• EPA Proposes Ban on Certain Uses of TCE - Expanded Authority Allows Regulation of Chemicals Already in Commerce
  • May 8, 2017 | Author: Leslie G. Wolfe
  • Law Firm: Walter - Cleveland Office
  • In its first significant action under the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, the U.S. Environmental Protection Agency (EPA) has issued a proposal to ban the manufacture, import, processing, distribution and commercial use of the chemical trichloroethylene (TCE) for aerosol degreasing and spot cleaning in dry cleaning facilities. The EPA’s proposal, issued December 7, 2016, also seeks to require manufacturers, processors and distributors, (not including retailers) to provide downstream notification of TCE use prohibitions throughout the supply chain and to keep limited records.

    TCE, also known as tetrachloroethylene and perchloroethylene, is one of 10 chemicals the EPA has identified for priority risk assessment under the Lautenberg Act, which made significant changes to the Toxic Control Substances Act of 1976 (TSCA) and required the EPA to publish a list of 10 priority chemicals by December 19, 2016. According to the EPA, the 10 chemicals were selected based on multiple factors, including their prevalence as environmental contaminants, their widespread use (especially in consumer products), and their perceived or known hazards.

    The finalization of the EPA's priority list will start the clock running on the agency’s obligation to complete a risk evaluation for each of the 10 chemicals within three years. These evaluations will determine whether the chemicals present an unreasonable risk to humans and the environment. If an unreasonable risk is found, the EPA must take action to mitigate that risk within two years.

    In general, TSCA authorizes the EPA to require reporting, record-keeping and testing and to issue restrictions relating to chemical substances and/or mixtures. It does not apply to certain substances, such as food, drugs, cosmetics and pesticides, which are separately regulated. With the Lautenberg Act, the EPA now has the power to require safety reviews of all chemicals in the marketplace. This is a fundamental shift in the requirements and approach for addressing chemical safety under TSCA. The EPA has stated that the amendments to TSCA will allow the government to better protect public health and the environment.

    TCE is a liquid volatile organic compound (VOC) that has long been considered a probable human carcinogen. In 2014, the EPA completed a risk assessment for TCE which identified serious risks to workers and consumers associated with certain uses of TCE based on its potential to cause a range of adverse health effects. Because the TCE risk assessment was completed prior to the 2016 amendment of TSCA by the Lautenberg Act, the EPA already has authority to publish proposed and final rules covering certain specific uses of the chemical.

    It is estimated that around 250 million pounds of TCE are produced or imported into the U.S. per year. Although the EPA’s current proposal is limited to banning TCE as an aerosol degreaser and spot remover in dry cleaning operations, the agency is evaluating whether TCE should be prohibited, in other uses, such as vapor degreasing. The agency is developing a separate proposed regulatory action to address those risks.

    Although TSCA imposes most of its requirements on chemical manufacturers, importers and processors, owners and operators of properties and facilities that conduct aerosol degreasing or dry cleaning operations should pay close attention to the fast-changing regulatory landscape surrounding TCE and other toxic substances. By being aware of the types of risks they are exposed to and of significant developments in regulation and litigation, property owners can make better informed decisions about risk management, including decisions concerning lease provisions and environmental insurance protection.