EPA PROPOSES TO BAN MOST USES OF PERCHLOROETHYLENE (PERC OR PCE) AND NEARLY ALL USES OF TRICHLOROETHYLENE (TCE)
EPA has recently proposed bans on both perchloroethylene (“PCE”)[i] and trichloroethylene (TCE)[ii]. Both bans are proposed under Section 6 of the Toxic Substances Control Act (TSCA) which gives EPA authority to prohibit the manufacturing, processing, distribution, and import of a chemical. The proposed bans followed EPA’s risk determinations under TSCA that both PCE and TCE present an unreasonable risk of injury to human health when evaluated under their conditions of use. Both solvents are common legacy contaminants at brownfield and superfund sites. Notably, TCE was the chemical of concern in the book and movie A Civil Action, about TCE contamination in the Woburn, MA water supply. EPA added that the proposed rules should mitigate long-term risks of PCE and TCE in soils, avoiding costly cleanups.
Who is Affected?
Both proposed rules would apply to a wide range of entities, including those who manufacture (including importing), process, distribute in commerce, use, or dispose of PCE or TCE or products containing PCE or TCE. For example, PCE has been used in the dry-cleaning industry for decades. As of December 21, 2020, a dry cleaner in New York can no longer use PCE (aka perc) in a building that has at least one residence.[iii]
Background
PCE is a widely used solvent in a variety of occupational and consumer applications including fluorinated compound production, petroleum manufacturing, dry cleaning, and aerosol degreasing. PCE is also used in the production of refrigerants regulated under the American Innovation and Manufacturing Act (“AIM”), a 2020 law that addresses HFCs and is designed to reduce greenhouse gases. EPA determined that PCE presents an unreasonable risk of injury to health due to the significant adverse health effects associated with exposure to PCE. According to EPA, PCE is a chemical known to cause serious health risks such as neurotoxicity and cancer.
The majority of TCE is processed as an intermediate during the manufacture of refrigerants, specifically the hydrofluorocarbon HFC–134a, which accounts for over 80% of TCE’s annual production. TCE is also used as a solvent in a variety of commercial and consumer applications including lubricants, adhesives and sealants, paints and coatings, and other miscellaneous products. According to EPA, TCE is a toxic chemical known to cause serious health risks including cancer, neurotoxicity, and reproductive toxicity.
Proposed Rule
For PCE, EPA’s proposal would ban all consumer uses while allowing for many industrial and commercial uses to continue only where strict workplace controls could be implemented. The proposed rule would phase down manufacturing, processing, and distribution of PCE for all consumer uses and many industrial and commercial uses, most of which would be phased out in 2 years. According to EPA, the uses subject to the proposed prohibitions represent less than 20% of the annual production volume of PCE.
For dry-cleaning, EPA is proposing a 10-year phaseout for the use of PCE. For industrial and other uses of PCE that EPA is not proposing to prohibit, EPA is proposing a workplace chemical protection program with a strict inhalation exposure limit and requirements to prevent skin exposure to ensure protection for workers. The proposed rule allows for continued processing of PCE to manufacture hydrofluorocarbons HFC-125 and HFC-134a; these refrigerants are more climate-friendly than other HFCs.
For TCE, EPA has proposed a broader ban. The rule would prohibit all manufacturing, import, processing, distribution in commerce; prohibit industrial and commercial use of TCE for all uses (including all consumer uses); and prohibit the disposal of TCE to industrial pre-treatment or publicly owned treatment works. EPA proposes an 8-year phaseout for TCE processing in the manufacture of HFC–134a.
Conclusion
The proposed bans follow EPA’s extensive risk determinations under TSCA. Congress amended TSCA to require these determinations; we should expect many more in the coming months and years. Please contact our firm with any questions on how your company can stay in compliance.
Whiteman Osterman & Hanna’s longstanding environmental practice group is one of the largest of its kind in the Northeast. We represent many Fortune 500 companies, including manufactures across multiple industries, municipalities, small to mid-sized industrial companies, land developers, and trade associations. Lawyers in our practice group have substantial government experience. We help clients identify and comply with complex environmental requirements. Please contact us for more information.
[i] See Proposed Rule; Percholorethylene (PCE); Regulation under TSCA, 88 Fed. Reg. 39652 (June 16, 2023).
[ii] See Proposed Rule; Tricholorethylene (TCE); Regulation Under TSCA, 88 Fed. Reg. 74712 (Oct. 31, 2023).
[iii] See 6 NYCRR Subpart 232-2.
