Lynn Bergeson
Methylene Chloride

EPA Bans Most Uses of Methylene Chloride

June 10, 2024
The EPA finalizes a rule to ban most uses of methylene chloride, effective July 8, 2024, addressing health risks and setting exposure limits.

The final rule is a more defensible and flexible outcome than expected.

Personal Protective Equipment

Where elimination, substitution, engineering and administrative controls are not feasible or sufficiently protective to reduce the air concentration to or below the ECEL, or if inhalation exposure above the ECEL is still reasonably likely, EPA is codifying its minimum respiratory PPE requirements based on an owner or operator’s measured air concentration for one or more potentially exposed persons and the level of PPE needed to reduce exposure to or below the ECEL. The EPA is requiring that the owner or operator comply with the Occupational Safety and Health Administration’s (OSHA) General Requirements for PPE standard for application of a PPE program. The EPA also requires that the owner or operator comply with 29 C.F.R. Section 1910.134 for proper use, maintenance, fit-testing and training on respirator use.

The final rule also requires dermal protection, recordkeeping, notification and other requirements too numerous to summarize here to minimize and protect potentially exposed persons from dermal exposure, including 29 C.F.R. Section 1910.1052(h) and (i).

Prohibitions on Methylene Chloride

The final rule prohibits manufacture, processing, distribution and all industrial and commercial use of methylene chloride and methylene chloride-containing products, except for those uses that will continue under the WCPP. Surprisingly, the EPA codified timeframes longer than proposed for the prohibition of manufacture, processing, distribution and commercial use of methylene chloride broadly, and for particular uses such as commercial use of methylene chloride in adhesives and sealants in aircraft, space vehicles and turbine applications; and commercial use of methylene chloride in paint and coating removal for the refinishing of wooden pieces of artistic, cultural or historical value.

The final rules impose staggered prohibitions, beginning at the top of the supply chain. The timeframes for prohibitions following the publication of the final rule in the Federal Register will be:

  • Within 270 days of publication of the final rule in the Federal Register for prohibitions on distributing to retailers;
  • Within 360 days for prohibitions on distribution by retailers;
  • Within 360 days for prohibitions on manufacturing;
  • Within 450 days for prohibitions on processors;
  • Within 630 days for prohibitions on all distributors other than retailers; and
  • Within 720 days of publication in the Federal Register for prohibitions on most industrial and commercial use.

Prohibitions for Consumer Use of Methylene Chloride

The final rule prohibits the manufacture, processing and distribution in commerce of methylene chloride and methylene chloride-containing products for all consumer use. Retailers are prohibited from distributing methylene chloride and all methylene chloride-containing products to prevent products intended for industrial and commercial use under the WCPP from being purchased by consumers. The final rule includes a 10-year exemption for certain emergency uses in furtherance of the National Aeronautics and Space Administration’s mission.

Discussion

From the industry’s perspective, the final rule is a more defensible and flexible outcome than expected. The EPA used a risk-based evaluation to support its de minimis threshold for methylene chloride in formulations.

Some may question the agency’s decision to prohibit most industrial and commercial uses. Persons with these COUs may be capable of complying with EPA’s WCPP. The EPA appears, however, to be interpreting the “extent necessary” provision of TSCA Section 6(a) based on the ability of persons to demonstrate compliance with its risk management measures prior to the EPA issuing its final rule rather than prior to using methylene chloride in the workplace. This position seems amenable to legal challenge.

Despite the flexibility of the final rule, not all stakeholders will be supportive, and litigation seems inevitable. The EPA has, however, demonstrated that it will consider information provided during the comment period and will use it to inform its risk management decisions. Stakeholders are encouraged to review the final rule carefully and in forthcoming risk management rulemakings, provide data and information to the EPA as early as possible to avoid or minimize the possibility of future prohibitions under TSCA.

About the Author

Lynn L. Bergeson, Compliance Advisor columnist

LYNN L. BERGESON is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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