Internal emails reveal two major fossil fuel trade groups are lobbying to stop the Environmental Protection Agency (EPA) from updating a decades-old list of toxic chemicals found in petroleum wastewater — and they’re using the Trump administration’s controversial “secret science” proposal to make their case.
The EPA currently monitors for 16 types of chemicals in wastewater, or effluent, released by petroleum refineries under the Clean Water Act. However, in the more than 40 years since the list was developed, scientific understanding around the number of chemicals and their toxicity levels has grown. As a result, the EPA is in the early stages of determining whether the priority list of chemicals needs to be updated.
But according to emails released to the Sierra Club and reviewed by ThinkProgress, the American Petroleum Institute (API) and the American Fuel and Petrochemical Manufacturers (AFPM) are lobbying to limit the scope of the EPA’s study.
The fossil fuel trade groups want to ensure that two categories of chemicals known to be toxic to aquatic life, and potentially harmful to humans, are excluded from the study: alkylated polynuclear aromatic hydrocarbons (alkylated-PAHs) and naphthenic acids (NAs). The industry even goes so far as to state that including these in a study would risk “legal challenges.”
These two sets of chemicals are not currently on the EPA’s priority list. There are hundreds of different variations of PAH chemicals and levels of toxicity (alkylated-PAHs, for instance, are a derivative of the main “parent” PAH compounds). Burning coal and oil is the main source for these chemicals.
Yet, according to Jan Andersson, a chemistry professor at the University of Münster in Germany who has studied the EPA’s list, roughly 97 percent of the PAH chemical compounds found in crude oil are alkylated chemicals, making any lobbying against their inclusion quite significant. Meanwhile, NAs are found primarily in the byproduct of tar sands oil; the non-biodegradable compounds are stored in giant tailings ponds.
Excluding these types of chemicals from the EPA study would therefore serve to preemptively limit the scope of any potential rule changes in the future.
“They’re trying to cook the books at the very earliest stages of a study for petroleum refinery and ignoring the considerable data that’s out there that alkylated-PAHs are absolutely at least as toxic, if not more toxic, than the ones everybody monitors for right now,” Betsy Southerland, former director of the EPA’s Office of Water’s Office of Science and Technology, told ThinkProgress. Southerland worked for the EPA for 30 years before resigning in 2017 in response to the change in leadership.
At high or prolonged exposure, PAH chemicals can cause tumors in aquatic life and birds as well as impact their reproduction, development, and immunity. Studies show that NAs have similar impacts, along with causing liver and heart damage in mice. Some known health effects to humans from PAH exposure include eye and skin irritation, nausea, and diarrhea, as well as longer-term impacts such as kidney or liver damage and asthma-like symptoms.
Scientists are still studying how the various chemicals impact humans; a range of PAH chemicals are classified as suspected or possibly carcinogenic to humans. What is known though, is that alkylated-PAHs are likely more toxic than other types of PAHs. They also take a longer time to biodegrade in the environment.
The ‘secret science’ argument
Issued by the EPA in 1976, the list of 16 types of PAH chemicals is used to determine which chemicals must be monitored for risks to drinking water and human health. Under the Clean Water Act, petroleum wastewater effluent guidelines establish a national floor — a baseline limit — for these chemicals. So, if there is a discharge of waste such as the release of industrial wastewater, stormwater runoff, or oil spills, only these 16 chemicals are tested to determine the level of toxicity.
The simplicity of the list has made the process easily applicable and cost-effective, and other countries have also turned to it as a resource. The list hasn’t just been used to monitor wastewater, either — environmental studies frequently use it as a basis for research. However, as a 2015 article co-authored by Andersson and published in the academic journal Polycyclic Aromatic Compounds notes, the list leaves out three large groups of these chemical compounds, including alkylated-PAHs. As the paper states, crude oil and coal are “rich” in alkyl compounds.
Despite the potential impact on human health and the environment, the levels of these chemicals currently found in petroleum wastewater is unknown; that’s one thing the EPA’s study would determine. PAH concentrations can vary from site-to-site and by the source of the crude oil. The findings would then help guide any necessary changes to the list of chemicals that should be regulated.
As part of its argument against the EPA measuring these chemicals, the trade groups are using the EPA’s proposed “secret science” rule to argue against disclosure of NAs because that would constitute a risk to companies’ proprietary data.
The proposed rule, also known as the “Strengthening Transparency in Regulatory Science” rule, was introduced last April by former EPA administrator Scott Pruitt. The rule has been supported by climate science deniers and effectively aims to restrict the use of scientific evidence in the rule-making process. The plan has been stalled under Administrator Andrew Wheeler, but if adopted, it would require the EPA to rely only on scientific studies where the underlying data used by the researchers is made public. Critics argue the bill would severely limit the kind of science the EPA could use in justifying regulations (excluding public health data, for instance) and would place a number of unnecessary burdens on EPA scientists.
Some in the chemical and fossil fuel industries, both of which maintain close ties with the Trump administration, have also warned that the rule would expose confidential corporate information. In a June 8, 2018 letter attached to an email to Brian d’Amico, branch chief at the EPA’s Office of Ground Water and Drinking Water, API and AFPM wrote that using the industry’s own proprietary method of analyzing naphthenic acids would be a “clear contradiction” to the EPA’s proposed secret science rule.
“Independent validation is clearly not possible when a proprietary analytical method is used to generate the data,” the organizations argued. “In the interest of transparency, per its own proposed rule, EPA should abandon the use of this proprietary method in the Detailed Study.”
“Data derived from these methods could result in the EPA facing substantial scientific and legal challenge,” API and AFPM warned.
In other words, under the hypothetical scenario where the EPA decides to update its chemicals list at a time when the secret science rule is officially adopted, it would require the results of the EPA’s effluent study be made public, as that would be considered underlying data used to introduce the new chemicals rule. But doing so would, in the eyes of the fossil fuel industry, violate their proprietary methods used to analyze the chemical and so the chemicals should instead be simply excluded from the very beginning to avoid such a scenario.
“Quoting a rule that has not even gone final yet for the reason why [the EPA] shouldn’t be allowed to monitor it is pretty outrageous,” said Southerland.
The EPA did not respond to a request for comment from ThinkProgress about whether or not it will be studying the two types of chemicals the fossil fuel industry has been lobbying against. The API and AFPM also did not respond to requests for comment.
The fossil fuel industry is also arguing that the EPA doesn’t have sufficient data to claim that these two groups of chemicals should be regulated. As Roger E. Claff, senior scientific adviser at API, wrote in a February 2018 email to d’Amico, among the concerns is a “lack of toxicity data for decision-making.”
But as Southerland explained, that’s precisely why the EPA is initiating its study; growing scientific findings suggest these chemicals are highly toxic and therefore updates might be warranted. Meanwhile, she said, “API is saying ‘hell no.'”
Andersson made the case for updating the list in his 2015 paper. The 1976 list was created based on what was commercially available at the time, but many more variations of PAH chemicals exist now. Meanwhile, toxicology has improved understanding of the adverse health impacts of a wide range of these chemicals, and “a wealth of new compounds have been added to the inventory of confirmed or suspect carcinogens.”
“This list of compounds is not suitable,” Andersson told ThinkProgress. “Most of them are pretty innocuous… [there are] many that are much more toxic that don’t appear on this list because in 1976, people didn’t know about them. This list looks pretty obsolete.”
‘Collaboration through the years’
The first meeting between the EPA and the fossil fuel trade groups on this issue occurred in May 2016, under the Obama administration. And as a January 2018 slide show presentation to the Trump administration shows, the industry highlighted its “collaboration through the years” with the EPA.
Of course, some degree of collaboration is needed in order for the EPA to properly conduct its study and gather the necessary data. However, the internal emails provide insight into the scale of influence the fossil fuel lobby is trying to exert at the very early stages of decision making.
Dalal Aboulhosn, who works on federal water policy for the Sierra Club, said this shows how under the current administration industry “is allowed to come in and pretty much write their wish list.”
On water specifically she said, there has been a pattern of industry approaching the EPA under both Pruitt and Wheeler with policy ideas before the EPA has actually decided to move on the issue. Shortly after, a change is announced.
“It’s very blatant and it’s across the board when it comes to issues in the agency, and we’re seeing it very starkly on water issues,” Aboulhosn said.
Indeed, after arguing last June that “the science and data for the toxicity of NAs and alkylated-PAHs are still a work in progress,” the two trade groups go so far as to suggest that, should the EPA wish to study them, the agency must address these two groups of chemicals “in a project outside of the Study.”
They argue the EPA should make a new official rule in order to create a new “method” for studying these chemicals. This separate project should undergo “the appropriate public notice and comment period required to gain method approval,” the trade groups’ letter states.
This, however, would be highly uncommon given public notice and comment periods typically apply to new regulations, or changes to existing regulations (such as repealing the Obama-era Clean Power Plan or introducing the “secret science” rule); it would also serve to delay the process by several years.
“It sounds like they’re trying to set some new bar to any future detailed studies,” Southerland said, “where no analyses can be done unless there’s a standard method… that would be a bar not just for petroleum refinery but every industry category.”
It quickly becomes a “chicken and egg” situation, Southerland said; you need a study to determine if a new rule is needed, but the industry is arguing you need a new rule before conducting the study.
But as the June 2018 industry letter to the EPA reads, “API and AFPM members believe in due diligence and support EPA in developing sound science.”