USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Elizabeth E. Mack, Gerald D. Higdon, Susan Rainey, Elizabeth Corey and Brett A. Miller, Troutman Pepper Locke LLP
Meanwhile, the EPA is gearing up for a review of regulations under the Toxic Substances Control Act (TSCA), which was passed to implement statutory requirements to collect information on the use of PFAS in US commerce from 2011 to 2022. This reporting requirement, applicable to manufacturers and import- ers of PFAS compounds, originally required reporting in 2024, but the EPA delayed it due to concerns about how to receive the data. EPA has now pushed the reporting period to 2026. The EPA will use the delay as an opportunity to review the information it seeks to collect, including whether certain PFAS compounds can be excluded from reporting entirely. Despite an overall deregulatory tone, the EPA seems determined to press ahead with regulations for PFOS and PFOA – the two PFAS compounds most com- monly found in the environment. For other PFAS, however, the regulatory future remains uncertain, with some measures likely to be postponed or dropped altogether. Usage Bans: Postponing Deadlines and Reconsidering Rules Affecting TCE Trichloroethylene (“TCE”) is a chlorinated solvent widely used in the manufacture or processing of numerous industrial, commercial and consumer prod- ucts, including within the oilfield service and energy industry. It is primarily used in the manufacture of refrigerants and as a degreasing agent. TCE has been tied, however, to increased risks of adverse cancer and non-cancer health effects. Consequently, on 17 December 2024, the Environmental Protection Agency (EPA) issued a final rule under the Toxic Substances Control Act that prohibits almost all uses of TCE, with most uses prohibited within one year. The rule was to become effective on 16 January 2025. Under the published rule, several industries and appli- cations using TCE were granted multi-year exemp- tions from the TCE usage ban. The exemptions applied to TCE usage within the aerospace industry, the armed forces, the lead acid battery separator manufacturing industry, certain polymer sheet man- ufacturing, laboratory activities, and in the disposal of TCE-contaminated waters. Qualification for most of the exempted uses, however, hinged on a regu- lated party’s compliance with a Workplace Chemical
Protection Program (WCPP). That program, in turn, is tied to a TCE chemical exposure limit of 0.2 parts per million (“ppm”), which, if exceeded, would trigger the need for stringent personal protective equipment (PPE) for exposed individuals. Litigation followed – and the EPA received petitions for an administrative stay of the effective date of the rules on behalf of industry participants under the former and current administrations. EPA, under the previous administration, denied the requests. Industry repre- sentatives submitted renewed petitions to the EPA under the new administration on the 20th and 21st of January, 2025, to stay the effective date of the rule or, in the alternative, for an administrative stay of the final rule’s WCPP. EPA also received thirteen petitions for review of the final rule in various circuits of the US Courts of Appeals, seeking emergency stays of the rule’s effective date and WCPP requirements. Before the rules became effective, the Fifth Circuit granted a motion for a temporary administrative stay of the final rule’s effective date while the court considered an emergency stay. The petitions for review were consoli- dated in the US Court of Appeals for the Third Circuit as USW v US EPA, Case No 25-1055. According to industry representatives, the prescribed 0.2 ppm exposure limit under the WCPP was set at a level more than 20 times below what is achievable using state-of-the-art engineering and administrative controls, and orders of magnitude below equivalent standards in Europe and the United Kingdom, thus making the use of PPE a foregone conclusion. Indus- try representatives also contend that the high level of prescribed PPE would itself carry health and safety concerns for manufacturing employees, and was not sustainable on an all-day, every-day basis. EPA, under the new administration, took industry’s input seriously, acknowledging that industry repre- sentatives have “raised serious questions regard- ing the WCPP.” See 90 Fed. Reg. 40,534 (20 August 2025). EPA has, on four occasions, delayed the effec- tive date of the WCPP requirements – currently until 17 November 2025. Id. EPA has also advised the Third Circuit Court of Appeals that EPA plans to reconsider the rules at issue through formal notice and comment rule-making, and thus does not oppose a judicial
496 CHAMBERS.COM
Powered by FlippingBook