Regulatory Developments

EPA Will Send Final Methylene Chloride Rule to OMB “Shortly”

May 11, 2018

On May 10, 2018, the U.S. Environmental Protection Agency (EPA) announced several upcoming actions on methylene chloride. Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, EPA is required to perform risk evaluations on the uses of ten specific chemicals, including methylene chloride. According to EPA, it is nearing completion of problem formulations for these first ten chemicals. EPA’s announcement states that it will send a final methylene chloride rule to the Office of Management and Budget (OMB) “shortly.” EPA notes that it is not reevaluating the paint stripping uses of methylene chloride, and instead is relying on its previous risk assessments.

Background

In 2014, EPA identified the risks posed by methylene chloride when it is used in paint removers in a final risk assessment, TSCA Work Plan Chemical Risk Assessment Methylene Chloride: Paint Stripping Use. On its web page “Risk Management for Methylene Chloride,” EPA states that the final assessment “followed an extensive process of public drafts and peer review.”

On January 19, 2017, EPA proposed risk management restrictions under Section 6(a) of the Toxic Substances Control Act (TSCA) on methylene chloride and N-methylpyrrolidone (NMP). EPA proposed, among other restrictions, to prohibit the manufacture (including import), processing, and distribution in commerce of methylene chloride for all consumer and most types of commercial paint and coating removal. EPA also proposed to prohibit the use of methylene chloride in these commercial uses; to require manufacturers (including importers), processors, and distributors, except for retailers, of methylene chloride for any use to provide downstream notification of these prohibitions throughout the supply chain; and to require recordkeeping. EPA proposed an initial ten-year time-limited exemption from these proposed regulations on methylene chloride for coating removal uses critical for national security. EPA did not propose to regulate methylene chloride in commercial furniture refinishing, however, stating that it intended to propose such a regulation at a later date, after obtaining more information on this use.

On September 12, 2017, EPA held a workshop in collaboration with the Small Business Administration Office of Advocacy on the use of methylene chloride in furniture refinishing. The meeting was intended to “facilitate an exchange of information on existing use practices and furniture refinishers’ experience, in general, with paint removal products and methods.” Federal and state government representatives, industry professionals, furniture refinishing experts, non-government organizations, and academic experts, among others, discussed the role of methylene chloride in furniture refinishing, potential alternatives, economic impacts, and other issues identified in the January 2017 proposed rule.

Commentary

It is notable that EPA has decided not to revise and complete a new risk evaluation of methylene chloride but instead will rely on the existing risk assessment when preparing in final its proposed Section 6(a) regulation on methylene chloride as allowed by the “savings provision” at Section 26(p)(3). Both the risk assessment and the proposed rule were developed by the prior Administration.

As EPA has yet to submit the final rule to OMB for review, after which it would be published in the Federal Register, it is not publicly available. While it will be interesting to see what changes, if any, EPA chooses to make in the proposed rule on the basis of public comments, of keen interest to all stakeholders will be the decisions that EPA makes and the approaches that it uses in making final this first Section 6(a) rule under new TSCA. Of specific interest in this regard will be how EPA meets the legal requirements for regulating an existing chemical found at Sections 6(a), (c), (d), and (g) (these pertain to, respectively, the scope of the regulation, procedures for promulgation, the effective and compliance date(s) of the control measures, and exemptions (in this regard, EPA had proposed a Section 6(g)(1)(B) exemption for national security-related uses)) as well as how it meets the “sound science” provisions in Sections 26(h) and (i). It is unclear if this new development will have any impact on N-methylpyrrolidone (NMP), which was part of the methylene chloride proposed rule. We infer from this development that EPA is not ready to advance that part of the regulation at this time.


 
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