[Federal Register Volume 90, Number 62 (Wednesday, April 2, 2025)]
[Rules and Regulations]
[Pages 14415-14417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-05641]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2020-0642; FRL 8317.1-01-OCSPP]
RIN 2070-AK83
Postponement of Effectiveness for Certain Provisions of
Trichloroethylene (TCE); Regulation Under the Toxic Substances Control
Act (TSCA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notification; postponement of effectiveness.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
postponing the effectiveness of certain regulatory provisions of the
final rule entitled ``Trichloroethylene (TCE); Regulation Under the
Toxic Substances Control Act (TSCA)'' for 90 days pending judicial
review. Specifically, this postponement applies to the conditions
imposed on the uses with TSCA exemptions.
DATES: As of March 21, 2025, the EPA further postpones the conditions
imposed on each of the TSCA section 6(g) exemptions, as described in
this document, in the final rule published on December 17, 2024 at 89
FR 102568 until June 20, 2025.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPPT-2020-0642, is available online
at https://www.regulations.gov. Additional information about dockets
generally, along with instructions for visiting the docket in-person,
is available at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information: Gabriela Rossner, Existing Chemicals
Risk Management Division, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460-0001; telephone number: (202) 565-2426; email address:
[email protected].
For general information: The TSCA-Hotline, ABVI-Goodwill, 422 South
Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404;
email address: [email protected].
SUPPLEMENTARY INFORMATION:
[[Page 14416]]
I. Background
On December 17, 2024, EPA issued a final risk-management rule under
TSCA section 6(a) prohibiting all uses of trichloroethylene (TCE), most
of which would be prohibited within one year, including TCE manufacture
and processing for most commercial and all consumer products. (89 FR
102568, December 17, 2024 (FRL-8317-02-OCSPP)). That final rule
included extended phaseouts or TSCA section 6(g) exemptions to permit
several uses to continue under workplace restrictions for longer
periods, including an interim exposure level (ECEL) of 0.2 ppm.
The final rule was originally scheduled to become effective on
January 16, 2025. EPA received petitions for an administrative stay of
the effective date on behalf of Microporous, LLC (Microporous), which
also separately sought partial reconsideration of the final rule, and
Alliance for a Strong U.S. Battery Sector (Alliance) on January 10,
2025. EPA denied these requests on January 15, 2025. Microporous and
Alliance submitted renewed petitions to the Agency to stay the
effective date of the rule, or, in the alternative, for an
administrative stay of the final rule's workplace conditions for
battery separator manufacturers, on January 20, 2025. PPG Industries,
Inc. (PPG) also submitted a request for an administrative stay on
January 21, 2025.
EPA also received thirteen petitions for review of the final rule
in various circuits of the U.S. Courts of Appeals. On January 13, 2025,
petitioners Microporous and Alliance filed emergency motions for stay
in the Fifth and Sixth Circuit Courts of Appeals of the final rule's
effective date and workplace conditions for battery-separator
manufacturers, as well as a temporary administrative stay of the final
rule pending consideration of the emergency stay motion. The same day,
the Fifth Circuit granted the motion for a temporary administrative
stay of the final rule's effective date while the court considered the
emergency stay motion.
Shortly thereafter, the petitions for review were consolidated in
the U.S. Court of Appeals for the Third Circuit as USW v. U.S. EPA,
Case No. 25-1055. On January 16, 2025, the Third Circuit issued an
order leaving the temporary administrative stay of the effective date
of the final rule in place pending briefing on whether the temporary
stay should be lifted or converted to a permanent stay. On January 21,
2025, petitioner PPG filed a new stay motion with the court, and
Alliance and Microporous refiled their existing motions to stay the
effective date. On January 24, 2025, EPA filed a motion requesting that
the court extend all deadlines in the case for sixty days, including
with respect to further stay briefing, which the court granted.
EPA temporarily delayed the effective date of the final rule until
March 21, 2025. (90 FR 8254, January 28, 2025 (FRL-12583-01-OA)).
Although the final rule has yet to go into effect, it was incorporated
into the Code of Federal Regulations (CFR) on January 16, 2025. See 40
CFR part 751, subpart D.
II. Statutory Authority
Section 705 of the Administrative Procedure Act (APA) authorizes an
agency to postpone the effective date of an agency action pending
judicial review when the agency finds ``that justice so requires.'' 5
U.S.C. 705. In determining whether justice requires staying an action,
the agency should weigh the equities and consider the underlying
litigation to assess whether a stay is necessary to ``afford parties an
adequate judicial remedy.'' Bauer v. DeVos, 325 F. Supp. 3d 74, 106
(D.D.C. 2018) (citing APA, Pub. L. 1944-46, S. Doc. No. 248, at 277
(1946)). This analysis includes ``balancing the competing claims of
injury, considering the effect on each party of granting a stay, and
paying particular regard for the public consequences.'' Id. at 107. An
agency need only provide a ``reasoned explanation'' that is sufficient
to allow a reviewing court to evaluate whether an administrative stay
was appropriate. Id. at 106.
In deciding whether to grant a stay under APA section 705, EPA has
occasionally employed the four-factor test for a judicial stay that
courts typically use in determining whether to issue a preliminary
injunction. See, e.g., Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008). The EPA did not use the four-factor test for a
judicial stay in the Agency's review of Microporous' and Alliance's
January 10, 2025, request for an administrative stay and is not
employing it in this administrative stay. Nothing in APA section 705
requires that agencies apply the four-factor test for preliminary
judicial relief. Rather, the APA simply requires that the agency find
``that justice so requires'' a stay pending judicial review. EPA's
approach of weighing equitable concerns and assessing whether a stay is
required to ensure that parties may obtain an adequate judicial remedy
is consistent with APA section 705.
Notice and comment is not required when an agency delays the
effective date of a rule under APA section 705 because such a stay
pending judicial review is not substantive rulemaking subject to APA
section 553; it merely maintains the status quo to allow for judicial
review. See Bauer, 325 F. Supp. 3d at 106-07; Sierra Club v. Jackson,
833 F. Supp. 2d 11, 28 (D.D.C. 2012).
III. Postponement of Effective Date
In light of the pending litigation, and for the following reasons,
EPA has reconsidered its position from its earlier denial of an
administrative stay pending judicial review and determined that justice
requires a 90-day postponement of the effective date (i.e., until June
20, 2025) of the conditions for each of the TSCA section 6(g)
exemptions. See 40 CFR 751.325(a)(2). The postponement applies, for
example, to the conditions imposed under the TSCA section 6(g)
exemption for the use of TCE as a processing aid for specialty
polymeric microporous sheet material manufacturing. 40 CFR
751.325(b)(6)(i)-(iv).
The postponement will temporarily preserve the status quo while the
Third Circuit litigation is pending. Several petitioners have raised
serious questions concerning the validity of the workplace conditions
imposed by the final rule's TSCA section 6(g) exemptions for lead-acid
battery separator manufacturing and specialty polymeric microporous
sheet materials. Petitioners argue that the interim workplace
conditions are impracticable and function as a total ban, which was not
the EPA's intention in providing for the TSCA section 6(g) exemptions.
Specifically, petitioners allege that because the interim workplace
conditions would require petitioners to reduce TCE exposure levels to
the interim ECEL of 0.2 ppm, the final rule effectively requires the
use of personal protective equipment that cannot feasibly be worn all
day, and therefore could cause petitioners to cease operations.
Although EPA does not concede these allegations, petitioners have
raised significant legal challenges and allege significant harms as a
result of the workplace conditions required by the final rule's TSCA
section 6(g) exemptions.
In the final rule, EPA determined that the petitioners' uses, along
with several other uses, would be given exemptions under TSCA section
6(g). 89 FR at 102610. Specifically, EPA determined that banning the
use of TCE as a processing aid for lead acid battery separator
manufacturing would significantly disrupt the national economy,
national security, or critical infrastructure under TSCA section
6(g)(1)(B), and that the use of TCE as a
[[Page 14417]]
processing aid for specialty polymeric microporous sheet material
manufacturing is a critical or essential use for which no technically
and economically feasible safer alternative is available, taking into
consideration hazard and exposure under TSCA section 6(g)(1)(A). EPA
similarly found that several other uses met the criteria at either TSCA
section 6(g)(1)(B) or 6(g)(1)(A). EPA placed conditions on these uses
that protect workers while achieving the purposes of the exemptions. 89
FR at 102633-35. EPA finalized these exemptions after careful
consideration of the comments submitted by petitioners, and others, and
the exemptions are intended to permit these critical activities to
continue. EPA has reconsidered its position regarding the interim
workplace conditions since its January 15, 2025, denial in light of the
petitions for review and is concerned that critical uses may be
disrupted if the identified portions of the final rule go into effect.
That would be contrary to the purpose of the exemptions, and the EPA
believes a limited postponement of the effective date for these aspects
of the final rule to preserve the status quo for those uses with TSCA
section 6(g) exemptions is warranted in light of the pending judicial
review.
Moreover, a limited postponement that maintains the status quo for
these uses appropriately balances the alleged harm to petitioners and
other entities with critical uses against the public interest in the
health protections that will be afforded by the broader TCE
prohibitions and workplace protections going into effect. Because this
action will not delay the implementation of other requirements that
bear no impact on the specific activities of the administrative
petitioners and of persons who conduct other critical uses, the EPA has
determined that the balance of harms weighs in favor of a narrowly
tailored postponement. This limited postponement of the effective date
is required to ensure that the parties can ultimately obtain an
adequate judicial remedy.
Authority: 5 U.S.C. 705 and 15 U.S.C. 2605(a).
Lee Zeldin
Administrator.
[FR Doc. 2025-05641 Filed 3-31-25; 8:45 am]
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