EPA Sued for Withdrawal of Mercury Dental Amalgam Rule

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The Natural Resources Defense Council (NRDC) filed litigation last week against EPA over the Administration’s withdrawal of the Effluent Limitations Guidelines and Standards for the Dental Category (“Dental Amalgam Rule”). The rule requires all dental offices that place or remove dental amalgam to install separators and follow two best management practices (see NACWA’s comments).

The Dental Rule was pulled pursuant to the regulatory freeze order issued by White House Chief of Staff, Reince Priebus on January 20, requiring that all regulations that are sent to the Office of the Federal Register, but not yet published, be withdrawn.

NRDC’s litigation, filed in the U.S. District Court for the Southern District of New York, seeks to test the legality and scope of that order.  The lawsuit challenges the procedure used to freeze the rule, not the merits of the rule itself.  NRDC argues that the Dental Amalgam Rule “was adopted and duly promulgated by EPA when it was signed by the EPA Administrator, sent to the Office of the Federal Register, and at the latest, when it was filed for public inspection” and that it cannot be withdrawn without going through the Administrative Procedure Act notice and comment process.  NRDC also argues that mercury is a toxic pollutant and therefore once a proposed pretreatment standard is published, it must be promulgated within ninety days pursuant to 33 USC 1317(b)(1).  NRDC further contends that technically the freeze order does not apply to the Dental Amalgam Rule because it requires withdrawal of all final rules except “any regulations subject to statutory or judicial deadlines.” 

NACWA will continue to track developments regarding the litigation.  It is unclear at this point whether the Trump Administration will look to reissue the rule or not. NACWA is in discussions with EPA staff about this and will keep the membership updated.