Last week, EPA released two final rules under TSCA. The first rule bans all uses of trichloroethylene (TCE). The ban is subject to several temporary exemptions for certain uses under § 6(g) of TSCA. The second rule bans consumer and certain commercial uses of tetrachloroethylene (PCE), again subject to certain exemptions under § 6(g).
The rules have been in the works for a while and are based on substantial risk characterization work by EPA. In an alternative universe, the rules might not even be particularly newsworthy, though the widespread historical use of TCE and PCE would give both rules a certain importance under any scenario.
Two factors at play make the rules particularly significant in the current moment. Both rules are based on the 2016 amendments to TSCA – probably the last piece of environmental legislation that will obtain any degree of bipartisan support for some time. When the amendments were enacted, they were trumpeted as heralding a new, more workable TSCA, a statute that had long been used as an example of ineffective government regulation. More than eight years later, these two rules are just the 3rd and 4th rules promulgated to regulate the use of existing chemicals. The fate of these rules will go a long way in determining whether the 2016 amendments heralded a new era for chemical regulation under TSCA or whether it's just the same old, same old.
This brings us to the second factor—President-elect Trump. Just about the only topic under the heading of environment for which Trump has shown any enthusiasm is toxics regulation. What he does with these rules will provide an early answer regarding whether he means it or whether his statements concerning the regulation of toxic chemicals have been simply traditional campaign rhetoric.
Finally, because I cannot resist a good example of true irony, I feel compelled to note that one of the longest-lasting § 6(g) exemptions in EPA’s TCE rule is the following:
(8) Disposal of TCE to industrial pre-treatment, industrial treatment, or publicly owned treatment works for the purposes of cleanup projects of TCE-contaminated water and groundwater until [INSERT DATE 50 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
In other words, precisely because TCE has contaminated so many sites and it takes so long to clean up TCE-contaminated sites, EPA feels compelled to permit disposal of this apparently extremely risky chemical for an additional 50 years. I get it, and as a frequent counsel to PRPs, I appreciate the exemption. And my reaction to the exemption has more to do with CERCLA than TSCA. Still, can anyone think that continuing the operation of pump and treat systems to the year 2074 will be a useful expenditure of anyone’s money?
