Date: December 6, 2024
To:
Honorable Michael Regan
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460
Re: A Toxic Substances Control Act (TSCA) consent order
Dear Administrator Regan,
We are following up on a letter sent to you on August 2, 2023, by Beyond Plastics, Environmental Defense Fund, Moms Clean Air Force, Natural Resources Defense Council, Sierra Club and Toxic-Free Future,1 regarding a Toxic Substances Control Act (TSCA) section 5 consent order2 EPA issued Chevron after the Agency’s review of the company’s premanufacture notices (PMNs) for new chemicals derived from the pyrolysis of plastic wastes.
This follow-up is prompted by EPA’s recent motion in the DC Circuit Court of Appeals for voluntary remand of the consent order,3 which was granted on December 4, 2024, and its asserted intention to revise the risk assessment and order for these new chemicals. We are concerned that the public continues to lack information on how the Agency intends to revise its risk assessment methodology for the Chevron PMNs and other waste-plastic derived new chemicals under TSCA section 5. We are also concerned that EPA has not committed to provide a peer review process and opportunity for public comment on its draft revised risk assessment. The potential health implications of these new chemicals for fenceline communities are too critical to leave unaddressed. The absence of a public process to assure that EPA’s revised risk assessment is based on publicly available, scientifically supported data leaves communities in harm’s way.
In its motion for voluntary remand, EPA states that it intends to withdraw its order approving the chemicals, and reconsider the 18 PMNs covered by the order, proceeding in accordance with TSCA section 5(e). In the Declaration filed in support of the motion, EPA also states that its assessment led to an overestimate of risk.4 An additional filing with the Court of Appeals indicates that EPA intends to revise its earlier risk assessment.5 Separately, we understand from meetings with EPA TSCA section 5 program staff that the program specifically intends to reassess the exposure modeling in the risk assessment methodology used in reviewing the PMNs. However, EPA has not made any information available about the scope of the planned revisions to this methodology, and it is unclear whether the new risk assessment will merely revise certain exposure scenarios predicting very high cancer risks at airports or will reexamine the full range of exposure and risk concerns we raised about the consent order which EPA now intends to withdraw. These questions have implications far broader than the Chevron PMNs,6 because EPA’s risk assessment methodology would also apply to PMNs for other waste-plastic derived chemicals reviewed by the new chemicals program.
As part of its process of re-evaluating and revising its risk assessment for waste-plastic derived new chemicals, EPA should, at a minimum, commence a transparent process with opportunities for external engagement, peer review, and public comment, particularly for fenceline communities. While most new chemical risk assessments do not undergo external review, there is precedent for such a public process where the Agency’s evaluation of risks for a class of PMN substances has broad public health and policy implications.7
An inclusive and transparent external process is particularly critical given that EPA continues to assert, without scientific support, that it overestimated the risks for the Chevron new chemicals (including cancer and non-cancer risks to susceptible groups, such as infants). Despite this assertion, EPA has yet to provide the public with any corrected risk estimates. Indeed, there is nothing in the record to support EPA’s assertion that these risks were overestimated. More broadly, due to limitations in its methodology, EPA has not fully assessed the potential risks from production and use of these new chemicals, especially for exposed fenceline communities. We continue to be concerned with the risk assessment’s deficiencies, which include:
- Risk Quantification Gaps: Some risks remain unquantified due to insufficient toxicity information.
- Underestimated Industrial Releases: Release models underrepresent actual releases, with parameters like vapor pressure significantly underestimated for some chemical components.
- Failed to Consider Impurities and Byproducts: Risks from impurities in the chemical feedstocks used to make the new chemicals such as phthalates, dioxins and PFAS were not considered.8
- Neglected Vulnerable Populations: Risks to infants, children, and other potentially susceptible subpopulations were not characterized.
- Overlooked Cumulative Risks: EPA did not consider cumulative exposure impacts for fenceline communities and workers, despite known exposure to similar harmful chemicals from refinery emissions.
- Use of a Less Protective Cancer Benchmark: A less protective cancer benchmark was used, deviating from the typical TSCA action benchmark of 1 in 1,000,000.
- Persistence and Bioaccumulation Not Factored into Risk Estimations: Although persistence and bioaccumulation were characterized, these factors were not considered in overall risk estimations.
- Limited Data on Chemical Composition and Hazard: Very little data was provided on the composition of the new chemicals, with no experimentally derived hazard data available.
- Low-end Assumptions About Toxic Component Levels: EPA assumed low levels of toxic components, despite acknowledging that these levels could vary significantly.
EPA’s disregard of these potential risks is concerning, not only in the case of the Chevron chemicals but for other current and future TSCA section 5 assessments of waste-plastic derived chemicals. Our concern is heightened by the fact that TSCA-regulated facilities pyrolyzing waste plastic or using waste-plastic pyrolysis oils as feedstocks are often located near communities already facing significant industrial pollution burdens. The consent order that EPA issued Chevron would have allowed it to use waste-plastic pyrolysis oils to produce plastic waste-based fuels at its refinery in Pascagoula, Mississippi, and other undisclosed locations. The Pascagoula community is largely comprised of Black and Brown residents, with nearly a quarter of the population living in poverty.
The majority of these deficiencies are also reflected in the proposed Significant New Use Rule (SNUR) pertaining to plastic waste-derived substances approved in the consent order.9 We recommend that EPA address these deficiencies as described in our comments and finalize the SNUR expeditiously.10
In addition, the TSCA section 5 new chemicals program is currently reviewing PMNs and significant new use notifications (SNUNs) from Braven, LLC, for the production of waste-plastic pyrolysis oils that would be used by Chevron and other petrochemical companies. In its TSCA section 5 submission currently under TSCA section 5 review, Braven has indicated plans to produce these chemicals near low-income communities.
Given these significant concerns regarding EPA's risk assessment methodology and the impact on fenceline communities, we strongly urge the Agency to implement a transparent, inclusive process for revising its assessment approach for waste-plastic derived chemicals. This process must also be consistent with the requirements of TSCA section 26(h) which requires that the Administrator “use scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science.” The current lack of scientific justification for EPA's claims of risk overestimation, combined with critical methodological gaps, demands a formal peer review and external engagement process for the revised risk assessment methodology, with a particular emphasis on input from affected communities. This step is essential not only for resolving issues with the Chevron consent order but also for safeguarding other communities impacted by waste-plastic derived chemicals under the TSCA new chemicals program.
Thank you for your attention to this important matter.
Sincerely,
Air Alliance Houston
Between the Waters
Beyond Plastics
Center for Coalfield Justice
Center for Environmental Health
Climate Conversation Brazoria County
Environmental Defense Fund
FreshWater Accountability Project
Healthy Gulf
Just Zero
Moms Clean Air Force
Natural Resources Defense Council
North American Climate, Conservation and Environment
People Over Petro Coalition
Sierra Club
Texas Campaign for the Environment
The YEARS Project
Toxic-Free Future
Turtle Island Restoration Network
Valley Improvement Project
Zero Waste Ithaca
Attachment
cc:
Dr. Michal Freedhoff, Assistant Administrator, Office of Chemical Safety and Pollution Prevention
Grant Cope, Senior Counselor to the Administrator
Sources:
1 Letter from Beyond Plastics, Environmental Defense Fund, Moms Clean Air Force, Natural Resources Defense Council, Sierra Club and Toxic-Free Future to Honorable Michael Regan, August 2, 2023 (attached).
2 EPA. EPA Sanitized TSCA Section 5 Order for a New Chemical Substance, Premanufacture Notice (PMN) Numbers: P-21-0144-0147, P-21-0148-0150, P-21-0152-0154, P-21-155-0158 and P-21-0160-0163, Submission Dates: 06/07/2021, 06/07/2021, 06/14/2021,06/08/2021, and 06/14/2021. Received 08/23/2022.
3 Cherokee Concerned Citizens v. EPA, EPA Unopposed Motion for a Voluntary Remand, Case No. 23-1096 (D.C. Cir. Sept. 20, 2024)
4 Ibid. Barash Decl. ¶ 5, Att. A
5 Cherokee Concerned Citizens v. EPA, EPA Reply in Support of Unopposed Motion for Voluntary Remand, Case No. 23-1096 (D.C. Cir. Oct. 15, 2024)
6 Premanufacture Notice (PMN) Numbers: P-21-0144-0147, P-21-0148-0150, P-21-0152-0154, P-21-155-0158 and P-21-0160-0163, Submission Dates: 06/07/2021, 06/07/2021, 06/14/2021,06/08/2021, and 06/14/2021.
7 EPA. Notice; Chlorinated Paraffins; Request for Available Information on PMN Risk Assessments; 80 Fed. Reg. 79886, Dec. 23, 2015; https://www.govinfo.gov/content/pkg/FR-2015-12-23/pdf/2015-32175.pdf
EPA. Standard Review Risk Assessment on Medium-chain and Long-chain Chlorinated paraffin PMN submissions by Dover Chemical. https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca/standard-review-risk-assessment
8 In particular, PFAS from the original waste-plastic used to make the waste-plastic pyrolysis oils that are the feedstocks for the Chevron PMNs are expected to be largely carried through to the new chemicals. See EPA. Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances—Version 2 (2024),
Interim Guidance For Public Comment April 8, 2024. https://www.epa.gov/system/files/documents/2024-04/2024-interim-guidance-on-pfas-destruction-and-disposal.pdf
9 EPA. Significant New Use Rules on Certain Chemical Substances (23–2.5e). Proposed Rule 88 Fed. Reg. 39804. June 20, 2023. https://www.federalregister.gov/documents/2023/06/20/2023-13012/significant-new-use-rules-on-certain-chemical-substances-23-25e.
10 EDF. Comments on Significant New Use Rules on Certain Chemical Substances (23-2.5e) Docket ID: EPA-HQ-OPPT-2023-0245; 88 Fed. Reg. 39804 (June 20, 2023). https://www.regulations.gov/comment/EPA-HQ-OPPT-2023-0245-0017.