EPA recently published a final rule restricting the manufacture, processing, and import of methylene chloride in the United States for consumer paint and coating removal. The rulemaking is a result of risk assessments completed under the Toxic Substance Control Act (TSCA).
TSCA requires EPA to perform a risk assessment for qualifying chemical substances distributed in the United States. Pursuant to Section 6(a), EPA must determine if those chemical substances present an “unreasonable risk of injury to health or the environment without consideration of costs of non-risk factors.” Where risks are found (even if only for sub-populations), EPA must by rule “apply one or more requirements to the extent necessary so that the chemical substance or mixture no longer presents such risks.” In the preamble to the final rule, EPA concludes “methylene chloride is such a chemical when used in consumer paint or coating removal.”
Pursuant to the rule, it will be unlawful after November 22, 2019, to manufacture (including import), process, or otherwise distribute into commerce methylene chloride for consumer paint and coating removal. On that same date, retailers are banned from selling methylene chloride for consumer paint and coating removal, including any products used for that purpose that contain methylene chloride.
Any company manufacturing, processing, or distributing consumer paint or coating removers with methylene chloride on August 26, 2019, must notify downstream users of this prohibition. Written notification must occur by inserting the following text in the Safety Data Sheet (“SDS”) provided with the methylene chloride or any consumer paint or coating removal product that contains it:
SDS Section I(c) and 15: This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.
Moreover, companies manufacturing, processing, or distributing in commerce any methylene chloride after August 26, 2019, must retain in one location at its headquarters for three years the following information:
There is no provision in the final rule for extensions of the August and November 2019 deadlines, nor is a company relieved of the requirements due to economic hardship. Although EPA has proposed a determination of unreasonable risk from the use of methylene chloride in commercial paint and coating removal, the final rule does not ban commercial uses of methylene chloride in paint and coating removal. EPA is soliciting comment on alternatives to an outright ban on commercial uses, such as increased training and certification requirements.