Carbon Dioxide Emissions and Ocean Acidification; TSCA Section 21 Petition; Reasons for Agency Response, 60577-60584 [2015-25164]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Proposed Rules]
[Pages 60577-60584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25164]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OPPT-2015-0487; FRL-9934-77]


Carbon Dioxide Emissions and Ocean Acidification; TSCA Section 21 
Petition; Reasons for Agency Response

AGENCY: Environmental Protection Agency (EPA).

ACTION: Petition; reasons for Agency response.

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SUMMARY: This document provides the reasons for EPA's denial of a 
petition it received under section 21 of the Toxic Substances Control 
Act (TSCA) from the Center for Biological Diversity and Donn J. 
Viviani, Ph.D. The petitioners requested EPA to initiate rulemaking 
under TSCA to address risks related to carbon dioxide emissions, 
particularly those associated with ocean acidification, or, in the 
alternative, that EPA initiate rulemaking under TSCA to require testing 
to determine toxicity, persistence, and other characteristics of carbon 
dioxide emissions that affect human health and the environment. After 
careful consideration, EPA denied the TSCA section 21 petition for the 
reasons discussed in this document.

DATES: EPA's response to this TSCA section 21 petition was signed 
September 25, 2015.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Cindy Wheeler, National Program Chemicals Division (7404), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: 
(202) 566-0484; email address: wheeler.cindy@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: TSCA-Hotline@epa.gov.

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 sources of carbon dioxide emissions, such as 
power plants, cement plants, pulp and paper mills, and various types of 
mobile sources. 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. How can I access information about this petition?

    The docket for this TSCA section 21 petition, identified by docket 
identification (ID) number EPA-HQ-OPPT-2015-0487, is available at 
https://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information 
about the docket available at https://www.epa.gov/dockets.

II. TSCA Section 21

A. What is a TSCA Section 21 petition?

    Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA 
to initiate a rulemaking proceeding for the issuance, amendment, or 
repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA 
section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the 
facts that are claimed to establish the necessity for 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 to 
compel initiation of the requested rulemaking proceeding within 60 days 
of either a denial or the expiration of the 90-day period.

B. What criteria apply to a decision on a TSCA Section 21 petition?

    Section 21(b)(1) of TSCA requires that the petition ``set forth the 
facts which it is claimed establish that it is necessary'' to issue the 
rule or order requested (15 U.S.C. 2620(b)(1)). Thus, TSCA section 21 
implicitly incorporates the statutory standards that apply to the 
requested actions. In addition, TSCA section 21 establishes standards a 
court must use to decide whether to order EPA to initiate rulemaking in 
the event of a lawsuit filed by the petitioner after denial of a TSCA 
section 21 petition (15 U.S.C. 2620(b)(4)(B)). Accordingly, EPA has 
relied on the standards in TSCA section 21 and in the provisions under 
which actions have been requested to evaluate this TSCA section 21 
petition.

III. TSCA Sections 6 and 4

    Of particular relevance to this TSCA section 21 petition are the 
legal standards regarding TSCA section 6 rules and TSCA section 4 
rules.

A. TSCA Section 6 Rules

    To promulgate a rule under TSCA section 6, the EPA Administrator 
must find that ``there is a reasonable basis to conclude that the 
manufacture, processing, distribution in commerce, use, or disposal of 
a chemical substance or mixture . . . presents or will present an 
unreasonable risk'' (15 U.S.C. 2605(a)). This finding cannot be made 
considering risk alone. Under TSCA section 6, a finding of 
``unreasonable risk'' requires the consideration of costs and benefits. 
Furthermore, the control measure adopted is to be the ``least 
burdensome requirement'' that adequately protects against the 
unreasonable risk (15 U.S.C. 2605(a)).
    In addition, TSCA section 21(b)(4)(B) provides the standard for 
judicial review should EPA deny a request for rulemaking under TSCA 
section 6(a): ``If the petitioner demonstrates to the satisfaction of 
the court by a preponderance of the evidence that . . . there is a 
reasonable basis to conclude that the issuance of such a rule . . . is 
necessary to protect health or the environment against an unreasonable 
risk of injury,'' the court shall order the EPA Administrator to 
initiate the requested action (15 U.S.C. 2620(b)(4)(B)).
    Also relevant to the issuance of regulations under TSCA section 6, 
TSCA section 9(b) directs EPA to take regulatory action on a chemical 
substance or mixture under other statutes administered by the Agency if 
the EPA Administrator determines that actions under those statutes 
could eliminate or reduce to a sufficient extent a risk posed by the 
chemical substance or mixture. If this is the case, the regulation 
under TSCA section 6 can be promulgated only if the EPA determines that 
it is in the ``public interest'' to protect against that risk under 
TSCA

[[Page 60578]]

rather than, or in addition to, the alternative authority (15 U.S.C. 
2608(b)).

B. TSCA Section 4 Rules

    To promulgate a rule under TSCA section 4, EPA must find that data 
and experience are insufficient to reasonably determine or predict the 
effects of a chemical substance or mixture on health or the environment 
and that testing of the chemical substance is necessary to develop the 
missing data (15 U.S.C. 2603(a)(1)). In addition, EPA must find either 
that: (1) The chemical substance or mixture may present an unreasonable 
risk of injury; or (2) The chemical substance is produced in 
substantial quantities and may either result in significant or 
substantial human exposure or result in substantial environmental 
release (15 U.S.C. 2603(a)(1)).
    In the case of a mixture, EPA must also find that ``the effects 
which the mixture's manufacture, distribution in commerce, processing, 
use, or disposal or any combination of such activities may have on 
health or the environment may not be reasonably and more efficiently 
determined or predicted by testing the chemical substances which 
comprise the mixture'' (15 U.S.C. 2603(a)(2)).

IV. Summary of the TSCA Section 21 Petition

A. What action was requested?

    On June 30, 2015, the Center for Biological Diversity and Donn J. 
Viviani, Ph.D., petitioned EPA under TSCA section 21 to determine that 
carbon dioxide (CO2) presents an unreasonable risk of injury 
to health or the environment and initiate rulemaking to control 
CO2 (Ref. 1). The petitioners point to TSCA section 6(a) for 
options that EPA may exercise in order to protect against unreasonable 
risk and ask that EPA take into consideration the harm caused by past 
CO2 emissions.
    If EPA determines that the available data and information are 
insufficient to permit EPA to reasonably determine or predict the 
effects of CO2 emissions on human health and the 
environment, the petitioners request that EPA initiate rulemaking for 
testing under TSCA section 4 to fill the information gaps. The 
petitioners suggest that EPA consider requiring the following tests or 
studies under TSCA section 4:
    [ssquf] Tests of CO2 emission reduction, capture, and 
sequestration strategies.
    [ssquf] Vulnerability assessments for marine and coastal species 
and ecosystems.
    [ssquf] Forecasts, using modeling, of species' responses to ocean 
acidification.
    [ssquf] Assessments of the economic values of ecosystems at risk 
and the costs of reducing CO2 emissions to protect those 
ecosystems.
    Petitioner Viviani submitted a supplement supporting all actions 
requested in the petition and including additional information and 
requests (Ref. 2). The supplement requests further that, with any TSCA 
section 6 or TSCA section 4 action, EPA also consider health effects 
from climate change and ocean acidification, direct and indirect 
economic impacts, insurance impacts, and environmental justice 
implications. Petitioner Viviani also suggested that EPA include, in 
any TSCA section 6 rule, options to sequester carbon emissions, 
including sequestration that relies on alternative energy and/or 
produces net carbonates, as well as the use of economic incentives to 
encourage sequestration efforts by the private sector. Alternately, the 
Viviani supplement specifically asks that EPA use TSCA section 4 to 
gather information on sequestration technologies and offers a suggested 
cost apportionment method.
    The supplement includes a variety of additional requests and 
observations. For example, the supplement urges EPA to consider making 
an imminent hazard finding under TSCA section 7 in order to complement 
other Agency actions and to inform the public on the risks, causes, and 
methods for mitigating ocean acidification resulting from anthropogenic 
CO2 emissions. The supplement urges EPA to address the 
impacts of ocean acidification on pesticide tolerances by taking into 
account the increased fish farming that will be needed as a result of 
ocean acidification. Finally, the supplement asks EPA to use other 
programs and authorities to address ocean acidification, such as the 
Clean Air Act (CAA) and the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA).

B. What support do the petitioners offer?

    The petitioners contend that CO2 emissions cause ocean 
acidification, and that ocean acidification is a severe threat to the 
marine environment and the health of people who depend on oceans and 
coasts. According to the petitioners, about 28% of the CO2 
emissions from power generation, cement production, industry, and other 
sources are absorbed by the ocean, which causes the seawater to become 
more acidic and corrosive to sea life. The petitioners state that, 
since the industrial revolution, man-made CO2 emissions have 
increased the acidity of the oceans on average by 30%, and that, by the 
end of the century, the oceans will become 150-170% more acidic if 
anthropogenic CO2 emissions continue unabated. The 
petitioners provide numerous examples of the potential adverse effects 
of ocean acidification, some of which they say are already apparent, 
such as the loss of oyster larvae in the Pacific Northwest, the poor 
condition of pteropod (a type of zooplankton) shells along the West 
Coast, and the decline in calcification rates at coral reef locations 
in the Pacific and the Caribbean. Other adverse impacts to be expected 
from ocean acidification, according to the petitioners, are impairment 
of sensory abilities and behavior in fish, decreased metabolic rate and 
activity levels in squid, increased toxicity of algal blooms, and loss 
of species diversity across ocean ecosystems.
    In addition to describing the environmental impacts of ocean 
acidification, the petitioners provided some socioeconomic information 
to establish that the impacts will be more widespread and may include 
our nation's food security. The petitioners cited the United Nations 
Convention on Biological Diversity for a 2014 prediction that the 
oceans will lose more than $1 trillion in value annually from ocean 
acidification by 2100 (Ref. 3). The petitioners also cited a 2010 
report from the United Nations Environment Programme that ocean 
acidification's impact on marine organisms is a threat to food security 
for the billions of people that have a marine-based diet (Ref. 4). The 
petitioners contend that the US economy is dependent on the health of 
the ocean, citing 2009 information from the National Oceanic and 
Atmospheric Administration (NOAA) that estimated that the ocean economy 
contributes over $223 billion annually to the gross domestic product 
and provides more than 2.6 million jobs (Ref. 5).

V. Disposition of TSCA Section 21 Petition

A. What is EPA's response?

    After review and consideration of the support provided, EPA denied 
the petition. EPA has acknowledged the impacts of CO2 and 
other greenhouse gas emissions on ocean acidification and the potential 
impacts of ocean acidification on marine ecosystems in its 2009 
greenhouse gas endangerment finding (Ref. 6). However, the petitioners 
provided neither adequate specifics on the relief sought under TSCA, 
nor sufficient information on the costs and benefits associated with a

[[Page 60579]]

requested regulatory option to allow EPA to make the unreasonable risk 
finding specified in TSCA section 6(a). In addition, actions to address 
CO2 emissions under authorities other than TSCA could reduce 
the risk posed by CO2 more efficiently and effectively at 
this time. Finally, the petitioners do not present EPA with information 
sufficient to establish that testing under TSCA section 4 is necessary 
to develop data that would allow EPA to determine whether anthropogenic 
CO2 emissions present an unreasonable risk of injury under 
TSCA. A copy of the Agency's response, which consists of a letter to 
the petitioners, is available in the docket for this TSCA section 21 
petition.

B. What is EPA's reason for this response?

    1. Background on federal action. Ocean acidification refers to the 
decrease in the pH of the Earth's oceans caused by the uptake of 
CO2 from the atmosphere. Ocean acidification presents a 
suite of environmental changes that would likely negatively affect 
ocean ecosystems, fisheries, and other marine resources.
    EPA and other parts of the federal government are working 
diligently on many fronts to address climate change and related 
concerns, including ocean acidification. The Federal Ocean 
Acidification Research and Monitoring Act of 2009 created the 
Interagency Working Group on Ocean Acidification (IWG-OA), which is 
chaired by NOAA and consists of a dozen federal agencies including EPA. 
Over the past several years, the member agencies have conducted and 
funded research into the effects of acidification on ocean ecosystems 
and the economy. The IWG-OA released its Strategic Plan for Federal 
Research and Monitoring of Ocean Acidification in 2014 (Ref. 7). The 
group's Third Report on Federally Funded Ocean Acidification Research 
and Monitoring Activities, a report to Congress issued in April 2015 
(Ref. 8), highlights the wide variety of research aimed at 
understanding the impacts of acidification, including the following 
activities undertaken or funded by EPA:
    [ssquf] A study of coastal acidification impacts on shellfish in 
Narragansett Bay.
    [ssquf] Studies of plankton community and macro-algal responses to 
acidification.
    [ssquf] Support for the development of biophysical models and new 
methodologies to determine the economic and intrinsic value of coral 
reefs and shellfish.
    [ssquf] Research to assess the economic impacts of ocean 
acidification on US mollusk fisheries to support quantification of the 
damages resulting from greenhouse gas emissions.
    [ssquf] Support for monitoring acidification in National Estuary 
Program study areas.
    [ssquf] Support for the development of computational models that 
will predict changes in biogeochemical parameters of coastal waters.
    The current Administration has focused on ocean policy 
comprehensively, including ocean acidification. In 2009, President 
Obama established an Interagency Ocean Policy Task Force charged with 
developing recommendations to enhance national stewardship of the 
ocean, coasts, and Great Lakes. The Task Force received and reviewed 
nearly 5,000 written comments from Congress, stakeholders, and the 
public before issuing final recommendations. On July 19, 2010, 
President Obama signed Executive Order 13547, adopting the final 
recommendations of the Task Force and establishing a national policy 
for the stewardship of the ocean, coasts, and Great Lakes. This 
National Ocean Policy recognizes the importance of marine and lake 
ecosystems in providing jobs, food, energy resources, ecological 
services, transportation, and recreation and tourism opportunities. In 
April of 2013, the final plan for implementing the National Ocean 
Policy was issued, after additional opportunities for stakeholders and 
the general public to comment (Ref. 9). The implementation plan 
describes specific actions Federal agencies will take to address key 
ocean challenges, while at the same time giving states and communities 
greater input in Federal decisions, streamlining Federal operations, 
and promoting economic growth. In relation to ocean acidification, the 
implementation plan (and its appendix) focus on information development 
and dissemination, as well as coastal resiliency and adaptation.
    President Obama released a Climate Action Plan in 2013 which laid 
out a vision for reducing greenhouse gases based on three key pillars, 
namely domestic greenhouse gas reductions, preparations for future 
impacts, and leading international efforts to address climate change 
(Ref. 10). Reductions of CO2 emissions through domestic and 
international actions will contribute to the amelioration of ocean 
acidification. Domestic actions under the Climate Action Plan that will 
lead to CO2 reductions include regulatory activities, 
promoting renewable energy, supporting innovation in the energy and 
vehicle sectors, and improving efficiency at multiple levels. 
CO2 is a globally well-mixed gas, one of the greenhouse 
gases that are sufficiently long-lived in the atmosphere such that, 
once emitted, concentrations of each gas become well mixed throughout 
the entire global atmosphere (Ref. 6). Therefore, global reductions are 
also necessary, and the Administration is pursuing multiple avenues to 
work with and in other nations to reduce emissions and deforestation 
and promote clean energy and energy efficiency.
    Much of the domestic regulatory activity has been under the 
authority of the CAA. In 2009, under CAA section 202(a), the 
Administrator determined that six well-mixed greenhouse gases 
(CO2, methane, nitrous oxide, hydrofluorocarbons, 
perfluorocarbons, and sulfur hexafluoride) in the atmosphere threaten 
the public health and welfare of current and future generations and 
that the combined emissions from new motor vehicles and new motor 
vehicle engines contribute to the greenhouse gas pollution which 
threatens public health and welfare (Ref. 6). [Note: Although this 
finding was supported by a record that included extensive scientific 
assessment literature on climate change and its impacts, including 
ocean acidification, particularly of the US Global Change Research 
Program (USGCRP), the National Research Council (NRC) of the US 
National Academies of Science and the Intergovernmental Panel on 
Climate Change (IPCC), the EPA notes that its actions under the CAA are 
governed by different statutory provisions and different standards than 
the standard for making a finding of unreasonable risk under TSCA 
sections 6(a) or 4. As such, the Agency's determinations on this 
petition under TSCA are separate from and would not affect EPA's 
determinations under other statutory authorities.]
    Subsequently, EPA promulgated emissions standards for light duty 
vehicles for model years 2012-2016 (Ref. 11) and model years 2017-2025 
(Ref. 12) controlling emissions of CO2, methane, nitrous 
oxide, and hydrofluorocarbons from the light duty fleet. EPA has also 
promulgated standards for these same air pollutants for new heavy duty 
vehicles and engines for model years 2014-2018 (Ref. 13), and recently 
proposed a second phase of standards for these vehicles and engines for 
model years 2018-2027 (Ref. 14). Together, the enacted and proposed 
standards are expected to save more than six billion barrels of oil 
through 2025 and reduce more than 3,100 million metric tons of 
CO2 emissions.
    Also with respect to mobile sources, EPA is required to set annual 
standards

[[Page 60580]]

for the Renewable Fuel Standard (RFS) program for each year that ensure 
that transportation fuel sold in the U.S. contains a minimum volume of 
renewable fuel. By 2022, the RFS program will reduce greenhouse gas 
emissions by 138 million metric tons, about the annual emissions of 27 
million passenger vehicles, replacing about seven percent of expected 
annual diesel consumption and decreasing oil imports by $41.5 billion.
    While mobile sources are important contributors to greenhouse gas 
pollution, power plants are the largest stationary source of carbon 
pollution in the United States and about one third of all greenhouse 
gas pollution comes from the generation of electricity by power plants. 
On August 3, 2015, EPA issued the Clean Power Plan, which includes 
standards for new and existing power plants (Ref. 15). Under the 
authority of CAA section 111(b), the Plan sets carbon pollution 
standards for new, modified, and reconstructed power plants. Emission 
limits, based on the best adequately demonstrated system of emission 
reduction for the type of unit, are set for new, modified, and 
reconstructed stationary combustion turbines as well as new, modified, 
and reconstructed coal-fired steam generating units. Under the 
authority of CAA section 111(d), the Clean Power Plan also establishes 
interim and final CO2 emission performance rates for fossil 
fuel-fired electric steam generating units and for natural gas-fired 
combined cycle generating units. To maximize the range of choices 
available to states in implementing the standards and to utilities in 
meeting them, the Clean Power Plan also includes interim and final 
statewide goals. States will then develop and implement plans that 
ensure that their power plants, either individually, together, or in 
combination with other measures, achieve the interim CO2 
emissions performance rates over the period of 2022 to 2029 and the 
final CO2 emission performance rates or goals by 2030. EPA 
estimates that by 2030, when the Clean Power Plan is fully effective, 
the CO2 emission level from fossil-fuel fired electric power 
plants will be lower than the 2005 level by about 32 percent, which is 
870 million tons of CO2.
    In addition, since January of 2011, under the CAA, EPA has required 
that the construction of large stationary sources of air pollution 
(including power plants) incorporate the best technology available for 
controlling emissions of greenhouse gases, including CO2. 
Under CAA section 165(a), a major emitting facility may not commence 
construction without obtaining a Prevention of Significant 
Deterioration (PSD) permit that limits the emissions of ``each 
pollutant subject to regulation'' under the Act to the maximum degree 
achievable through the application of the Best Available Control 
Technology (BACT) (42 U.S.C. 7475(a)(4); 7479(3)). This requirement 
became applicable to greenhouse gas emissions when EPA's light-duty 
vehicle standards for this pollutant first took effect 2011 (Ref. 16). 
In 2010, EPA took several steps to ensure that EPA and state permitting 
authorities were able to apply the PSD BACT requirement to greenhouse 
gas emissions from the largest stationary sources and to incorporate 
those requirements into operating permits for stationary sources under 
Title V of the Clean Air Act. EPA first issued a rule that phased-in 
the requirements of these CAA permitting programs and initially limited 
covered facilities to the nation's largest greenhouse gas emitters: 
power plants, refineries, and cement production facilities (Ref. 17). 
EPA also issued several rules to ensure that either EPA or a state 
permitting authority was in a position to implement these requirements 
in every state (Refs. 18-20).
    EPA has developed many programs and projects that partner with 
industry and others to reduce greenhouse gas emissions. Examples 
include ENERGY STAR, the Green Power Partnership, and the Combined Heat 
and Power Partnership. Through voluntary energy and climate programs, 
EPA's partners reduced over 345 million metric tons of greenhouse gases 
in 2010 alone (equivalent to the emissions from 81 million vehicles).
    In addition to taking actions to reduce CO2 emissions, 
EPA has been working on ocean acidification issues under the Clean 
Water Act (CWA). In 2009, EPA published a Notice of Data Availability 
(NODA) containing data and information on the potential effects of 
ocean acidification on aquatic life and requested data and information 
from the public that could be useful to EPA in deciding whether to 
reevaluate and revise the recommended marine pH water quality criterion 
under section 304(a)(1) of the CWA (Ref. 21). EPA carefully reviewed 
all of the information received during the public comment period as 
well as additional information from NOAA. EPA determined that, at the 
time, the available data did not indicate a need to revise the national 
recommended criteria for marine pH to address the natural variability 
in pH across coastal regions.
    In addition, EPA issued a March 2010 request for comment on 
consideration of the effects of ocean acidification in the 
implementation of the program for listing of impaired waters under CWA 
section 303(d) (Ref. 22). Under that section, states, territories, and 
authorized tribes develop lists of impaired waters and develop Total 
Maximum Daily Loads (TMDLs) for the pollutant(s) causing the 
impairment. In the notice, EPA asked for comment on what considerations 
to take into account when deciding how to address the listing of waters 
as threatened or impaired for ocean acidification under the 303(d) 
program. In November 2010, EPA distributed a memorandum entitled 
``Integrated Reporting and Listing Decisions Related to Ocean 
Acidification'' (Ref. 23). Among other things, the memorandum explained 
that states should continue to list waters that do not attain 
applicable water quality standards, including marine pH water quality 
criteria, on the lists of impaired waters submitted to EPA, and should 
continue to solicit existing and readily available information on ocean 
acidification using the current section 303(d) listing program 
framework. EPA also committed to providing additional guidance to 
states, territories, and tribes when future ocean acidification 
research efforts provide the basis for improved monitoring and 
assessment methods.
    In 2012, EPA took actions to approve the 2010 list of impaired 
waters for the State of Washington and to establish the 2010 list of 
impaired waters for the State of Oregon. Neither of those lists 
included waters impaired due to pollutants associated with or 
conditions attributable to ocean acidification, and EPA's actions were 
challenged in court. In 2015, the court upheld EPA's determination that 
existing and readily available data and information, including 
confounding and incomplete data that might otherwise support listing 
the States' coastal and estuarine waters as impaired, did not require 
listing of such waters as impaired due to ocean acidification (Ref. 
24).
    2. Rationale for petition denial. To regulate CO2 to 
address ocean acidification under TSCA section 6 in addition to other 
authorities, EPA would have to make the unreasonable risk finding 
specified in TSCA section 6(a). The TSCA section 21 petition asserts 
that ``CO2 pollution is changing ocean chemistry and harming the marine 
environment'' and that there will be ``severe and detrimental impacts 
on marine ecosystems, the economy, and public health if this pollution 
is unabated'' (Ref. 1). However, the petitioners' argument as to the 
existence of unreasonable risk under TSCA

[[Page 60581]]

section 6 is hindered by a nearly complete lack of detail as to the 
TSCA risk management sought. Under TSCA section 21, the public can 
petition EPA for the issuance, amendment or repeal of ``a rule'' under 
section 6. The petitioners have not identified a particular rule that 
they believe EPA should issue. Rather, they have identified a global 
environmental concern and asked that EPA, during the 90 days available 
to it under section 21, identify a rule that would address the concern 
and then assess the costs and benefits of such a rule to determine 
whether the identified risk is unreasonable. Section 21 requires 
considerably more specificity than petitioners have provided.
    While the petitioners stated an overall goal of mitigating ocean 
acidification under TSCA, and suggested a variety of actions that could 
be used to achieve this goal, e.g., mandatory emission reductions or 
``repurchasing relief using sequestration,'' the petitioners did not 
describe, in any reasonable manner, what specific action available 
under TSCA section 6 the petitioners seek in order to achieve that 
outcome (Ref. 1). For example, although the petitioners state that 
``stabilizing atmospheric concentration to prevent further 
acidification of the oceans would require about an 80% decrease in all 
emissions,'' the petitioners did not specify a regulatory approach for 
achieving such a reduction in the United States (EPA clearly could not 
require emission reductions abroad under TSCA), or estimate the costs 
and benefits of such a regulation (Ref. 1). Among the costs EPA would 
want to evaluate would be the impacts of further emission reductions on 
energy and transportation reliability and affordability. Similarly, 
although the petitioners argue that EPA has the authority to require 
the mitigation of past emissions through sequestration, and identify a 
variety of methods for sequestering carbon, the petitioners provided no 
specifics on how EPA might impose mandatory carbon sequestration 
actions on current and past emitters of CO2 that are subject 
to TSCA.
    The finding of unreasonable risk under TSCA section 6 encompasses 
both the anticipated benefits of regulatory action as well as the 
anticipated costs. As noted above, EPA has acknowledged that greenhouse 
gas emissions impact ocean acidification and the petitioners have 
provided evidence that CO2 contributes to ocean 
acidification and therefore poses a risk to the environment within the 
meaning of TSCA. The petitioners have also provided information on the 
benefits that might be expected from reductions in CO2 
emissions and/or mitigation or sequestration of past CO2 
emissions globally. However, the petitioners present minimal 
information on CO2 emission controls or the costs of 
reducing CO2 emissions or sequestering past emissions. The 
petitioners conclude that ``many industries could employ existing 
technology to achieve meaningful emissions reductions affordably,'' and 
cite a couple of EPA documents that review available technologies for 
reducing greenhouse gas emissions (Ref. 1). While these documents are 
indeed useful as a survey of the state of the industry on emission 
controls and reductions, they do not provide the kind of evidence or 
data EPA would need in order to estimate the costs of any rule that EPA 
might impose under TSCA section 6 to regulate CO2 emissions. 
In addition, the petitioners provide no basis for EPA to estimate the 
benefits of any particular rule that EPA might impose. While the 
combined effects of global CO2 emissions create significant 
environmental and human health concerns, and the elimination or 
reduction of those emissions would have substantial benefits, any 
particular TSCA rule could address only a portion of those emissions. 
The analysis EPA would have to undertake in assessing the 
unreasonableness of the identified risks would involve assessing the 
costs and benefits of particular rulemaking actions under TSCA, and the 
petitioners simply have not provided sufficient information about 
either the rule they think EPA should promulgate or the likely costs 
and benefits of such a rule to enable EPA to perform such an analysis.
    In addition to a TSCA section 6 rule regulating CO2 
emissions, the petitioners suggest that EPA could use its authority 
under TSCA section 6(a)(7)(C) to require emitters to take steps to 
mitigate or sequester past CO2 emissions. According to the 
petitioners, this provision, which gives EPA the authority to require 
manufacturers and processors to replace or repurchase chemical 
substances or mixtures, also gives EPA the authority to ``remediate 
existing harm by requiring that responsible parties mitigate past 
CO2 emissions'' (Ref. 1). The petitioners go on to discuss a 
wide variety of mitigation and sequestration methods and processes that 
EPA should evaluate and potentially impose under this authority, 
including land use and agricultural practice changes, programs directed 
at consumer choice (like EPA's existing ENERGY STAR program), and 
sequestration of CO2 in products, infrastructure and waste 
management. The petition supplement provides additional detail on 
mitigation and sequestration methods, including bio-char, the use of 
more structural timber in buildings, and sequestration in products such 
as ``green'' cement and foam insulation (Ref. 2).
    The petitioners' suggestion to consider TSCA section 6(a)(7)(C) is 
misplaced. While EPA agrees that this provision gives EPA some 
authority to address past harms, it is intended to address chemical 
substances and mixtures that move in the stream of commerce, not air 
pollution that is a byproduct of industrial and other activity on a 
global scale. According to the statute, when the appropriate findings 
are made, EPA can require manufacturers or processors to repurchase or 
replace chemical substances or mixtures, but the regulated 
manufacturers and processors must be permitted to decide whether to 
repurchase or replace. In EPA's view, the authority to require 
replacement or repurchase of a chemical substance or mixture does not 
include the authority to require extraction from the environment of 
widely dispersed chemicals. EPA reads this provision as applying when a 
distinct person or persons who received the chemical substance or 
mixture and from whom the manufacturer or processor can elect to 
repurchase or replace can be identified. Applying this provision to 
past anthropogenic CO2 emissions does not make sense where 
emitted CO2 has mixed throughout the global atmosphere and 
there is no way to connect the CO2 with any one entity for 
repurchase.
    In addition, TSCA section 9(b) requires EPA's Administrator to 
coordinate actions taken under TSCA with actions taken under other laws 
administered by EPA. When EPA determines that actions under other 
authorities can eliminate or reduce a risk to health or the environment 
to a sufficient extent, the Administrator must use the other 
authorities unless she determines it is in the public interest to 
protect against the risk by action taken under TSCA. While the 
petitioners recognize that anthropogenic CO2 emissions are 
being regulated under the CAA, they assert that those efforts are 
inadequate to protect marine species from climate change and ocean 
acidification. However, even if petitioners had requested a TSCA rule 
with reasonable specificity, EPA would likely determine that actions 
related to ocean acidification taken under other laws administered by 
EPA, both those already underway and those planned for

[[Page 60582]]

the future, could reduce the risks to a sufficient extent under TSCA 
section 9(b). Because CO2 is a global pollutant, domestic 
actions alone cannot eliminate the risks, but the Administration has 
engaged in a set of coordinated domestic actions and international 
negotiations to reduce CO2 emissions in order to reduce the 
risks of climate change and ocean acidification. EPA sees no sound 
reason to exercise authorities available under TSCA to further address 
any such risk or to deviate from EPA's regulatory efforts and programs 
already underway.
    The CAA is the comprehensive federal law designed to regulate air 
emissions from stationary and mobile sources. As discussed above, EPA 
has issued rules under the CAA that address CO2 emissions 
from a variety of sources, including power plants and mobile sources. 
The Clean Power Plan, for example, represents real action and 
leadership on climate change by ensuring meaningful reductions in 
carbon pollution from power plants while maintaining energy reliability 
and affordability. EPA does not understand why the petitioners seem to 
believe that TSCA, which is intended to address toxic substances 
generally, would be an appropriate vehicle for addressing emissions of 
CO2 when the Agency is already doing so under the federal 
statute specifically designed to regulate air emissions. In fact, the 
petitioners acknowledge that ``full implementation of our flagship 
environmental laws, particularly the Clean Air Act, would provide an 
effective and comprehensive greenhouse gas reduction strategy'' (Ref. 
1). The petitioners go on to contend that, due to the alleged non-
implementation of these laws, ``existing domestic regulatory mechanisms 
must be considered inadequate to protect marine species from climate 
change and ocean acidification'' (Ref. 1). The Agency notes that the 
CAA and the Administrative Procedures Act (APA) provide mechanisms to 
ask the Agency to take administrative action, see APA 553(e), 5 U.S.C. 
553(e) (providing the right to petition an agency for issuance, 
amendment or repeal of a rule), and avenues to seek judicial redress 
where the Agency has unreasonably delayed in responding to such 
requests. See APA 706(1), 5 U.S.C. 706(1) (establishing claim for 
unreasonable delay), and CAA 304(a), 42 U.S.C. 7604(a) (establishing 
jurisdiction and notice requirements for unreasonable delay claims). 
One of the petitioners, the Center for Biological Diversity, has 
regularly participated in development of EPA actions to address the 
concerns related to those in the petition.
    In addition to the CAA, the CWA provides some limited authorities 
that may be used to reduce the risk associated with ocean 
acidification. As noted above, EPA has explained that states should 
continue to list waters that do not attain applicable water quality 
standards, including marine pH water quality criteria, on the lists of 
impaired waters submitted to EPA, and should continue to solicit 
existing and readily available data and information regarding 
pollutants contributing to and conditions associated with ocean 
acidification using the current CWA section 303(d) listing program 
framework. Where such data and information supports a finding that a 
water body is impaired, the state must establish a total maximum daily 
load for relevant pollutants and implement a plan to control the 
pollutants from contributing sources. Thus far, neither EPA nor any 
states have listed any water bodies as impaired due to pollutants 
contributing to nor conditions associated with ocean acidification.
    The petitioners also requested that EPA promulgate a test rule 
under TSCA section 4 if EPA was unable to determine, based on available 
data, whether anthropogenic CO2 emissions present an 
unreasonable risk to human health and the environment within the 
meaning of TSCA. EPA notes that it did not construe the petitioners' 
request for rulemaking under TSCA section 4 as a strictly contingent 
request, and EPA has independently reviewed the TSCA section 21 
petition itself to determine whether it sets forth facts sufficient to 
justify the initiation of rulemaking to require testing under TSCA 
section 4.
    In order to promulgate a test rule under TSCA section 4, EPA must 
find that data and experience are insufficient to reasonably determine 
or predict the effects of a chemical substance or mixture on health or 
the environment and that testing of the substance or mixture with 
respect to such effects is necessary to develop the missing data. EPA 
must also find that either the chemical substance or mixture may 
present an unreasonable risk or that it is produced in substantial 
quantities and may either result in significant or substantial human 
exposure or result in substantial environmental release. EPA does not 
dispute that anthropogenic CO2 emissions are produced in 
substantial quantities and result in substantial environmental 
releases. However, the petitioners have not made the case that testing 
of the chemical substance is necessary to develop missing data. The 
fact that atmospheric CO2 affects ocean pH is not in 
dispute, and there are numerous studies documenting the effect of ocean 
pH on marine organisms (Refs. 21, 22). TSCA section 4 testing authority 
primarily speaks to testing of a chemical substance's or mixture's 
effects on health and the environment. Much of the testing recommended 
by the petitioners does not fit this description and probably could not 
be required by EPA under TSCA section 4. For instance, development of 
information on the costs and effectiveness of CO2 emission 
control technology is not a test of the effect of a substance on health 
or the environment.
    Regardless of whether the information described by the petitioners 
is information that can be developed using the authority of TSCA 
section 4, EPA and other federal agencies are working diligently to 
further our collective understanding of the impacts of ocean 
acidification. Some research underway matches the petitioners' 
recommendations for information to seek under TSCA section 4. For 
example, the petitioners suggest conducting vulnerability assessments 
for marine and coastal species and ecosystems. In the National Ocean 
Policy Implementation Plan, NOAA, the Department of the Interior (DOI), 
EPA, the Department of Defense and the Department of Transportation 
were tasked with developing best practices for climate change and ocean 
acidification vulnerability assessments for Federally-funded and/or 
Federally-managed coastal and ocean facilities and infrastructure in 
high-hazard areas (Ref. 9). In August of 2014, EPA issued ``Being 
Prepared for Climate Change: A Workbook for Developing Risk-Based 
Adaptation Plans'' (Ref. 25). This document provides guidance for 
conducting risk-based climate change vulnerability assessments and 
developing adaptation action plans. In addition, EPA and NOAA have 
collaborated on studies of coastal acidification impacts on shellfish 
in Narragansett Bay, and EPA is working with the University of Rhode 
Island on studies of plankton communities and macroalgal responses to 
acidification. The petitioners suggest studying the economic values of 
ecosystems that are at risk from ocean acidification. In recent years, 
NOAA and EPA have allocated funding for socioeconomic studies related 
to ocean acidification. EPA supported the development of biophysical 
models and new methodologies to determine the economic and intrinsic 
value of coral reefs and shellfish. EPA has also conducted research to 
assess the economic impacts of ocean acidification

[[Page 60583]]

on US mollusk fisheries for the purpose of including these impacts in 
monetary estimates of damages from greenhouse gas emissions. Further, 
the National Ocean Policy Implementation Plan calls for developing data 
on job trends to assess the economic impact of ocean acidification 
(Ref. 9). NOAA's Digital Coast Web site provides access to two datasets 
containing coastal and ocean job trends (Ref. 8).
    Several other EPA actions were requested in the supplement. The 
petitioners suggest action under the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) would be triggered 
if EPA issues a TSCA section 7 ``notice informing the public of the 
serious risks to coral reefs associated with ocean acidification, its 
causes, and what must be done to mitigate it'' (Ref. 1). As an initial 
matter, under TSCA section 21, a petitioner is limited to requesting 
relief under TSCA sections 4, 5, 6, or 8. In addition, the action 
authorized under TSCA section 7 is for EPA to bring a civil action in 
district court to seize an imminently hazardous chemical or seek other 
relief. Section 7 does not provide authority to make a finding of 
imminent hazard independent of a civil action.
    The supplement also outlines potential EPA actions under other 
statutes, such as Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA), and the CAA (Ref. 2). EPA is asked to reevaluate pesticide 
tolerances based on the increased grain consumption that will occur as 
fish farming increases due to ocean acidification. To the extent that 
fish farming increases grain consumption, EPA will consider that in any 
need for changes to pesticide tolerances during the Agency's regular 
reassessment of those tolerances.
    The supplement also discusses the possibility of giving formal 
notification under section 115(a) of the CAA to the Governors of States 
found to emit pollution that endangers public health and welfare in 
other countries. The supplement, however, does not seek to demonstrate 
that the prerequisites for action under CAA section 115 have been met 
at this time or that any specific notifications are warranted. 
Moreover, to the extent that the discussion of potentially available 
CAA remedies constitutes a request for action, EPA denies the requests 
because they are not actions that can be petitioned for under TSCA 
section 21. The relief that may be requested under TSCA section 21 is 
limited to actions under TSCA sections 4, 5, 6, or 8.

VI. 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. Center for Biological Diversity and Donn J. Viviani, Ph.D. 
Petition for Rulemaking Pursuant to Section 21 of the Toxic 
Substances Control Act, 15 U.S.C. 2620, Concerning the Regulation of 
Carbon Dioxide. June 30, 2015.
2. Donn J. Viviani, Ph.D. Supplement to the Petition for Rulemaking 
Pursuant to Section 21 of the Toxic Substances Control Act, 15 
U.S.C. 2620, Concerning the Regulation of Carbon Dioxide. June 30, 
2015.
3. Secretariat of the Convention on Biological Diversity. An Updated 
Synthesis of the Impacts of Ocean Acidification on Marine 
Biodiversity (Eds: S. Hennige, J.M. Roberts & P. Williamson). 
Technical Series No. 75. 2014.
4. United Nations Environment Programme (UNEP). UNEP Emerging 
Issues: Environmental Consequences of Ocean Acidification: A Threat 
to Food Security. 2010.
5. National Oceanic and Atmospheric Administration (NOAA). Coastal 
Services Center, National Summary: The United States Ocean and Great 
Lakes Economy. 2011.
6. EPA. Endangerment and Cause or Contribute Findings for Greenhouse 
Gases under Section 202(a) of the Clean Air Act. Federal Register. 
74 FR 66496, December 15, 2009 (FRL-9091-8).
7. Interagency Working Group on Ocean Acidification. Strategic Plan 
for Federal Research and Monitoring of Ocean Acidification. March 
2014.
8. Committee on Environment, Natural Resources, and Sustainability 
of the National Science and Technology Council. Third Report on 
Federally Funded Ocean Acidification Research and Monitoring. April 
2015.
9. National Ocean Council. National Ocean Policy Implementation 
Plan. April 2013.
10. Executive Office of the President. The President's Climate 
Action Plan. June 2013.
11. EPA, Department of Transportation-National Highway Traffic 
Safety Administration (DOT-NHTSA). Light-Duty Vehicle Greenhouse Gas 
Emission Standards and Corporate Average Fuel Economy Standards; 
Final Rule. Federal Register. 75 FR 25324, May 7, 2010 (FRL-9134-6).
12. EPA, DOT-NHTSA. 2017 and Later Model Year Light-Duty Vehicle 
Greenhouse Gas Emissions and Corporate Average Fuel Economy 
Standards; Final Rule. Federal Register. 77 FR 62624, October 15, 
2012 (FRL-9706-5).
13. EPA, DOT-NHTSA. Greenhouse Gas Emissions Standards and Fuel 
Efficiency Standards for Medium- and Heavy-Duty Engines and 
Vehicles; Final Rule. Federal Register. 76 FR 57106, September 15, 
2011 (FRL-9455-1).
14. EPA, DOT-NHTSA. Greenhouse Gas Emissions and Fuel Efficiency 
Standards for Medium- and Heavy-Duty Engines and Vehicles--Phase 2; 
Proposed Rule. Federal Register. 80 FR 40138, July 13, 2015 (FRL-
9927-21-OAR).
15. EPA. Carbon Pollution Emission Guidelines for Existing 
Stationary Sources: Electric Utility Generating Units; Final Rule. 
Signed August 3, 2015 and pending publication in the Federal 
Register. Until publication, a pre-publication version of the signed 
document is available at: https://www2.epa.gov/sites/production/files/2015-08/documents/cpp-final-rule.pdf.
16. EPA. Reconsideration of Interpretation of Regulation That 
Determine Pollutants Covered by Clean Air Act Permitting Programs; 
Final Rule. Federal Register. 75 FR 17004, April 2, 2010 (FRL-9133-
6).
17. EPA. Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. Federal Register. 75 FR 
31514, June 3, 2010 (FRL-9152-8).
18. EPA. Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Failure to Submit State 
Implementation Plan Revisions Required for Greenhouse Gases; Final 
Rule. Federal Register. 75 FR 81874, December 29, 2010 (FRL-9244-7).
19. EPA. Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan; Final Rule. 
Federal Register. 75 FR 82246, December 30, 2010 (FRL-9245-3).
20. EPA. Determinations Concerning Need for Error Correction, 
Partial Approval and Partial Disapproval, and Federal Implementation 
Plan Regarding Texas's Prevention of Significant Deterioration 
Program; Final Rule. Federal Register. 76 FR 25178, May 3, 2011 
(FRL-9299-9).
21. EPA. Ocean Acidification and Marine pH Water Quality Criteria; 
Notice of Data Availability (NODA). Federal Register. 74 FR 17484, 
April 15, 2009 (FRL-8892-5).
22. EPA. Clean Water Act Section 303(d): Notice of Call for Public 
Comment on 303(d) Program and Ocean Acidification; Request for 
Public Comment. Federal Register. 75 FR 13537, March 22, 2010 (FRL-
9128-8).
23. EPA. Integrated Reporting and Listing Decisions Related to Ocean 
Acidification. November 15, 2010.
24. Center for Biological Diversity v. EPA, 2015 U.S. Dist. LEXIS 
25945 (W.D. Wash. March 2, 2015).

[[Page 60584]]

25. EPA. Being Prepared for Climate Change: A Workbook for 
Developing Risk-Based Adaptation Plans. August 2014.

    Authority:  15 U.S.C. 2601 et seq.

    Dated: September 25, 2015.
James J. Jones,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2015-25164 Filed 10-6-15; 8:45 am]
 BILLING CODE 6560-50-P