[Federal Register Volume 90, Number 159 (Wednesday, August 20, 2025)]
[Rules and Regulations]
[Pages 40534-40535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-15885]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2020-0642; FRL-8317.1-04-OCSPP]
RIN 2070-AK83
Extension of Postponement of Effectiveness for Certain Provisions
of Trichloroethylene (TCE); Regulation Under the Toxic Substances
Control Act (TSCA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notification; extension of postponement of effectiveness.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
extending the postponement of the effectiveness of certain regulatory
provisions of the final rule entitled ``Trichloroethylene (TCE);
Regulation Under the Toxic Substances Control Act (TSCA)'' for an
additional 90 days. Specifically, this postponement applies to the
conditions imposed on the uses with TSCA exemptions.
DATES: As of August 19, 2025, EPA further postpones until November 17,
2025, 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.
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:
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). The final rule included
extended phaseouts or TSCA section 6(g) exemptions to permit several
uses to continue under workplace restrictions for longer periods.
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
[[Page 40535]]
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 had 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.
On March 21, 2025, EPA signed a notice pursuant to section 705 of
the Administrative Procedure Act, 5 U.S.C. 705, further postponing the
effective date of the provisions applicable to the conditions of use
subject to TSCA section 6(g) exemptions until June 20, 2025.
Postponement of Effectiveness for Certain Provisions of
Trichloroethylene (TCE); Regulation under the Toxic Substances Control
Act (TSCA), 90 FR 14415, April 2, 2025 (FRL-8317.1-01-OCSPP) (``Initial
Notice''). In that notice, EPA explained that Petitioners Alliance,
Microporous, and PPG (``Industry Petitioners'') raised serious
questions regarding the WCPP that warranted a delay of the effective
date of those provisions.
On March 28, 2025, the court lifted the administrative stay except
as to the provisions that are subject to EPA's Initial Notice. The
court also ordered EPA to file any response to the pending stay motions
by May 27, 2025.
On May 27, 2025, the Agency filed a response to Industry
Petitioners' motions for stay stating it did not oppose a judicial stay
of the provisions subject to EPA's Initial Notice for the same reasons
EPA requested an abeyance. Industry Petitioners later replied in
support of their stay motions.
Also on May 27, 2025, EPA moved to hold the case in abeyance
because it intends to reconsider the final rule, including provisions
subject to EPA's Initial Notice, through notice-and-comment rulemaking.
Industry Petitioners later responded that they would prefer the court
decide the stay motions before deciding EPA's abeyance motion;
otherwise, they would oppose the abeyance. International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America;
United Steel, Paper, and Forestry, Rubber Manufacturing, Energy, Allied
Industrial Workers International Union; Center for Environmental
Health; and Environmental Defense Fund (``Environmental and Labor
Petitioners'') later opposed EPA's motion for abeyance. On June 18,
2025, EPA replied in support of its abeyance motion that the majority
of petitioners did not oppose EPA's request.
One day earlier, on June 17, 2025, EPA signed a notice pursuant to
section 705 of the Administrative Procedure Act, 5 U.S.C. 705, further
postponing the effective date of the provisions applicable to the
conditions of use subject to TSCA section 6(g) exemptions until August
19, 2025. Extension of Postponement of Effectiveness for Certain
Provisions of Trichloroethylene (TCE); Regulation Under the Toxic
Substances Control Act (TSCA), 90 FR 26453, June 23, 2025 (FRL-8317.1-
03-OCSPP) (``Second Notice'').
On June 25, 2025, Environmental and Labor Petitioners' filed a
letter advising the court of the Second Notice. In its same-day
response, EPA provided the court with a published copy of the Second
Notice. Industry Petitioners responded to Environmental and Labor
Petitioners' letter a few days later, reiterating their position that
the court should decide the pending stay motions before deciding EPA's
abeyance motion. The judicial proceedings are ongoing.
II. Statutory Authority
As discussed in the Initial Notice, 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. 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 v.
DeVos, 325 F. Supp. 3d 74, 106-07 (D.D.C. 2018); Sierra Club v.
Jackson, 833 F. Supp. 2d 11, 28 (D.D.C. 2012).
III. Postponement of Effective Date
In light of the fact that the pending litigation is still ongoing
and for the same reasons as set forth in the Initial Notice, EPA has
determined that justice requires a 90-day extension of the postponement
of the effective date (i.e., until November 17, 2025) of the conditions
for each of the TSCA section 6(g) exemptions. See 40 CFR 751.325(a)(2).
The extension of 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) through (iv).
The postponement will temporarily preserve the status quo while the
Third Circuit litigation is pending. Nothing has materially changed
since the Initial Notice, nor the Second Notice, that would affect
EPA's analysis of whether justice requires a stay of these provisions.
Therefore, per the reasons discussed in the Initial Notice, EPA
believes extending the postponement for 90 days is necessary.
Authority: 5 U.S.C. 705 and 15 U.S.C. 2605(a).
Lee Zeldin,
Administrator.
[FR Doc. 2025-15885 Filed 8-19-25; 8:45 am]
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