Lawsuits Filed Against EPA Over Recent TSCA Section 6 Rule
On March 15, 2019, the United States Environmental Protection Agency (EPA) announced a rule to prohibit the manufacturing, processing, and distribution of methylene chloride in paint removers for consumer use. Under Section 6 of the Toxic Substances Control Act (TSCA), EPA has the authority “to prohibit or limit the manufacture, processing, distribution, in commerce, use, or disposal of a chemical” if it is deemed harmful to the environment or may possess unreasonable health risk. Methylene chloride showed the potential to cause various adverse health effects in the 2014 TSCA work plan assessment. The results identified acute risks of neurological effects for consumer users and bystanders.
As a result, EPA introduced parts of the final rule on January 19, 2017 and sought public comments until April 19, 2017. Because this ban on methylene chloride was initially proposed two years prior, during the Obama Administration, the public urged EPA to finalize the proposed rule immediately. Lawsuits were filed against EPA for their delayed action on the matter.
The final rule:
- Prohibits the manufacturing, processing, and distribution in commerce of methylene chloride for paint and coating removal for all consumer uses;
- Prohibits the distribution in commerce of methylene chloride in paint and coating removal products to and by retailers;
- Requires manufacturers, processors, and distributors of methylene chloride for any use, excluding retailers, to provide downstream notification of the prohibitions in this final rule through SDSs by adding to sections 1(c) and 15 of the SDS the following language: “This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.”; and
- Requires recordkeeping relevant to these prohibitions.
As the rule was being established, EPA proposed a determination of the risk involved with the use of methylene chloride in commercial paint; however, EPA is not finalizing the determination. Instead, EPA is requesting public input and notes that there would be future rulemaking to “create training, certification, and limited access programmed for methylene chloride for commercial uses”.
On April 19, 2019, two petitions were filed against this action. The petitioners included: “the Natural Resources Defense Council (NRDC); Earthjustice; the Labor Council for Latin American Advancement (LCLAA); Safer Chemicals, Healthy Families (SCHF); the Vermont Public Interest Research Group (VPIRG); and two mothers whose sons died after using methylene chloride.” Petitioners argue that it is unacceptable for EPA to exclude commercial uses from the rule, questioning why workers should go unprotected from methylene chloride. There have been a number of deaths resulting from exposure to methylene chloride, “most of whom were workers exposed on the job”. The petitioners claim that EPA’s final rule is inadequate and favors chemical manufacturers over the public’s well-being.
The final rule will be effective May 28, 2019. Meanwhile, EPA has added methylene chloride to its top ten chemicals to be evaluated by the end of 2019. After the final risk evaluations, the agency will determine the chemicals’ risk. Only then will the agency be required to start a rulemaking process.
The California Environmental Attorneys at Bick Law LLP will continue to monitor the lawsuits filed against EPA regarding the recent TSCA Section 6 rule.