EPA has released a proposed rule, which, if implemented, would ban the use of trichloroethylene (“TCE”). The substance has numerous industrial, commercial, and consumer applications, including uses in vapor and aerosol degreasing and as lubricants, greases, adhesives, and sealants. Earlier this year, in its final revision to the TCE risk evaluation conducted under section 6(b) of the Toxic Substances Control Act (“TSCA”), EPA concluded that TCE presents an unreasonable risk of injury to human health due to both its carcinogenic and non-carcinogenic health effects including liver and kidney toxicity, and neurotoxicity. The risk evaluation found these effects resulted from both acute and chronic exposures and through all types of exposures, including inhalation and dermal exposure. TSCA section 6(a) requires EPA to impose restrictions on the manufacture, including import, processing, and distribution of substances that present an unreasonable risk of injury to human health or the environment.
The ban would apply to all manufacturing, import, processing, and distribution in commerce of TCE for all industrial and commercial uses. The rule would go into effect one year following the effective date of the final rule for consumer products and most commercial uses. Some commercial and industrial uses would have longer phaseout timelines and set exemption periods. (The difference between phaseouts and exemptions is that phaseouts are active timelines for the elimination of use, whereas the exemptions do not require current action to eliminate the use of TCE by a certain date; presumably, a determination will be made prior to the exemption period ending that will clarify if the exemption is to be extended or if a phaseout period will be established.)
TSCA section 6(g) allows EPA to grant an exemption from a requirement of a rule banning or restricting a chemical substance for a specific condition of use of a chemical substance if the Administrator finds that the specific condition of use is critical or essential and has no technically and economically feasible safer alternative. The phaseout and exemptions in the proposed rule are narrow in scope. They include the following:
- An 8.5-year phaseout for the manufacture and processing of TCE as an intermediate in the manufacturing of hydrofluorocarbon134a (HFC-134a). HFC-134a is essential to the operation of refrigeration and air conditioning systems.
- A 10-year phaseout for the manufacture and use of TCE as a solvent for closed-loop batch vapor degreasing for rayon fabric scouring for end use in the production of rocket booster nozzles. This exemption is limited to production by federal agencies and their contractors.
- A 10-year TSCA Section 6(g) exemption for the manufacture and processing of TCE as a processing aid for battery separator manufacturing, battery separators are used to prevent short-circuiting in lithium-ion batteries.
- A 50-year TSCA Section 6(g) exemption for the manufacture, processing, distribution in commerce, and use of TCE as a laboratory chemical for essential laboratory activities such as those associated with ongoing environmental cleanup projects under the CERCLA program and other EPA authorities, and some research and development activities being conducted by U.S. Federal Agencies including NASA.
The rule would also require strict workplace controls for those working with TCE for the uses allowed by the proposed rule. These workplace controls would be detailed in EPA’s proposed Workplace Chemical Protection Program (“WCPP”). To further reduce worker risks, the proposed rule would prohibit the disposal of TCE to industrial pre-treatment, industrial treatment, or publicly owned treatment works.
Under this rule, manufacturers, importers, processors, and distributors (excluding retailers) of TCE and TCE-containing products must provide downstream notification of the TCE prohibition. EPA is asking for comments on timeframes for downstream notification and recordkeeping requirements. EPA is proposing a two-month period for manufacturers and a six-month period for processors and distributors to make the required SDS changes. This notification will be provided through Safety Data Sheets (“SDS”). The suggested SDS language is stated within the proposed rule.
Violations of the rule will be subject to TSCA section 16, which permits civil and criminal penalties, including a civil penalty of up to $46,989 per day for each violation of TSCA or TSCA rules. Comments on the proposed rule are due December 15, 2023.