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Inside Cal/EPA
An exclusive weekly report on environmental legislation, regulation and litigation
from the publishers of Inside EPA
Vol. 26, No. 5 — February 6, 2015
State Officials Cite Data To Justify Tightening Ozone Limit Beyond EPA Plan
California air board and health hazard office representatives are citing new health studies that they say justify
tightening U.S. EPA’s ozone national ambient air quality standard (NAAQS) down from the current level of 75 parts per
billion (ppb) to 60 ppb, which would be stricter than the 65-70 ppb range EPA is proposing.
Dozens of environmental justice advocates also used a Feb. 2 EPA public hearing in Sacramento to press the agency
to adopt the most stringent standard being considered — 60 ppb — claiming that in addition to scientific research
strongly supporting the level, studies show it will help expand the state’s “clean energy economy.”
Although EPA late last year proposed tightening the ozone standard to the range of between 65 and 70 ppb in order
to adequately protect public health from ozone exposure, the agency said it would take comment on alternatives,
continued on page 4
Biofuel Sector Touts California LCFS Amid RFS Uncertainty, Oil Price Drop
As California regulators prepare to re-adopt the state’s low-carbon fuel standard (LCFS), biofuel industry representatives are touting the program, seeing it as a model amid the uncertain fate of the federal renewable fuel standard (RFS)
and low oil prices that eliminate some biofuels’ price competitiveness.
Many leading biofuel and alternative fuel industry representatives converged in Sacramento Feb. 3 for the “Clean,
Low-Carbon Fuels Summit,” focusing discussion on the California Air Resources Board’s (ARB) “re-adoption” of the
state’s LCFS scheduled for later this month, and the importance of the regulation in continuing investment in alternative
fuels.
The conference was hosted by CALSTART, which describes itself as an organization representing more than 140
continued on page 6
Assembly Bill Aims To Spur Debate Over Post-2020 Renewable Power Plan
Freshman Democratic Assemblyman Eduardo Garcia (Coachella) has introduced a bill that aims to spur debate over
California’s plan for bolstering its renewable power supplies after 2020, by proposing a measure that would establish a
state goal of “utilizing a minimum of 50 percent renewable energy resources by 2030.”
The legislation, AB 197 introduced last week, follows Gov. Jerry Brown’s (D) call for the state to reach 50 percent
renewables by 2030, in addition to cutting petroleum use 50 percent by 2030 (Inside Cal/EPA, Jan. 9).
Sources say that Senate leaders are set to introduce a package of clean energy bills next week, which could further
propel debate over renewable and other clean energy policies in the coming weeks and months.
Garcia’s measure, sources say, purposely does not include the term renewable portfolio standard (RPS), which is
continued on page 8
Advocacy Groups Praise First-Time Cal/EPA Equity Enforcement Initiative
Environmental justice advocacy groups are praising a first-time Cal/EPA enforcement initiative that targeted the
Fresno area to assess concerns about adverse pollution impacts on equity communities, saying that the effort could be
replicated in other low-income, minority areas of the state that are overburdened by pollution.
Cal/EPA’s Environmental Justice Compliance & Enforcement Working Group Jan. 27 released its Fresno Initiative
Report, which includes a list of results of the year-long investigatory effort, including citations and enforcement actions
at facilities emitting air pollution and handling hazardous waste.
The probe consisted of community consultation to determine concerns; compliance assistance for regulated
industries and businesses; and coordinated, multi-agency compliance inspections and enforcement activities designed to
continued on next page
INSIDE
AIR QUALITY: Industries Press ARB To Ease Product VOC Survey To Avoid Massive Fines ...... 3
WASTE: Despite Talks, Administration Struggles To Craft Waste-To-Energy Policy .....................5
TOXICS: California AG Argues TSCA Reform Should Punt State Preemption Fight .....................9
CLEANUP: Air Force In Dispute With DTSC, EPA Over Perc Toxicity Cleanup Levels ..............12
concurrently address environmental issues within the community, according to the report.
The results include: the overall compliance rate among facilities and industries was 87 percent; solid waste facility
inspections yielded a 100 percent compliance rate; the Air Resources Board inspected 272 heavy-duty diesel vehicles and
44 locomotives for compliance with air pollution regulations and issued 46 citations; the toxics department issued a
$4,000 penalty for inappropriate hazardous waste storage; and two other enforcement actions for hazardous waste
violations are pending. The report is available on InsideEPA.com. See below for details. (Doc. ID: 178642)
An environmental justice advocate who worked closely on the Cal/EPA initiative praised the effort for its broad
coverage and results. “I’m glad to see that the initiative was successful at identifying some violations as well as areas for
achieving compliance from businesses around communities,” the source says. “It is important to highlight that this effort
utilized a multi-agency approach to compliance that our organization has been advocating for over the last several years.
This type of initiative is great, and can be replicated in other areas of the state.”
A second equity advocate located in the San Joaquin Valley says it was heartening “to have Cal/EPA choose a Fresno
site for the pilot project and to see some real results. The model for the collaborative enforcement that crossed agency
boundaries was something that the community had been requesting for years.”
However, the report “also highlights the shortcomings of our existing regulations and permitting processes because
many of the facilities that were found in compliance are still part of a broader problem of clustering industrial sites near
low income communities,” the source says. “Also, the boundaries chosen in Fresno seemed to leave out some of the
largest food processing facilities of concern to the community.”
But, “overall, we think that this project and report show that Cal/EPA is moving in the right direction,” the source
adds.
Cal/EPA Secretary Matt Rodriquez created the working group in June 2013 to “improve the agency’s multimedia enforcement and environmental justice efforts,” the report says. The group consists of representatives from the
agency’s boards, departments and office, as well as local partner agencies that implement and enforce the federal, state,
and local laws and regulations intended to protect public health and the environment.
The primary objective of the group is to “coordinate compliance assistance and enforcement activities in the state’s
most disadvantaged communities, where multiple sources of pollution exist and residents are disproportionately vulnerable to the effects,” the report says.
The group selected the city of Fresno and its surrounding unincorporated area for its first initiative, which took place
in 2013 and 2014. Officials selected Fresno in part by considering information from the California Communities Environmental Health Screening Tool, which provided the group with a broad snapshot of areas with high pollution burdens and
vulnerability relative to other areas of the state, the report says.
The location of Fresno County, which leads the state in agricultural production value, “makes it unique compared to
many other large California cities as it faces air quality and pesticide issues not found in other large urban centers,” the
report adds.
In addition, the Fresno metropolitan area has a diverse population of nearly one million, with the largest group being
Latinos (50.3 percent), followed by whites (32.7 percent), Asian Americans (9.4 percent), African Americans (4.8
percent), Native Americans (0.6 percent) and others (2 percent), according to the 2010 U.S. Census, according to the
report.
A Cal/EPA spokesman says agency officials are “still in discussions” about what area of the state will be the focus of
the next enforcement initiative.
Background Documents For This Issue
Subscribers to InsideEPA.com have access to hundreds of documents, as well as a searchable archive of back issues of
Inside Cal/EPA. The following are some of the documents available from this issue of Inside Cal/EPA. For a full list of documents,
go to the latest issue of Inside Cal/EPA on InsideEPA.com. For more information about InsideEPA.com, call 1-800-424-9068.
Documents available from this issue of Inside Cal/EPA:
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Environmentalists Sue To Stop California Crude-Oil Terminal (178640)
California Officials Urge EPA To Adopt Strictest Ozone Standard (178641)
California EPA Unveils Report From First Equity Enforcement Initiative (178642)
Industry, State Officials Tout California LCFS (178643)
California Consumer Product VOC Survey Sparks Industry Backlash (178644)
Not an online subscriber? Now you can still have access to all the background documents referenced in this issue through
our new pay-per-view Environmental NewsStand. Go to www.EnvironmentalNewsStand.com to find out more.
2
INSIDE Cal/EPA - www.InsideEPA.com - February 6, 2015
Industries Press ARB To Ease Product VOC Survey To Avoid Massive Fines
Major industry groups are pressing state air board officials to delay an upcoming deadline for thousands of companies to submit survey data about sales of consumer products that emit volatile organic compounds (VOCs), charging that
the majority of these companies will unfairly face $10,000 daily fines because they are unaware of the deadline or face
difficulty complying.
In response to concerns, state air board officials say they are setting up a process by which companies can apply for
an extension to the survey deadline on a case-by-case basis. However, industry groups will be seeking a blanket extension
for all companies, sources say.
The Air Resources Board’s 2013 Consumer and Commercial Products Survey requires consumer product formulators
and companies that sell products that emit VOCs to submit extensive data on their products using computer forms that are
uploaded to state software.
The data is used in part to enable board officials to prepare state implementation plans (SIPs) to attain the federal
ozone air quality standard. In addition, the survey results are used by the board to evaluate the feasibility of further
reducing VOC emissions from consumer products, including through its consumer product regulations.
ARB is requiring companies submit their 2013 survey data by March 2.
But a coalition of major industry organizations representing hundreds of companies will soon be sending a letter to
ARB, urging the board to delay the deadline, according to sources. The groups include the California Chamber of
Commerce and California Manufacturers & Technology Association (CMTA).
The Consumer Specialty Products Association and Personal Care Products Council have already requested a later
deadline, but ARB rejected the request, according to sources.
CMTA says in a blog posted last week that as many as 2,000 cleaning, personal care and other consumer products
manufacturers and 300,000 products will be captured by the latest survey, according to ARB data.
Any company listed on the label of a chemically formulated consumer or commercial product sold or supplied for
use in California must complete the survey if their product falls into one of the following seven product categories:
adhesives, sealants and related product; household and institutional products; personal care products; pesticide products;
solvents and thinning-related products; vehicle and marine vessel aftermarket products; and/or aerosol coating products,
CMTA says.
The survey involves dozen of types of everyday products, such as air fresheners, arts and crafts supplies, cleaners
and degreasers, dishwashing and laundry products, fuels and lighter materials, garden and lawn care products, office
supplies, leather care products, antiperspirants and deodorants, cosmetics, hair products, nail polish, herbicides, insecticides, antimicrobial agents, solvents, and spray paint and other aerosol coatings, according to the industry group’s blog.
Failure to report by March 2 carries a $10,000 per day penalty, CMTA notes. “CMTA is concerned about ARB’s outreach
and has found a high percentage of manufacturers who have never heard of this reporting requirement,” the blog states.
ARB staff Feb. 4 held a webinar on the survey requirements. According to a slide presentation prepared for the
meeting, ARB staff said they recognize that completing the survey requires significant resources, and that in some cases
companies “may have a need to have some extra time to complete the survey.” The presentation is available on
InsideEPA.com. See page 2 for details. (Doc. ID: 178644)
Requests by companies to receive an extension of the March 2 deadline “will be handled on a case-by-case basis,”
according to ARB. The board says companies seeking an extension must justify it and detail their compliance efforts to
date. Extension requests will be accepted once ARB adds a process to its web page, scheduled for the week of Feb. 16,
ARB says.
An industry source closely tracking the issue says that it is likely that “the majority of out-of state suppliers are
totally oblivious” to the ARB survey deadline. “It was a surprise to most companies. Lack of adequate outreach is a problem.
ARB had only done limited outreach,” primarily by notifying the major industry organizations, the source argues.
Industry representatives also want ARB to clarify when fines will be imposed and to ensure that only “scofflaws”
face the exorbitant fees.
An ARB spokesman did not return a request for comment by press time.
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3
ARB Suggests Tightening Ozone Limits . . . begins on page one
including an even-stricter 60 ppb standard and also retaining the existing limit set in 2008.
Industry groups at the hearing reiterated their claims that there is no scientific justification for lowering the NAAQS.
EPA’s proposal is based on a lengthy review of scientific data on ozone and its impacts on public health and the
environment, with input from its Clean Air Scientific Advisory Committee (CASAC). CASAC endorsed the range in the
agency’s proposed rule, saying it would meet a Clean Air Act mandate to protect health.
Sources have noted that EPA’s eventual final rule will be based on scientific information that was considered in the
review of the standard, and that research on ozone published since then cannot guide the final rule.
Nevertheless, groups are raising newer data in their efforts to sway the outcome of the final revised NAAQS.
At the Sacramento hearing — which followed hearings EPA held Jan. 29 in Washington, D.C., and Arlington, TX —
Office of Environmental Health Hazard Assessment staffer Rupa Basu touted new studies to justify tightening the limit to
60 ppb.
“First, a new chamber study observed lung function decrements and inflammation in a subset of young, healthy nonsmoking adults at 60 ppb after 6-1/2 hours of exposure to ozone,” Basu’s written testimony states. Relevant documents
are available on InsideEPA.com. See page 2 for details. (Doc. ID: 178641)
“Second, there have been a number of new, multi-city epidemiologic studies, that find effects at mean ozone levels
below 70 ppb,” Basu said.
“The findings are for mortality, hospitalization, as well as emergency room visits for asthma, pneumonia, chronic
obstructive pulmonary disease and other respiratory outcomes. The studies are reliable studies and control for individual
risk factors such as smoking, exercise, diet and family history of disease by study design. Many of these newer studies
finding associations between ozone exposure and health effects were conducted in North America,” Basu said.
Basu said OEHHA is concerned that setting the standard at 65-70 ppb could result in a problematic number of days
where ozone levels will approach 70 ppb, “a level at which a large number of healthy individuals show lung function
decrements in several studies.” Even more concerning “would be the exposures close to 70 ppb to children, elderly
individuals or asthmatic subjects, all recognized as vulnerable groups. These groups are expected to show even stronger
adverse effects from prolonged exposure to ozone.”
While Basu acknowledges that the newer epidemiological studies “show small relative risks, these estimates translate
into thousands of excess deaths, hospitalizations and emergency room visits each year because millions of people face
excess exposure to ozone,” her testimony states.
OEHHA “strongly” recommends that 60 ppb become the new federal standard, she added.
Deborah Drechsler, representing the Air Resources Board during the hearing, cited CASAC’s advice to EPA to
at least consider a 60-ppb standard, according to her written testimony.
“Although a level of 70 ppb is more health protective than the current standard, it does not likely include an adequate
margin of safety,” she said. “In addition, we recognize that selecting a level below 65 ppb would require placing considerable weight on the uncertainties in the available data, as was discussed in the proposed rule. However, setting the standard
at the lower bound of 60 ppb would offer more public health protection than levels of 65 or 70 ppb.”
ARB also cited a new study demonstrating that “some healthy adults engaged in moderate exercise would be expected to experience reductions in lung function and an increase in respiratory symptoms with 6.6 hour exposure to an
ozone concentration of 72 ppb ozone,” according to Drechsler.
“Two additional studies show that a small number of healthy individuals would likely experience reduced lung
function with similar exposures at 60 ppb. It is widely believed that people with chronic lung diseases, such as asthma
and chronic obstructive pulmonary disease, are likely to be more vulnerable than healthy people,” she said.
In addition, new epidemiological studies suggest that ozone-related hospital admissions or emergency department
visits for asthma or other respiratory causes and mortality can occur in communities that meet the current ozone standard,” she argues. “New toxicological literature provides increased evidence for biological mechanisms and modes of
action that substantiate the results of the controlled human exposure and epidemiologic studies.”
Strengthening the ozone standard would provide important health benefits particularly for those living in the South
Coast Air Basin and the San Joaquin Valley, including reduction in premature mortality, hospitalizations, emergency
department visits for asthma, and lost work and school days, Drechsler said.
Efforts to meet the 60-ppb standard will also support a broad range of public health goals, including meeting Gov.
Jerry Brown’s (D) initiatives to reduce petroleum usage 50 percent by 2030 and “achieving steep reductions in carbon
pollutants to address the ongoing threat posed by climate change,” she added.
Dozens of environmental and community activists also called for EPA to adopt a 60-ppb standard during this week’s
hearing, citing the advice of CASAC and other scientists.
“This level would result in enormous benefits nationwide, save hundreds of lives, millions of dollars, and reduce the
toll from smog-related diseases,” said Sarah Hodgdon, Sierra Club national program director, according to her written
testimony. “Will it be easy? No. But is it achievable? Absolutely. A stronger standard will also lead to greater deployment
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INSIDE Cal/EPA - www.InsideEPA.com - February 6, 2015
of clean energy and electric vehicles, which in turn will create jobs, further reduce air pollution, and grow the tax base.
Expanding our clean energy economy will create significant job growth in California and across the nation.”
Industry groups, however, used their testimony at the hearing to reiterate long-running claims that there is no
justification for a tighter ozone NAAQS, and that a limit below 75 ppb will impose massive costs.
Mike Rogge, a representative of the California Manufacturers & Technology Association (CMTA), said the industry
organization is “deeply concerned” about EPA’s proposal to potentially lower the standard to 65 ppb. He said doing so
will place virtually the entire state out of attainment, according to his written testimony.
Areas aim to avoid being designated in nonattainment because it forces them to craft plans to impose stringent,
potentially expensive, pollution controls on industrial sources of ozone-forming emissions.
However, EPA by law cannot consider costs when setting NAAQS and must set the standards based solely on
scientific data on a criteria pollutant’s health and environmental impacts. The agency can consider costs later in the
process when it crafts its regulations for how to implement the NAAQS.
“This proposal will unnecessarily burden the economy at a time when the country and California, in particular, are
finally starting to recover from the recession,” Rogge said of EPA’s NAAQS plan. “A substantial portion of compliance
with a new standard will come from controls that are unknown, even to EPA, and if these controls are not invented in
time, manufacturers will be forced to consider scrapping plants and equipment.”
Rogge argued that a 65-ppb or lower standard will suppress manufacturing growth in the state. “In order to meet the
new EPA requirements, states will impose costs on all entities, large and small, and limit permits for construction and
manufacturing,” his testimony says.
“Small companies will suffer from higher costs and the reduction in business activity from the large firms that will be
displaced. Companies building new facilities or performing major modifications to existing facilities in or near a nonattainment area will be required to install the most effective emission reduction technology, regardless of cost. Most will
undoubtedly pick another state or country to locate their jobs,” he added.
CMTA believes EPA and the states should focus on fully implementing and attaining the current 75-ppb ozone
standard before “contemplating a lower standard,” Rogge said. “A decision can be made at a later date to determine if
additional actions are warranted. This is an approach that will continue to provide necessary health protection and
continued improvements.”
Despite Talks, Administration Struggles To Craft Waste-To-Energy Policy
Brown administration officials continue to struggle to craft a new policy for advancing waste-to-energy facilities in
the state while ensuring environmental safeguards, despite recently renewed private meetings with key stakeholder
organizations that come almost a year after the policy effort was launched, according to sources.
The debate over whether California should help advance waste-to-energy or “conversion technology” plants through
a new policy has been ongoing for years. Environmentalists generally argue that the facilities’ potential air pollution and
waste disposal problems far outweigh any potential energy or environmental benefits.
Another critical issue is the question over what type of “bioenergy” plants should be encouraged and permitted in the
state to help reduce greenhouse gas (GHG) emissions, meet the state’s renewable portfolio standard (RPS) of 33 percent
by the end of 2020, and lower the state’s dependency on fossil fuels.
Environmentalists claim plants that convert municipal solid waste into fuel for electricity all involve burning or
combustion at some point in the process, in violation of several stringent state environmental statutes. Some environmental groups and environmental justice organizations, which have historically opposed waste-to-energy facilities, argue the
administration should drop the effort and instead focus on promoting more recycling policies to comply with a statewide
75 percent recycling mandate.
But supporters of waste-to-energy projects say they are needed to help meet increasingly stringent recycling mandates and to help industries reduce GHG emissions tied to the waste sector. A waste industry source said last year that all
waste in California currently is either categorized as “disposal” or “recycling.”
The Department of Resources, Recycling & Recovery (CalRecycle), which is the lead agency for the effort, last
March announced that it would introduce at a public workshop in late April 2014 a new policy approach that “supports
the recovery of energy, fuels and chemicals from solid waste residuals that cannot be recycled.” However, the department
never unveiled the policy.
A state source said last August that the proposal may not emerge until late 2014 or early this year. The additional time
would allow the administration to privately discuss key issues more broadly with multiple agencies, including the
California Air Resources Board, California Energy Commission, California Public Utilities Commission, and Natural
Resources Agency, the source said at that time.
A “public process” to vet the draft policy would be undertaken at some point, if not in late 2014 then definitely early
2015, the source said at that time.
However, when the planned public review process may begin is unclear. Administration officials recently held
INSIDE Cal/EPA - www.InsideEPA.com - February 6, 2015
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multiple private meetings industry representatives and a separate meeting with environmentalists to discuss the policy,
sources say this week.
State officials may announce the next step in the process during the first quarter of this year, according to a source
close to the issue. This step may initiate a more “formal” process to vet possible policy approaches.
An industry source did not respond to a request for comment by press time.
Some of the key companies and industry groups hoping to see a more liberal waste-to-energy policy in the state
include the BioEnergy Producers Association, Covanta Energy, the American Chemistry Council, Waste Management,
Inc., the city and county of Los Angeles, among others.
These groups in the past have sponsored legislation to ease the current environmental permitting restrictions on
certain waste-to-energy facilities, but for the most part these bills have failed to advance.
The new policy may identify ways to incentivize waste-to-energy technologies that create clean fuels, electricity or
new chemicals, and potentially allow them to count toward meeting the state’s recycling, waste diversion or RPS mandates, sources have said.
Waste-to-energy is generally considered as “disposal,” but CalRecycle is considering developing a third category for
waste-to-energy projects that would fall somewhere in between the disposal and recycling categories, a source said last
year.
Some of the concepts considered last year by CalRecycle include: prioritizing maximum recovery of recyclable
material; ensuring that waste-to-energy fuels or chemicals are as clean or cleaner than fossil fuels; and ensuring that
waste-to-energy projects have net GHG-reduction benefits, the source said.
CalRecycle and officials in Gov. Jerry Brown’s (D) office met in late 2013 to discuss how the state could
potentially advance waste-to-energy conversion technologies, specifically those involving “biomass” conversion,
and how state waste regulators should respond to a Brown veto last year of a key conversion technology bill,
sources said at the time.
CalRecycle officials also in late 2013 met with a variety of industry and local government representatives in Los
Angeles to discuss the potential for conversion technology expansion in California. Industry officials, including plastics
manufacturers and waste management company representatives, were reigniting a press on CalRecycle to advance wasteto-energy as a key tool for California to meet GHG and waste-reduction goals, sources said at the time.
Biofuel Sector Touts California LCFS . . . begins on page one
companies “dedicated to expanding and supporting a clean transportation industry.”
“Now, more than ever, it’s important for states like California to double-down on things like the LCFS and to,
frankly, try to teach Washington how to get their ducks in a row — they’ve done a miserable job,” Mike McAdams,
president of the Advanced Biofuels Association, said during a pre-conference meeting with reporters.
“I feel like I represent the collateral damage industry, sitting on the advanced cellulosic side of the table. We need all
these options” provided by the LCFS, he said. “This is an all-of-the-above energy strategy, and that is what this nation
needs to move forward on.”
California’s LCFS currently requires fuel providers to reduce the carbon intensity of gasoline and diesel 10 percent
by the end of 2020, compared with a 2010 baseline. Companies can comply by blending cleaner fuels, such as ethanol
and biodiesel, into gasoline and diesel and by purchasing credits generated by utilities and other companies that provide
natural gas, electricity or hydrogen for transportation purposes.
While the regulations were first issued in 2009, ARB is required to re-adopt the LCFS because of a 2013 state court
ruling in POET LLC, et al., v. ARB that found the board failed to comply with the California Environmental Quality Act
and administrative procedure rules when it initially adopted the regulation.
As a result of the decision, ARB was forced to freeze its 2013 LCFS requirement — a 1 percent reduction in carbon
intensity — through 2015, which clean fuel researchers recently found contributed to a reduction in estimated production
capacity for low-carbon advanced biofuels in 2014 (Inside Cal/EPA, Jan. 9).
In addition, it is possible that after ARB re-adopts the LCFS later this month, POET attorneys could renew their
challenge against the LCFS environmental assessment, according to sources.
State regulators have informally proposed the program be extended to 2030, requiring an additional 10 to 15 percent
reduction in carbon intensity.
The board also plans to make a number of significant amendments to the LCFS during its Feb. 19-20 meeting,
including changing the carbon intensity scores of a variety of fuels.
ARB Chairwoman Mary Nichols reiterated much of this in an address to the conference, according to her prepared
remarks. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 178643)
While noting the current requirements of the regulation, she added that the 10 percent reduction by 2020 “is not our
end goal. There is a range of clean fuels already available today that will enable us to meet this goal and push even further
beyond 2020. Fuels like hydrogen, electricity, renewable natural gas and diesel, and clean biofuels are already supplying
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INSIDE Cal/EPA - www.InsideEPA.com - February 6, 2015
California’s market in response to the LCFS, and more projects are poised to come on-line in the future.”
RFS Uncertainty
While the re-adoption of the LCFS may eventually provide manufacturers with more certainty, they are still grappling
with uncertainty created by delays and policy disputes over the federal RFS, which requires refiners to blend fixed
volumes of certain categories of biofuels into the fuel supply.
A key factor was EPA’s proposed 2014 RFS, which suggested significant reductions in blend volumes for several
categories of renewable fuels. Many in the oil industry favored such reductions because they feared the biofuel sector
may not be able to produce the fuels to scale, leaving them on the hook to purchase compliance credits.
But the biofuel industry strongly resisted the proposal, charging it would undercut production incentives and future
demand for the fuel. In the face of the industry dispute, EPA has still not promulgated a final 2014 RFS, though the
agency plans to issue final volumes this Spring, with 2015 and 2016 requirements slated to be issued later this year.
In addition, congressional opponents are renewing their push to repeal the program — or at least portions of it. For
example, a bipartisan group of House lawmakers led by Rep. Bob Goodlatte (R-VA) Feb. 4 re-introduced a bill repealing
the corn ethanol provisions of the RFS.
But even in the face of this uncertainty, manufacturers are now producing some low-carbon biofuels, such as cellulosic fuels, at significantly higher volumes than they were previously, a move that will likely ease EPA’s ability to issue new
blend volumes for the fuels.
McAdams and others say it is crucial for ARB to re-adopt the LCFS program — and extend it through 2030 as they
plan to — to provide longer-term certainty for fuel producers. “In 2022, the [federal RFS] statute is silent on what
happens,” said McAdams. “So depending on where the politics go in Washington, D.C., you could have the end of the
RFS in 2022.”
Lisa Mortenson, CEO of Community Fuels, a biodiesel producer, said the extension of the LCFS through 2030 is
important because it will help longer-term compliance with any new requirements.
Compliance “relies upon early adoption of low-carbon fuels to create excess credits in the early years of the program
in order to achieve compliance later, as the curve becomes more aggressive,” she said. “So this re-adoption is critical to
force the petroleum industry to take action today, instead of waiting until the last minute to try to comply in 2020.”
Several speakers also noted the need to finalize new rules to give investors sufficient confidence to provide start-up
and other capital.
McAdams said, for example, that because EPA has not yet set volumes for 2014-16, “the financial sector has to hold
back” on approving loans for projects. “And, ironically, a lot of those investments came from venture capitalists here in
California, and [it] means a lot of my members are trying to basically save capital this year because there’s no driver
coming out of Washington.”
He explained that many of his organization’s member companies have plans to make major capital investments in
clean-fuel projects, of between $250 million and $1 billion apiece. “You tell me a bank that’s willing in 2015 to make a
billion-dollar investment when the support program and policy both from the Washington federal level with the RFS and
at the state level [is uncertain] — why would they loan the money? That’s what a lot of my members are going through
right now.”
And Tim Carmichael, representing the California Natural Gas Vehicle Coalition, cautioned during this week’s preconference press meeting that without longer-term regulatory certainty, project developers and their financial backers are
unable to estimate future costs and sales. “If you are developing a project — to create and sell an alternative fuel — you
can’t do that financially, based on a five-year market horizon, and you can’t factor in credit sales into your financial
analysis and viability of the project if you can only show you’ve got a few years left of potential sales,” Carmichael said.
Oil Prices
The plummeting cost of oil and gasoline over the past several months also has the potential to disrupt confidence and
investment in low-carbon fuels, because alternatives such as ethanol and renewable diesel are no longer economically
competitive or appealing for fuel providers to purchase, the industry representatives said.
“Collectively, we’re trying to break into, or break up the monopoly on transportation fuel globally,” said Carmichael.
“When you’re trying to get your foot in the door, or a crack in that armor, you need every competitive advantage you can
get. That’s why incentive programs are so important. That’s why, whenever we can show a price advantage in the marketplace, that’s a huge leg up for any of our fuels.”
Despite uncertainties in the market, several recent studies by pro-biofuel groups claim there will be plenty of supply
of the alternative fuels in the years to come to meet potential demand both in California and the West Coast, if Oregon
and Washington eventually adopt LCFS programs of their own.
For example, a study released Feb. 2 by three environmental groups estimated that California is capable of tripling its
use of alternative fuels over the next 10 years and that the oil industry can easily comply with longer-term LCFS requirements. The result, the study says, is that “California can extend the LCFS beyond a 10 [percent] carbon-intensity reduction in 2020 to 15 [percent] in 2025.”
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Bill Aims To Spur Renewables Debate . . . begins on page one
the state’s current clean power program requiring that utilities ensure that 33 percent of the electricity they supply to their
customers comes from renewable power sources by the end of 2020.
Many policymakers and energy experts believe California cannot sustain its current RPS model to reach significantly
higher rates of renewable power in the decades to come after 2020.
This is chiefly because the RPS currently relies almost exclusively on utilities purchasing solar and wind power at
escalating levels that eventually will be unable to be blended into the state’s complicated grid or ensure that customers
have adequate electricity during peak demand periods, according to experts.
AB 197 would require investor-owned and publicly owned utilities to achieve a target of procuring 50 percent of
their electricity from renewable energy resources by 2030. The California Public Utilities Commission (CPUC) would
have to evaluate the cost-effectiveness of various renewable energy resource by types, the grid reliability benefits
associated with renewable energy resources that can quickly ramp up to offset the intermittency of solar and wind, as well
as provide 24-hour baseload electricity generation capacity, such as geothermal energy.
Last year, a bill authored by Garcia’s predecessor, V. Manuel Perez (D), would have required the state to
develop recommendations to bolster generation of geothermal power in the Salton Sea area, in part based on the
argument that it is baseload electricity that is more reliable than other renewable power sources such as the wind
and sun.
AB 197 would also strengthen through codification CPUC’s energy “loading order,” which requires that utilities meet
their energy needs first, to the maximum extent feasible and in a cost-effective manner, through energy efficiency, demand
response and renewable resources before procuring conventional generation resources.
Garcia says the bill is “about promoting clean energy production and creating jobs in my district as well as throughout the state,” according to a Jan. 28 press release. “The state has already embarked on a path of increased renewable
energy production and will need to rigorously evaluate cost effective ways to go further. AB 197 ensures that the necessary long-term planning begins now,” he added.
A significant amount of detail about how utilities would meet the 50 percent renewables target required by the bill
would likely occur during CPUC proceedings on specific plans they receive, says a source backing the measure.
One of the goals of the bill is to expand the types of renewable power sources that are used in California, the source
says. “We don’t want to see renewable energy pigeonholed,” the source says. “We don’t want certain types of renewables
to dominate the field. We truly want a diverse portfolio of renewables.”
Garcia’s staff are already having discussions about the measure with the Senate leadership and officials in the
governor’s office, and talks with key stakeholder organizations are forthcoming, the source says.
Discussion about AB 197 could be extensive in the coming months; however, “this is not something by any means
we’re going to rush to get passed,” the source adds. “But we’re having the conversations starting now.”
A clean-energy industry source says that AB 197 could become a vehicle for spurring discussion in the Legislature
about pursuing a novel low-carbon electricity standard in California, which would require utilities to reduce the carbon
content of their total power supply rather than solely increasing their renewable power procurement levels through an
extended RPS model.
“It’s early, but the bill is a good start for the conversation on how to move forward with specific ideas of meeting the
governor’s 50 percent renewables target,” the source says.
Advocates’ CEQA Litigation Marks Latest Bid To Halt Crude Oil Terminals
Environmentalists have filed a new suit claiming a California air district violated the California Environmental
Quality Act (CEQA) by permitting a crude oil receiving rail terminal, marking advocates’ latest bid to halt operations at
the terminals due to fears that permitting agencies are not adequately reviewing adverse impacts.
The lawsuit, filed Jan. 28 by Earthjustice and Communities for a Better Environment (CBE) against the San Joaquin
Valley air district, marks at least the fifth legal action to stop crude oil terminals in California within the past year. One
stopped a Sacramento project; another targeting a Bay Area project was dismissed but is being appealed; and three others
are pending. The lawsuit is available on InsideEPA.com. See page 2 for details. (Doc. ID: 178640)
In the suit filed in Kern County Superior Court, environmentalists charge that the San Joaquin Valley air district
violated CEQA by permitting the Bakersfield Crude Terminal project in Taft without adequately assessing environmental
and other risks posed by “importing millions of gallons a day of toxic, explosive oil from North Dakota and Canada,”
according to a Jan. 29 press release by the groups.
However, a source with the air district says the suit “borders on being frivolous” because the permit the district
approved was a “a minor project for the addition of five small product containers with insignificant emissions to an
existing, permitted, constructed, and operating crude oil terminal.”
The air district is not the land-use authority, and did not “approve” the use of trains to deliver crude to California, the
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district source says, adding that Kern County approved the use of the property years ago.
A hearing in the case is scheduled for March 3, according to an Earthjustice source.
The terminal is “slated to be one of the largest crude-by-rail terminals in the state,” ultimately receiving two 100-car
trains of crude oil per day, and carrying as much as 61 million barrels a year, including highly explosive crude oil from
Canada, the lawsuit states. The project will also significantly increase volatile organic compound (VOCs) emissions in the
area, according to the challenge.
“The crude slated to arrive at the Bakersfield Crude Terminal alone represents a 1,000 percent increase over the total
amount imported by rail into California in 2013, substantially increasing the risk that California will experience accidents
and derailments with catastrophic human and environmental consequences,” the suit says.
In April 2014, the air district gave public notice that it was proposing to issue five additional permits to build the
terminal’s “oily water sewer system,” according to the suit.
The district stated that its authority over the permits was “discretionary,” triggering CEQA review, but that it did not
need to prepare an environmental impact report, according to the environmentalists.
In response to objections from the public, the company proposing the terminal project — Bakersfield Crude Terminal, LLC — withdrew its permit applications, the suit claims.
A month later, the company “submitted a new permit application for the same oily water sewer system with slight
changes. Despite having concluded that its approval of the oily water sewer system was discretionary, and even though it
added numerous, individually crafted permit conditions which required independent engineering judgment,” the district
on Sept. 23, 2014, issued an “authority to construct” permits as “ministerial” permits without public notice or any
environmental review under CEQA, according to the lawsuit.
The facility began operating in December, according to news reports, the environmentalists say. They charge that the
approval of the terminal was not ministerial and that the court should therefore void the permit approval and halt operations at the facility until it undergoes environmental review, the suit says.
“It’s outrageous that regulators shrugged off the risks of a rail terminal that receives massive trains full of toxic,
dangerously explosive crude oil,” said Vera Pardee, CBE senior attorney, in the Jan. 29 press release.
“The Bakersfield Crude Terminal evaded both state and federal environmental review and was permitted largely in
secret. Given the potentially catastrophic damage from derailments of these tank cars full of volatile crude, these permits
must be canceled,” Pardee added.
But the air district source says that in addition to being potentially frivolous, the lawsuit fails to acknowledge
that the district’s stringent regulations actually caused the terminal to “redesign this minor project so that their
emissions were even lower than originally proposed, to the insignificant level of less than one-half pounds per day
from each container.”
Earthjustice within the past year has filed three other lawsuits challenging facilities that handle crude oil imports.
One stopped a Sacramento project; another targeting a Kinder Morgan project in Richmond was dismissed because it was
filed in violation of the statute of limitations; and the other challenging Kern County’s approval of an expansion of Alon’s
oil refinery in Bakersfield is pending.
California AG Argues TSCA Reform Should Punt State Preemption Fight
Proponents of Toxic Substances Control Act (TSCA) reform efforts in Congress are debating whether to craft a
comprehensive TSCA reform bill first and punt a debate over the bill’s preemption of state chemicals programs until
agreement is reached on all other aspects of the bill, after a fight over preemption proved an early hurdle to TSCA reform
last year.
“The possibility of preemption has to be the last ask,” said Claudia Polsky, deputy attorney general with the California attorney general’s office, at a Jan. 27 Environmental Law Institute (ELI) event on state preemption and TSCA reform.
The issue of preemption is “inextricably linked” to a broader reform bill, she said, as the level of preemption that states
could accept must be viewed against potentially stricter EPA chemical rules under such a bill.
Polsky said it might make more sense for lawmakers to focus on all other aspects of TSCA reform and reach broad
consensus before tackling preemption.
It is also unclear why a “rewrite” is necessary of existing preemption language in TSCA, which only blocks states
from taking actions that would conflict with EPA regulations for a specific substance, Polsky said. The existing statute
also allows states to obtain waivers from preemption, but the provision has been rarely used and is considered largely
untested because EPA has taken action on so few chemicals under the current law.
Polsky also outlined several “nonstarters” for California in the discussions, such as judicial oversight and “regulatory
void preemption” that would “kick states out of the regulatory sphere before any final regulation” would take effect,
which was a major criticism of early versions of the House and Senate bills.
And she also indicated the state would oppose efforts to bar states from enacting parallel laws so they could function
as “co-enforcers” of federal regulations, saying it is “unclear why they would want to have one cop on the beat when they
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can have 51.”
David Goldston, government affairs director for the Natural Resources Defense Council, added at the ELI event that
“any discussion of preemption has to be discussed in the context of a strengthened bill.”
But one environmentalist says that it “makes no sense to throw out all that state expertise even if we created a robust
federal program,” saying existing state programs to reduce risks from chemicals should not be preempted by Congress
regardless of the strength of the various provisions of a TSCA reform bill. “Even if EPA had a program with industry
cost-sharing and a protective safety standard, it doesn’t make sense to toss out state programs.”
Industry groups have long pushed for broad preemption of state programs as part of a toxics law overhaul bill.
During the ELI event, Judah Prero, assistant general counsel for the American Chemistry Council, said that “being that
TSCA is a commercial statute, the federal government is where the authority should lie.”
TSCA reform legislation failed in the 113th Congress due to divisions between the GOP and Democrats on how to
craft a bill, with preemption repeatedly seen as the initial stumbling block in both chambers.
For example, then-Senate Environment & Public Works (EPW) Committee Chairman Barbara Boxer (D-CA) refused
to allow a vote on approving a bipartisan TSCA reform bill until her concerns about preemption were resolved —
something that never happened. Eventually, Sen. David Vitter (R-LA), who introduced a bipartisan TSCA reform bill with
the late Sen. Frank Lautenberg (D-NJ) decided to abandon the effort in late 2014.
In the House last year, Rep. John Shimkus (R-IL), chair of the energy committee’s environment panel, floated the
draft Chemicals in Commerce Act (CICA), but House Democrats criticized the bill, saying it would have broadly preempted state chemicals management programs, among various other concerns.
The Democrats circulated a redlined draft of the CICA bill, proposing amendments that identified a series of changes
to strengthen the bill’s chemical assessment and control provisions but punted on the central disagreement over how to
handle federal preemption of state programs. Neither the Democrats’ nor the Republicans’ versions of TSCA reform bills
advanced in the House, but lawmakers are sounding more optimistic this year.
Some House Democrats have voiced enthusiasm on Shimkus’ plan to craft a fresh, narrower TSCA reform bill that
starts anew rather than using previous bills as a template, saying if it addresses preemption and includes provisions such
as protections for vulnerable populations it could secure their backing.
In the Senate, new EPW Chairman James Inhofe (R-OK) has said he is interested in moving toxics law reform this
year. But that push faces uncertain prospects given doubts about the level of Democratic backing for the VitterLautenberg TSCA reform bill that Inhofe will use as a starting point for the effort this year.
In a brief Feb. 4 interview, Inhofe said, “we’re anxious to go ahead with TSCA [reform] as it is right now, in the form
it is in today” but acknowledged the “difference of opinion” with Boxer on preemption, adding that, “I worked with Sen.
Lautenberg for many years on this.”
One industry source previously said that early debate on TSCA reform this year will focus on questions such as how
to find resources for EPA to implement requirements of a TSCA reform bill.
The source suggested that preemption talks this year are more likely to occur in the 11th-hour after all other issues
have been resolved — a change from 2014, when the early focus was on the preemption fight. “I think Democrats hold
that chip till the end, before compromising on preemption,” the source said. — Bridget DiCosmo
9th Circuit To Hear Civil Rights Act Suit Over EPA-Backed DPR Control Plan
The U.S. Court of Appeals for the 9th Circuit is poised to hear arguments Feb. 12 in a novel suit claiming that U.S.
EPA violated the Civil Rights Act (CRA) when it approved an unenforceable Department of Pesticide Regulation pesticide control plan that critics say disproportionately exposed Hispanic schoolchildren to harmful pesticides, including
methyl bromide.
The claim, filed under Title VI of the rights law, is one of the first environmental rights suits to be heard on the merits
since the U.S. Supreme Court held that litigants must show that discrimination is intentional — a high legal bar to meet.
EPA’s various investigations into Title VI complaints have faced hurdles because of that high bar, and the agency has
never issued a finding of discrimination, which would trigger a suspension of federal funds.
The upcoming 9th Circuit arguments, El Comite Para El Bienestar De Earlimart, et al., v. EPA, et al., are among the
first to address the rights issue in an EPA-approved Clean Air Act state implementation plan (SIP). The SIP was written
by California to reduce volatile organic compound (VOC) emissions from application of pesticides, including VOCs
emitted by methyl bromide. VOCs lead to ozone formation, so the SIP adopted an earlier pesticide strategy designed to
cut VOCs from pesticides.
El Comite, which represents residents and others making the rights argument, claims the SIP allows use of pesticides
at harmful levels to Latino schoolchildren at sites near the agricultural activity where the chemicals are used. They say
this violates Title VI, which prohibits agencies that receive federal funding from discriminating — which in the case is the
California agencies responsible for the policies El Comite claims harm Latino children.
One attorney familiar with petitioners’ claims says the civil rights arguments in the Clean Air Act were strengthened
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by EPA’s finding in a separate Title VI petition response that Latino schoolchildrens’ harmful exposure to methyl bromide
in California constituted a disproportionate impact under the rights law.
But EPA issued that finding only in draft and then revoked it after the agency settled with DPR, and ultimately denied
the petition. That decision is subject to a separate suit pending in the 9th Circuit known as Maria Garcia, et al. v. Gina
McCarthy, et al. A mediation conference in that litigation was held in September.
The El Comite case, which a panel of the 9th Circuit will hear Feb. 12, has
had a lengthy history. The group first challenged California’s pesticide strategy in
“One attorney familiar
2004. It won a district court order requiring DPR to adopt pesticide regulations
with petitioners’ claims
with the intent of reducing VOCs, including VOCs emitted by methyl bromide.
On appeal, however, the 9th Circuit reversed and said the pesticide strategy was
says the civil rights
never federally approved and enforceable.
arguments in the Clean
Ongoing legal fights over the enforceability and status of California’s
Air Act were
pesticide plan continued until EPA approved the DPR pesticide regulations as a
strengthened by EPA’s
revision to the state’s SIP, over which El Comite filed suit.
finding in a separate
The 9th Circuit will now have to decide whether EPA acted appropriately in
Title VI petition.”
approving what El Comite says is an unenforceable strategy as part of the SIP. El
Comite also argues that the agency’s approval was arbitrary and capricious because
the state had not demonstrated that the strategy is in compliance with Title VI.
The group cites EPA’s draft finding from the Maria Garcia case — known in its Title VI petition phase as Angelita C.
— where EPA found methyl bromide use near schools violated Title VI.
The pending Garcia case will address EPA’s handling of the Title VI petition, including the agency’s decision not to
inform petitioners of its draft finding until after it had settled with DPR.
The attorney familiar with the El Comite case says it is one of the first civil rights challenges over provisions of an
EPA-approved SIP. “The Clean Air Act says the state has to demonstrate what it is doing is not prohibited by any law.
And we made the point that there’s been no factual [demonstration], given what EPA has already found. Somebody has
got to explain whether current pesticide use is being applied in a discriminatory manner,” the source says.
If the court agrees with El Comite, it could “move the ball forward” on requiring affirmative Title VI compliance
demonstrations under Clean Air Act SIPs for meeting national ambient air quality standards. But even if the court makes
that determination, it is unclear “how demanding” it will be over “what that demonstration needs to look like. That will
remain to be seen based on how the court treats what happened here,” the source adds.
El Comite in its opening brief, filed in May 2013, asked the appellate court to vacate and remand EPA’s SIP approval
for being “arbitrary and capricious because EPA failed to provide a cogent explanation, supported by facts, for why
pesticide use allowed by the Fumigant Regulations and SIP Revision did not violate Title VI given EPA’s own data and
conclusions from the Angelita C. analysis and preliminary finding.”
EPA in an August 2013 reply argued that it “reasonably relied upon California’s affirmative assurances that implementation of the SIP Revision would not violate Title VI of the Civil rights Act” and that “case law is clear that EPA is
entitled to deference in its determination of whether a State has provided the necessary assurances required by the Act.
Indeed, no court has ever overturned EPA’s decision approving a SIP where a State provides affirmative assurances.”
EPA also sought to downplay the Angelita C. preliminary finding, saying the record “included no evidence of a
current violation of Title VI, but did include evidence of increased regulation of the use of methyl bromide.”
El Comite’s September 2013 reply brief countered that the agency does not justify its failure to consider the Angelia
C. methodology for evaluating Title VI compliance, and instead claims that EPA is wrongfully asking the court for
deference because of the agency’s contention that methyl bromide use has decreased.
The reply also said that even though EPA claims it considered the preliminary Angelita C. finding, the proposed SIP
approval contained “no discussion whatsoever on whether or not [California] provided necessary assurances of Title VI
compliance,” and the final SIP approval “failed to mention or even consider” the finding.
“EPA disingenuously claims it considered the preliminary finding when the Final Rule reflects no discussion or
consideration of the Angelita C. preliminary finding of racial discrimination,” the brief said.
A farm industry group known as the Air Collation Team filed an amicus brief on behalf of EPA saying DPR’s rules
are much more stringent than EPA’s federal pesticide regulations. The industry coalition also argued that the state’s
regulations take into consideration not only enforcement “but also prevention of environmental contamination, protection
of workers, endangered species protection and community relations.”
In more recent filings in the 9th Circuit litigation, El Comite Jan. 8 filed a brief asking the court to take notice of an
April 2014 state report on pesticide use near schools, which finds that “Hispanics were the only racial/ethnic group whose
representation increased as pesticide use increased.”
But EPA is objecting to the motion, arguing in a Jan. 20 filing that “Judicial review of agency action is based on the
record before the agency at the time the agency made its decision.”
El Comite in a Jan. 23 response notes the 2014 report is based on the state’s 2010 pesticide inventory, data which
informed the rules at issue. — Dawn Reeves
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Air Force In Dispute With DTSC, EPA Over Perc Toxicity Cleanup Levels
California and U.S. EPA regulators are in dispute with the Air Force over what toxicity levels should govern the
cleanup of the common Superfund contaminant perchloroethylene (perc) at a California base, where the Air Force is
arguing EPA’s 2012 value should be used but both EPA and state toxics department officials are backing the use of
California’s older, more stringent criteria.
While the Department of Toxic Substances Control invoked dispute resolution under the Federal Facility Agreement
(FFA) governing the cleanup at Edwards Air Force last August, the parties are just beginning the second phase of their
formal dispute, according to the Air Force. The dispute affects the cleanup remedy for Edward’s South Air Force Research Laboratory.
At issue at Edwards are the toxicity values that inform groundwater vapor compliance levels at the site, according to
Air Force documents. The effect of using EPA rather than state toxicity values would produce a “marked change” for
determining the boundaries where vapor intrusion mitigation would be required at the site for perc, a drycleaning solvent
that is a common contaminant at hazardous waste sites, the state charges. These boundaries are a land use control.
The Air Force argues that EPA guidance requires the use of so-called Tier I values — EPA Integrated Risk Information System (IRIS) criteria — to always be applied when available.
But DTSC and EPA Region 9 maintain that where a chemical has multiple toxicity criteria considered scientifically
valid and current, “the most health-protective criteria should be applied for risk screening, risk assessments, and selecting
cleanup levels,” DTSC says in a formal dispute statement issued last August. In this case, that is California’s perc toxicity
criteria.
According to the Air Force, the 2012 IRIS number is about 23 times less stringent than the state’s toxicity value.
Therefore, the groundwater vapor compliance levels and vapor intrusion control boundary are 23 times “overly conservative and overly protective, overstating dramatically the 10^-6 cancer risk level,” the service says in a description of its
position.
The Air Force contends the cleanup plan at the site needs to be modified in order to match EPA guidance and the new
IRIS value — so as not to overstate risk and impacts — and to prevent wasting scarce cleanup dollars and unnecessarily
limiting further development of the site.
A DTSC spokesman says in an email response that the dispute reflects a rare instance where there is a significant
difference between the IRIS and state toxicity values. As a result, the state, EPA and Air Force through the dispute
process are evaluating “the relevant procedural and toxicological issues and are seeking to jointly identify a standard for
Edwards that is both scientifically defensible and health protective,” he says.
EPA Region 9 acknowledges that both levels are protective of the environment and human health, but says the
regional office and DTSC have for the past two decades agreed to apply whichever number is more stringent when it
comes to remediation and risk assessment decisions, a policy that has been followed at eight Air Force sites in the state,
EPA Region 9 says in an Oct. 20 letter to the Air Force.
This agreement says that where there are more than one of three possible sources of valid and current toxicity criteria
— such as from the Office of Environmental Health Hazard Assessment, EPA’s IRIS program and EPA’s provisional peer
reviewed toxicity values — then the agencies agree to apply the more stringent level, DTSC and EPA say.
“Region 9’s position is that the guidance documents cited by the Air Force do not preclude Region 9 and California
from following this longstanding protocol and applying the OEHHA perc toxicity criteria in California,” the Region 9
letter says.
DTSC says in its dispute statement that the Air Force’s proposed change to the toxicity criteria it would apply to the
site “forces a reduction in protection by raising the concentration and therefore decreases the area where the use restriction boundaries are drawn.” Further, using the IRIS criteria for perc “also flips the risk driver from [perc] to [trichloroethylene] at two of the three sites at issue” in this change request, it says.
“These updates may also drive the decision of when to re-examine whether additional remedial alternatives are
appropriate to ensure the protectiveness of the remedy.”
The regulators also take the position that the choice of appropriate toxicity criteria should be a site-specific determination. “The Air Force’s new approach is tantamount to eliminating the site-specific determinations using professional
judgment that all the guidance documents call for,” DTSC says in the dispute statement.
At the same time, DTSC says accepting the less strict criteria would create inconsistent cleanup levels within
California between federal and non-federal sites.
But the Air Force in a Nov. 7 response to EPA Region 9 argues that California’s position will mean varying levels of
cleanup from state to state. The Air Force “is concerned that the EPA Region 9 position is unsustainable since it would
require a greater degree of protectiveness at [National Priorities List (NPL)] facilities in California versus other states in
the region and the US.”
Furthermore, the service says EPA is undermining the IRIS program if it plans to continue to always use the lower
level of all tiered toxicity values.
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