The United States Environmental Protection Agency (EPA) announced final revised risk determinations for two chemicals, perchloroethylene (perc) and trichloroethylene (TCE). After revisiting its prior risk determinations, EPA has now determined that perc and TCE present an “unreasonable risk” to human health, as “whole chemical[s].” This is a departure from the EPA’s prior determinations, which considered individual circumstances of use to determine the risk to different groups. The EPA will now develop risk management plans for each chemical, which could propose more stringent regulatory requirements on their manufacture, processing, use, or disposal.
Perc is a colorless liquid with a variety of industrial, commercial and consumer applications. It is primarily used in industrial settings for the production of fluorinated compounds and as a solvent in dry cleaning. Perc is also contained in a number of consumer and commercial products such as adhesives for arts and crafts, brake cleaners, aerosol lubricants, sealants, stone polish, stainless steel polish and wipe cleaners.
TCE is a colorless, liquid organic compound used in a variety of industrial and commercial processes. It has a wide range of uses and can be found in degreasing solvents, lubricants, sealants, paints, cleaning products and automotive care products.
The Revised Risk Determination
The EPA conducted the risk determinations pursuant to the Toxic Substances Control Act (TSCA), which requires the EPA to prioritize and evaluate the risk of existing chemicals to determine whether they present an unreasonable risk to human health or the environment.
Prior risk determinations were based on individual circumstances of use, i.e. the risk posed to workers, occupational non-users, consumers, or bystanders of consumer use. These determinations also assumed a general adherence to OSHA regulations and the use of personal protective equipment (PPE) in industrial or manufacturing environments.
However, President Biden then issued Executive Order 13990, which directed the EPA to review previous risk evaluations for 10 chemicals, including perc and TCE. Under these revised reviews, the EPA determined that perc and TCE posed unreasonable risks as “whole chemical substance[s].” Additionally, in the revised determinations, the EPA no longer factored in an assumption that workplaces with the potential for perc or TCE exposure are compliant with OSHA regulations, or that workers regularly or properly utilize PPE when coming into contact with those chemicals.
Under this revised analysis, the EPA concluded in separate risk determinations that perc and TCE, as whole chemicals, each pose an unreasonable risk to human health for workers and consumers.
Next Steps Regarding Risk Management
Under TSCA, the EPA must take steps to address the use of perc and TCE and minimize their potential harm. Use of PPE, other occupational safety practices and engineering controls currently in use, and other means of mitigating risk will be considered in future risk management regulatory action, in compliance with the EPA’s statutory obligations under TSCA. The public will have an opportunity to comment on any proposed regulations before EPA issues a final rule. Any new regulations may have significant implications for manufacturers, distributors, and end-users of perc and TCE. The EPA’s next moves, and any resulting regulations, will be closely followed by those in the chemical and legal industries alike.
In light of the EPA’s revised risk determinations for perc and TCE, and with more stringent risk management regulation potentially forthcoming from the EPA, companies that manufacture, distribute, use or dispose of perc or TCE should take immediate steps to assess their current Material Safety Data Sheets, warnings, labels and other risk management policies and procedures to determine whether they appropriately manage health risks associated with those products, and should be sure to update their practices as needed once the EPA publishes its risk management assessments.
If you have questions about the EPA’s revised risk determination or the adequacy of your company’s current practices and policies regarding perc or TCE, please reach out to Harris Beach’s Mass Torts and Industry-wide Litigation team, led by Abbie Eliasberg Fuchs at 212-313-5408 and afuchs@harrisbeachmurtha.com, or to the Harris Beach attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.
