Office of Wastewater Management (4203M)
Office of Water
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460
Multi-Association Comments Opposing Refined Coal Tar Sealcoat Provisions of EPA’s Proposed Multi-Sector General Permit for Industrial Stormwater
(Docket ID No. EPA-HQ-OW-2019-0372)
Dear Sir or Madam:
The undersigned associations strongly oppose EPA’s proposal to exclude facilities that seal pavement with refined coal tar-based sealcoat (RTS) from being eligible for the 2020 Multi-Sector General Permit for Industrial Stormwater (MSGP).1 Our associations represent a broad spectrum of productive companies. These companies do not make RTS and the great majority of them are not part of the RTS value chain. But they are united in their concern over the adverse precedent that would be set by the proposed condition of ineligibility involving RTS.
In effect and intent, the proposed condition is a product ban. But the Clean Water Act (CWA) does not give the EPA the legal authority to ban products. We have serious concerns about the dangerous precedential implications of this proposal for other industries and products. EPA should abandon it.2
The principal purpose of the CWA is to restore and maintain the quality of the nation’s navigable waters through the use of permits that eliminate or limit the discharge of pollutants to these waters from point sources. In the case of industrial stormwater, those limitations have historically taken the form of management practices and effluent limitations applicable to discharges. But EPA has never previously gone ‘upstream’ and attempted to effectively ban the use of a class of products at a facility.
EPA does have some authority to restrict or ban use of chemicals under other laws, such as the Toxic Substances Control Act (TSCA). But TSCA imposes a range of procedural and substantive obligations upon EPA before it can take such drastic action. EPA must first determine that a chemical contained in the mixture is a high priority for risk evaluation. Then, it
must conduct a risk evaluation of that chemical, including scientific peer review. EPA must then determine, based on the risk evaluation, that the chemical poses an unreasonable risk of injury to health or the environment under a condition of use. EPA must also consider the benefits of the product and the economic consequences of potential restrictions, including the availability of effective alternative products. The CWA does not provide EPA with any authority to bypass its substantive obligations under TSCA or any other statute focused on chemical safety.
Further, EPA has gone through none of the steps required by TSCA in the current MSGP rulemaking. Instead, EPA began with its conclusion—already embodied in a judicial settlement agreement—that use of RTS should be excluded from the MSGP. EPA then pulled together a collection of literature citations and speculations regarding the effect of RTS use at facilities. In
doing so, EPA ignored literature that seriously undermines EPA’s speculation, as well as EPA’s own determination, from the 2015 MSGP, that data were inadequate to support a ban. Moreover, EPA has not shown that a ban is necessary to address those alleged effects and it has not explained why less-disruptive alternatives, such as use of industry standard best management practices, are insufficient to address any concerns. It has not considered whether there are any alternative products available at reasonable cost that perform as well and as long as RTS. So EPA’s proposal does not meet any of the TSCA requirements for banning a product.
But most important, this permit proceeding is based on the CWA, not TSCA. The CWA directs EPA to reduce the discharge of pollutants via effluent limitations or other requirements.
While EPA can establish technology-based limitations on discharges of pollutants, it must leave facilities free to choose the means by which they meet such limitations. The courts have recognized that EPA’s CWA authority extends only to regulating discharges, not to controlling how plants operate:
The CWA does not empower the agency to regulate point sources themselves; rather, EPA’s jurisdiction under the operative statute is limited to regulating the discharge of pollutants. [T]he agency is powerless to impose permit conditions unrelated to the discharge itself. . . . EPA may not . . . under the guise of carrying out its responsibilities under NEPA transmogrify its obligation to regulate discharges into a mandate to regulate the plants or facilities themselves. To do so would unjustifiably expand the agency’s authority beyond its proper perimeters.3
This Administration’s overall regulatory policy emphasizes the need “to alleviate unnecessary regulatory burdens.” 4 Banning a class of products without authority, and without any determination that this drastic step is actually necessary to protect water quality, runs directly contrary to this policy.
If EPA is successful in using the CWA to, in effect, prohibit the beneficial use of RTS at industrial sites, what other products or materials might EPA target in future CWA permits? The undersigned associations do not want to find out. Rather, we urge EPA to limit its CWA actions to those that are authorized by the statute. EPA should abandon this proposal.
The Adhesive and Sealant Council
American Feed Industry Association
American Iron and Steel Institute
American Coatings Association
Color Pigments Manufacturers Association
Institute of Makers of Explosives
National Association of Printing Ink Manufacturers
Pine Chemicals Association International
PRINTING United Alliance
Roof Coatings Manufacturers Association
Society of Chemical Manufacturers and Affiliates
US Poultry and Egg Association
1 85 Fed. Reg. 12288 (Mar. 2, 2020).
2 All of the legal and factual claims made in this letter are supported at length by comments filed yesterday in this docket by the Pavement Coatings Technology Council and the Coke Oven Environmental Task Force.
3 See Nat. Res. Def. Council, Inc. v. U.S. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988).
4 E.O. 13777, § 1 (82 Fed. Reg. 12285, Mar. 1, 2017).
Docket ID No. EPA-HQ-OW-2019-0372