Environmental Business Alert

EPA Excludes 4 Hydrofluoropolyethers from VOC Definition
On March 23, 2012, EPA issued a proposed rule to exclude four hydrofluoropolyethers ("HFPEs") from the Agency's definition of "volatile organic compound" ("VOC") under section 302(s) of the Clean Air Act ("CAA"). The rule would apply to all manufacturers, distributors and users of these chemical compounds, including industries involved in the manufacture or use of fire suppressants or specialized refrigerants in secondary loop refrigeration systems facilitating heat transfer. The HFPEs proposed for exclusion are:

• HCF₂OCF₂H ("HFE-134") with CASRN 1691–17–4;
• HCF₂OCF₂OCF₂H ("HFE-236cal2") with CASRN 78522–47–1;
• HCF₂OCF₂CF₂OCF₂H ("HFE-338pcc13") with CASRN 188690–78–0; and
• HCF₂OCF₂OCF₂CF₂OCF₂H ("H-Galden 1040X," "H-Galden ZT 130,"
  "H-Galden ZT 150" or "H-Galden ZT 180") with CASRN 188690–77–9.

The Agency proposed the exclusions in response to a chemical manufacturer's 2005 petition requesting that EPA add these four compounds to the list of compounds considered to have a negligible impact on the formation of tropospheric ozone at 40 C.F.R. § 51.100(s). A compound is considered to have negligible reactivity if its kOH rate constant is equal to or less than that of ethane. According to EPA, the reactivity of each of these HFPEs is approximately two orders of magnitude lower than that of ethane. If the proposed rule is finalized, EPA will add these chemicals to the list of compounds at 40 C.F.R. § 51.100(s), which States exclude from review when preparing State Implementation Plans ("SIPs") to attain the national ambient air quality standard ("NAAQS") for ozone under the CAA. The EPA will accept public comments on this proposal until April 23, 2012, and may hold a public hearing if it receives a request by April 9, 2012 to do so.

EPA Issues Final Rule on EPCRA Extremely Hazardous Substance TPQs
EPA issued a final rule on March 22, 2012 that becomes effective on April 23, 2012, revising how threshold planning quantities ("TPQ") are to be applied under section 302 of the Emergency Planning and Community Right-to-Know Act ("EPCRA") for 157 non-reactive extremely hazardous substances ("EHS"). To determine the quantity of EHS present for certain forms of solids, a facility must multiply the weight percent of the non-reactive solid EHS in solution by the total weight of solution in the container(s) and then multiply the result by 0.2. For solids in molten form, the reduction factor is 0.3. The rationale for this revision is data in the scientific literature showing that there is less potential for nonreactive solid chemicals in solution to remain airborne beyond a facility's fenceline in the event of an accidental release. Importantly, however, this calculation approach does not apply to EPCRA 311/312 (e.g., Tier II reporting) determinations.

Environmental Groups Sue for Release of Fracturing Fluid Chemical Identities
On March 22, 2012, Earthjustice filed suit on behalf of four environmental groups in the Seventh Judicial District Court for the State of Wyoming for the release of information held by the Wyoming Oil & Gas Conservation Commission ("WOGCC") concerning the chemical substances used in hydraulic fracturing operations. The WOGCC regulations require that companies submit information to the agency on the chemicals used in fracturing fluids. The plaintiffs allege that their requests for release of this information under the Wyoming Public Records Act were improperly denied on trade secret grounds because the companies provided insufficient justification for their trade secret claims. In 2010 Wyoming was the first state to enact a mandatory disclosure requirement for fracturing chemicals, which has since been emulated by several other states, including Pennsylvania, Texas, Arkansas, Colorado, Michigan, and Montana. Given the recent focus by environmental groups on hydraulic fracturing, similar suits in these other states may follow.

EPA Issues TSCA SNURs for 5 Groups of Chemicals
On March 20, 2012, EPA announced proposed rules to limit significant new uses (SNUR) of five groups of chemicals under the Toxic Substances Control Act (TSCA). The chemicals subject to the proposed SNURs are polybrominated diphenylethers (PBDEs), benzidine dyes, a short chain chlorinated paraffin, hexabromocyclododecane (HBCD), and phthalate di-n-pentyl phthalate (DnPP). Companies must report to EPA all designated new uses of these chemicals in domestic or imported products. EPA has also proposed a TSCA section 4 test rule that would require any person who manufactures or processes commercial pentabromodiphenyl ether (cpentaBDE), commercial octabromodiphenyl ether (c-octaBDE), or commercial decaBDE (c-decaBDE), for any use after December 31, 2013, to conduct testing on their effects on health and the environment. This test rule would apply to use of these chemicals in articles. Comments on the PBDE rulemakings are due June 1, 2012, comments on the proposed benzidine dyes, short chain chlorinated paraffin and DnPP proposed SNURs are due June 26, 2012, and comments on the HBCD proposed SNUR will be due 60 days after its publication in the Federal Register.

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