The Halogenated Solvents Industry Alliance (HSIA) has sued for the review of the US EPA’s final rule that prohibits consumer use of paint removers containing dichloromethane (DCM) or methylene chloride.
The final rule in TSCA section 6 issued in March, applies to the import, manufacture, processing, and distribution to consumers of the products. Commercial uses are not covered by the ban but the agency is soliciting feedback on a possible workplace training program for workers exposed to the chemical.
It is not specified in HSIA’s complaint what aspects of the rule is challenged by the group. However, solvents group’s lawyer, Squire Patton Boggs partner Caffey Norman, said that HSIA’s chief concern is EPA definition of ‘retailers’
The rule states that “any distributor with at least one consumer end-user customer is considered a retailer.”
According to this definition, it appears to have the “unintended consequence” of identifying as “retailer” the hardware stores and other outlets where small businesses historically purchase their paint removers.
So, based on the rule’s definition, a warehouse distributor that has sold a chemical product to a consumer would be considered a ‘retailer.’ That warehouse distributor would be barred from supplying its commercial users with methylene chloride-containing products.
The presumably unintended consequence is that chemical products distributors will not sell to consumers or will stop selling methylene chloride paint strippers.
According to the HSIA, the ban “in effect eliminates access by small commercial users such as painting contractors, artisans, antique restorers, and the like who are not in a position to purchase the product in bulk quantities.”
The HSIA filed the case on May 24 at the US Court of Appeals for the DC Circuit. In April, a coalition of labor groups and NGOs filed a separate lawsuit because the commercial use of the chemical was not included in the rule.
It’s likely that the petitions will be consolidated by the courts into a single case.