TCE Rule Takes Effect but Ultimate Fate Is Still Unknown

The US Environmental Protection Agency’s final rule to regulate trichloroethylene recently went into effect, triggering compliance deadlines for implementing its prohibition and Workplace Chemical Protection Programs even while the rule’s interim inhalation exposure limit remains subject to judicial review.

On December 17, 2024, the US Environmental Protection Agency (EPA) issued a final rule under the Toxic Substances Control Act (TSCA) to regulate trichloroethylene (TCE). The rule broadly prohibits TCE use, with time-limited exemptions for certain critical applications. Scheduled to take effect on January 16, 2025, the rule faced legal challenges in the US Court of Appeals for the Fifth and Sixth Circuits, resulting in an administrative stay by the Fifth Circuit. After consolidation and transfer to the Third Circuit, the rule took effect on March 28, 2025, except for provisions covered by the EPA’s critical use exemptions.

With the scientific basis for the rule’s maximum interim inhalation exposure level being contested by both industry and environmental petitioners, there will be significant delay in resolving the uncertainty involving workplace safety and regulatory compliance for industrial users of TCE.

THE RULE

TCE is a volatile chemical utilized in numerous industrial, commercial, and consumer products, such as industrial cleaners, degreasers, lubricants, adhesives, sealants, paints, coatings, automotive care products, and cleaning and furniture care items. The TCE rule introduces a phased prohibition, beginning with a manufacturing ban effective March 17, 2025. This gradual phase-out allows businesses time to adapt, sell, or use existing product, minimizing waste from unusable or unsellable goods.

Certain uses of TCE will continue for five to 10 years under a TSCA Section 6(g) exemption. These exemptions permit the continued use of regulated substances for critical or hard-to-replace industrial applications deemed essential to the national economy, security, or critical infrastructure, or that significantly benefit health, the environment, or public safety.

Here, the TCE rule includes time-limited Section 6(g) exemptions for TCE activities associated with cleaning rocket engines, aerospace parts, tubing for medical devices, US military vessels, NASA emergency uses, specialty polymeric microporous sheet materials manufacturing, lead-acid battery separator manufacturing, essential laboratory activities, and the disposal of TCE from cleanup of TCE-contaminated water and groundwater.

For uses of TCE that will continue for more than one year, the relevant activity can continue for the duration of the phaseout or exemption but are subject to strict worker protections—referred to as Workplace Chemical Protection Programs (WCPP)—that ensure interim inhalation exposures to TCE stay below 0.2 ppm. Owners or operators of facilities have flexibility in selecting what controls are best for their facility when determining how to comply with the WCPP.

LEGAL CHALLENGES

Several groups challenged the rule in court, including industry groups and environmental groups that each disagree with the required exposure limit on TCE. Industry petitioners claim that the interim inhalation exposure level of 0.2 ppm is excessively low and not feasible with current engineering and administrative controls. They also argue that requiring stringent personal protective equipment could introduce other health and safety risks in manufacturing settings. On the other hand, environmental groups are likely to advocate for even lower exposure levels.

Separately, on January 28, 2025, in connection with the regulatory freeze instituted under one of President Donald Trump’s first executive orders, the EPA postponed the effective date of the TCE rule to March 21, 2025. Then, on March 21, 2025, the EPA further postponed the effective date for just those provisions of the rule subject to the TSCA Section 6(g) exemptions until June 20, 2025. EPA found that industry petitioners raised serious concerns that critical uses could be disrupted if the requirement to reduce TCE exposure levels below 0.2 ppm went into effect. In other words, even if the Third Circuit lifted its administrative stay on the rule’s implementation, the provisions of the rule requiring the implementation of a WCPP for uses of TCE allowed to continue under the Section 6(g) exemptions would not go into effect until June 20, 2025.

In light of its 90-day postponement of the effective date for the Section 6(g) exemption provisions, the EPA asked the Third Circuit to extend all briefing deadlines on the motions to stay the rule by another 60 days. The EPA subsequently clarified that it did not object to narrowing the scope of the judicial administrative stay to cover only the provisions of the rule that were subject to EPA’s postponement (the critical use provisions). The court agreed and issued an order narrowing the stay to the 6(g) exemption provisions and allowing the other provisions of the rule to take effect.

Briefing on the merits is still far off, and the EPA could still request that the court vacate and remand all or parts of the rule for further review. Of note, while joint resolutions of Congress under the Congressional Review Act called for the “disapproval” of the TCE rule (see our January 27, 2025 LawFlash for more information on this resolution), the TCE rule was not included on the list of the top 10 rules that House Republicans are prioritizing for CRA action (announced by House Majority Leader Steve Scalise on February 20, 2025.)

For now, manufacturers and processors should ensure compliance with the timeframes for prohibitions and deadlines for owners or operators that are not subject to 6(g) exemptions to implement WCPPs.