December 12, 2016

EPA Proposes to Ban Certain Uses of TCE Under TSCA

The U.S. Environmental Protection Agency (EPA) will issue a proposed rule to ban the use of trichloroethylene (TCE) as an aerosol degreaser and a spot removal agent in dry cleaning. This announcement, made on December 7, 2016, marks the EPA’s first attempt to ban uses of a chemical under the Frank R. Lautenberg Chemicals Safety for the 21st Century Act, which amended the Toxic Substance Control Act (TSCA) in June of 2016. It also represents EPA’s first attempt to ban a product already in use under TSCA since 1989, when the Fifth Circuit rejected the EPA’s attempt to ban asbestos.

 The EPA based its proposed rule on a 2014 assessment concluding that the use of TCE as an aerosol degreaser or spot removal agent in dry cleaning poses health risks to workers and consumers, including cancer, development and neurotoxicological effects and liver damage. Historically, TCE from dry cleaners and solvent use has been commonly tied to groundwater contamination and more recently vapor intrusion into indoor air. If the rule goes into effect, it will ban the manufacture, processing and distribution of TCE for use in aerosol degreaser or as a spot removal agent in dry cleaning. The rule will also require manufacturers, processors and distributors to notify retailers and others in their supply chain of the new restrictions.

In its announcement, the EPA indicated it also plans to address TCE in vapor degreasing in a separate rule. In addition, TCE is included on EPA’s list of the first 10 chemicals the agency will evaluate for risk under TSCA; thus the EPA may consider limitations on other uses of the chemical in the future. Other chemicals slated for analysis by the EPA are 1,4-Dioxane, 1-Bromopropane, asbestos, Carbon Tetrachloride, Cyclic Aliphatic Bromide Cluster, Methylene Chloride, N-Methylpyrrolidone, Pigment Violet 29 and Tetrachloroethylene.

The EPA has not yet published the proposed rule, nor indicated when the rule can be expected. There is also uncertainty regarding how or if the new administration will alter the proposed rule. That said, this year’s TSCA amendments, including those giving the EPA the authority to potentially ban certain uses of substances, passed with broad bipartisan support. Under the TSCA amendments, the EPA no longer has to show that a restriction is the least burdensome way to reduce risk. Instead, the agency is allowed to restrict the chemical “to the extent necessary” to reduce the risk.

Comments on the proposed rule will be due 60 days following publication in the Federal Register.

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