EPA Bisphenol A BPA Action Plan

The U.S. Environmental Protection Agency (EPA) recently announced a number of actions to address the potential effects of bisphenol A (BPA), a chemical used in the manufacture of a wide range of consumer and industrial products. The BPA action plan focuses on the environmental impacts of BPA and will look to add BPA to EPA’s list of chemicals of concern and require testing related to environmental effects.

In January 2010, the U.S. Food and Drug Administration (FDA) announced that it had some concerns about the potential human health impacts of BPA and it would study the potential effects and ways to reduce exposure to BPA in food packaging. Food packaging represents the most obvious exposure pathway of BPA exposure to people and is regulated by FDA.

The EPA action plan on the environmental impacts of BPA includes:

• Adding BPA to the chemical concern list on the basis of potential environmental effects.
  Requiring information on concentrations of BPA in surface water, ground water, and drinking water to determine if BPA may be present at levels of potential concern.
• Requiring manufacturers to provide test data to assist the agency in evaluating its possible impacts, including long-term effects on growth, reproduction, and development in aquatic organisms and wildlife.
• Using EPA’s Design for the Environment (DfE) program to look for ways to reduce unnecessary exposures, including assessing substitutes, while additional studies continue, and.
• Continuing to evaluate the potential disproportionate impact on children and other sub-populations through exposure from non-food packaging uses.
  

In December, EPA announced that it will, for the first time, use its authority under the Toxic Substances Control Act (TSCA) to list chemicals that may present an unreasonable risk of injury to health or the environment. These actions are part of the agency’s efforts to strengthen EPA’s chemical management program, utilizing current authorities to the fullest extent possible, while continuing to encourage legislative reform of TSCA, which has not been updated since 1976.

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Draft Mitigation Requirements Under NEPA

The Council on Environmental Quality (“CEQ”) has issued its “Draft Mitigation Guidance” outlining requirements for monitoring and reporting the status of substantive mitigation of impacts identified following NEPA reviews. CEQ will accept public comments on the Draft Mitigation Guidance until May 24, 2010.


CEQ’s Draft Mitigation Guidance directs federal agencies, during the environmental review process to:

• Establish binding commitments for mitigating adverse environmental impacts identified by the reviewing agencies, and to enforce those commitments through their existing legal authorities;
• Monitor (or require monitoring of) the implementation and effectiveness of mitigation measures; and
• Make the results of their monitoring available to the public, preferably through the lead agency’s web site.
  

NEPA regulations define “mitigation” as measures to avoid, minimize, rectify, reduce, or compensate for environmental impacts. The regulations require that a federal agency discuss possible mitigation measures in defining the scope of an EIS, in discussing alternatives to the proposed action and the consequences of the proposed action and its alternatives, and in explaining its ultimate decision.

The Draft Mitigation Guidance would direct agencies to create, as part of their NEPA implementing procedures, processes to ensure that mitigation actions relied upon in a mitigated FONSI (“Finding of No Significant Impact”) or that are part of the proposed action in an EIS are documented, and that implementation plans are created to ensure the mitigation is carried out. The guidance directs that the mitigation commitment be clearly documented in NEPA documents and in decision documents such as the Record of Decision. The guidance also suggests methods for ensuring that mitigation is implemented, such as attaching conditions to financial agreements, grants, permits, or other approvals, or conditioning federal funding on implementing mitigation.

The draft guidance also calls for inclusion of adaptive management as part of the agency’s action, so that some response may be required if mitigation fails. It suggests that if mitigation supporting a mitigated FONSI fails, then an EIS may be required. It concludes that the agency decision should be structured so that a substantial mitigation failure triggers further action by the agency.

The existing NEPA regulations require agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. The Draft Mitigation Guidance identifies two forms of monitoring: implementation and effectiveness. The objective of implementation monitoring is to document that promised mitigation is actually carried out. Effectiveness monitoring is more qualitative: it should evaluate whether the mitigation achieves its objectives.

The existing NEPA regulations also indicate that “upon request” lead agencies should make available to the public the results of relevant monitoring. The Draft Mitigation Guidance seeks to convert this duty to respond into an affirmative obligation to push information on mitigation monitoring out to the public.

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CEQ Guidance on NEPA Requirements for Climate Change

The Council on Environmental Quality (CEQ), has issued three draft guidance documents related to the implementation of the National Environmental Policy Act (NEPA),. The new guidance, issued in draft for public comment, directs how federal agencies are to:

• Consider the effects of climate change and greenhouse gas emissions (GHGs) in agency decision-making;
• Use mitigation to reduce or avoid impacts, and monitoring their effectiveness; and
• Establish and apply categorical exclusions.

Public comments on the proposed GHG and mitigation guidance documents will be accepted for 90 days after they are printed in the Federal Register, and comments on the categorical exclusion guidance will be accepted for 45 days.

NEPA requires federal agencies to publicly disclose and consider the environmental consequences of their actions and of private actions requiring federal permits or approvals. It is a process-oriented statute and is not prescriptive in nature. NEPA does not mandate specific environmental results and grants federal agencies broad discretion to determine the extent of environmental protection required for proposed actions.

In the draft GHG guidance, CEQ proposes a framework on when and how to evaluate GHG emissions, and how to evaluate the effect of climate change on the project. The GHG guidance indicates that as part of the initial scoping process, agencies should determine whether a project requiring federal approval will result in “meaningful” GHG emissions, and suggests that emissions greater than 25,000 metric tons may meet this test. Emissions above this level would warrant at least some qualitative or quantitative discussion in NEPA documents.

The GHG guidance also recognizes that there are no existing federal protocols for estimating emissions associated with land use and land management decisions. It also recognizes that determining the reasonably foreseeable impacts of land management decisions on GHG emissions may be difficult.

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Final Rule on NRCS Categorical Exclusions Under NEPA

The Natural Resources Conservation Service (NRCS) published an interim final rule on July 13, 2009, that identified additional categorical exclusions, which are actions that NRCS has determined do not individually or cumulatively have a significant effect on the human environment. Therefore, these actions should not require preparation of an environmental assessment (EA) or environmental impact statement (EIS) under the National Environmental Policy Act (NEPA).

The final rule, effective February 10, 2010, makes final the provisions set forth in the interim final rule. NRCS' categorical exclusions encompass actions that promote restoration and conservation activities related to past natural or human induced damage, or alteration of floodplains and watershed areas. For projects being funded under the American Recovery and Reinvestment Act of 2009 (ARRA), NRCS believes the final rule will assist the Service in meeting mandates set forth in ARRA for undertaking actions in the most expeditious manner and in compliance with NEPA.

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Montana Environmental Review Board Lowers De Minimis Threshold

The Montana Environmental Review Board is currently considering lowering the de minimis Potential To Emit (PTE), above which a State air emission permit is required. The current de minimis threshold, which is 15 tons per year (typ), would be lowered to 5 tpy.

Proposed 17.8.745 MONTANA AIR QUALITY PERMITS--EXCLUSION FOR DE MINIMIS CHANGES
( 1) A Montana air quality permit is not required under ARM 17.8.743 for de minimis changes as specified below:
(a) Construction or changed conditions of operation at a facility for which a Montana air quality permit has been issued that do not increase the facility's potential to emit by more than 5 tons per year of any pollutant except:
(i) through (iii) remain the same.
(iv) any construction or improvement project with a potential to emit more than 5 tons per year may not be artificially split into smaller projects to avoid permitting under this subchapter; and
(v) through (2) remain the same.


Public meetings to discuss this change are scheduled for March 2010.

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