Seyfarth Synopsis: Continuing its assault on commonly used chemicals that pose risks to human health, the United States Environmental Protection Agency (“USEPA”) issued (but has not yet published in the Federal Register) bans on Trichloroethylene (“TCE” or “Tri”) and Perchloroethylene (“PCE” or “Perc”) under the Toxic Substances Control Act (“TSCA”). The bans were first proposed in 2023, but have now been finalized. Unless challenged or overruled by Executive Order under the new administration, the final version of the rules will be effective 30 days after publication in the Federal Register.
TCE and PCE are industrial solvents historically used in the dry cleaning industry, in industrial degreasing, and as chemical intermediaries in the chemical production industry. TCE is commonly used in adhesives, paints, coatings, and refrigerants, while PCE is prevalent in dry cleaning and metal degreasing. Though industry has been phasing out TCE and PCE since the mid-1980’s, USEPA’s rules complete the final part of the phaseout process and place significant barriers to any use of TCE or PCE in the future.
Both the TCE ban and PCE ban prohibit the manufacture, import, production, processing, distribution in commerce, use (including consumer use) and disposal (including discharging into a pubic sewer system) the chemicals, and products containing the chemicals. Although not limited to industries in listed NAICS codes, USEPA listed more than 225 NAICS codes, and listed a number of operations, that will be affected by the bans.
The bans for certain uses and application will be phased in over time; TCE in consumer products and for commercial use will be banned within one year of the rules becoming final, with longer use allowed in certain industrial sectors. For PCE, the ban for use in new drycleaning machines will take place within 6 months, with a 10-year phaseout for older drycleaning machines. Consumer and commercial uses of PCE—other than older drycleaning machines—as well as many industrial uses, will be completely banned within 3 years.
For both TCE and PCE, USEPA has established strict workplace controls under the USEPA Workplace Chemical Protection Program (“WCPP”), and has indicted it has tried to make the WCPP rules consistent with OSHA requirements. However, USEPA’s attempt at regulating workplace safety and health under the WCPP may be inconsistent with OSHA’s jurisdiction over all-things related to occupational safety and health.
USEPA’s rules contain significant recordkeeping and reporting requirements for both TCE and PCE, and burdensome downstream notification requirements. In summary:
- Manufacturers and Processors: Must maintain detailed records of TCE and PCE usage and manufacturing, including quantities manufactured, processed, and distributed. These records must be kept for at least five years.
- Downstream Notification: Entities distributing TCE and PCE must notify downstream users of the restrictions and provide safety data sheets (SDS) outlining the hazards and safe handling practices.
- Workplace Chemical Protection Program: For PCE, workplaces must implement a WCPP, which includes developing a detailed written exposure control plan, identifying, monitoring, and controlling worker exposure, providing personal protective equipment (PPE), and conducting regular training.
- Annual Reporting: Companies must submit annual reports to the EPA detailing compliance with the new regulations, including any incidents of non-compliance and corrective actions taken.
USEPA’s new TCE and PCE rules are detailed and complex. Please do not hesitate to reach out to your Seyfarth attorney for further assistance.