Advocacy groups sue EPA over worker exclusion from methylene chloride ban

Washington — A coalition of groups representing worker rights has filed a lawsuit against the Environmental Protection Agency and Administrator Andrew Wheeler for not including workers in the agency’s final rule banning methylene chloride for consumer use.

The groups, which filed a petition for review April 18 in the U.S. Court of Appeals for the 2nd Circuit, allege that the rule leaves thousands of workers at risk by not finalizing a previous proposal related to commercial paint and coating removal.

Published in the March 27 Federal Register, the final rule prohibits manufacture (including import), processing and distribution of methylene chloride in paint removers for consumer use and requires manufacturers, processors and distributors to notify retailers and others in the supply chain about the ban.

However, in contrast to a proposed rule issued in January 2017, EPA is not finalizing “a determination of unreasonable risk from the use of methylene chloride in commercial paint and coating removal,” the final rule states.

In 2014, EPA found that exposure to methylene chloride – frequently used for bathtub refinishing – may cause adverse health effects, including cancer, harm to the central nervous system and toxicity to the liver. The rule states that EPA is aware of four fatalities linked to the substance in paint and coating removal since publication of the proposed rule, as well as 49 from 1976 to 2016.

The lawsuit petitioners include Earthjustice, on behalf of the Labor Council for Latin American Advancement; the Natural Resources Defense Council; Safer Chemicals, Healthy Families; and the Vermont Public Interest Research Group. Also listed are Lauren Atkins and Wendy Hartley, whose adult sons died from methylene chloride exposure, according to an April 23 Earthjustice press release.

“If dozens of confirmed deaths are not enough to get the Trump administration to protect workers from methylene chloride paint strippers, nothing short of a court order will,” Jonathan Kalmuss-Katz, an attorney for Earthjustice, said in the release. “There is no law, science or policy behind the exclusion of workers from EPA’s methylene chloride rule. It is a craven and illegal giveaway to companies that want to continue to manufacture and sell deadly paint strippers.”

In May 2018, EPA issued a press release indicating that the agency planned to submit finalized rulemaking of the consumer and commercial ban to the White House Office of Management and Budget “shortly.”

On behalf of LCLAA and NRDC, Earthjustice in February filed a lawsuit against EPA and Wheeler in the U.S. District Court for the Southern District of New York, challenging the ban’s delay.

Methylene chloride is among the first 10 chemicals EPA is evaluating for potential health and environmental risks under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. In the March 27 Federal Register, EPA published an advance notice of proposed rulemaking seeking public comment on potential training, certification and limited access program guidelines for commercial use of the chemical.

Comments on the ANPRM are due May 28, the same day the final rule is set to take effect.