THURSDAY, MAY 16, 2024
Last week, two Texas-based paint companies filed the first lawsuit against the U.S. Environmental Protection Agency’s ban on methylene chloride.
East Fork Enterprises, Inc., and Epic Paint Company reportedly filed a joint petition seeking review of the risk management rule with the U.S. Court of Appeals for the 5th Circuit on May 10.
About the Final Rule
At the end of April, the EPA finalized the ban on most uses of methylene chloride to protect workers and communities from fatal exposure.
Methylene chloride is used in a variety of ways including consumer uses such as aerosol degreasers and brush cleaners for paints and coatings, commercial applications such as adhesives and sealants, and in industrial settings for making other chemicals.
The final risk management rule is expected to protect people from health risk while allowing key uses to continue safely with a new worker protection program. This is the second final action using the process created by the 2016 Toxic Substances Control Act amendments.
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Last week, two Texas-based paint companies filed the first lawsuit against the U.S. Environmental Protection Agency’s ban on methylene chloride. |
While the agency banned one consumer use of the chemical in 2019, the final risk management rule requires companies to rapidly phase down manufacturing, processing and distribution of methylene chloride for all consumer uses and most industrial and commercial uses, including its use in home renovations.
Consumer use will reportedly be phased out within a year, and most industrial and commercial uses will be prohibited within two years. However, for a handful of highly industrialized uses, the EPA has created a Workplace Chemical Protection Program.
The workplace chemical protection program includes strict exposure limits, monitoring requirements, and worker training and notification requirements. Uses that will continue under the Workplace Chemical Protection Program are highly industrialized and important to national security and the economy, including:
Additionally, specific uses of methylene chloride required by the National Aeronautics and Space Administration, the Department of Defense and the Federal Aviation Administration will continue with strict workplace controls because sufficient reductions in exposure are possible.
For uses of methylene chloride continuing under the Workplace Chemical Protection Program, most workplaces will reportedly have 18 months after the finalization of the risk management rule to comply with the program.
They would also be required to periodically monitor their workplace to ensure that workers are not being exposed to levels of methylene chloride that would lead to an unreasonable risk. The agency adds that, in consideration of public comments on the proposal, it has extended the compliance timeframe to give workplaces ample time to put worker protections in place.
They also revised several other aspects from the proposal, including ensuring that the Workplace Chemical Protection Program applies to the same uses whether they are federal or commercial uses, establishing a de minimis concentration, and provisions to strengthen and clarify aspects of the Workplace Chemical Protection Program such as monitoring requirements.
Ban Lawsuit
Under TSCA, publication of the rule in The Federal Register reportedly kicked off a 60-day deadline for petitioners to file suit in an appellate court with jurisdiction before it takes effect.
Epic Paint and East Fork’s petition asked the 5th Circuit to review the rule, without substantive claims on why they believe it is unlawful. According to Inside EPA, this is common practice in appellate challenges to agency action.
Both companies reportedly did not appear to have written comments on the 2023 proposal. Their lead attorney also didn’t immediately reply to requests for comment from Bloomberg Law.
Despite being the only known lawsuit so far, the industry has also expressed concerns about the final rule after its publication.
The same day that the EPA announced the ban, the American Chemistry Council issued a statement in response to the final risk management rule:
“Methylene chloride is a critical chemical used in many industrial and commercial applications. Among other things, it is used as a chemical intermediate to manufacture low global warming potential (l-GWP) refrigerants.
“While we are evaluating the risk management rule in detail, we appreciate that EPA will continue to allow the safe use of methylene chloride in various critical industrial and commercial applications while complying with workplace protection requirements. Today's final rule illustrates that EPA considered several of the significant comments the Agency received from industry and other stakeholders as it finalizes the rule and we welcome the EPA’s continued engagement with the stakeholder community to ensure that the best available data and information are the foundation for risk management actions.
“ACC continues to be disappointed with EPA’s approach to establishing occupational exposure limits. EPA’s underlying methodology to derive occupational exposure limits remains flawed and out of step with how occupational exposure limits are established globally. EPA’s methodology and approach need to be revised before being applied in subsequent risk management rules. Without making these improvements, these limits will be unworkable, unmeetable examples of unnecessary overregulation.”
Tagged categories: Chemical stripping; Environmental Protection Agency (EPA); EPA; Good Technical Practice; Government; hazardous materials; Hazards; Health & Safety; Laws and litigation; Lawsuits; Painting Contractors; Program/Project Management
