The EPA has released guidance on a new rule that prohibits the manufacture, processing, or distribution of a the chemical methylene chloride, a solvent that is present in paint and coating removal products. The agency released this rule under the authority of the Toxic Substances Control Act (TSCA), a piece of legislation that was enacted in 1976 to protect the environment and the public from being exposed to various substances. The EPA uses the information available on chemical substances to determine whether or not they present an “unreasonable risk of injury to health or the environment.” Some of the well-known chemicals and substances regulated under TSCA include asbestos, lead-based paint, and radon.

In this case, the EPA made the determination that methylene chloride, or dichloromethane, poses an unreasonable risk to public health and the environment because of the consumer exposure inherent in the use of paint and coating removal products. They also took into account the consequences of overexposure, which range from neurological impacts, like dizziness or loss of consciousness, to death by asphyxiation.

For manufacturers, importers, processors, or commercial distributors of methylene chloride, the promulgation of this rule continues to take effect in stages, and to help these entities through the multi-step process, the EPA is releasing guidance documents clarifying how to comply with each part of the rule. This rule’s requirements for record-keeping and downstream notification took effect on August 27, 2019; the prohibitions themselves will not become effective until November 22, 2019.

The timeline is organized in a way that gives entities ample opportunity to eliminate the chemical from their products without creating an undue burden on their businesses. By mandating record-keeping and downstream notifications first, the EPA created a structured roadmap for manufacturers, importers, processors, and distributors to take inventory of their use of methylene chloride. They will be required to track the life cycle of the product as it passes through their facilities. This information paints a picture of what their liability would look like once the prohibition goes into effect.

The EPA’s comprehensive compliance guide can be found at: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-methylene-chloride.

CMBG3 Law’s Compliance practice group helps to navigate our clients through litigation matters, but we also protect them from ever having to face litigation in the first place.  Our clients come to us to understand their responsibilities, manage risk, and lessen the impact of complex regulatory schemes on their transactions or day-to-day business. CMBG3 Attorney Suzanne Englot worked as an Environmental Health and Safety Consultant, partnering with manufacturing, property management and insurance clients to ensure regulatory compliance.  This work included in-depth research on clients’ domestic and international work sites, submitting regulatory filings, and preparing clients for internal and external audits and inspections.  Please contact her for more information.