Communication and Recordkeeping Requirements Related to EPA Ban on Consumer Use Paint Removers Containing Methylene Chloride Go in Effect on August 26, 2019

In the March 27, 2019, Federal Register, the U.S. Environmental Protection Agency (EPA) issued its final regulatory rulemaking that prohibits the manufacture (including import), processing, and distribution of methylene chloride for consumer paint and coating removal. 84 Fed. Reg. 11420. See Bergeson & Campbell, P.C.’s memorandum, “EPA Bans Consumer Sales of Methylene Chloride Paint Removers, Seeks Comment on Program for Commercial Uses.”

Starting on August 26, 2019, which is 90 days after the effective date of the final rule, a company that manufactures, processes, or distributes in commerce methylene chloride is required to provide notification to downstream users of the consumer use paint remover restrictions via Safety Data Sheets (SDS). We write to emphasize that this notification requirement applies to all manufacturers, processors, or distributors of methylene chloride and is not limited only to those companies engaged with paint remover products. The EPA rulemaking provides the following specific text that must be included in the SDS:

• SDS Section 1.(c): “This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.”
   
• SDS Section 15: “This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.”
   

According to the final rule, this downstream notification is needed to ensure “…processors and distributors are aware of the restrictions for methylene chloride in paint and coating removal; enhances the likelihood that the risks associated with this use of methylene chloride are addressed throughout the supply chain; and also streamlines compliance and enhances enforcement, since compliance is improved when rules are clearly and simply communicated.” (Reference 30 from EPA rulemaking: Giles, C. EPA. “Next Generation Compliance.” Environmental Forum. October 2013, p 22-26. Washington, DC.)

In addition to the information to be included in the SDS, manufacturers, processors, and distributors must also retain shipping records starting on August 26, 2019. Information required to be maintained includes:

• Documentation of the entities to whom methylene chloride was shipped;
   
• A copy of the downstream notification provided; and
   
• The amount of methylene chloride shipped.
   

EPA requires that these records be kept for three years from the date of shipment. EPA has indicated that the records can be kept at a company’s headquarters or at the facility for which the records were generated.

Commentary

The downstream communication and recordkeeping provisions apply to any company that manufactures, processes, or distributes methylene chloride. Given EPA’s regulatory attention has been laser-focused on methylene chloride use in paint remover products, it is possible that entities engaged with methylene chloride in non-paint remover applications may not be aware of these soon to be implemented requirements. We hope that EPA makes every effort to conduct outreach to methylene chloride manufacturers to ensure that compliance information is being properly transmitted to impacted parties.

In addition, the rulemaking provides some additional clarification as to what constitutes a “retailer” for purposes of this rulemaking. Specifically, the rule states that “a retailer includes a person that distributes in commerce or makes available a chemical substance, mixture or article to consumers, including via internet sales or distribution. Any distributor with at least one consumer client is considered a retailer…” Again, we hope that EPA appreciates this strict definition of retailer may not be appropriately known to potentially impacted entities and will do its due diligence to outreach.