[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1222-1228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00116]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2016-0737; FRL-9945-02-OCSPP]


Trichloroethylene (TCE); Revision to the Toxic Substances Control 
Act (TSCA) Risk Determination; Notice of Availability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing the 
availability of the final revision to the risk determination for the 
trichloroethylene (TCE) risk evaluation issued under the Toxic 
Substances Control Act (TSCA). The 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. EPA determined 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 workers 
always appropriately wear personal protective equipment (PPE). EPA 
understands that there could be adequate occupational safety 
protections in place at certain 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 Occupational Safety and Health 
Administration (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described by OSHA as being ``outdated and inadequate for ensuring 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,'' or because EPA finds unreasonable risk 
for purposes of TSCA notwithstanding OSHA requirements. This revision 
supersedes the condition of use-specific no unreasonable risk 
determinations in the November 2020 TCE Risk Evaluation and withdraws 
the associated TSCA order included in the November 2020 TCE Risk 
Evaluation.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPPT-2016-0737, is available online 
at https://www.regulations.gov or in-person at the Office of Pollution 
Prevention and Toxics Docket (OPPT Docket), Environmental Protection 
Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., 
Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OPPT 
Docket is (202) 566-0280. Additional instructions on visiting the 
docket, along with more information about dockets generally, is 
available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Katie 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: 
[email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general and may 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 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 nonrisk 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

[[Page 1223]]

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 nonrisk 
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 has reconsidered and is now finalizing a revised 
risk determination for TCE.

C. What action is EPA taking?

    EPA is announcing the availability of the final revision to the 
risk determination for the TCE risk evaluation issued under TSCA that 
published in November 2020 (Ref. 1). In July 2022, EPA sought public 
comment on the draft revisions (87 FR 40520, July 7, 2022). EPA 
appreciates the public comments received on the draft revision to the 
TCE risk determination. After review of these comments and 
consideration of the specific circumstances of TCE, EPA concludes that 
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 is revising and replacing Section 
5 of the November 2020 TCE Risk Evaluation (Ref. 2) where the findings 
of unreasonable risk to health were previously made for the individual 
conditions of use evaluated. EPA is also withdrawing the previously 
issued TSCA section 6(i)(l) order for two conditions of use previously 
determined not to present unreasonable risk which was included in 
Section 5.4.1 of the November 2020 TCE Risk Evaluation (Ref. 2).
    This final revision to the TCE risk determination is consistent 
with EPA's plans to revise specific aspects of the first ten TSCA 
chemical risk evaluations to ensure that the risk evaluations better 
align with TSCA's objective of protecting health and the environment. 
As a result of this revision, removing the assumption that workers 
always and appropriately wear PPE (see Unit II.C.) does 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 also drive the unreasonable risk 
in 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). However, EPA is not making condition-
of-use-specific risk determinations for those conditions of use, and 
for purposes of TSCA section 6(i), EPA is not issuing a final order 
under TSCA section 6(i)(1) for the conditions of use that do not drive 
the unreasonable risk, and does not consider the revised risk 
determination to constitute a final agency action at this point in 
time. Overall, 52 conditions of use out of 54 EPA evaluated 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 November 2020 TCE Risk Evaluation (Ref. 2).

II. Background

A. Why is EPA re-issuing the risk determination for the TCE risk 
evaluation conducted under TSCA?

    In accordance 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, 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). Following a review of specific aspects of the November 2020 TCE 
Risk Evaluation (Ref. 2) and after considering comments received on a 
draft revised risk determination for TCE, EPA has determined 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 for TCE under the statute 
and implementing regulations. In addition, EPA's final risk 
determination is explicit insofar as it does not rely on assumptions 
regarding the use of PPE in making the unreasonable risk determination 
under TSCA section 6, even though some facilities might be using PPE as 
one means to reduce worker exposures; rather, the use of PPE as a means 
of addressing unreasonable risk will be considered during risk 
management, as appropriate.
    Separately, EPA is conducting a screening approach to assess 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 
determine if there may be risks that were unaccounted for in the TCE 
risk evaluation. The screening-level approach has gone through public 
comment and independent external peer review through the SACC. The 
Agency received the final peer review report on May 18, 2022, and has 
reviewed public comments and SACC comments. EPA expects to describe its 
findings regarding the chemical-specific application of this screening-
level approach in the forthcoming proposed rule under TSCA section 6(a) 
for TCE.
    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 these risk evaluations and is

[[Page 1224]]

incorporating new policy direction in a surgical manner, while being 
mindful of 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.
    As explained in the Federal Register document announcing the 
availability of the draft revised risk determination for TCE (87 FR 
40522, July 7, 2022 (FRL-9945-01-OCSPP)), the proposed Risk Evaluation 
Procedural Rule (Ref. 8) was premised on the whole chemical approach to 
making unreasonable risk determinations. 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.'' The proposed rule, however, was unambiguous on the point that 
unreasonable risk determinations would be for the chemical substance as 
a whole, even if based on a subset of uses. See Ref. 8 at pages 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 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'' (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 as part of each risk 
evaluation document (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 Rule which stated that EPA 
will make individual risk determinations for all conditions of use 
identified in the scope. (Ref. 9 at 33744).
    In contrast to this portion of the preamble of the final Risk 
Evaluation 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 previously 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. 9 at 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, EPA has 
determined 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 a substantial number of conditions of use (spanning across most 
aspects of the chemical lifecycle--from manufacturing (including 
import), processing, industrial and commercial use, consumer use, and 
disposal) for workers, occupational non-users, consumers, and 
bystanders associated

[[Page 1225]]

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 November 2020 TCE 
Risk Evaluation (Ref. 2)) follow the issuance of a draft revision to 
the TSCA TCE unreasonable risk determination (87 FR 40520, July 07, 
2022) and the receipt of public comment. A response to comments 
document is also being issued with the final revised unreasonable risk 
determination for TCE (Ref. 10). The revisions to the unreasonable risk 
determination are based on the existing risk characterization section 
of the November 2020 TCE Risk Evaluation (Ref. 2) (Section 4) and do 
not involve additional technical or scientific analysis. The discussion 
of the issues in this Federal Register document and in the accompanying 
final revised risk determination for TCE supersede any conflicting 
statements in the November 2020 TCE Risk Evaluation (Ref. 2) and the 
earlier response to comments document (Ref. 11). 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).
    For purposes of TSCA section 6(i), EPA is making a risk 
determination on TCE as a whole chemical. Under the revised approach, 
the ``whole chemical'' risk determination for TCE supersedes the no 
unreasonable risk determinations for TCE that were premised on a 
condition-of-use-specific approach to determining unreasonable risk and 
also contains an order withdrawing the TSCA section 6(i)(1) order in 
Section 5.4.1 of the November 2020 TCE Risk Evaluation (Ref. 2).

C. What revision is EPA now making final 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 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 used 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., 
OSHA requirements for protection of workers).
    For the November 2020 TCE Risk Evaluation (Ref. 2), EPA assumed 
that workers used PPE for 21 occupational conditions of use. In the 
November 2020 TCE risk evaluation, EPA determined that there is 
unreasonable risk to workers for all these conditions of use even with 
this assumed PPE use.
    EPA is revising the assumption for TCE that workers always and 
properly use PPE. However, this does not mean that EPA questions the 
veracity of public comments which describe occupational safety 
practices often followed by industry. EPA believes it is appropriate 
when conducting risk evaluations under TSCA 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 of 
workers 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. 
Consistent with this approach, the November 2020 TCE Risk Evaluation 
(Ref. 2) 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 and 
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 practice 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 (Ref. 12).
    Therefore, EPA is making 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. 13), or because the OSHA PEL alone 
may be inadequate to protect human health, or because EPA finds 
unreasonable risk for purposes of TSCA notwithstanding OSHA 
requirements.
    In accordance with this approach, EPA is finalizing the 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 public comments received from industry 
respondents about occupational safety practices in use) will be 
considered during the risk management phase, as appropriate. This 
represents a change from the approach

[[Page 1226]]

taken in the November 2020 TCE Risk Evaluation (Ref. 2). 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, to the extent that applying those measures would address the 
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 workers always and appropriately wear 
PPE in making the whole chemical risk determination for TCE does not 
result in additional conditions of use to the original 52 conditions of 
use that drive the unreasonable risk, though EPA identifies 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 finalized revision 
to the TCE risk determination clarifies that EPA does not rely on the 
assumed use of PPE when making the risk determination for the whole 
substance; rather, the use of PPE as a means of addressing unreasonable 
risk will be considered during risk management, as appropriate.

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 1% for other uses. The total aggregate production volume 
decreased from 220.5 to 171.9 million pounds between 2012 and 2015.

E. What conclusions is EPA finalizing today in the revised TSCA risk 
evaluation based on the whole chemical approach and not assuming the 
use of PPE?

    EPA determined that TCE presents an unreasonable risk to health 
under the conditions of use. EPA's unreasonable risk determination for 
TCE as a chemical substance is driven by risks associated with the 
following conditions of use, considered singularly or in combination 
with other exposures:
     Manufacturing: domestic manufacture;
     Manufacturing: import;
     Processing: processing as a reactant/intermediate;
     Processing: incorporation into a formulation, mixture or 
reaction product;
     Processing: incorporation into articles;
     Processing: repackaging;
     Processing: recycling;
     Industrial and commercial use as a solvent for open-top 
batch vapor degreasing;
     Industrial and commercial use as a solvent for closed-loop 
batch vapor degreasing;
     Industrial and commercial use as a solvent for in-line 
conveyorized vapor degreasing;
     Industrial and commercial use as a solvent for in-line web 
cleaner vapor degreasing;
     Industrial and commercial use as a solvent for cold 
cleaning;
     Industrial and commercial use as a solvent for aerosol 
spray degreaser/cleaner and mold release;
     Industrial and commercial use as a lubricant and grease in 
tap and die fluid;
     Industrial and commercial use as a lubricant and grease in 
penetrating lubricant;
     Industrial and commercial use as an adhesive and sealant 
in solvent-based adhesives and sealants; tire repair cement/sealer; 
mirror edge sealant;
     Industrial and commercial use as a functional fluid in 
heat exchange fluid;
     Industrial and commercial use in paints and coatings as a 
diluent in solvent-based paints and coatings;
     Industrial and commercial use in cleaning and furniture 
care products in carpet cleaner and wipe cleaning;
     Industrial and commercial use in laundry and dishwashing 
products in spot remover;
     Industrial and commercial use in arts, crafts, and hobby 
materials in fixatives and finishing spray coatings;
     Industrial and commercial use in corrosion inhibitors and 
anti-scaling agents;
     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;
     Industrial and commercial use as ink, toner and colorant 
products in toner aid;
     Industrial and commercial use in automotive care products 
in brake and parts cleaner;
     Industrial and commercial use in apparel and footwear care 
products in shoe polish;
     Industrial and commercial use in hoof polish; gun 
scrubber; pepper spray; other miscellaneous industrial and commercial 
uses;
     Consumer use as a solvent in brake and parts cleaner;
     Consumer use as a solvent in aerosol electronic degreaser/
cleaner;
     Consumer use as a solvent in liquid electronic degreaser/
cleaner;
     Consumer use as a solvent in aerosol spray degreaser/
cleaner;
     Consumer use as a solvent in liquid degreaser/cleaner;
     Consumer use as a solvent in aerosol gun scrubber;
     Consumer use as a solvent in liquid gun scrubber;
     Consumer use as a solvent in mold release;
     Consumer use as a solvent in aerosol tire cleaner;
     Consumer use as a solvent in liquid tire cleaner;
     Consumer use as a lubricant and grease in tap and die 
fluid;
     Consumer use as a lubricant and grease in penetrating 
lubricant;
     Consumer use as an adhesive and sealant in solvent-based 
adhesives and sealants;
     Consumer use as an adhesive and sealant in mirror edge 
sealant;
     Consumer use as an adhesive and sealant in tire repair 
cement/sealer;
     Consumer use as a cleaning and furniture care product in 
carpet cleaner;
     Consumer use as a cleaning and furniture care product in 
aerosol spot remover;
     Consumer use as a cleaning and furniture case product in 
liquid spot remover;

[[Page 1227]]

     Consumer use in arts, crafts, and hobby materials in 
fixative and finishing spray coatings;
     Consumer use in apparel and footwear products in shoe 
polish;
     Consumer use in fabric spray;
     Consumer use in film cleaner;
     Consumer use in hoof polish;
     Consumer use in toner aid; and
     Disposal.
    The following conditions of use do not drive EPA's unreasonable 
risk determination for TCE:
     Consumer use in pepper spray; and
     Distribution in commerce.
    EPA is not making condition of use-specific risk determinations for 
these conditions of use, is not issuing a final order under TSCA 
section 6(i)(1) for the conditions of use that do not drive the 
unreasonable risk and does not consider the revised risk determination 
for TCE to constitute a final agency action at this point in time.
    Consistent with the statutory requirements of TSCA section 6(a), 
EPA will propose a risk management regulatory action to the extent 
necessary so that TCE no longer presents an unreasonable risk. EPA 
expects to focus its risk management action on the conditions of use 
that drive the unreasonable risk. However, it should be noted that, 
under TSCA section 6(a), EPA is not limited to regulating the specific 
activities found to drive unreasonable risk and may select from among a 
suite of risk management requirements in section 6(a) related to 
manufacture (including import), processing, distribution in commerce, 
commercial use, and disposal as part of its regulatory options to 
address the unreasonable risk. As a general example, EPA may regulate 
upstream activities (e.g., processing, distribution in commerce) to 
address downstream activities (e.g., consumer uses) driving 
unreasonable risk, even if the upstream activities do not drive the 
unreasonable risk.

III. Summary of Public Comments

    EPA received a total of 15 public comments on the July 7, 2022, 
draft revised risk determination for TCE during the comment period that 
ended August 8, 2022. Commenters included trade organizations, industry 
stakeholders, environmental groups, and non-governmental health 
advocacy organizations. A separate document that summarizes all 
comments submitted and EPA's responses to those comments has been 
prepared and is available in the docket for this notice (Ref. 10).

IV. Revision of the November 2020 TCE Risk Evaluation

A. Why is EPA revising the risk determination for the TCE risk 
evaluation?

    EPA is finalizing the revised 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, 5, 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: (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 revisions?

    EPA is now finalizing the revised risk determination for the 
November 2020 TCE Risk Evaluation (Ref. 2) pursuant to TSCA section 
6(b). Under the revised determination (Ref. 1), EPA concludes that TCE, 
as evaluated in the risk evaluation as a whole, presents an 
unreasonable risk of injury to health when evaluated under its 
conditions of use. This revision replaces the previous unreasonable 
risk determinations made for TCE by individual conditions of use, 
supersedes the determinations (and withdraws 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 clarifies the lack of 
reliance on assumed use of PPE as part of the risk determination.
    These 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 statements about PPE assumptions in Section 
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). The discussion of the issues in 
this Notice and in the accompanying final revision to the risk 
determination supersede any conflicting statements in the prior 
executive summary, and Section 2.3.1.2.5 and Section 4.2.2 (Table 4-9) 
from the November 2020 TCE Risk Evaluation (Ref. 2) and the response to 
comments document (Ref. 11).
    The revised unreasonable risk determination for TCE includes 
additional explanation of how the risk evaluation characterizes the 
applicable OSHA requirements, or industry or sector best practices, and 
also clarifies that no additional analysis was done, and the risk 
determination is based on the risk characterization (Section 4) of the 
November 2020 TCE Risk Evaluation (Ref. 2).

C. Will the revised risk determination be peer reviewed?

    The risk determination (Section 5 of the November 2020 TCE Risk 
Evaluation (Ref. 2)) was not part of the scope of the Science Advisory 
Committee on Chemicals (SACC) peer review of the TCE risk evaluation. 
Thus, consistent with that approach, EPA did not conduct peer review of 
the final revised unreasonable risk determination for the TCE risk 
evaluation because no technical or scientific changes were made to the 
hazard or exposure assessments or the risk characterization.

V. Order Withdrawing Previous Order Regarding Unreasonable Risk 
Determinations for Certain Conditions of Use

    EPA is also issuing a new order to withdraw the TSCA Section 
6(i)(1) no unreasonable risk order issued in Section 5.4.1 of the 
November 2020 TCE Risk Evaluation (Ref. 2). This final revised risk 
determination supersedes the condition of use-specific no unreasonable 
risk determinations in the November 2020 TCE Risk Evaluation (Ref. 2). 
The order contained in Section 5.5 of the revised risk determination 
(Ref. 1) withdraws the TSCA section 6(i)(1) order contained in Section 
5.4.1 of the November 2020 TCE Risk Evaluation (Ref. 2). Consistent 
with the statutory requirements of section 6(a), the Agency will 
propose risk management action to address the unreasonable risk 
determined in the TCE risk evaluation.

VI. 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

[[Page 1228]]

the person listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Unreasonable Risk Determination for Trichloroethylene (TCE). 
December 2022.
2. EPA. Risk Evaluation for Trichloroethylene. November 2020. EPA 
Document #740-R-18-008. https://www.regulations.gov/document/EPA-HQ-OPPT-2019-0500-0113.
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. https://www.epa.gov/newsreleases/epa-announces-path-forward-tsca-chemical-risk-evaluations.
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. Response to Public Comments to the Revised Unreasonable 
Risk Determination; Trichloroethylene (TCE). December 2022.
11. EPA. Summary of External Peer Review and Public Comments and 
Disposition for Trichloroethylene (TCE). November 2020. Available 
at: https://www.regulations.gov/document/EPA-HQ-OPPT-2019-0500-0114.
12. Occupational Safety and Health Administration (OSHA). Top 10 
Most Frequently Cited Standards for Fiscal Year 2021 (October 1, 
2020, to September 30, 2021). Accessed October 13, 2022. https://www.osha.gov/top10citedstandards.
13. OSHA. Permissible Exposure Limits--Annotated Tables. Accessed 
June 13, 2022. https://www.osha.gov/annotated-pels.

    Authority: 15 U.S.C. 2601 et seq.

    Dated: January 3, 2023.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2023-00116 Filed 1-6-23; 8:45 am]
BILLING CODE 6560-50-P


