongoing efforts to protect children from lead poisoning, EPAEPA announced new standards to identify dangerous levels of lead in paint, dust and soil on January 5, 2001. The new national standards are more conservative than previous EPA guidance and are intended to provide federal, state and local agencies with uniform benchmarks on which to base remedial actions. Under the new standards, lead is considered a hazard if there are greater than 40 micrograms (mg) of lead in dust per square foot (ft2) on floors; 250 g/ ft2 on interior window sills, and 400 parts per million (ppm) of lead in bare soil in children's play areas or 1,200 ppm average for bare soil in the rest of the yard.

To ensure that lead abatement professionals are trained and certified, EPA published a final rule for the certification and training of lead-based paint professionals in 1996. After March 1999, training programs had to be accredited by EPA in order to offer training or refresher training. On January 22, 2001, the agency published a proposed rule which includes notification procedures: 1) prior to commencement of lead-based paint abatement activities; 2) prior to providing lead-based paint activities training courses; and 3) following completion of lead-based paint activities training courses.

While the benefit of such accreditation programs in terms of standardizing training are readily apparent, a common practical reality is that such accreditation programs are often heavy on "red tape" and slow to issue certifications of accreditation. . The new lead-based paint activity notification requirements may also complicate abatement work and could increase its cost, which may hamper lead paint removal efforts.

Ozone and Particulate Matter

On February 27, 2001 the U.S. Supreme Court upheld the revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, in the case, Whitman vs. the American Trucking Association (99-1257), rejecting an industry argument that the regulations must balance the desire for clean air with the cost of having achieving and maintaining it. The American Trucking Association, other industry representatives, and several states challenged the revised standards, issued by EPA in 1997 in what was considered to be one of the most important challenges to the Clean Air Act (CAA) yet. The Court held that the CAA provision that directs EPA to set NAAQS that protect public health with an adequate margin of safety, which contains no reference to costs, clearly bars implementation costs from being considered by EPA in setting air quality standards. In its decision, the U.S. Supreme Court reaffirmed EPA's long-standing interpretation that it must set NAAQS based solely on public health considerations without consideration of costs.

On March 27, 2002, the D.C. Court rejected all remaining challenges to EPA's fine particles and ozone standards. The ruling was not an absolute victory for EPA, however. The justices found fault with the way that EPA proposed to implement the ozone standards and is leaving it up to the Agency to rectify various ambiguities. The Court indicated that EPA is to develop a reasonable interpretation of the nonattainment implementation provisions, but provided little guidance on how that interpretation should be formulated.

The details of how the revised ozone standard will be implemented are not yet known. However, some areas that are currently meeting EPA's ozone health standard, but which have rising ozone levels, are voluntarily reducing ozone with pollution controls tailored to local conditions. It is clear, however, that implementation of the ozone standard will impact businesses, government entities, and individuals, particularly with respect to the expanded universe of facilities that will become subject to non-attainment requirements.

To keep informed as these chemical regulations evolve, visit the Regulatory Update at www.ensr.com/newsroom.




This article originally appeared in the June 2002 issue of Environmental Protection, Vol. 13, No. 6, p. 56.

This article originally appeared in the 06/01/2002 issue of Environmental Protection.

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