Methylene chloride is a chemical used in paint and coating removal. Studies have shown that acute exposure to high concentrations of methylene chloride can lead to death, coma, and other adverse health effects. In addition, long-term chronic exposure to methylene chloride can cause cancer and harm the liver.
Under the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) has a responsibility to determine whether a chemical poses an unreasonable risk of injury to health or the environment and to take regulatory action so that the chemical no longer poses such a risk. In January 2017, building on a 2014 risk assessment of the health effects of methylene chloride, EPA proposed a rule that would largely have banned the chemical in paint and coating removal for both consumer and commercial use. In 2019, however, when EPA issued its final rule, it adopted a ban for consumer uses of methylene chloride but took no action to address the use of methylene chloride by workers engaged in paint and coating removal. Instead, EPA issued a new advance notice of proposed rule-making to consider regulatory options other than its proposed commercial ban on methylene chloride.
Several parties filed suit to challenge EPA’s failure to act to protect workers. Public Citizen filed an amicus brief in support of that challenge on behalf of itself, American College of Occupational and Environmental Medicine, American Public Health Association, Council of State and Territorial Epidemiologists, and National Council for Occupational Safety and Health. The brief argued that EPA failed to provide a reasoned explanation for its failure to adopt its proposed rule that would have declared methylene chloride to pose an unreasonable risk to the health of workers and that would have eliminated that risk by largely prohibiting its use in commercial paint and coating removal. The brief also argued that EPA could not avoid its statutory responsibility under the TSCA by initiating a new rule-making proceeding that would postpone indefinitely the agency’s duty to make the requisite unreasonable-risk finding in the TSCA.
In a decision issued on September 1, 2021, the court held that, notwithstanding the considerable force of the arguments as to the dangerousness of methylene chloride, the challenge to EPA’s failure to propose a ban on commercial uses of the chemical was not yet ripe for judicial review, in light of actions taken by EPA showing that it was continuing to consider the issue, including a June 2020 risk assessment determining that commercial uses pose an unreasonable risk.