EPA Proposes Ban on PCE
On June 8, 2023, the United States Environmental Protection Agency (“EPA”) announced a proposed rulemaking to ban most uses of perchloroethylene (“PCE”) under the Toxic Substances Control Act (“TSCA”). In the United States, PCE has a long history of use. That chemical is perhaps most commonly associated with dry-cleaning operations. Unfortunately, PCE’s potentially negative impacts on the environment and human health and safety are well documented. Indeed, PCE contamination is quite common in New York and New Jersey, as is litigation over that contamination. States such as California have already moved to phase out PCE use in drycleaning operations. EPA’s proposed action will have far-reaching impacts, as it will touch upon every PCE use – consumer and industrial alike – and stakeholders should be well aware of its potential impacts.
What Is TSCA?
Enacted in 1976, TSCA provides EPA the broad authority to regulate new and preexisting chemicals imported to, manufactured in, used in, and disposed of in the United States. Generally speaking, TSCA allows EPA to take steps to evaluate whether certain chemicals pose an unreasonable risk to human health and safety. In circumstances where EPA determines that such an unreasonable risk is present, EPA may promulgate rules to require testing or to regulated or ban that chemical. Additionally, TSCA tasks EPA with keeping an inventory of all known existing chemicals in commerce (currently, the number of chemicals on that inventory exceeds 70,000). Note, however, that EPA’s authority under TSCA does not extend to certain substances – such as pesticides and nuclear materials – and normally will not extend to chemicals that are already effectively regulated under another federal law.
Proposed PCE Rule
In a Final Risk Evaluation issued in December 2022, EPA evaluated 61 use conditions for PCE and determined that all but one of the use conditions evaluated presented an unreasonable risk to human health and safety. The sole use condition that did not present an unreasonable risk was "distribution in commerce." That finding effectively set the stage for EPA to implement a ban under TSCA.
Under EPA’s proposed risk management rule, all consumer uses of PCE (and many industrial uses) will be phased out over a twenty-fourth-month period. That said, some industrial uses – such as for purposes of manufacture of certain hydrofluorocarbons – will remain permissible, subject to certain regulatory requirements (such as workplace safety requirements). Additionally, the proposed rulemaking would include a ten-year phaseout for PCE use in drycleaning operations. In recent years, many operators have either implemented closed-loop PCE delivery systems, which are intended to minimize the risks of PCE discharges into the environment, or moved away from PCE in favor of hydrocarbons or supercritical carbon dioxide. That said, PCE remains the most commonly used dry cleaning solvent in the United States, according to the National Institutes for Health.
A final rule is not expected for quite some time – the public comment period will run for at least 60 days after the proposed rulemaking is published to the Federal Register. We will, however, continue to monitor for new developments.
About the Author: James is an Associate with Catania Mahon & Rider, focusing his practice on all aspects of environmental law under Federal, New York, and New Jersey environmental laws. James has significant experience in complex environmental litigations, environmental aspects of commercial and corporate transactions, and environmental regulation and remediation.
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