Appeals Court Vacates NAM-Opposed Chemical Rule

A U.S. appeals court issued a significant Toxic Substances Control Act ruling, overturning an NAM-opposed Environmental Protection Agency rule that banned most uses of a popular solvent (POLITICO Pro, subscription).

What’s going on: “A unanimous three-judge panel for the 5th U.S. Circuit Court of Appeals issued an opinion [on Sept. 15] to vacate and remand the 2024 methylene chloride risk management rule and the risk determination underpinning it …”

• Methylene chloride—used in various industrial, consumer and research applications—was among the 10 chemicals slated for review in 2016 under the TSCA.
• The risk management rule characterized methylene chloride as presenting an unreasonable risk “as a whole chemical substance,” regardless of the application, and erroneously assumed that people facing potential methylene chloride exposure were not using personal protective equipment.

The details: Last month’s comprehensive ruling addresses nearly all of the many outstanding issues raised by the NAM and other stakeholders regarding implementation of the existing chemicals program since Congress made major changes to the TSCA a decade ago.

• Those issues include whole chemical determinations, scoping discretion, occupational exposure assumptions, risk assessment methods, determinations of “unreasonable risk,” managing identified risks to the “extent necessary” and consideration of alternatives and the economic impacts of regulation.

Reining in regulations: “At every juncture of its scientific analysis, EPA has gone with the most extreme position,” Judge Edith Jones of the 5th Circuit wrote in the panel’s opinion.

• The EPA’s “approach to ‘unreasonable risk’ was far more conservative than the statutory term connotes. … EPA has no freewheeling authority.”

The NAM’s role: The appeals court’s decision comes nearly two years after the NAM filed an amicus brief urging the court to vacate the 2024 methylene chloride final rule on the grounds that it constituted agency overreach.

• “[N]ot only did Congress not authorize EPA to exercise the authority it claims in the final rule, but it could not have done so without creating serious separation-of-powers issues,” the NAM wrote.

A wider effort: The NAM has been at the forefront of industry efforts to modernize the TSCA, most recently joining with more than 100 organizations in laying out principles for risk management that will allow for targeted, evidence-based regulation.