2nd Circ. denies challenges to ban on deadly paint remover

(Reuters) - A federal appeals court on Wednesday denied an industry bid to partly invalidate an Environmental Protection Agency rule banning the deadly methylene chloride chemical in paint removers for consumers, and rejected a separate environmentalists' petition seeking to expand the prohibition.

A panel of the 2nd U.S. Circuit Court of Appeals rejected Halogenated Solvents Industry Alliance Inc's (HSIA) claims that the rule restricts, arbitrarily, not only sales to individuals but also some commercial sales by barring small businesses from distributing the product.

The panel also turned down a consolidated petition by the Natural Resources Defense Council (NRDC) and its co-plaintiffs, who sought to broaden the ban to commercial users, who can still buy the product in bulk, by alleging the EPA was violating its regulatory obligations under the Toxic Substances Control Act (TSCA).

HSIA and its lawyers at Squire Patton Boggs did not immediately respond to a request for comment.

Robert Sussman, a lawyer for co-plaintiff Safer Chemicals Healthy Families, said: "It's deeply disappointing that the Court declined to require EPA to ban commercial paint remover uses of methylene chloride after the Agency has delayed action for years despite dozens of deaths."

EPA spokesperson Ken Labbe said: "Because this is pending litigation, EPA has no additional information to share."

The EPA prohibited the manufacturing, import, processing and distribution of methylene chloride in paint strippers for consumer use in 2019, but not for use in industrial settings.

Exposure to methylene chloride fumes can rapidly cause dizziness, loss of consciousness and death, the agency has said.

HSIA sued shortly after the 2019 ban, as did the green coalition.

HSIA asked the court to vacate provisions of the rule prohibiting retailers from selling the product, arguing it was "inconsistent" to allow its commercial use while prohibiting contractors and artisans also commercial users, from buying the product from retailers.

The NRDC and its co-plaintiffs for their part claimed that the EPA had violated TSCA obligations to eliminate a chemical with unreasonable risks.

Responding to HSIA's claims, Senior U.S. Circuit Judge Pierre Leval wrote that the 2019 rule had deferred regulating access to methylene chloride, rather than crafted a policy favoring continued access.

The EPA determined, the following year, that commercial use of the chemical presents an unreasonable risk to health, the ruling said. That determination evidenced the absence of a policy favoring continued access to the product with which the retail ban would be "inconsistent," Leval wrote.

And given that the 2020 determination had triggered a deadline under the TSCA to finalize a rule on the substance's commercial use within two years, the judge held that the green groups' claims were "prudentially unripe."

Leval was joined by U.S. Circuit Judges Jose Cabranes and Reena Raggi.

The case is Labor Council for Latin American Advancement v. United States Environmental Protection Agency, 2nd U.S. Circuit Court of Appeals, No. 19-1042.

For Labor Council for Latin American Advancement: Jonathan Kalmuss-Katz and Eve Gartner of Earthjustice

For Vermont Public Interest Research Group and Safer Chemicals Healthy Families: Robert Sussman of Sussman and Associates

For Natural Resources Defense Council: Thomas Zimpleman of Natural Resources Defense Council

For Halogenated Solvents Industry Alliance Inc: W. Caffey Norman and Keith Bradley of Squire Patton Boggs

For EPA: Jonathan Brightbill of Winston & Strawn and Sarah Buckley with the United States Department of Justice

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