Industry Groups Tell Third Circuit That EPA’s TCE Exemption Is Unworkable
Companies granted an exemption from EPA’s ban on trichloroethylene (TCE) are asking the Third Circuit to vacate key conditions of that exemption, arguing that the requirements are so stringent they defeat the exemption’s purpose under the Toxic Substances Control Act (TSCA).
The brief, filed May 13, 2026, is one piece of consolidated litigation in which industry groups, environmental organizations, and labor unions are contesting EPA’s TCE prohibition. EPA has placed the delayed prohibitions for critical uses on hold pending resolution of the case.
The petitioners include a trade association, a manufacturer of a lead-acid battery component, and a company that produces a specialty material used in passports. EPA granted exemptions to the TCE ban for both uses under TSCA section 6(g), which permits exemptions when compliance “would significantly disrupt the national economy, national security, or critical infrastructure.”
However, the exemption came with a stringent 0.2 parts per million (ppm) worker exposure limit—a threshold the petitioners argue violates TSCA’s requirement that exemption conditions still “achiev[e] the purposes of the exemption.”
Even with state-of-the-art controls, the petitioners contend that the interim existing chemical exposure limit (ECEL) would require workers to wear bulky, full-facepiece respirators at all times. That level of PPE use is infeasible, they argue: some workers cannot wear it for medical reasons, it impedes communication, hearing, and movement, and it is intolerable to wear for an entire shift.
“EPA admits that respiratory PPE creates health and safety hazards, and the record demonstrates that respiratory PPE cannot feasibly be worn all day, every day, by employees in Petitioners’ manufacturing facilities,” the brief states.
“Petitioners will thus be unable to invoke the section 6(g) exemption and will have to shut down their operations in the United States—the very outcome the exemption was intended to avoid,” the petitioners allege.
The petitioners suggested alternative interim ECELs, including a limit aligning with the European Union and United Kingdom’s 6 ppm restriction, but say EPA “merely nodded at this figure without providing any reasoned analysis for rejecting it.”
Best Available Science
The petitioners also challenge the scientific basis for the 0.2 ppm threshold. Their brief focuses on a rodent oral-exposure study that allegedly underpinned the interim ECEL, arguing it was methodologically flawed in multiple respects, including that its experimental and control groups were not run concurrently. Most importantly, they argue, its linkage between low TCE exposures and congenital heart defects has not been replicated in a dozen other experiments.
“TSCA’s best-available-science requirement is meant to prevent precisely this kind of selective reliance,” the brief contends.
The petitioners also challenge EPA’s decision to limit the TCE exemption for lead-acid battery separator manufacturing to 20 years rather than the 25 years requested, arguing that the shorter duration was arbitrary.
The brief asks the court to vacate both the interim ECEL requirement and the 20-year cap on the battery-separator exemption. (The exemption for TCE used to manufacture specialty polymeric microporous sheet materials runs for 15 years and is not at issue on this point).
The consolidated proceedings were formerly captioned United Steelworkers v. EPA, No. 25-1055 (3d Cir.). The brief can be found in the docket for Microporous LLC v. EPA, No. 25-1080 (3d Cir.).
