EPA recently proposed a ban of trichloroethylene, commonly known as TCE, under the Toxic Substances Control Act (TSCA) which will have sweeping impacts on a variety of industries. Notably, EPA’s proposed rule cites an inexhaustive list of 250 NAICS codes representing the number of different industries that could be impacted by this rulemaking.

EPA’s proposed rule would prohibit the manufacture (and import), the processing, distribution in commerce, the commercial and industrial use, and the disposal of TCE. The proposed rule essentially establishes a “countdown” for TCE—a deadline of when businesses would be expected to comply with the ban, with some activities or industries being provided a longer period to come into compliance due to concerns of feasibility, economic need, and national security. The deadlines in the “countdown” range from as little as 3 months to as long as 50 years. The proposed deadlines are outlined in the below table, with the entries shaded in gray to illustrate those specific activities or industries that EPA has carved-out from the general ban to provide them more time to phase-out the use of TCE. The activities or industries are organized in the table by similar industry or activity where possible.

Proposed Ban Timeline

Disposal

One of the more interesting aspects of the proposed rule is the deadline provided for disposal of TCE. TCE is prohibited from being disposed of in an industrial pre-treatment, treatment, or publicly owned treatment works 9 months after the final rule is adopted. EPA believes that only one percent of TCE is disposed of as wastewater. Nevertheless, those businesses that fall into an exception category (and thereby are allowed to continue to process, use or manufacture TCE after that 9-month period) may face additional hurdles, including higher costs, in determining when, where, and how to dispose of (or treat) TCE in their possession. For facilities that generate solid waste with TCE concentrations, the appropriate Resource Conservation and Recovery Act (RCRA) requirements still apply to disposal. Moreover, EPA’s proposed rulemaking also serves as a reminder that dilution of hazardous waste (including by mixing it with wastewater) as a substitution for adequate treatment under RCRA is prohibited.

Also of note in the proposed rule related to disposal is the longer phase-out period for disposal of TCE when that disposal is part of a cleanup project related to TCE-contaminated water and groundwater. Even though the phase-out period is longer (50 years), this means that the countdown is nonetheless approaching for cleanups addressing contamination from TCE. If you are the owner of a contaminated property, intend to cleanup a contaminated property, or may be responsible for the cleanup of a contaminated property, it will be beneficial to evaluate the issue of TCE contamination and cleanup sooner rather than later—as the clock ticks closer to the implementation of the ban. According to one study, TCE is the second-leading chemical found at Superfund sites (present at 42% of all Superfund sites studied), and EPA itself asks for comment in the proposed rule if 50 years is a long enough phase-out period for disposal of TCE related to cleanups.

Workplace Protections

In addition to the ban of TCE, the proposed rule also imposes a workplace chemical protection program (WCPP) for those businesses that are permitted to use TCE one year after the rule becomes final. Critically, the proposed rule establishes that an owner or operator must “ensure to the extent possible that no person is exposed to an airborne concentration of TCE in excess of [.0011 ppm] as an eight (8)-hour [time weighted average].” To achieve compliance with such “existing chemical exposure limit” (ECEL) companies must institute “one or a combination of elimination, substitution, engineering controls or administrative controls to reduce exposure to or below the ECEL except to the extent that the owner or operator can demonstrate such controls are not feasible in the interim.” And if feasible exposure controls are not sufficient to reduce exposure at or below the ECEL, an owner or operator may be required under the proposed rule to supplement its controls through the use of personal protective equipment. The proposed rulemaking also contains significant monitoring and recordkeeping requirements related to the WCPP.

Key Takeaways

EPA’s proposed ban of TCE will have significant implications and potential costs, for both businesses subject to a ban in the short term as well as those businesses who are given longer to phase-out their use of TCE. These costs include finding alternatives to TCE, complying with workplace safety requirements, complying with monitoring and recordkeeping requirements, and the potential for disposal or cleanup issues in the future. EPA’s proposed rulemaking ultimately signals that the clock is ticking now for TCE; do not wait until the “midnight hour” to learn how your business may be impacted by this potential rulemaking. The time to start preparing for these potential regulatory changes is now.

88 Fed. Reg. 74712 (October 31, 2023)