EPA Removes MEK from the Clean Air Act HAPs List
On December 15, 2005 EPA issued a final rule removing methyl ethyl ketone (MEK) from the list of Hazardous Air Pollutants (HAPs) under section 112(b) of the Clean Air Act. This final rule comes in response to a petition submitted by the American Chemistry Council's Ketones Panel. The ASC and Panel are pleased that EPA has taken this action.
In its petition, the Ketones Panel presented extensive information on MEK's potential health and environmental effects as well as information concerning environmental releases and resulting ambient air concentrations. EPA conducted an independent technical review of the petition and agreed with the analysis of potential health and environmental effects presented in the petition.
In its final ruling, EPA determined that there are "adequate data on the health and environmental effects [of MEK] to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause adverse health or adverse environmental effects."
This decision comes on the heels of a ruling by the U.S. Court of Appeals earlier this year directing EPA to remove MEK from the list of "toxic chemicals" maintained under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The Ketones Panel had petitioned EPA to remove MEK from the Toxics Release Inventory (TRI) and EPA had denied the petition, but following the Court's order EPA removed MEK from the TRI on June 30, 2005.
For further information contact Bill Gulledge, the Ketones Panel Manager at (703) 741-5613 or visit http://epa.gov/ttn/oarpg/t3/fact_sheets/mek_fs.html.
EPA Publishes Interim Guidance on Control of Volatile Organic Compounds
EPA Publishes Interim Guidance on Control of Volatile Organic Compounds encouraging use of photochemical reactivity On August 26, 2005 the Environmental Protection Agency published a notice of interim guidance on Volatile Organic Compounds. In it, EPA "encourages States and particularly those with persistent ozone non-attainment problems, to consider recent scientific information on VOC reactivity and how it may be incorporated into the development of ozone control measures." EPA further suggests that "using reactivity information, States may be able to improve the effectiveness and efficiency of their VOC control policies." The Guidance can be found at: http://www.epa.gov/ttn/oarpg/t1/memoranda/27601interimguidvoc.pdf
Publication of the interim policy is significant because EPA's policy to control volatile organic compounds, published in 1977, recognized a limited list of "negligibly reactive" compounds (as compared to ethane) but did not fully discriminate between VOCs based on reactivity and therefore did not encourage substitution of lower reactivity materials for higher reactivity materials. This new guidance is an important development because it encourages States to consider more effective ways to reduce ozone concentrations particularly in persistent ozone non-attainment areas where traditional mass-based approaches may be inadequate.
In 1998, the Reactivity Research Working Group (RRWG) was formed to help improve the scientific basis for reactivity-related policies. Representatives from EPA, California Air Resources Board and other States, Environment Canada, academia and industry met several times a year to discuss scientific aspects of ozone formation and to coordinate research. Solvents Industry Group members have actively participated in the discussions and have sponsored research to address questions raised by the RRWG.
Past Developments
Court of Appeals Orders Removal of Methyl Ethyl Ketone (MEK) from Toxics Release Inventory
The Emergency Protection and Community Right-to-Know Act (EPCRA) requires facilities in certain industries that manufacture, process, or use listed "toxic chemicals" above specified threshold amounts, to report annually on their releases of these chemicals. A chemical may be listed if it meets any one of three specified listing criteria: (1) it is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases; (2) it is known to cause or can reasonably be anticipated to cause in humans either cancer or teratogenic effects or other serious or irreversible chronic health effects; or (3) it is known to cause or can reasonably be anticipated to cause, because of its toxicity, its toxicity and persistence in the environment, or its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment. See EPCRA section 313(d). The American Chemistry Council (ACC) Ketones Panel had petitioned EPA to delete MEK from the TRI because MEK is not a "toxic chemical" in the ordinary sense of those words, i.e., direct exposure to MEK does not cause significant toxicity. The MEK petition demonstrated that MEK has low toxicity and does not meet any of the statutory listing criteria.
In the Petition denial, EPA agreed that MEK is not significantly toxic:
- "Available data indicate that MEK has low acute toxicity."
- "Available data indicate that MEK has low chronic toxicity."
- "[S]everal well-designed repeated-dose oral and inhalation studies in laboratory animals demonstrate low systemic toxicity with MEK."
- "[T]he concern for developmental toxicity appears to be low."
- "[T]he concern for reproductive toxicity appeals to be low."
- "[T]here is no convincing experimental evidence that MEK is neurotoxic. . . ."
- "MEK has low direct environmental toxicity."
- "MEK's calculated bioconcentration factor . . . is low."
63 Fed. Reg. at 15,196-99.
EPA refused to delist MEK, solely because MEK is a volatile organic compound (VOC). A VOC is defined by EPA as "any [non-excluded] compound of carbon . . . which participates in atmospheric photochemical reactions." See 40 C.F.R. § 51.100(s). That is, a VOC is any organic chemical, except approximately 40 that are specifically exempted in the regulations. Of the tens of thousands of VOCs in existence, some are toxic chemicals that meet the EPCRA section 313 listing criteria, but many, such as MEK, are not.
EPA asserted that because environmental releases of VOCs may, under certain circumstances, contribute to elevated levels of tropospheric ozone (a component of smog), all VOCs are "toxic chemicals" that meet the listing criteria for chronic health effects and environmental effects. See 63 Fed. Reg. at 15,199. The ACC Ketones Panel, in its responses, argued that the statutory listing criteria were intended to identify a subset of toxic substances for which emissions reporting could be required, and were not intended to open the door to the listing of non-toxic substances, including non-toxic VOCs, even if they might be considered pollutants for other reasons. The Court of Appeals agreed with the Panel and rejected EPA's contrary line of reasoning:
- "Virtually all definitions [of 'toxicity'] other than EPA's litigating position closely approximate the group's idea, and contain either an implicit or explicit requirement of harm resulting from exposure."
- "EPA's currently-preferred definition of toxicity would apparently qualify materials that no scientist or educated lay person would term toxic . . . [A]nd we think it utterly improbable that by creating a list of several hundred toxic chemicals, with authority for add-ons, Congress intended to allow EPA to list all VOCs, orange juice, and water. EPA's preferred definition is clearly inconsistent with the statute."
- "Although EPA argues that the statute should be liberally construed to effect the purpose of the statute, its own proposed removal of virtually any constraints on the discretion of the Administrator would hardly serve that purpose. . . ."
- "In sum, we hold that §§ 313 (d) (2) (B) and (C) allow only for the listing of toxic chemicals, substantially as the term toxic is used in ordinary parlance. At a minimum, the chemical must cause harm via exposure. Because EPA's own analysis demonstrates that MEK fails this test, EPA's denial of the group's petition to delist was improper. As a result, we vacate the decision of the district court and remand so that it can direct EPA to delete MEK from the TRI. [See Opinion pages 10-12.]"
EPA's Photochemical Reactivity Policy-Overview and Update Published in Industrial Paint & Powder, January 2003
Since the 1977 issuance of the Environmental Protection Agency's (EPA's) Policy for control of volatile organic compounds (VOC) , much has been learned about the role they play in the atmosphere. EPA's VOC policy is of particular interest to solvent users since many of the solvents used in products such as coatings, inks, adhesives, and consumer products are classified as VOCs.
Tom Helms, William Johnson, and Stanley Tong of EPA have recently written an article that provides an overview of the agency's current VOC Policy, the criteria that EPA uses to select VOCs for exemption from control because of low photochemical reactivity, and options EPA is considering for a revised EPA policy. The article, entitled, "EPA's Photochemical Reactivity Policy "Overview and Update," was published in Industrial Paint & Powder Coatings Journal.
Proposal to Remove EGBE from HAPS List
November 6, 2003
The U.S. Environmental Protection Agency (EPA) is proposing to remove ethylene glycol butyl ether (EGBE) from the Clean Air Act Section 112(b) Hazardous Air Pollutants (HAPs) list. This is a project the Ethylene Glycol Ethers Panel (Panel) began in the mid-1990s. An EPA Fact Sheet and Federal Register Notice are available on the EPA Web site. The Panel has developed an Information Update, which can be found under "What's New" on its Web site.
Although currently only a Proposal to Delist, EPA's notice is a confirmation of all the extensive effort and detailed analysis, first-rate research and other efforts of the Panel, its Toxicology Research Task Group and its researchers and contractors over many years.
