Notice2022-14478
Trichloroethylene (TCE); Draft Revision to Toxic Substances Control Act (TSCA) Risk Determination; Notice of Availability and Request for Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 7, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is announcing the availability of and seeking public comment on a draft revision to the risk determination for the trichloroethylene (TCE) risk evaluation issued under TSCA. The draft revision to the TCE risk determination reflects the announced policy changes to ensure the public is protected from unreasonable risks from chemicals in a way that is supported by science and the law. In this draft revision to the risk determination EPA finds that TCE, as a whole chemical substance, presents an unreasonable risk of injury to health when evaluated under its conditions of use. In addition, this revised risk determination does not reflect an assumption that all workers always appropriately wear personal protective equipment (PPE). EPA understands that there could be occupational safety protections in place at workplace locations; however, not assuming use of PPE reflects EPA's recognition that unreasonable risk may exist for subpopulations of workers that may be highly exposed because they are not covered by OSHA standards, or their employers are out of compliance with OSHA standards, or because many of OSHA's chemical-specific permissible exposure limits largely adopted in the 1970's are described by OSHA as being "outdated and inadequate for ensuring protection of worker health." This revision, when final, would supersede the condition of use-specific no unreasonable risk determinations in the November 2020 TCE risk evaluation (and withdraw the associated order) and would make a revised determination of unreasonable risk for TCE as a whole chemical substance.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 129 (Thursday, July 7, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 129 (Thursday, July 7, 2022)]
[Notices]
[Pages 40520-40526]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14478]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPPT-2016-0737; FRL-9945-01-OCSPP]
Trichloroethylene (TCE); Draft Revision to Toxic Substances
Control Act (TSCA) Risk Determination; Notice of Availability and
Request for Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is announcing the
availability of and seeking public comment on a draft revision to the
risk determination for the trichloroethylene (TCE) risk evaluation
issued under TSCA. The draft revision to the TCE risk determination
reflects the announced policy changes to ensure the public is protected
from unreasonable risks from chemicals in a way that is supported by
science and the law. In this draft revision to the risk determination
EPA finds that TCE, as a whole chemical substance, presents an
unreasonable risk of injury to health when evaluated under its
conditions of use. In addition, this revised risk determination does
not reflect an assumption that all workers always appropriately wear
personal protective equipment (PPE). EPA understands that there could
be occupational safety protections in place at workplace locations;
however, not assuming use of PPE reflects EPA's recognition that
unreasonable risk may exist for subpopulations of workers that may be
highly exposed because they are not covered by OSHA standards, or their
employers are out of compliance with OSHA standards, or because many of
OSHA's chemical-specific permissible exposure limits largely adopted in
the 1970's are described by OSHA as being ``outdated and inadequate for
ensuring protection of worker health.'' This revision, when final,
would supersede the condition of use-specific no unreasonable risk
determinations in the November 2020 TCE risk evaluation (and withdraw
the associated order) and would make a revised determination of
unreasonable risk for TCE as a whole chemical substance.
DATES: Comments must be received on or before August 8, 2022.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA--EPA-HQ-OPPT-2016-0737, through the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions
for submitting comments. Do not submit
[[Page 40521]]
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Additional instructions on commenting and visiting the
docket, along with more information about dockets generally, is
available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: For technical information contact:
Katelan McNamara, Office of Pollution Prevention and Toxics (7404M),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460-0001; telephone number: (202) 564-4361; email address:
<a href="/cdn-cgi/l/email-protection#f6bb95b8979b978497d8bd9782939a9798b6b3a6b7d8919980"><span class="__cf_email__" data-cfemail="b9f4daf7d8d4d8cbd897f2d8cddcd5d8d7f9fce9f897ded6cf">[email protected]</span></a>.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: <a href="/cdn-cgi/l/email-protection#ca9e99898be782a5bea6a3a4af8aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="b6e2e5f5f79bfed9c2dadfd8d3f6d3c6d798d1d9c0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
This action is directed to the public in general. This action may,
however, be of interest to those involved in the manufacture,
processing, distribution, use, disposal, and/or the assessment of risks
involving chemical substances and mixtures. You may be potentially
affected by this action if you manufacture (defined under TSCA to
include import), process (including recycling), distribute in commerce,
use or dispose of TCE, including TCE in products. Since other entities
may also be interested in this draft revision to the risk
determination, EPA has not attempted to describe all the specific
entities that may be affected by this action.
B. What is EPA's authority for taking this action?
TSCA section 6, 15 U.S.C. 2605, requires EPA to conduct risk
evaluations to determine whether a chemical substance presents an
unreasonable risk of injury to health or the environment, without
consideration of costs or other non-risk factors, including an
unreasonable risk to a potentially exposed or susceptible subpopulation
(PESS) identified as relevant to the risk evaluation by the
Administrator, under the conditions of use. 15 U.S.C. 2605(b)(4)(A).
TSCA sections 6(b)(4)(A) through (H) enumerate the deadlines and
minimum requirements applicable to this process, including provisions
that provide instruction on chemical substances that must undergo
evaluation, the minimum components of a TSCA risk evaluation, and the
timelines for public comment and completion of the risk evaluation.
TSCA also requires that EPA operate in a manner that is consistent with
the best available science, make decisions based on the weight of the
scientific evidence, and consider reasonably available information. 15
U.S.C. 2625(h), (i), and (k).
The statute identifies the minimum components for all chemical
substance risk evaluations. For each risk evaluation, EPA must publish
a document that outlines the scope of the risk evaluation to be
conducted, which includes the hazards, exposures, conditions of use,
and the potentially exposed or susceptible subpopulations that EPA
expects to consider. 15 U.S.C. 2605(b)(4)(D). The statute further
provides that each risk evaluation must also: (1) integrate and assess
available information on hazards and exposures for the conditions of
use of the chemical substance, including information that is relevant
to specific risks of injury to health or the environment and
information on relevant potentially exposed or susceptible
subpopulations; (2) describe whether aggregate or sentinel exposures
were considered and the basis for that consideration; (3) take into
account, where relevant, the likely duration, intensity, frequency, and
number of exposures under the conditions of use; and (4) describe the
weight of the scientific evidence for the identified hazards and
exposures. 15 U.S.C. 2605(b)(4)(F)(i) through (ii) and (iv) through
(v). Each risk evaluation must not consider costs or other non-risk
factors. 15 U.S.C. 2605(b)(4)(F)(iii).
EPA has inherent authority to reconsider previous decisions and to
revise, replace, or repeal a decision to the extent permitted by law
and supported by reasoned explanation. FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009); see also Motor Vehicle Mfrs. Ass'n v.
State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983). Pursuant to
such authority, EPA is reconsidering the risk determinations in the
November 2020 TCE Risk Evaluation.
C. What action is EPA taking?
EPA is announcing the availability of and seeking public comment on
a draft revision to the risk determination for the risk evaluation for
TCE under TSCA, which was initially published in November 2020 (Ref.
1). EPA is specifically seeking public comment on the draft revision to
the risk determination for the risk evaluation where the agency intends
to determine that TCE, as a whole chemical, presents an unreasonable
risk of injury to health when evaluated under its conditions of use.
The Agency's risk determination for TCE is better characterized as a
whole chemical risk determination rather than condition-of-use-specific
risk determinations. Accordingly, EPA would revise and replace section
5 of the risk evaluation for TCE where the findings of unreasonable
risk to health were previously made for the individual conditions of
use evaluated. EPA would also withdraw the order issued previously for
2 conditions of use previously determined not to present unreasonable
risk.
This revision would be consistent with EPA's plans to revise
specific aspects of the first ten TSCA chemical risk evaluations in
order to ensure that the risk evaluations better align with TSCA's
objective of protecting health and the environment. Under the draft
revision, the same 52 conditions of use would continue to drive the
unreasonable risk determination for TCE. Removing the assumptions that
workers always and appropriately wear PPE (see Unit II.C.) when making
the whole chemical risk determination for TCE would not alter the
conditions of use that drive the unreasonable risk determination for
TCE, though additional risks for acute non-cancer and cancer effects
from inhalation and dermal exposures would also drive the unreasonable
risk in many of those conditions of use (where previously those
conditions of use were identified as presenting unreasonable risk for
chronic non-cancer effects and cancer). Overall, 52 conditions of use
out of 54 EPA evaluated would drive the TCE whole chemical unreasonable
risk determination due to risks identified for human health. The full
list of the conditions of use evaluated for the TCE TSCA risk
evaluation is in Tables 4-59 and 4-60 of the risk evaluation (Ref. 2).
D. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
<a href="http://regulations.gov">regulations.gov</a> or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed CBI. In addition to one complete
version of the comment that includes information claimed as CBI, a copy
of the comment that does not contain the information claimed as CBI
must be submitted for inclusion in the public docket. Information so
marked
[[Page 40522]]
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at <a href="http://www.epa.gov/dockets/comments.html">http://www.epa.gov/dockets/comments.html</a>.
II. Background
A. Why is EPA re-issuing the risk determination for the TCE risk
evaluation conducted under TSCA?
In 2016, as directed by TSCA section 6(b)(2)(A), EPA chose the
first ten chemical substances to undergo risk evaluations under the
amended TSCA. These chemical substances are asbestos, 1-bromopropane,
carbon tetrachloride, C.I. Pigment Violet (PV 29), cyclic aliphatic
bromide cluster (HBCD), 1,4-dioxane, methylene chloride, n-
methylpyrrolidone (NMP), perchloroethylene (PCE), and trichloroethylene
(TCE).
From June 2020 to January 2021, EPA published risk evaluations on
the first ten chemical substances, including for TCE in November 2020.
The risk evaluations included individual unreasonable risk
determinations for each condition of use evaluated. EPA issued
determinations that particular conditions of use did not present an
unreasonable risk by order under TSCA section 6(i)(1).
In accordance with Executive Order 13990 (Ref. 3) and other
Administration priorities (Refs. 4, 5, and 6), EPA reviewed the risk
evaluations for the first ten chemical substances, including TCE, to
ensure that they meet the requirements of TSCA, including conducting
decision making in a manner that is consistent with the best available
science.
As a result of this review, EPA announced plans to revise specific
aspects of the first ten risk evaluations in order to ensure that the
risk evaluations appropriately identify unreasonable risks and thereby
help ensure the protection of human health and the environment (Ref.
7). To that end, EPA is reconsidering two key aspects of the risk
determinations for TCE published in November 2020. First, following a
review of specific aspects of the November 2020 TCE risk evaluation,
EPA proposes that making an unreasonable risk determination for TCE as
a whole chemical substance, rather than making unreasonable risk
determinations separately on each individual condition of use evaluated
in the risk evaluation, is the most appropriate approach to TCE under
the statute and implementing regulations. Second, EPA proposes that the
risk determination should be explicit that it does not rely on
assumptions regarding the use of personal protective equipment (PPE) in
making the unreasonable risk determination under TSCA section 6, even
though some facilities might be using PPE as one means to reduce
workers exposures; rather, the use of PPE would be considered during
risk management as appropriate.
Separately, EPA is conducting a screening approach to assess
potential risks from the air and water pathways for several of the
first 10 chemicals, including this chemical. For TCE the exposure
pathways that were or could be regulated under another EPA administered
statute were excluded from the final risk evaluation (see section 1.4.2
of the November 2020 TCE risk evaluation). This resulted in the ambient
air and ambient water pathways for TCE not being assessed. The goal of
the recently-developed screening approach is to remedy this exclusion
and to identify if there are risks that were unaccounted for in the TCE
risk evaluation. While this analysis is underway, EPA is not
incorporating the screening-level approach into this draft revised
unreasonable risk determination. If the results suggest there is
additional risk, EPA will determine if the risk management approaches
being contemplated for TCE will protect against these risks or if the
risk evaluation will need to be formally supplemented or revised.
This action pertains only to the risk determination for TCE. While
EPA intends to consider and may take additional similar actions on
other of the first ten chemicals, EPA is taking a chemical-specific
approach to reviewing the risk evaluations and is incorporating new
policy direction in a surgical manner, while being mindful of the
Congressional direction on the need to complete risk evaluations and
move toward any associated risk management activities in accordance
with statutory deadlines.
B. What is a whole chemical view of the unreasonable risk determination
for the TCE risk evaluation?
TSCA section 6 repeatedly refers to determining whether a chemical
substance presents unreasonable risk under its conditions of use.
Stakeholders have disagreed over whether a chemical substance should
receive: A single determination that is comprehensive for the chemical
substance after considering the conditions of use, referred to as a
whole-chemical determination; or multiple determinations, each of which
is specific to a condition of use, referred to as condition-of-use-
specific determinations.
The proposed risk evaluation procedural rule was premised on the
whole chemical approach to making an unreasonable risk determination
(Ref. 8). In that proposed rule, EPA acknowledged a lack of specificity
in statutory text that might lead to different views about whether the
statute compelled EPA's risk evaluations to address all conditions of
use of a chemical substance or whether EPA had discretion to evaluate
some subset of conditions of use (i.e., to scope out some
manufacturing, processing, distribution in commerce, use, or disposal
activities), but also stated that ``EPA believes the word `the' (in
TSCA section 6(b)(4)(A)) is best interpreted as calling for evaluation
that considers all conditions of use.'' (Ref. 8).
The proposed rule, however, was unambiguous on the point that an
unreasonable risk determination would be for the chemical substance as
a whole, even if based on a subset of uses. (See Ref. 8 at pgs. 7565-
66: ``TSCA section 6(b)(4)(A) specifies that a risk evaluation must
determine whether `a chemical substance' presents an unreasonable risk
of injury to health or the environment `under the conditions of use.'
The evaluation is on the chemical substance--not individual conditions
of use--and it must be based on `the conditions of use.' In this
context, EPA believes the word `the' is best interpreted as calling for
evaluation that considers all conditions of use.''). In the proposed
regulatory text, EPA proposed to determine whether the chemical
substance presents an unreasonable risk of injury to health or the
environment under the conditions of use (Ref. 8 at pg. 7480).
The final risk evaluation procedural rule stated (82 FR 33726, July
20, 2017) (FRL-9964-38) (Ref. 9): ``As part of the risk evaluation, EPA
will determine whether the chemical substance presents an unreasonable
risk of injury to health or the environment under each condition of
uses [sic] within the scope of the risk evaluation, either in a single
decision document or in multiple decision documents.'' (See also 40 CFR
702.47). For the unreasonable risk determinations in the first ten risk
evaluations, EPA applied this provision by making individual risk
determinations for each condition of use evaluated in each risk
evaluation (i.e., the condition-of-use-specific approach to risk
determinations). That approach was based on one particular passage in
the preamble to the final risk evaluation
[[Page 40523]]
procedural rule, which stated that EPA will make individual risk
determinations for all conditions of use identified in the scope. (Ref.
9 at pg. 33744).
In contrast to this portion of the preamble of the final risk
evaluation procedural rule, the regulatory text itself and other
statements in the preamble reference a risk determination for the
chemical substance under its conditions of use, rather than separate
risk determinations for each of the conditions of use of a chemical
substance. In the key regulatory provision excerpted earlier from 40
CFR 702.47, the text explains that, ``[a]s part of the risk evaluation,
EPA will determine whether the chemical substance presents an
unreasonable risk of injury to health or the environment under each
condition of uses [sic] within the scope of the risk evaluation, either
in a single decision document or in multiple decision documents'' (Ref.
9, emphasis added). Other language reiterates this perspective. For
example, 40 CFR 702.31(a) states that the purpose of the rule is to
establish the EPA process for conducting a risk evaluation to determine
whether a chemical substance presents an unreasonable risk of injury to
health or the environment as required under TSCA section 6(b)(4)(B).
Likewise, there are recurring references to whether the chemical
substance presents an unreasonable risk in 40 CFR 702.41(a). See, for
example, 40 CFR 702.41(a)(6), which explains that the extent to which
EPA will refine its evaluations for one or more condition of use in any
risk evaluation will vary as necessary to determine whether a chemical
substance presents an unreasonable risk. Notwithstanding the one
preambular statement about condition-of-use-specific risk
determinations, the preamble to the final rule also contains support
for a risk determination on the chemical substance as a whole. In
discussing the identification of the conditions of use of a chemical
substance, the preamble notes that this task inevitably involves the
exercise of discretion on EPA's part, and ``as EPA interprets the
statute, the Agency is to exercise that discretion consistent with the
objective of conducting a technically sound, manageable evaluation to
determine whether a chemical substance--not just individual uses or
activities--presents an unreasonable risk.'' (Ref. 8 at pg. 33729).
Therefore, notwithstanding EPA's choice to issue condition-of-use-
specific risk determinations to date, EPA interprets its risk
evaluation regulation to also allow the Agency to issue whole-chemical
risk determinations. Either approach is permissible under the
regulation. A panel of the Ninth Circuit Court of Appeals also
recognized the ambiguity of the regulation on this point. Safer
Chemicals v. EPA, 943 F.3d 397, 413 (9th Cir. 2019) (holding a
challenge about ``use-by-use risk evaluations [was] not justiciable
because it is not clear, due to the ambiguous text of the Risk
Evaluation Rule, whether the Agency will actually conduct risk
evaluations in the manner Petitioners fear'').
EPA plans to consider the appropriate approach for each chemical
substance risk evaluation on a case-by-case basis, taking into account
considerations relevant to the specific chemical substance in light of
the Agency's obligations under TSCA. The Agency expects that this case-
by-case approach will provide greater flexibility in the Agency's
ability to evaluate and manage unreasonable risk from individual
chemical substances. EPA believes this is a reasonable approach under
TSCA and the Agency's implementing regulations.
With regard to the specific circumstances of TCE, as further
explained in this notice, EPA proposes that a whole chemical approach
is appropriate for TCE in order to protect health and the environment.
The whole chemical approach is appropriate for TCE because there are
benchmark exceedances for multiple conditions of use (spanning across
most aspects of the chemical lifecycle--from manufacturing (including
import), processing, commercial and industrial use, consumer use, and
disposal) for health of workers, occupational non-users, consumers, and
bystanders associated with TCE exposures. Because these chemical-
specific properties cut across the conditions of use within the scope
of the risk evaluation, a substantial amount of the conditions of use
drive the unreasonable risk; therefore, it is appropriate for the
Agency to make a determination for TCE that the whole chemical presents
an unreasonable risk.
As explained later in this document, the revisions to the
unreasonable risk determination (section 5 of the risk evaluation)
would be based on the existing risk characterization section of the
risk evaluation (section 4 of the risk evaluation) and would not
involve additional technical or scientific analysis. The discussion of
the issues presented in this Federal Register notice and in the
accompanying draft revision to the risk determination would supersede
any conflicting statements in the prior TCE risk evaluation and the
response to comments document (Ref. 10). With respect to the TCE risk
evaluation, EPA intends to change the risk determination to a whole
chemical approach without considering the use of PPE and does not
intend to amend, nor does a whole chemical approach require amending,
the underlying scientific analysis of the risk evaluation in the risk
characterization section of the risk evaluation. EPA views the peer
reviewed hazard and exposure assessments and associated risk
characterization as robust and upholding the standards of best
available science and weight of the scientific evidence per TSCA
sections 26(h) and (i).
EPA is announcing the availability of and seeking public comment on
the draft superseding unreasonable risk determination for TCE,
including a description of the risks driving the unreasonable risk
determination under the conditions of use for the chemical substance as
a whole. For purposes of TSCA section 6(i), EPA is making a draft risk
determination on TCE as a whole chemical. Under the proposed revised
approach, the ``whole chemical'' risk determination for TCE would
supersede the no unreasonable risk determinations for TCE that were
premised on a condition-of-use-specific approach to determining
unreasonable risk. When finalized, EPA's revised unreasonable risk
determination would also contain an order withdrawing the TSCA section
6(i)(1) order in section 5.4.1 of the November 2020 TCE risk
evaluation.
C. What revision does EPA propose about the use of PPE for the TCE risk
evaluation?
In the risk evaluations for the first ten chemical substances, as
part of the unreasonable risk determination, EPA assumed for several
conditions of use that all workers were provided and always used PPE in
a manner that achieves the stated assigned protection factor (APF) for
respiratory protection, or used impervious gloves for dermal
protection. In support of this assumption, EPA considered reasonably
available information such as public comments indicating that some
employers, particularly in the industrial setting, provide PPE to their
employees and follow established worker protection standards (e.g.,
Occupational Safety and Health Administration (OSHA) requirements for
protection of workers).
For the November 2020 TCE risk evaluation, EPA assumed that workers
used PPE for 21 occupational conditions of use. However, in the
November 2020 TCE risk evaluation, EPA determined that there is
unreasonable risk to
[[Page 40524]]
workers for all these COUs even with this assumed PPE use.
EPA is revising the assumption for TCE that workers always or
properly use PPE, although it does not question the public comments
received regarding the occupational safety practices often followed by
industry respondents. When characterizing the risk to human health from
occupational exposures during risk evaluation under TSCA, EPA believes
it is appropriate to evaluate the levels of risk present in baseline
scenarios where PPE is not assumed to be used by workers. This approach
of not assuming PPE use by workers considers the risk to potentially
exposed or susceptible subpopulations (workers and occupational non-
users) who may not be covered by OSHA standards, such as self-employed
individuals and public sector workers who are not covered by a State
Plan. It should be noted that, in some cases, baseline conditions may
reflect certain mitigation measures, such as engineering controls, in
instances where exposure estimates are based on monitoring data at
facilities that have engineering controls in place.
In addition, EPA believes it is appropriate to evaluate the levels
of risk present in scenarios considering applicable OSHA requirements
(e.g., chemical-specific permissible exposure limits (PELs) and/or
chemical-specific PELs with additional substance-specific standards) as
well as scenarios considering industry or sector best practices for
industrial hygiene that are clearly articulated to the Agency. It
should be noted that, in some cases, baseline conditions may reflect
certain mitigation measures, such as engineering controls, in instances
where exposure estimates are based on monitoring data at facilities
that have engineering controls in place. Consistent with this approach,
the November 2020 TCE risk evaluation characterized risk to workers
both with and without the use of PPE. By characterizing risks using
scenarios that reflect different levels of mitigation, EPA risk
evaluations can help inform potential risk management actions by
providing information that could be used during risk management to
tailor risk mitigation appropriately to address any unreasonable risk
identified, or to ensure that applicable OSHA requirements or industry
or sector best practices that address the unreasonable risk are
required for all potentially exposed or susceptible subpopulations
(including self-employed individuals and public sector workers who are
not covered by an OSHA State Plan).
When undertaking unreasonable risk determinations as part of TSCA
risk evaluations, however, EPA does not believe it is appropriate to
assume as a general matter that an applicable OSHA requirement or
industry practices related to PPE use is consistently and always
properly applied. Mitigation scenarios included in the EPA risk
evaluation (e.g., scenarios considering use of various PPE) likely
represent what is happening already in some facilities. However, the
Agency cannot assume that all facilities have adopted these practices
for the purposes of making the TSCA risk determination.
Therefore, EPA proposes to make a determination of unreasonable
risk for TCE from a baseline scenario that does not assume compliance
with OSHA standards, including any applicable exposure limits or
requirements for use of respiratory protection or other PPE. Making
unreasonable risk determinations based on the baseline scenario should
not be viewed as an indication that EPA believes there are no
occupational safety protections in place at any location, or that there
is widespread non-compliance with applicable OSHA standards. Rather, it
reflects EPA's recognition that unreasonable risk may exist for
subpopulations of workers that may be highly exposed because they are
not covered by OSHA standards, such as self-employed individuals and
public sector workers who are not covered by a State Plan, or because
their employer is out of compliance with OSHA standards, or because
many of OSHA's chemical-specific permissible exposure limits largely
adopted in the 1970's are described by OSHA as being ``outdated and
inadequate for ensuring protection of worker health'' (Ref. 11), or
because EPA finds unreasonable risk for purposes of TSCA
notwithstanding OSHA requirements.
In accordance with this approach, EPA is proposing the draft
revision to the TCE risk determination without relying on assumptions
regarding the occupational use of PPE in making the unreasonable risk
determination under TSCA section 6; rather, information on the use of
PPE as a means of mitigating risk (including information received from
industry respondents about occupational safety practices in use) would
be considered during the risk management phase as appropriate. This
would represent a change from the approach taken in the 2020 risk
evaluation for TCE and EPA invites comments on this draft change to the
TCE risk determination. As a general matter, when undertaking risk
management actions, EPA intends to strive for consistency with
applicable OSHA requirements and industry best practices, including
appropriate application of the hierarchy of controls, when those
measures would address an identified unreasonable risk, including
unreasonable risk to potentially exposed or susceptible subpopulations.
Consistent with TSCA section 9(d), EPA will consult and coordinate TSCA
activities with OSHA and other relevant Federal agencies for the
purpose of achieving the maximum applicability of TSCA while avoiding
the imposition of duplicative requirements. Informed by the mitigation
scenarios and information gathered during the risk evaluation and risk
management process, the Agency might propose rules that require risk
management practices that may be already common practice in many or
most facilities. Adopting clear, comprehensive regulatory standards
will foster compliance across all facilities (ensuring a level playing
field) and assure protections for all affected workers, especially in
cases where current OSHA standards may not apply or be sufficient to
address the unreasonable risk.
Removing the assumption that all workers always and appropriately
wear PPE in making the whole chemical risk determination for TCE would
not result in additional conditions of use to the original 52
conditions of use that drive the unreasonable risk, though EPA would
identify additional risks for acute non-cancer and cancer effects from
inhalation and dermal exposures as driving the unreasonable risk within
many of those conditions of use (where previously those conditions of
use were identified as presenting unreasonable risk only for chronic
non-cancer effects and cancer due to assumed use of PPE). The draft
revision to the risk determination would clarify that EPA does not rely
on the assumed use of PPE when making the risk determination for the
whole substance. EPA is requesting comment on this potential change.
D. What is TCE?
TCE is a colorless liquid with a pleasant, sweet odor resembling
that of chloroform. It is considered a volatile organic compound and
has a wide range of uses in consumer and commercial products and in
industry. An estimated 84% of TCE's annual production volume is used as
an intermediate in the manufacture of the hydrofluorocarbon, HFC-134a,
an alternative to the refrigerant chlorofluorocarbon, CFC-12. Another
15% of TCE production volume is used as a degreasing solvent, leaving
approximately 2% for other uses. The total aggregate production volume
[[Page 40525]]
decreased from 220.5 to 171.9 million pounds between 2012 and 2015.
E. What conclusions did EPA reach about the risks of TCE in the 2020
TSCA risk evaluation and what conclusions is EPA proposing to reach
based on the whole chemical approach and not assuming the use of PPE?
In the 2020 risk evaluation, EPA determined that TCE presents an
unreasonable risk to health under the following conditions of use:
<bullet> Manufacturing: domestic manufacture;
<bullet> Manufacturing: import;
<bullet> Processing: processing as a reactant/intermediate;
<bullet> Processing: incorporation into a formulation, mixture or
reaction product;
<bullet> Processing: incorporation into articles;
<bullet> Processing: repackaging;
<bullet> Processing: recycling;
<bullet> Industrial and commercial use as a solvent for open-top
batch vapor degreasing;
<bullet> Industrial and commercial use as a solvent for closed-loop
batch vapor degreasing;
<bullet> Industrial and commercial use as a solvent for in-line
conveyorized vapor degreasing;
<bullet> Industrial and commercial use as a solvent for in-line web
cleaner vapor degreasing;
<bullet> Industrial and commercial use as a solvent for cold
cleaning;
<bullet> Industrial and commercial use as a solvent for aerosol
spray degreaser/cleaner and mold release;
<bullet> Industrial and commercial use as a lubricant and grease in
tap and die fluid;
<bullet> Industrial and commercial use as a lubricant and grease in
penetrating lubricant;
<bullet> Industrial and commercial use as an adhesive and sealant
in solvent-based adhesives and sealants; tire repair cement/sealer;
mirror edge sealant;
<bullet> Industrial and commercial use as a functional fluid in
heat exchange fluid;
<bullet> Industrial and commercial use in paints and coatings as a
diluent in solvent-based paints and coatings;
<bullet> Industrial and commercial use in cleaning and furniture
care products in carpet cleaner and wipe cleaning;
<bullet> Industrial and commercial use in laundry and dishwashing
products in spot remover;
<bullet> Industrial and commercial use in arts, crafts, and hobby
materials in fixatives and finishing spray coatings;
<bullet> Industrial and commercial use in corrosion inhibitors and
anti-scaling agents;
<bullet> Industrial and commercial use in processing aids in
process solvent used in battery manufacture; process solvent used in
polymer fabric spinning, fluoroelastomer manufacture and Alcantara
manufacture; extraction solvent used in caprolactam manufacture;
precipitant used in beta-cyclodextrin manufacture;
<bullet> Industrial and commercial use as ink, toner and colorant
products in toner aid;
<bullet> Industrial and commercial use in automotive care products
in brake parts cleaner;
<bullet> Industrial and commercial use in apparel and footwear care
products in shoe polish;
<bullet> Industrial and commercial use in hoof polish; gun
scrubber; pepper spray; other miscellaneous industrial and commercial
uses;
<bullet> Consumer use as a solvent in brake and parts cleaner;
<bullet> Consumer use as a solvent in aerosol electronic degreaser/
cleaner;
<bullet> Consumer use as a solvent in liquid electronic degreaser/
cleaner;
<bullet> Consumer use as a solvent in aerosol spray degreaser/
cleaner;
<bullet> Consumer use as a solvent in liquid degreaser/cleaner;
<bullet> Consumer use as a solvent in aerosol gun scrubber;
<bullet> Consumer use as a solvent in liquid gun scrubber;
<bullet> Consumer use as a solvent in mold release;
<bullet> Consumer use as a solvent in aerosol tire cleaner;
<bullet> Consumer use as a solvent in liquid tire cleaner;
<bullet> Consumer use as a lubricant and grease in tap and die
fluid;
<bullet> Consumer use as a lubricant and grease in penetrating
lubricant;
<bullet> Consumer use as an adhesive and sealant in solvent-based
adhesives and sealants;
<bullet> Consumer use as an adhesive and sealant in mirror edge
sealant;
<bullet> Consumer use as an adhesive and sealant in tire repair
cement/sealer;
<bullet> Consumer use as a cleaning and furniture care product in
carpet cleaner;
<bullet> Consumer use as a cleaning and furniture care product in
aerosol spot remover;
<bullet> Consumer use as a cleaning and furniture case product in
liquid spot remover;
<bullet> Consumer use in arts, crafts, and hobby materials in
fixative and finishing spray coatings;
<bullet> Consumer use in apparel and footwear products in shoe
polish;
<bullet> Consumer use in fabric spray;
<bullet> Consumer use in film cleaner;
<bullet> Consumer use in hoof polish;
<bullet> Consumer use in toner aid; and
<bullet> Disposal.
Under the proposed whole chemical approach to the TCE risk
determination, the unreasonable risk from TCE would continue to be
driven by risk from those same conditions of use. In addition, by
removing the assumption of PPE use in making the whole chemical risk
determination for TCE, there are no additional conditions of use that
would drive the draft unreasonable risk determination. The same 52 COUs
out of the 54 EPA evaluated would continue to drive EPA's unreasonable
risk determination, though additional risks for acute non-cancer and
cancer effects from inhalation and dermal exposures would drive the
unreasonable risk within many of those conditions of use (where
previously those conditions of use were identified as presenting
unreasonable risk only for chronic non-cancer effects and cancer due to
assumed use of PPE). Overall, 52 conditions of use out of the 54 EPA
evaluated would drive the TCE whole chemical unreasonable risk
determination.
III. Revision of the November 2020 Risk Evaluation
A. Why is EPA proposing to revise the risk determination for the TCE
risk evaluation?
EPA is proposing to revise the risk determination for the TCE risk
evaluation pursuant to TSCA section 6(b) and consistent with Executive
Order 13990, (``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis'') and other
Administration priorities (Refs. 3, 4, and 6). EPA is revising specific
aspects of the first ten TSCA existing chemical risk evaluations in
order to ensure that the risk evaluations better align with TSCA's
objective of protecting health and the environment. For the TCE risk
evaluation, this includes the draft revision: (1) making the risk
determination in this instance based on the whole chemical substance
instead of by individual conditions of use, and (2) emphasizing that
EPA does not rely on the assumed use of PPE when making the risk
determination.
B. What are the draft revisions?
EPA is releasing a draft revision of the risk determination for the
TCE risk evaluation pursuant to TSCA section 6(b). Under the revised
determination, EPA preliminarily concludes that TCE, as evaluated in
the risk evaluation as a whole, presents an unreasonable risk of injury
to health under its conditions of use. This revision would replace the
[[Page 40526]]
previous unreasonable risk determinations made for TCE by individual
conditions of use, supersede the determinations (and withdraw the
associated order) of no unreasonable risk for the conditions of use
identified in the TSCA section 6(i)(1) no unreasonable risk order, and
clarify the lack of reliance on assumed use of PPE as part of the risk
determination.
These draft revisions do not alter any of the underlying technical
or scientific information that informs the risk characterization, and
as such the hazard, exposure, and risk characterization sections are
not changed except to the extent that statements about PPE assumptions
in sections 2.3.1.2.5 (Dermal Exposure Modeling) and section 4.2.2
(Risk Estimation for Occupational Exposures), Table 4-9 (Inhalation
Exposure Data Summary and PPE Use Determination), of the TCE risk
evaluation would be superseded. The discussion of the issues in this
notice and in the accompanying draft revision to the risk determination
would supersede any conflicting statements in the prior executive
summary and sections 2.3.1.2.5 and 4.2.2 from the TCE risk evaluation
and the response to comments document (Refs. 2 and 10). Additional
policy changes to other chemical risk evaluations, including any
consideration of potentially exposed or susceptible subpopulations and/
or inclusion of additional exposure pathways, are not necessarily
reflected in these draft revisions to the risk determination.
C. Will the draft revised risk determination be peer reviewed?
The risk determination (section 5 in the November 2020 risk
evaluation) was not part of the scope of the peer reviews of the TCE
risk evaluation by the Science Advisory Committee on Chemicals (SACC).
Thus, consistent with that approach, EPA does not intend to conduct
peer review of the draft revised unreasonable risk determination for
the TCE risk evaluation because no technical or scientific changes will
be made to the hazard or exposure assessments or the risk
characterization.
D. What are the next steps for finalizing revisions to the risk
determination?
EPA will review and consider public comment received on the draft
revised risk determination for the TCE risk evaluation and, after
considering those public comments, issue the revised final TCE risk
determination. If finalized as drafted, EPA would also issue a new
order to withdraw the TSCA section 6(i)(1) no unreasonable risk order
issued in Section 5.4.1 of the 2020 TCE risk evaluation. This final
revised risk determination would supersede the November 2020 risk
determinations of no unreasonable risk. Consistent with the statutory
requirements of TSCA section 6(a), the Agency would then propose risk
management actions to address the unreasonable risk determined in the
TCE risk evaluation.
IV. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the person
listed under FOR FURTHER INFORMATION CONTACT.
1. EPA Draft Revised Unreasonable Risk Determination for TCE,
Section 5, July 2022.
2. EPA Risk Evaluation for Trichloroethylene. EPA Document #740-R-
18-008. November 2020. <a href="https://www.epa.gov/sites/default/files/2020-11/documents/1._risk_evaluation_for_trichloroethylene_tce_casrn_79-01-6.pdf">https://www.epa.gov/sites/default/files/2020-11/documents/1._risk_evaluation_for_trichloroethylene_tce_casrn_79-01-6.pdf</a>.
3. Executive Order 13990. Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis.
Federal Register. 86 FR 7037, January 25, 2021.
4. Executive Order 13985. Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government. Federal
Register. 86 FR 7009, January 25, 2021.
5. Executive Order 14008. Tackling the Climate Crisis at Home and
Abroad. Federal Register. 86 FR 7619, February 1, 2021.
6. Presidential Memorandum. Memorandum on Restoring Trust in
Government Through Scientific Integrity and Evidence-Based
Policymaking. Federal Register. 86 FR 8845, February 10, 2021.
7. EPA Press Release. EPA Announces Path Forward for TSCA Chemical
Risk Evaluations. June 2021. <a href="https://www.epa.gov/newsreleases/epa-announces-path-forward-tsca-chemical-risk-evaluations">https://www.epa.gov/newsreleases/epa-announces-path-forward-tsca-chemical-risk-evaluations</a>.
8. EPA. Proposed Rule; Procedures for Chemical Risk Evaluation Under
the Amended Toxic Substances Control Act. Federal Register. 82 FR
7562, January 19, 2017 (FRL-9957-75).
9. EPA. Final Rule; Procedures for Chemical Risk Evaluation Under
the Amended Toxic Substances Control Act. Federal Register. 82 FR
33726, July 20, 2017 (FRL-9964-38).
10. EPA. Summary of External Peer Review and Public Comments and
Disposition for Trichloroethylene (TCE). November 2020. <a href="https://www.regulations.gov/document/EPA-HQ-OPPT-2019-0500-0114">https://www.regulations.gov/document/EPA-HQ-OPPT-2019-0500-0114</a>.
11. Occupational Safety and Health Administration. Permissible
Exposure Limits--Annotated Tables. Accessed June 13, 2022. <a href="https://www.osha.gov/annotated-pels">https://www.osha.gov/annotated-pels</a>.
Authority: 15 U.S.C. 2601 et seq.
Dated: July 1, 2022.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2022-14478 Filed 7-6-22; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 7, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.