90 FR 159 pgs. 40534-40535 - Extension of Postponement of Effectiveness for Certain Provisions of Trichloroethylene (TCE); Regulation Under the Toxic Substances Control Act (TSCA)
Type: RULEVolume: 90Number: 159Pages: 40534 - 40535
Pages: 40534, 40535Docket number: [EPA-HQ-OPPT-2020-0642; FRL-8317.1-04-OCSPP]
FR document: [FR Doc. 2025-15885 Filed 8-19-25; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
[top]
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.
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: TCE.TSCA@epa.gov .
For general information: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: TSCA-Hotline@epa.gov .
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.
[top] 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
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]
BILLING CODE 6560-50-P