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ADA offers comments to 'improve' EPA separator proposal

February 24, 2015

By Craig Palmer

Washington – The Association filed regulatory comments with the Environmental Protection Agency Feb. 20 "as a continued evidence of the ADA's good faith and its commitment to a reasonable and effective amalgam separator standard." The EPA published a proposed rule Oct. 22, 2014, that would require amalgam separators in some dental settings.

"The vast majority of dentists utilize the services of their local sewage treatment plants (also called publicly owned treatment works or POTWs)," ADA outside legal counsel, Pepper Hamilton LLP, told the EPA. "The issuance of a pretreatment rule governing the discharge from dental offices would directly and significantly impact dentists and their patients. Additionally, dentists are concerned about the impact of environmental pollutants on their communities."

In a standby statement prepared for response to public media inquiries, the Association pledged to "continue working closely with the EPA on crafting a suitable and workable amalgam separator rule that balances protecting the environment and the concerns and needs of dentists and their patients."

"The ADA hopes that its comments will be viewed by the EPA as constructive suggestions to improve its proposal so that ADA can support it," the Association said in one of five documents submitted for the public record. "However, as currently written, ADA cannot support EPA's proposal."

In a letter filed on behalf of the Association, Pepper Hamilton LLP told the EPA that Association support "is contingent only on the final rule complying with nine common-sense principles (see related article), including use of amalgam separators that comply with the ISO Standard 11143. The ADA re-affirms its support of a pretreatment rule that requires amalgam separators consistent with these nine principles."

The Association has promoted best management practices for dental offices since 2002, the letter said.  In 2009 the Association amended its BMPs to include the use of amalgam separators that comply with the ISO Standard 11143. ADA partnered with the EPA to encourage the voluntary installation of amalgam separators. In 2010, the ADA House of Delegates passed by unanimous consent a resolution supporting promulgation of a Clean Water Act pretreatment rule governing applicable dental offices.  

The letter highlights six Association concerns with the regulation as proposed and offers further detail on each concern. Other documents submitted to the EPA include ADA-proposed regulatory language and offer additional details on what the Pepper Hamilton letter cites as "these disagreements."    

  • First, the implementation of the rule imposes undue and unnecessary burdens on dentists and the municipalities that operate POTWs.
  • Second, the proposed rule is inconsistent with several aspects of the ISO Standard 11143. The standard requires demonstration of the capability to remove at least 95 percent of the amalgam particles entering the separator based on the ISO 11143 Standard testing methodology.
  • Third, EPA's choice of a new 99 percent removal efficiency requirement is particularly troubling to the ADA because it is inconsistent with prior EPA statements.
  • Fourth, the incremental amalgam (and therefore mercury) captured by a separator with a purported amalgam removal efficiency of 99 percent is de minimis compared to the amount of amalgam removed by a separator with a 95 percent removal efficiency.
  • Fifth, EPA's calculated cost-effectiveness for the proposed dental amalgam separator standard is flawed and grossly overstates the proposal's cost effectiveness.
  • Sixth, EPA fails to estimate even roughly the reduction in methylmercury levels in fish due to the implementation of the proposed dental amalgam standard (i.e., the benefit of the proposal) even though EPA and other federal agencies have historically done so in other regulatory proceedings and peer reviewed in studies. In fact, such historic evaluations of the contribution of mercury concentrations in fish from electric utility emissions consistently demonstrate that discharges of dental amalgam related mercury into rivers and other waterbodies has little contribution to the methylmercury levels in fish from all sources.

The ADA called for a de minimis exemption for certain practices that place or remove few amalgams and suggested changes in the proposed rule's "applicability" language.

Provisions of the proposed rule, with certain exceptions, would be "applicable to discharges of wastewater to publicly owned treatment works from facilities where the practice of dentistry is performed ('dental dischargers'), including but not limited to institutions, permanent or temporary offices, clinics, mobile units, home offices and facilities, and including dental facilities owned and operated by federal, state or local governments."