Rule2026-08750
Extension of Postponement of Effectiveness for Certain Provisions of Trichloroethylene (TCE); Regulation Under the Toxic Substances Control Act (TSCA)
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Published
May 5, 2026
Issuing agencies
Environmental Protection Agency
Abstract
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)" until the conclusion of judicial review. Specifically, this postponement applies to the conditions imposed on the uses with TSCA section 6(g) exemptions.
Full Text
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<title>Federal Register, Volume 91 Issue 86 (Tuesday, May 5, 2026)</title>
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[Federal Register Volume 91, Number 86 (Tuesday, May 5, 2026)]
[Rules and Regulations]
[Pages 24133-24135]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08750]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2020-0642; FRL-8317.1-07-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)'' until the
conclusion of judicial review. Specifically, this postponement applies
to the conditions imposed on the uses with TSCA section 6(g)
exemptions.
DATES: As of May 18, 2026, 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 are postponed
until the conclusion of judicial review.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPPT-2020-0642, is available online
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Additional information about dockets
generally, along with instructions for visiting the docket in-person,
is available at <a href="https://www.epa.gov/">https://www.epa.gov/</a>.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: 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: <a href="/cdn-cgi/l/email-protection#184c5b5d364c4b5b59587d6879367f776e"><span class="__cf_email__" data-cfemail="edb9aea8c3b9beaeacad889d8cc38a829b">[email protected]</span></a>.
For general information: The TSCA Assistance Information Service
Hotline, Goodwill Vision Enterprises, 422 South Clinton Ave.,
Rochester, NY 14620; telephone number: (800) 471-7127 or (202) 554-
1404; email address: <a href="/cdn-cgi/l/email-protection#0a5e59494b2742657e6663646f4a6f7a6b246d657c"><span class="__cf_email__" data-cfemail="27737464660a6f48534b4e49426742574609404851">[email protected]</span></a>.
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
the 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 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 U.S. Court of Appeals for the Fifth and Sixth Circuits 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 60 days,
[[Page 24134]]
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 (APA), 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 Workplace Chemical Protection Program that
warranted a delay of the effective date of those provisions.
On March 28, 2025, the U.S. Court of Appeals for the Third Circuit
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 APA, 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''). Both Environmental and Labor Petitioners and EPA notified
the court of this postponement. Industry and Environmental and Labor
Petitioners reiterated their prior positions in response to those
filings.
On August 16, 2025, with judicial proceedings ongoing, EPA signed a
notice pursuant to section 705 of the APA, 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
November 17, 2025. Extension of Postponement of Effectiveness for
Certain Provisions of Trichloroethylene (TCE); Regulation Under the
Toxic Substances Control Act (TSCA), 90 FR 40534, August 20, 2025 (FRL-
8317.1-04-OCSPP) (``Third Notice''). In September 2025, EPA notified
the court that it had taken interim final action to revise certain
compliance deadlines finalized in the challenged rule.
On November 7, 2025, the court requested supplemental letter briefs
from the parties asking about ripeness, hardship, and the scope of the
stay motions in light of EPA's stated intention to reconsider and
modify the December 2024 TCE Rule and multiple postponements of the
Rule's effective date.
On November 10, 2025, EPA signed a notice pursuant to section 705
of the APA, 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 February 17, 2026. Extension of Postponement of
Effectiveness for Certain Provisions of Trichloroethylene (TCE);
Regulation Under the Toxic Substances Control Act (TSCA), 90 FR 51027,
November 14, 2025 (FRL-8317.1-05-OCSPP) (``Fourth Notice'').
The parties responded to the court's request for supplemental
letter briefs on November 20, 2025. On December 23, 2025, EPA requested
briefing on an issue newly raised by Petitioners' filings. Petitioners
opposed EPA's request.
On February 11, 2026, the court dismissed the stay motions filed by
the Industry Petitioners without prejudice as unripe, denied EPA's
abeyance motion, lifted the court's March 28, 2025, partial
administrative stay, and directed the clerk to issue a briefing
schedule for the petitions for review.
On February 12, 2026, EPA signed a notice pursuant to section 705
of the APA, 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 May 18, 2026. Extension of Postponement of
Effectiveness for Certain Provisions of Trichloroethylene (TCE);
Regulation Under the Toxic Substances Control Act (TSCA), 91 FR 7401,
February 18, 2026 (FRL-8317.1-06-OCSPP) (``Fifth Notice'').
On March 30, 2026, the several parties filed a joint motion to
establish briefing format and modify schedule. Industry parties
included Alliance for a Strong U.S. Battery Sector, Microporous, LLC,
PPG Industries, Inc., American Chemistry Council, Georgia Chemistry
Council, Texas Chemistry Council, Missouri Alliance for a Strong U.S.
Battery Sector, Trent Capital Partners, Ohio Chemistry Technology
Council, Vinyl Institute, Inc., and Olin Corporation. These industry
parties joined this motion along with EPA and Environmental
Petitioners. The court issued a modified briefing schedule on April 13,
2026. Judicial proceedings are ongoing.
II. Statutory Authority
As discussed in the Initial Notice, section 705 of the 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 pending litigation and for the same reasons as set
forth in the Initial Notice, EPA has determined that justice requires
an extension, until the conclusion of judicial review, of the
postponement of the effective date 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
[[Page 24135]]
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 and the subsequent extensions of that notice
that affects EPA's analysis of whether justice requires a stay of these
provisions, except for the procedural posture of the case. The court
dismissed without prejudice Industry Petitioners' stay motions, lifted
the court's partial administrative stay, and directed the clerk to
issue a briefing schedule on the petitions for review in its February
11, 2026, order. In light of this active and ongoing judicial review of
the 2024 TCE Final Rule and per the reasons discussed in the Initial
Notice, EPA has concluded that justice requires extending the
postponement of the effective date for the conditions imposed on each
of the TSCA section 6(g) exemptions until the judicial challenges to
the 2024 TCE Final Rule are resolved. EPA intends to publish a document
in a future edition of the Federal Register announcing the new
effective date or other dates the public may need to know.
Authority: 5 U.S.C. 705 and 15 U.S.C. 2605(a).
Lee Zeldin,
Administrator.
[FR Doc. 2026-08750 Filed 5-4-26; 8:45 am]
BILLING CODE 6560-50-P
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