Proposed Rule2022-20257
Toxic Substances Control Act (TSCA) Section 21 Petition for Rulemaking Under TSCA Section 6; Reasons for Agency Response; Denial of Requested Rulemaking
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 21, 2022
Issuing agencies
Environmental Protection Agency
Abstract
This action announces the availability of EPA's response to a petition received on June 16, 2022, from Daniel M. Galpern on behalf of Donn J. Viviani, John Birks, Richard Heede, Lise Van Susteren, James E. Hansen, Climate Science, Awareness and Solutions, and Climate Protection and Restoration Initiative (the petitioners). The petitioners request that EPA in general phase out the anthropogenic manufacture, processing, distribution, use, and disposal of greenhouse gas (GHG) emissions, fossil fuels, and fossil fuel emissions. They also request multiple actions under TSCA, and actions pursuant to the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Independent Offices Appropriations Act (IOAA). EPA has determined that the request for risk management rulemaking under TSCA is within the ambit of a petition under TSCA's provision for a citizen petition. EPA is treating the other actions requested as petitions under the Administrative Procedure Act (APA), which this notice does not address. EPA shares the petitioners' concerns regarding the threat posed by climate change, and the Biden Administration will continue to combat the climate crisis with a whole of government approach. Nonetheless, after careful consideration, EPA has denied the petition for the reasons set forth in this notice.
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[Federal Register Volume 87, Number 182 (Wednesday, September 21, 2022)]
[Proposed Rules]
[Pages 57665-57674]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20257]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter I
[EPA-HQ-OPPT-2022-0593; FRL-9987-01-OCSPP]
Toxic Substances Control Act (TSCA) Section 21 Petition for
Rulemaking Under TSCA Section 6; Reasons for Agency Response; Denial of
Requested Rulemaking
AGENCY: Environmental Protection Agency (EPA).
ACTION: Petition; reasons for Agency response.
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SUMMARY: This action announces the availability of EPA's response to a
petition received on June 16, 2022, from Daniel M. Galpern on behalf of
Donn J. Viviani, John Birks, Richard Heede, Lise Van Susteren, James E.
Hansen, Climate Science, Awareness and Solutions, and Climate
Protection and Restoration Initiative (the petitioners). The
petitioners request that EPA in general phase out the anthropogenic
manufacture, processing, distribution, use, and disposal of greenhouse
gas (GHG) emissions, fossil fuels, and fossil fuel emissions. They also
request multiple actions under TSCA, and actions pursuant to the Clean
Air Act (CAA), the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), and the Independent Offices Appropriations
Act (IOAA). EPA has determined that the request for risk management
rulemaking under TSCA is within the ambit of a petition under TSCA's
provision for a citizen petition. EPA is treating the other actions
requested as petitions under the Administrative Procedure Act (APA),
which this notice does not address. EPA shares the petitioners'
concerns regarding the threat posed by climate change, and the Biden
Administration will continue to combat the climate crisis with a whole
of government approach. Nonetheless, after careful consideration, EPA
has denied the petition for the reasons set forth in this notice.
DATES: EPA's response to this TSCA section 21 petition was signed
September 14, 2022.
ADDRESSES: EPA has established a docket for this TSCA section 21
petition under docket identification (ID) number EPA-HQ-OPPT-2022-0593
and available online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Additional
instructions on visiting the docket, along with more information about
[[Page 57666]]
dockets generally, is available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: The TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-
1404; email address: <a href="/cdn-cgi/l/email-protection#f5a1a6b6b4d8bd9a81999c9b90b5908594db929a83"><span class="__cf_email__" data-cfemail="81d5d2c2c0acc9eef5ede8efe4c1e4f1e0afe6eef7">[email protected]</span></a>.
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 (including
import), process, distribute in commerce, use, or dispose of fossil
fuels or greenhouse gases. 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. What is EPA's authority for taking this action?
Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA
to initiate a proceeding for the issuance, amendment, or repeal of a
rule under TSCA sections 4, 6, or 8, or to issue an order under TSCA
sections 4, 5(e), or 5(f). A TSCA section 21 petition must set forth
the facts which it is claimed establish that it is necessary to
initiate 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 seeking to compel initiation of the requested proceeding
within 60 days of a denial or, if EPA does not issue a decision, within
60 days of the expiration of the 90-day period.
C. What criteria apply to a decision on this TSCA section 21 petition?
1. Legal Standard Regarding TSCA Section 21 Petitions
TSCA section 21(b)(1) requires that the petition ``set forth the
facts which it is claimed establish that it is necessary'' to initiate
the proceeding requested. 15 U.S.C. 2620(b)(1). Thus, in addition to
petitioners' burden under TSCA section 21 itself, TSCA section 21
implicitly incorporates the statutory standards that apply to the
requested actions. Accordingly, EPA has reviewed this TSCA section 21
petition by considering the standards in TSCA section 21 and in the
provisions under which actions have been requested.
2. Legal Standard Regarding TSCA Section 6(a).
Under TSCA section 6(a), if EPA determines that the manufacture,
processing, distribution in commerce, use, or disposal of a chemical
substance or mixture, or that any combination of such activities,
presents an unreasonable risk of injury to health or the environment,
EPA conducts a rulemaking to apply one or more of TSCA section 6(a)
requirements to the extent necessary so that the chemical substance or
mixture no longer presents such risk. In proposing and promulgating
rules under TSCA section 6(a), EPA considers, among other things, the
provisions of TSCA sections 6(c)(2), 6(d), 6(g), and 9. In addition, to
the extent that EPA makes a decision based on science, TSCA section
26(h) requires EPA, in carrying out TSCA sections 4, 5, and 6, to use
``scientific information, technical procedures, measures, methods,
protocols, methodologies, or models, employed in a manner consistent
with the best available science,'' while also taking into account other
considerations, including the relevance of information and any
uncertainties. 15 U.S.C. 2625(h). TSCA section 26(i) requires that
decisions under TSCA sections 4, 5, and 6 be ``based on the weight of
scientific evidence.'' 15 U.S.C. 2625(i). TSCA section 26(k) requires
that EPA consider information that is reasonably available in carrying
out TSCA sections 4, 5, and 6. 15 U.S.C. 2625(k).
II. Summary of the TSCA Section 21 Petition
A. What action was requested?
On June 16, 2022, EPA received a TSCA section 21 petition from
Daniel M. Galpern on behalf of Donn J. Viviani, John Birks, Richard
Heede, Lise Van Susteren, James E. Hansen, Climate Science, Awareness
and Solutions, and Climate Protection and Restoration Initiative (Ref.
1). The petition requests EPA determine that the manufacture,
processing, distribution in commerce, use, or disposal of greenhouse
gas emissions, fossil fuels, and fossil fuel emissions present an
unreasonable risk of injury to health or the environment and initiate a
proceeding for the issuance of a rule under TSCA section 6(a) to: (1)
Phase out the manufacture (including import), processing, distribution
in commerce, use, or disposal of ``subject chemical substances and
mixtures''; and (2) Remove and sequester, or--in the alternative--
establish a pay-in fund for the purpose of removing, such ``subject
chemicals substances and mixtures'' from the environment (Ref. 1, pp.
7-8, 35). The petition seeks action regarding ``subject chemical
substances and mixtures,'' by which the petition collectively refers to
``the GHG emissions from all anthropogenic sources, the fossil fuels,
and those emissions associated with fossil fuels (GHGs and otherwise)''
(Ref. 1, p.7). The chemical substances or mixtures implicated by these
groups, according to the petition, include: ``carbon dioxide
(CO<INF>2</INF>), methane (CH<INF>4</INF>), nitrous oxide
(N<INF>2</INF>O) and the Halocarbons--chlorofluorocarbons (CFCs),
hydrochlorofluorocarbons (HCFCs) and halons (HFCs)) from all sources'';
``[c]ertain fossil fuels'' that meet the TSCA definition of chemical
substance or chemical mixture; and both GHGs and ``other pollutants
released or emitted during'' the manufacture, processing, distribution
in commerce, use and disposal of fossil fuels, ``including particulate
matter and sulfur and nitrogen dioxides.'' (Ref. 1, p.7 (footnotes 7-8)
and p.19).
The petition requests that EPA also take actions under TSCA
sections 7 and 9. In addition, the petition requests actions under the
CAA (CAA sections 108-110, 115), CERCLA (CERCLA sections 101, 102, 104-
108), and the IOAA (31 U.S.C. 9701).
This Federal Register document specifically addresses the
petitioners' TSCA section 21 petition requesting EPA to issue rules
under TSCA section 6(a). This Federal Register document does not
address the TSCA-requested actions which cannot be addressed under TSCA
section 21 (i.e., TSCA sections 6(b), 7 and 9), nor does it address the
petitioners' requests under the CAA, CERCLA, and the IOAA. EPA will
consider those requests separately, as appropriate, under the APA.
1. Request for Rulemaking Under TSCA Section 6(a)
The petition requests that EPA undertake rulemaking under TSCA
section 6(a) to ``phase out [the] production and importation and, as
warranted, [the] processing, distribution, use or atmospheric disposal
of subject chemicals substances and mixtures, as required to secure the
elimination of associated emissions and legacy GHG emissions, on a
timetable that is consistent with both the overarching need to protect
and restore a habitable climate system and with the demands of national
and international security'' and ``remove and securely sequester from
the environment excess
[[Page 57667]]
atmospheric greenhouse gases including, at minimum, surfeit atmospheric
carbon dioxide (CO<INF>2</INF>) and methane (CH<INF>4</INF>) or, in the
alternative, to pay into an Atmospheric Carbon Abatement Fund that EPA
will establish for the purpose of removing such subject chemicals and
mixtures in an amount and pursuant to a timetable consistent with
protection and restoration of a habitable climate system'' (Ref. 1, pp.
7-8). TSCA section 21 provides for the submission of a petition to
initiate a proceeding for the issuance, amendment, or repeal of a rule
under TSCA section 4, 6, or 8, or to issue an order under TSCA section
4, 5(e), or 5(f). As the petitioners are seeking issuance of a rule
under TSCA section 6(a), this Federal Register document addresses this
request.
2. Request for Standalone Finding of Unreasonable Risk of Injury to
Health and the Environment
The petition requests that EPA ``render a determination that `the
manufacture, processing, distribution in commerce, use, or disposal' of
the subject chemical substances and mixtures present an unreasonable
risk of injury to health or the environment'' (Ref. 1, p. 7). With
respect to actions under TSCA section 6, TSCA section 21 provides only
for the submission of a petition seeking the initiation of a proceeding
for the issuance, amendment, or repeal of a rule under TSCA section 6.
Citizens may not petition under TSCA section 21 for a stand-alone risk
determination (i.e., one that is independent from and not solely
underlying and inherent to a request for a specific rulemaking under
TSCA section 6(a)) or an Agency risk evaluation pursuant to TSCA
section 6(b). To the extent that the petition seeks a stand-alone risk
determination, this Federal Register document does not address this
specific request because TSCA section 21 does not provide an avenue for
the petitioners to request a stand-alone risk determination or the
initiation of the TSCA section 6(b) prioritization (and potential risk
evaluation) process. However, in reviewing the request for rulemaking
under TSCA section 6(a) (see Unit II.A.1.), the Agency considered the
information set forth in the petition that petitioners claim
establishes that it is necessary to initiate the proceeding requested,
including the information presented by the petitioners regarding
whether the manufacture, processing, distribution in commerce, use, or
disposal of a chemical substance or mixture, or any combination of such
activities, presents an unreasonable risk of injury to health or the
environment.
3. Request for Actions Under Other Sections of TSCA, the CAA, CERCLA,
and the IOAA
TSCA section 21 does not provide for the submission of a petition
seeking action under TSCA section 7 or 9, the CAA, CERCLA, or the IOAA.
Therefore, this Federal Register document does not address those
portions of the petitioners' filing.
EPA notes that the petition includes one qualified sentence
mentioning TSCA section 4: ``If information on the efficacy of removal
and sequestration technologies is inadequate, the [p]etitioners
recommend that the Agency utilize its authorities under TSCA [section
4].'' The sentence is a recommendation related to a potential lack of
information under a potential sequestration requirement, and the
petitioners made no attempt to assess the TSCA section 4 standards or
set forth facts showing a necessity to act under the TSCA section 4
authorities. For example, in a TSCA section 21 petition seeking the
issuance of a test rule or order under TSCA section 4(a)(1)(A)(i), the
burden is on the petitioner to demonstrate that the manufacture,
distribution in commerce, processing, use, or disposal of a chemical
substance or mixture, or that any combination of such activities, may
present an unreasonable risk of injury to health or the environment;
that information and experience are insufficient to reasonably
determine or predict the effects of a chemical substance on health or
the environment; and that testing of the chemical substance is
necessary to develop the missing information. Moreover, the focus of
the recommendation in the petition is on how EPA might deal with a
potential lack of information under a potential sequestration
requirement under TSCA, but neither point is a live issue. Thus,
although TSCA section 21 petitions may petition for action under TSCA
section 4, EPA does not consider the quoted sentence to be a facially
complete TSCA section 21 petition for action under TSCA section 4 and
is not addressing it further in this Federal Register document.
B. What support did the petitioners offer?
To support the request for issuance of a rule under TSCA section
6(a), the petitioners provided an appendix to the petition that
contains scientific and economic data and literature on climate change
(Ref. 1, pp. 38-112 (``Part II: Select Scientific and Economic
Considerations'')). The appendix is divided into sections that discuss
Earth's energy imbalance; carbon dioxide, methane, and other
atmospheric pollutants; risks to land, water, and air biota; risk
reduction methods, including GHG emission reduction and sequestration;
and risk reduction costs and benefits.
The Agency appreciates the robustness of information provided in
the petition toward showing climate risks and finds it generally
consistent with decades of peer-reviewed and published data on climate
change, including risks to human health and the environment. From a
scientific standpoint, and as described further in Unit III.B.1., EPA
notes that the information and science provided in the petition is
generally consistent with what the Agency used to make the 2009
``Endangerment Finding'' that elevated atmospheric concentrations of
six key well-mixed GHGs taken in combination may reasonably be
anticipated to endanger the public health and welfare of current and
future generations, and does not appear to present information that
would be considered inappropriate or that the Agency would otherwise
disagree with related to climate change science.
EPA also received public comments on the petition, which can be
viewed via docket ID number EPA-HQ-OPPT-2022-0593, through the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
III. Disposition of TSCA Section 21 Petition
A. What is EPA's response?
EPA shares the petitioners' concerns regarding the threat posed by
climate change, and the Biden Administration will continue to combat
the climate crisis with a whole of government approach. Nonetheless,
after careful consideration, EPA has denied this TSCA section 21
petition. A copy of the Agency's response, which consists of the letter
to the petitioners and this document, is posted on EPA TSCA petition
website at <a href="https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-21##greenhouse">https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-21##greenhouse</a>. The response, the petition (Ref. 1),
and other information is available in the docket for this TSCA section
21 petition (see ADDRESSES).
B. What was EPA's reason for this response?
TSCA section 21 provides for the submission of a petition seeking
the initiation of a proceeding for the issuance, amendment, or repeal
of a rule
[[Page 57668]]
under TSCA section 6. The petition must set forth the facts which it is
claimed establish that it is necessary to issue the requested rule. 15
U.S.C. 2620(b)(1). When determining whether the petition meets that
burden here, EPA considered whether the petition established that it is
necessary to issue a TSCA section 6(a) rule to address the manufacture,
processing, distribution in commerce, use, or disposal of the
petitioned substances, or any combination of such activities, that the
petitioners claim present an unreasonable risk of injury to health or
the environment within the meaning of TSCA section 6(a), 15 U.S.C.
2605(a). For EPA to be able to conclude within the statutorily-mandated
90 days of receiving the petition that the initiation of a proceeding
for the issuance of a TSCA section 6(a) rule is necessary, the petition
would need to be sufficiently clear and robust.
EPA evaluated the information presented in the petition and
considered that information in the context of the applicable
authorities and requirements of TSCA sections 6, 9, 21, and 26.
Notwithstanding that the burden is on the petitioners to set forth the
facts which it is claimed establish that it is necessary for EPA to
issue the rule sought, EPA nonetheless also considered relevant
information that was reasonably available to the Agency during the 90-
day petition review period. EPA shares the petitioners' concerns about
the climate crisis and, as explained in Unit III.B.3.a., the Agency is
taking numerous actions to combat climate change. As detailed further
in Units III.B.2 and III.B.3., EPA finds that the petition is
insufficiently specific and that the petitioners did not meet their
burden under TSCA section 21(b)(1) of establishing that it is necessary
to issue a rule under TSCA section 6(a). These deficiencies, among
other findings, are detailed in this notice.
1. Undeniable Threat Associated With the Climate Crisis.
The petition addresses a unique challenge--the climate crisis,
which touches on every facet of commerce and life around the world. EPA
shares the petitioners' concerns regarding the threat posed by climate
change, and the Biden Administration has approached the climate crisis
with a whole of government approach.
Petitioners argue that risks associated with climate change are
``unreasonable risks'' under TSCA. The petitioners' reference four past
instances where EPA made an unreasonable risk determination and
regulated chemical substances and mixtures under TSCA section 6(a) and
state that the ``risk of injury to health and the environment (as well
as actual injury) stemming from fossil fuels and other GHG sources is
orders of magnitude greater than [such] risks'' (Ref. 1, p. 14). As
previously mentioned, the petitioners in an appendix to the petition
discuss risks to land, water, and air biota posed by greenhouse gas
emissions, fossil fuels, and fossil fuel emissions (Ref. 1). In
describing this and other information, the petitioners state, ``That
the subject chemical substances and mixtures present not only an
unreasonable but also an imminent risk of serious and widespread injury
has been exhaustively established in credible reports and documents
available to the Agency, including many adopted by the Agency or by
other U.S. government units'' (Ref. 1, p. 19).
The Agency agrees that the climate crisis is an undeniable and
urgent threat to human health and the environment. Not only is climate
change happening now, but it is already affecting human health and
well-being, wildlife, and the natural environment. According to the
Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment
Report, ``[i]t is unequivocal that human influence has warmed the
atmosphere, ocean and land. Widespread and rapid changes in the
atmosphere, ocean, cryosphere and biosphere have occurred'' (Ref. 2).
The IPCC states these changes have led to increases in heat waves and
wildfire weather, reductions in air quality, and more intense
hurricanes and rainfall events. New records continue to be set for
indicators such as global average surface temperatures, GHG
concentrations, and sea level. Billion-dollar weather disasters in the
United States over the last five years have occurred at more than twice
the rate of such disasters over the past 42 years, with 2022 already
seeing multiple large tornadoes, hail storms, floods, heat waves,
droughts, and wildfire events (Ref. 3). Higher CO<INF>2</INF>
concentrations have led to acidification of the surface ocean in recent
decades, with negative impacts on marine organisms that use calcium
carbonate to build shells or skeletons. The 4th National Climate
Assessment (NCA4) found that it is very likely (greater than 90%
likelihood) that by mid-century, the Arctic Ocean will be almost
entirely free of sea ice by late summer for the first time in about 2
million years. Moreover, heavy precipitation events have increased in
the eastern United States while severe drought and outbreaks of insects
like the mountain pine beetle have killed hundreds of millions of trees
in the western United States. Wildfires have burned more than 3.7
million acres in 14 of the 17 years between 2000 and 2016, and Federal
wildfire suppression costs were about a billion dollars annually. The
NCA4 also recognized that climate change can increase risks to national
security, both through direct impacts on military infrastructure, and
also by affecting factors such as food and water availability that can
exacerbate conflict outside U.S. borders. The most severe harms from
climate change may also fall disproportionately upon underserved
communities who are least able to prepare for, and recover from, heat
waves, poor air quality, flooding, and other impacts (Ref. 4). As such,
understanding and addressing climate change is critical to EPA's
mission of protecting human health and the environment.
As set forth in EPA's December 7, 2009, Endangerment Finding under
section 202(a) of the CAA, the Administrator found, for the purposes of
that particular provision, that six greenhouse gases taken in
combination endanger both the public health and the public welfare of
current and future generations (74 FR 66496, December 15, 2009, FRL-
9091-8). In order to develop this Finding, the Agency held a 60-day
public comment period on the proposed Finding, during which it received
over 380,000 public comments. EPA carefully reviewed and considered
these comments before publishing the final Endangerment and Cause or
Contribute Findings. Following publication of these Findings, EPA
received 10 petitions to reconsider the findings, which were denied
after careful review and consideration. In 2012, the D.C. Circuit in
Coalition for Responsible Regulation, Inc. v. EPA denied all the
petitions for review of the 2009 Endangerment and Cause or Contribute
Findings. 684 F.3d 102 (D.C. Cir. 2012) (per curiam), reh'g denied 2012
U.S. App. LEXIS 26313, 26315, 25997 (D.C. Cir. 2012). In 2016, EPA
issued another set of similar findings for greenhouse gas emissions
from aircraft under section 231(a)(2)(A) of the CAA, triggering a
requirement for EPA to promulgate standards addressing GHG emissions
from engines on covered aircraft. For these 2016 Findings, EPA reviewed
major new peer-reviewed scientific assessments that had been released
since 2009, finding that ``these new assessments are largely consistent
with, and in many cases strengthen and add to, the already compelling
and comprehensive scientific evidence detailing the role of the six
well-mixed GHGs in driving climate change,
[[Page 57669]]
explained in the 2009 Endangerment Finding'' (81 FR. 54421, August 15,
2016, FRL-9950-15-OAR). Finally, EPA received four petitions between
2017 and 2019 for reconsideration, rulemaking, or reopening of the
Endangerment and Cause or Contribute Findings. EPA denied these
petitions on April 21, 2022 (87 FR. 25412, FRL-9735-01-OAR), though
litigation is ongoing. Although EPA does not rely on these findings as
a basis for today's action, this history highlights a few instances
where EPA has recognized the significant concerns related to climate
change. EPA further notes that in describing these prior findings under
sections 202(a) and 231(a)(2)(A) of the CAA, it is neither reopening
nor revisiting those findings.
Thus, the Agency acknowledges both the urgency and uniqueness of
the threat presented by climate change. However, as explained in the
following discussion, even assuming EPA were to determine that the
petitioners have adequately demonstrated that the manufacture,
processing, distribution in commerce, use, or disposal of at least some
of ``the subject chemical substances and mixtures'' present an
unreasonable risk of injury to health or the environment for purposes
of TSCA section 6(a), EPA nonetheless finds that the petition is
insufficiently specific and fails to establish that it is necessary to
issue a rule under TSCA section 6. EPA makes this latter finding in
light of ongoing and expected federal government actions to address
these risks, the relative efficiency of TSCA rulemaking, and lack of
TSCA authority to regulate historical GHG emissions (as described in
detail in Unit III.B.3.).
2. Insufficient Specificity of the Petition
As an initial matter, the petitioners' request for a rule is
insufficient because it lacks specificity, especially in comparison to
the magnitude of the request. In light of the sprawling nature of the
climate problem and its solutions, and the number of federal government
activities already ongoing to address the problem (discussed further in
Unit III.B.3.a), the petitioners must do more to specify what the
petitioners are seeking for EPA to do under TSCA with respect to
particular chemical substances or mixtures (e.g., by specifying each
chemical substance on the TSCA Inventory implicated by the broad
request to regulate, among others, fossil fuels, fossil fuel emissions,
and halocarbons as groups) and the activities associated with each
chemical substance (including each source of GHG emissions) that the
petitioners seek a TSCA rule to address. In other words, while EPA
undeniably has authority under TSCA to regulate chemical substances and
mixtures (see TSCA sections 3(2), 3(10), 6(a)), including those that
may be implicated by the petition, the petitioners must provide more
specificity on which chemical substances and which mixtures from which
sources and activities the petitioners ask EPA to regulate under TSCA
and, to the extent petitioners implicitly seek categorization under
TSCA section 26(c), more specificity on the extent of such
categorization and the basis to treat any such category as a single
chemical substance or a single mixture.
The petitioners assert in their petition that ``it is not
Petitioners' burden here to propose in detail requirements that EPA
should propose following its determination'' (Ref. 1 p. 15). But
especially under the unique circumstances presented in this case, where
the petitioners identify a wide-ranging global threat associated with
innumerable activities and a multitude of chemical substances and
mixtures (many of whose emissions are already subject to regulation
under other federal authorities or are anticipated to be affected by
resources provided under the Inflation Reduction Act of 2022 (IRA),
Public Law 117-169 (2022) (see discussion in Unit III.B.3.)), the
petitioners did not sufficiently clarify the contours of the ``rule''
under TSCA they assert it is necessary for the Agency to issue.
Petitioners' request potentially affects an extraordinary number of
industries and activities (e.g., agriculture, transportation,
utilities, etc.), including innumerable small sources of emissions
(e.g., residential homes). In the context of the massive climate change
problem, the petitioners did not provide a sufficiently specific and
targeted request addressing particular substances and industries, so
that EPA can determine within 90 days whether the petition sets forth
the facts which it is claimed establish that it is necessary to issue a
TSCA section 6(a) rule, and whether any part of the requested rule (in
addition to the requested requirement for removal and sequestration of
legacy GHG emissions, which as discussed in Unit III.B.3.c is not
authorized under TSCA section 6(a)) falls beyond the outer bounds of
EPA's regulatory authority under TSCA section 6(a).
The petitioners attempted to group together very different types of
substances under one defined term that the petition labeled as
``subject chemical substances and mixtures.'' The petitioners described
these broad groups as ``the GHG emissions from all anthropogenic
sources, the fossil fuels, and those emissions associated with fossil
fuels (GHGs and otherwise)'' (Ref. 1 p. 7). Yet even within each of
these three broad groups, there is a multitude of chemical substances
that might fit. Apart from giving examples of some of the substances
that the petition envisioned being addressed by EPA regulation (Ref. 1
p. 7 footnotes 7-8, and p. 19), the petition did not specify the extent
of the chemical substances or mixtures for which rulemaking action was
sought and did not explain the basis or boundary for any
categorization.
Moreover, although the petition sought a rule for the ``subject
chemical substances and mixtures,'' EPA believes that a rule for GHGs,
for example, would look very different than a rule for fossil fuels,
for example, in light of differences in TSCA section 6(a) regulatory
tools for manufacture, processing, distribution in commerce, use, or
disposal and differences in appropriate regulatory approaches for the
relevant chemical substance. For example, the TSCA section 6(a)
regulatory options for disposal significantly differ from those tools
for manufacturing, processing, or distribution. Even within the group
of GHGs, a rule addressing carbon dioxide would likely look very
different from a rule addressing methane, or nitrous oxide, or any one
of various halocarbons, due to the differences in the activities that
result in atmospheric releases of these substances. The petition's
imprecision about what type of regulation it sought for which chemical
substance or mixture under which of its activities is a significant
deficiency, especially considering the wide range of substances and
activities the petition implicates, as well as the aggressive action
already taken or underway across a wide range of statutes for many of
these same activities (such as EPA's ongoing actions to implement the
mandated reductions in HFC production and consumption within the
American Innovation and Manufacturing (AIM) Act, for example).
3. Necessity of Regulation Under TSCA
More broadly, and relatedly, even assuming the petition were
sufficiently specific, and that EPA were to determine that an
unreasonable risk is presented for purposes of TSCA section 6(a), the
petitioners have failed to demonstrate that regulation under TSCA is
``necessary'' under the unique circumstances presented here. TSCA
section 21 requires petitioners to set forth the facts which it is
claimed establish that it is necessary to issue, amend, or repeal a
rule under TSCA section 6. In addition to the scientific
[[Page 57670]]
information provided in the appendix to the petition, the petitioners
argue that a TSCA section 6(a) rule is necessary because of
insufficient domestic action to date, lack of regulation of legacy
emissions, and the specific applicability of TSCA to achieve ``deep
decarbonization'' (Ref. 1, pp. 22-24).
As discussed in Unit III.B.3.a., the federal government has
numerous programs aimed at reducing GHG emissions, and President Biden
has committed to a whole of government approach to using federal tools
to reduce GHG emissions. Notably, since the petitioners filed their
petition, Congress passed the most significant climate legislation
ever, the IRA. The IRA marks the largest investment in history to
combat climate change ($369 billion) and will focus in part on reducing
harmful pollution, building a clean energy economy, and lowering energy
costs. Moreover, the IRA ensures efforts to tackle the climate crisis
and secure environmental and economic benefits for all people, that
investments will reach the communities that need them most, and that
EPA will accelerate work on environmental justice and empower
community-driven solutions in overburdened neighborhoods (Ref. 5). The
petitioners have not demonstrated that all of the existing and
anticipated federal programs, including but not limited to those
discussed in this notice (as well as efforts by state, local, and
tribal governments and private entities), will fail to achieve
sufficient progress towards meeting U.S. GHG reduction targets or that,
in particular, a TSCA section 6(a) rule requiring the phase-out of
manufacturing, processing, distribution in commerce, use, or disposal
of the ``subject chemical substances and mixtures,'' is necessary to
make sufficient progress towards meeting these targets to address the
threat posed by climate change in light of actions under all of the
other federal programs. As a result, EPA need not here opine on the
outer extent of the Agency's authority under TSCA to phase out
greenhouse gases or fossil fuels.
Further, as described in this Unit III.B.3.b., EPA retains
discretion in TSCA section 6(a) rulemaking to refer action to other
agencies and EPA programs under TSCA section 9 and to grant exemptions
from TSCA section 6(a) rule requirements under TSCA section 6(g) as
appropriate (such as where compliance with a requirement, as applied
with respect to a specific condition of use, would significantly
disrupt the national economy, national security, or critical
infrastructure), and EPA is required to consider reasonably
ascertainable economic consequences of the rule, as well as
availability of technically and economically feasible safer
alternatives, among other requirements. The exercise of these
authorities could lead to rulemaking that would not achieve emission
reductions more expeditiously or efficiently than those achieved
through other nationwide efforts.
Finally, as described in Unit III.B.3.c., EPA lacks authority under
TSCA section 6(a) to require removal and sequestration (or pay-in fund
for removal) of historical GHG emissions as requested by the petition.
a. Substantial Ongoing and Expected Federal Government Actions
The petitioners assert that efforts to restrict fossil fuel and
other GHG emissions ``pursuant to other statutes'' lack a ``fossil fuel
phaseout course'' and have not put the United States on track to
achieve national GHG emission reduction targets for 2030, 2035, and
2050; and that ``[n]o federal statute, other than TSCA, provides the
Agency with the needed comprehensive authority and duty to impose
requirements prohibiting or restricting the manufacture, processing,
distribution, use or disposal'' of GHG emissions, fossil fuels, and
fossil fuel emissions (Ref. 1, pp. 22-24). As such, the petitioners
conclude that a TSCA section 6(a) rule is necessary ``because the
Agency has declined to date to undertake the requested or equivalent
actions on its own'' and that such a rule is the only means to address
GHG emissions, fossil fuels, and fossil fuel emissions ``until the
point that their unreasonable risk is abated'' (Ref. 1, p. 22-24).
In fact, the U.S. Government has made and will continue to make
substantial efforts to reduce future domestic emissions. In 2021, in
line with Article 4 of the Paris Agreement, the U.S. Nationally
Determined Contribution set a GHG reduction target of 50-52% below 2005
levels by 2030, and net zero emissions by no later than 2050 (Ref. 6
and 7). Meeting these ambitious targets will be achieved through
benefits from actions already implemented, as well as future
anticipated mitigation efforts. The recently-enacted IRA is expected to
help reduce GHG emissions to 40% below 2005 levels by 2030, and ``get
the U.S. a significant way towards our overall 2030 climate goals,
positioning the [United States] to reach 50-52% GHG emission reductions
below 2005 levels in 2030 with continued executive branch, state,
local, and private sector actions.'' (Ref. 8). The IRA will help reduce
emissions in both the near and long term by creating credits for clean
electricity, energy storage, nuclear energy, and electric vehicles.
Additionally, it supports agricultural conservation efforts, clean
manufacturing, and more efficient buildings. A fee on methane emissions
will also create incentives for the oil and gas industry to reduce
leakage and waste. The IRA follows on the heels of the Bipartisan
Infrastructure Law of 2021 (Infrastructure Investment and Jobs Act),
Public Law 117-58, 135 Stat. 429 (2021), which advances a variety of
infrastructure investments that will reduce transportation-related GHG
emissions, including investing billions of dollars to modernize and
expand sustainable public transit infrastructure, build out the first-
ever national network of electric vehicle chargers in the United
States, and deliver thousands of electric school buses nationwide,
among other things, as well as investing in clean energy transmission
and the electric grid (Ref. 9 and 10).
The IRA and Bipartisan Infrastructure Law will lead to new GHG
emissions reductions on top of already existing government programs,
such as the implementation of the AIM Act of 2020 (see e.g., 86 FR
55116, October 5, 2021 (FRL 8458-02-OAR)) which includes measures to
reduce HFC production and consumption by 85% over the next 15 years; a
series of rules addressing GHG emissions from light duty and heavy duty
vehicles (86 FR 74434, December 31, 2021 (FRL-8469-01-OAR); 85 FR
24174, April 30, 2020 (FRL-10000-45-OAR); 81 FR 73478, October 25, 2016
(FRL-9950-25-OAR); 77 FR 62624 October 15, 2012 (FRL-9706-5); 76 FR
57106, September 15, 2011 (FRL-9455-1); 75 FR 25324, May 7, 2010 (FRL-
9134-6)), GHG standards for aircraft (86 FR 2136, January 11, 2021
(FRL-10018-45-OAR)), standards for new and existing municipal solid
waste landfills to reduce methane emissions (86 FR 27756, May 21, 2021
(FRL-10022-82-OAR); 81 FR 59275, August 29, 2016 (FRL-9949-55-OAR), 81
FR 59331, August 29, 2016 (FRL-9949-51-OAR)), New Source Performance
Standards for new, modified, and reconstructed fossil fuel-fired power
plants (80 FR 64510, October 23, 2015 (FRL-9930-66-OAR)), standards to
reduce methane emissions from the oil and natural gas industry (81 FR
35824, June 3, 2016 (FRL-9944-75-OAR); 85 FR 57398, November 15, 2020
(FRL-10013-60-OAR)), and limitations on GHG emissions from new and
modified stationary sources in construction permits under the PSD
program, based on the requirement to apply Best Available Control
[[Page 57671]]
Technology (BACT) (42 U.S.C. 7475(a)(4); Utility Air Regulatory Group
(UARG) v. EPA, 134 S.Ct. 2427, 2447-49 (2014); 80 FR 50199, 50200,
August 19, 2015 (FRL-9932-11-OAR)). Moreover, in 1990, Congress amended
the CAA to include Title VI (42 U.S.C. 7671c-7671q), which includes
measures that are directed at phasing out production and consumption of
listed class I substances, which include CFCs, halons, and carbon
tetrachloride, and listed class II substances, which are HCFCs. To
implement the phaseout of class I substances, EPA issued a rule in 1992
to limit the production and consumption of class I substances, with
production and consumption of most such substances to be phased out by
January 1, 2000, and then in 1993 EPA announced the acceleration of the
phaseout date for the production of most class I substances from
January 1, 2000 to December 31, 1995 (57 FR 33754, July 30, 1992 (FRL-
4158-2) and 58 FR 65018, December 10, 1993 (FRL-4810-7)). In 1993, EPA
established a phaseout schedule for HCFCs, which focused on certain
HCFCs first and will lead to a complete phaseout of the production and
consumption of HCFCs by 2030 (see e.g., 58 FR 65018, December 10, 1993
(FRL-4810-7) and 85 FR 15258, March 17, 2020 (FRL-10003-80-OAR)).
Beyond the IRA and the highlighted regulatory programs, EPA's
efforts also include coordinating international programs such as the
Global Methane Initiative (see <a href="https://www.globalmethane.org/">https://www.globalmethane.org/</a>),
domestic labeling and voluntary programs such as ENERGY STAR (see
<a href="https://www.energystar.gov/">https://www.energystar.gov/</a>), Natural Gas Star (see <a href="https://www.epa.gov/natural-gas-star-program">https://www.epa.gov/natural-gas-star-program</a>), the Coalbed Methane Outreach
Program (see <a href="https://www.epa.gov/cmop">https://www.epa.gov/cmop</a>), and the Landfill Methane
Outreach Program (see <a href="https://www.epa.gov/lmop">https://www.epa.gov/lmop</a>), developing Agency,
Regional, and program-office climate adaptation plans, and
communication and educational efforts such as the updated Climate
Change web page (see <a href="https://www.epa.gov/climate-change">https://www.epa.gov/climate-change</a>). EPA also
partners with states and tribes to assist with adaptation and
mitigation through programs such as Creating Resilient Water Utilities
(see <a href="https://www.epa.gov/crwu">https://www.epa.gov/crwu</a>) and the State and Local Climate and
Energy Program (see <a href="https://www.epa.gov/statelocalenergy/local-climate-and-energy-program">https://www.epa.gov/statelocalenergy/local-climate-and-energy-program</a>).
EPA also is developing new stationary and mobile source standards
under the CAA to better control GHG emissions from oil and gas
operations, electric generating units (EGUs), and vehicles. Examples
include the following:
<bullet> Oil and gas methane new source performance standards (RIN
2060-AV16);
<bullet> Oil and gas methane emission guidelines (RIN 2060-AV16);
<bullet> EGU GHG new source performance standards (RIN 2060-AV09);
<bullet> EGU GHG emission guidelines (RIN 2060-AV10);
<bullet> Phase 3 GHG standards for heavy-duty engines and vehicles
(RIN 2060-AV50); and
<bullet> Multi-pollutant emissions standards for model years 2027
and beyond, light duty and medium duty vehicles (RIN 2060-AV49).
These rules under development will build on earlier stationary and
mobile source standards. Similarly, EPA is continuing its work to
address HFCs through timely and effective implementation of the AIM
Act. Those efforts include development of a rule (RIN 2060-AV45) to
provide the framework for how the Agency will issue allowances in 2024
and later years for the phasedown of the production and consumption of
listed HFCs on the schedule listed in the AIM Act, and a rule (RIN
2060-AV46) under subsection (i) of the AIM Act, which provides EPA
authority to restrict, fully, partially, or on a graduated schedule,
the use of HFCs in sectors or subsectors in which they are used. The
public may track the regulatory plan for these and other actions by
searching or browsing the Unified Agenda of Regulatory and Deregulatory
Actions, available online at <a href="https://www.reginfo.gov/public/do/eAgendaMain">https://www.reginfo.gov/public/do/eAgendaMain</a>.
In addition, in combination with state, local, tribal, and
international actions, the U.S. federal government is pursuing a whole
of government strategy to reduce GHG emissions to protect current and
future generations. For example, federal initiatives launched since
2021 from the U.S. Department of Agriculture, the U.S. Department of
Energy, the U.S. Department of the Interior, and the U.S. Department of
Transportation, include investments to build or improve renewable
energy infrastructure in rural communities (Ref. 11); partnerships to
finance pilot projects that create market opportunities for U.S.
agricultural and forestry products that use climate-smart practices
(Ref. 12); efforts to accelerate innovation in carbon dioxide removal
and storage (Ref. 13), initiatives to catalyze nationwide development
of new and upgraded high-capacity electric transmission lines (Ref.
14); approvals for construction and operation of commercial-scale,
offshore wind energy projects (Ref. 15); programs to allow states,
tribes, and territories to retrofit low-income homes to increase energy
efficiency and lower utility bills (Ref. 16); and grants to transit
agencies, territories, and states for bus fleets that use zero-
emissions technology and training for transit workers to maintain and
operate new clean bus technology (Ref. 17). In addition, the U.S.
Securities and Exchange Commission proposed rule changes in Spring 2022
that, if finalized, would require registrants to provide certain
climate-related information in their registration statements and
periodic reports, including certain information about climate-related
financial risks and disclosure of a registrant's GHG emissions, to
enable investors to make informed judgments about the impact of
climate-related risks on current and potential investments (87 FR
21334, April 11, 2022). At the state level, the U.S. Climate Alliance--
including 24 states and 2 U.S. territories--continue to work to combat
climate change through policies that encourage investment in clean
energy, energy efficiency, and climate resilience. Following the
passage of the IRA, this organization published tools and resources to
help states better utilize the social cost of greenhouse gases (Ref.
18).
In light of actions taken to date, as well as ongoing and planned
actions, and with the recently authorized resources and programs under
the IRA, the Agency finds that the petitioners have not met the TSCA
section 21(b)(1) burden to establish that it is necessary to initiate a
proceeding under TSCA section 6(a) at this time. EPA believes that
actions under all of these other authorities and programs are best
suited at this time to address the urgent threat of climate change.
b. Relative Efficiency of TSCA Rulemaking
Even if EPA were to initiate a rulemaking proceeding under TSCA
section 6(a) to address an unreasonable risk associated with
prospective GHG emissions and/or fossil fuels, any final rule under
TSCA would be unlikely to achieve emissions reductions more
expeditiously or efficiently than those that are already anticipated to
be achieved through the IRA and other recent, ongoing, or planned
federal actions.
In proposing and promulgating rules under TSCA section 6(a), EPA
considers the provisions of TSCA sections 6(c)(2), 6(d), 6(g), and 9.
TSCA section 6(c)(2)(A) requires EPA to consider and publish a
statement based on reasonably available information with respect to:
[[Page 57672]]
the effects of the chemical substance or mixture on health and the
environment and magnitude of exposure; the benefits of the chemical
substance or mixture for various uses; and reasonably ascertainable
economic consequences of the rule (15 U.S.C. 2605(c)(2)(A)). These
economic consequences include consideration of the likely effect of the
rule on the national economy, small business, technological innovation,
the environment, and public health; the costs and benefits of the
proposed and final regulatory action and of one or more primary
alternative regulatory actions considered by the Administrator; and the
cost effectiveness of the proposed regulatory action and of the one or
more primary alternative regulatory actions considered by the
Administrator (15 U.S.C. 2605(c)(2)(A)(iv)). EPA must factor in these
considerations to the extent practicable when selecting among
prohibitions and other restrictions in the rulemaking (15 U.S.C.
2605(c)(2)(B)).
In addition, under TSCA section 6(d), any rule under TSCA section
6(a) must provide for a reasonable transition period (15 U.S.C.
2605(d)(1)(E)). Further, in deciding whether to prohibit or restrict in
a manner that substantially prevents a specific condition of use of a
chemical substance or mixture, and in setting an appropriate transition
period for such action, EPA must also consider, to the extent
practicable, whether technically and economically feasible alternatives
that benefit health or the environment, compared to the use so proposed
to be prohibited or restricted, will be reasonably available as a
substitute when the proposed prohibition or other restriction takes
effect (15 U.S.C. 2605(c)(2)(C)).
TSCA section 6(g) allows EPA to grant an exemption from a
requirement of a TSCA section 6(a) rule for a specific condition of use
of a chemical substance or mixture, if the Administrator finds that:
the specific condition of use is a critical or essential use for which
no technically and economically feasible safer alternative is
available; compliance with the requirement, as applied with respect to
the specific condition of use, would significantly disrupt the national
economy, national security, or critical infrastructure; or the specific
condition of use of the chemical substance or mixture, as compared to
reasonably available alternatives, provides a substantial benefit to
health, the environment, or public safety (15 U.S.C. 2605(g)(1)). EPA
must establish a time limit on any exemption, to be determined by the
Administrator as reasonable on a case-by-case basis, but may extend an
exemption where warranted (15 U.S.C. 2605(g)(3)).
Taken together, the TSCA sections 6(c)(2), (d), and (g)
considerations regarding economic consequences, reasonable transition
periods, technically and economically feasible alternatives, and
critical exemptions indicate that a rulemaking proceeding under TSCA
section 6(a) at this time would be unlikely to reduce GHG emissions
more expeditiously or efficiently than would actions under the IRA, the
Bipartisan Infrastructure Law, the CAA and other environmental
statutes, and the AIM Act, as well as the other federal government
actions described earlier. The historic and transformational climate
investments made in the IRA and the Bipartisan Infrastructure Law, and
the ongoing regulatory actions under the CAA and other statutes,
provide a means for reducing GHG emissions more rapidly and efficiently
than would initiating a new rulemaking proceeding under TSCA.
Furthermore, TSCA section 9(b) provides that EPA ``shall coordinate
actions taken under [TSCA] with actions taken under other Federal laws
administered in whole or in part by [EPA]'' (15 U.S.C. 2608(b)(1)).
TSCA section 9(d) further instructs the Administrator to consult and
coordinate TSCA activities with other federal agencies for the purpose
of achieving the maximum enforcement of TSCA while imposing the least
burden of duplicative requirements. TSCA sections 9(a) and (b) each
establish mechanisms for referring an unreasonable risk identified
under TSCA for risk management action under another federal statute if
the Administrator determines that the risk could be eliminated or
reduced to a sufficient extent by action taken under that other federal
statute. Through TSCA section 9, Congress intended ``to assure that
overlapping or duplicative regulation is avoided'' (S. Rep. No. 94-
1302, at 84 (1976) (Conf. Rep.)). Given the range of other federal
actions either planned or already underway to address risks posed by
various GHGs and emissions associated with fossil fuels--including but
not limited to those described previously in this notice--other federal
authorities clearly play a crucial role in addressing risks from GHG
emissions and climate change. Accordingly, even if EPA were to initiate
a rulemaking proceeding under TSCA section 6(a), the Agency would
retain discretion to refer action under TSCA section 9, and would
necessarily consider whether the risks could be better addressed under
other federal authorities such as the CAA.
Although not a basis for EPA's denial, the Agency notes that the
TSCA program is still relatively nascent following comprehensive
amendments to the law in 2016, which significantly expanded the
Agency's requirements and responsibilities. In the years that followed
the amendments, and despite the substantially increased workload, the
program's budget remained essentially flat (Ref 19). As a result,
although the program has made continued progress, it continues to
struggle to meet statutory deadlines to, for example, review pre-
manufacture notices for new chemicals, conduct risk evaluations, and
regulate chemicals that the Agency has determined to present
unreasonable risks, risks that in many cases only TSCA has the clear
federal authority to address.
Because there are numerous other federal, state and local actions
already undertaken or underway to address the climate crisis, and
because EPA believes that a complete consideration of the costs,
critical and military uses, needed transition times, technological
feasibility, and other required factors and discretionary
considerations under TSCA would be unlikely to lead to a different
outcome than these other actions for the activities involving the GHG
emissions, fossil fuels, and/or fossil fuel emissions that would be
subject to a TSCA rule, EPA believes it is unnecessary and would be an
inefficient use of government resources to initiate a new, resource-
intensive rulemaking under TSCA at this time.
c. TSCA Authority To Address Legacy Emissions
In regard to legacy emissions, the petitioners argue that EPA ``has
not yet imposed any requirement pursuant to any statute upon any fossil
fuel company, or indeed, upon any other source of GHG emissions, to
remove all, or even a share, of such source's legacy GHG emissions''
and that TSCA is the only federal statute that can compel a party to
``remove and securely sequester their legacy GHG emissions'' (Ref. 1,
p. 23). The petitioners advocate for the removal of such legacy
emissions because the ``scientific consensus is that humanity has
already far overshot the safe level of atmospheric CO<INF>2</INF> and
other GHGs so that, even in conjunction with a rapid yet feasible
phaseout of additional quantities of the subject chemical substances
and mixtures, at least some substantial carbon removal will be
necessary to protect and restore a viable climate system'' (Ref. 1, p.
23). To achieve the outcome of removing
[[Page 57673]]
and sequestering historical GHG emissions from the atmosphere or
undertaking a security and burden sharing agreement (i.e., carbon
abatement fund) based on such historical GHG emissions, the petitioners
invoke TSCA section 6(a)(6) and 6(a)(7).
EPA does not have legal authority under TSCA to require removal and
sequestration of historical GHG emissions from the atmosphere, or to
establish an atmospheric GHG abatement fund and require historical GHG
emitters to pay into the fund based on such historical GHG emissions.
EPA considers such historical GHG emissions to be legacy disposals
(i.e., disposals that have already occurred), and EPA has interpreted
legacy disposals to be excluded from those ``conditions of use'' that
EPA evaluates and regulates under TSCA. See Safer Chemicals v. EPA, 943
F.3d 397, 425-26 (9\th\ Cir. 2019) (upholding EPA's exclusion of legacy
disposals from consideration as conditions of use under the TSCA Risk
Evaluation rule); 15 U.S.C. 2602(4). Thus, EPA does not consider
historical GHG emissions to be activities subject to regulation under
TSCA section 6(a). EPA recognizes that TSCA section 6(a)(6) could be
used to address ongoing or prospective disposal by certain entities and
that TSCA section 6(a)(7) could be used to require manufacturers or
processors to replace or repurchase their substances. However, the
petitioners have not demonstrated how either of these tools could--
either legally or practically--be used to impose regulatory
requirements on entities today based on activities that occurred
decades ago.
C. What were EPA's conclusions?
The petitioners' request to initiate a proceeding for the issuance
of a rule under TSCA section 6(a) lacks sufficient specificity,
especially in comparison to the magnitude of the request. Even assuming
that the petition were sufficiently specific in its request for a rule,
when the requested actions are considered in the context of the IRA and
current actions under the CAA, the Bipartisan Infrastructure Law, the
AIM Act, and other statutes, which include programs being implemented
by a range of federal agencies, as well as considerations inherent to
the promulgation of a TSCA section 6(a) rule, EPA's review of relevant
information that was reasonably available to the Agency during the 90-
day petition review period does not support a grant of the petition to
initiate rulemaking under TSCA section 6(a). The petitioners have not
established at this time that it is ``necessary'' to initiate a
proceeding for the issuance of a TSCA rule, given the unique challenges
of the climate crisis, the multitude of other ongoing federal efforts
to address it, and the other considerations discussed in this notice.
The Agency does not believe that a rulemaking proceeding under TSCA at
this time would likely achieve a different result than aforementioned
federal authorities and programs in addressing climate change,
greenhouse gas emissions, fossil fuels, and fossil fuel emissions.
Accordingly, EPA denied the request to initiate a proceeding for the
issuance of a rule under TSCA section 6(a).
IV. 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. Daniel M. Galpern. 2022. Petition to Phase Out Greenhouse Gas (GHG)
Pollution to Restore a Stable and Healthy Climate.
2. Intergovernmental Panel Climate Change (IPCC). 2021: Summary for
Policymakers: The Physical Science Basis. Contribution of Working Group
I to the Sixth Assessment Report of the IPCC. Available from: <a href="https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_FullReport.pdf">https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_FullReport.pdf</a>.
3. National Ocean and Atmospheric Administration (NOAA) National
Centers for Environmental Information (NCEI). 2022. U.S. Billion-Dollar
Weather and Climate Disasters. Available from: <a href="https://www.ncei.noaa.gov/access/billions/">https://www.ncei.noaa.gov/access/billions/</a> billions/.
4. EPA. 2021. Climate Change and Social Vulnerability in the United
States A Focus on Six Impacts. Available from: <a href="https://www.epa.gov/cira/social-vulnerability-report">https://www.epa.gov/cira/social-vulnerability-report</a>.
5. EPA. 2022. Press Release: Statement by Administrator Regan on the
Passage of the Inflation Reduction Act of 2022. Available from: <a href="https://www.epa.gov/newsreleases/statement-administrator-regan-passage-inflation-reduction-act-2022">https://www.epa.gov/newsreleases/statement-administrator-regan-passage-inflation-reduction-act-2022</a>.
6. United Nations Framework Convention on Climate Change (UNFCC). 2015.
Paris Agreement. Available from: <a href="https://unfccc.int/files/meetings/paris_nov_2015/application/pdf/paris_agreement_english_.pdf">https://unfccc.int/files/meetings/paris_nov_2015/application/pdf/paris_agreement_english_.pdf</a>.
7. UNFCC. 2021. United States of America Nationally Determined
Contribution Reducing Greenhouse Gases in the United States: A 2030
Emissions Target. Available from: <a href="https://unfccc.int/sites/default/files/NDC/2022-06/United%20States%20NDC%20April%2021%202021%20Final.pdf">https://unfccc.int/sites/default/files/NDC/2022-06/United%20States%20NDC%20April%2021%202021%20Final.pdf</a>.
8. Department of Energy (DOE). 2022. The Inflation Reduction Act Drives
Significant Emissions Reductions and Positions America to Reach Our
Climate Goals. Available from: <a href="https://www.energy.gov/sites/default/files/2022-08/8.18%20InflationReductionAct_Factsheet_Final.pdf">https://www.energy.gov/sites/default/files/2022-08/8.18%20InflationReductionAct_Factsheet_Final.pdf</a>.
9. White House. 2021 FACT SHEET: The Bipartisan Infrastructure Deal
Boosts Clean Energy Jobs, Strengthens Resilience, and Advances
Environmental Justice. Available from: <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/08/fact-sheet-the-bipartisan-infrastructure-deal-boosts-clean-energy-jobs-strengthens-resilience-and-advances-environmental-justice">https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/08/fact-sheet-the-bipartisan-infrastructure-deal-boosts-clean-energy-jobs-strengthens-resilience-and-advances-environmental-justice</a>.
10. Department of Transportation. 2022. Fact Sheet: Climate and
Resilience in the Bipartisan Infrastructure Law. Available from:
<a href="https://www.transportation.gov/bipartisan-infrastructure-law/fact-sheet-climate-and-resilience-bipartisan-infrastructure-law">https://www.transportation.gov/bipartisan-infrastructure-law/fact-sheet-climate-and-resilience-bipartisan-infrastructure-law</a>.
11. United States Department of Agriculture (USDA). 2021. USDA Invests
$464 Million in Renewable Energy Infrastructure to Help Rural
Communities, Businesses and Ag Producers Build Back Better. Available
from: <a href="https://www.usda.gov/media/press-releases/2021/09/09/usda-invests-464-million-renewable-energy-infrastructure-help-rural">https://www.usda.gov/media/press-releases/2021/09/09/usda-invests-464-million-renewable-energy-infrastructure-help-rural</a>.
12. USDA. 2022. USDA to Invest $1 Billion in Climate Smart Commodities,
Expanding Markets, Strengthening Rural AmericaAvailable from: <a href="https://www.usda.gov/media/press-releases/2022/02/07/usda-invest-1-billion-climate-smart-commodities-expanding-markets">https://www.usda.gov/media/press-releases/2022/02/07/usda-invest-1-billion-climate-smart-commodities-expanding-markets</a>.
13. DOE. 2022. Carbon Negative Shot. Available from: <a href="https://www.energy.gov/fecm/carbon-negative-shot">https://www.energy.gov/fecm/carbon-negative-shot</a>.
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14. DOE. 2022. DOE Launches New Initiative from President Biden's
Bipartisan Infrastructure Law to Modernize National Grid. Available
from: <a href="https://www.energy.gov/oe/articles/doe-launches-new-initiative-president-bidens-bipartisan-infrastructure-law-modernize">https://www.energy.gov/oe/articles/doe-launches-new-initiative-president-bidens-bipartisan-infrastructure-law-modernize</a>.
15. Department of Interior. 2021. Interior Department Approves Second
Major Offshore Wind Project in U.S. Federal Waters. Available from:
<a href="https://www.doi.gov/pressreleases/interior-department-approves-second-major-offshore-wind-project-us-federal-waters">https://www.doi.gov/pressreleases/interior-department-approves-second-major-offshore-wind-project-us-federal-waters</a>.
16. DOE. 2022. Biden Administration Announces Investments to Make Homes
More Energy Efficient and Lower Costs for American Families <a href="https://www.energy.gov/articles/biden-administration-announces-investments-make-homes-more-energy-efficient-and-lower">https://www.energy.gov/articles/biden-administration-announces-investments-make-homes-more-energy-efficient-and-lower</a>.
17. Joint Office of Energy and Transportation. 2022. NEWS Over $1.6
Billiton in BIL Funding to Nearly Double the Number of Clean Transit
Buses in America. Available from: <a href="https://driveelectric.gov/news/#bil-funding">https://driveelectric.gov/news/#bil-funding</a>.
18. United States Climate Alliance. 2022. US Climate Alliance Releases
New Tools to Help States Confront Climate Crisis, Drive Just and
Equitable Transition. Available from: <a href="http://www.usclimatealliance.org/publications/2022/8/29/new-tools-scghg-just-transition">http://www.usclimatealliance.org/publications/2022/8/29/new-tools-scghg-just-transition</a>.
19. United States Senate Committee on Environment and Public Works.
2022. Hearing on the Toxic Substances Control Act Amendments
Implementation. Available from: <a href="https://www.epw.senate.gov/public/index.cfm/2022/6/toxic-substances-control-act-amendments-implementation">https://www.epw.senate.gov/public/index.cfm/2022/6/toxic-substances-control-act-amendments-implementation</a>.
Authority: 15 U.S.C. 2601 et seq.
Dated: September 14, 2022.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2022-20257 Filed 9-20-22; 8:45 am]
BILLING CODE 6560-50-P
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