The U.S. Environmental Protection Agency (EPA) issued in October 2013 a final rule amending a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances. The rule is receiving praise because it narrowly and precisely targets the scope of the “articles” (finished products) subject to the SNUR requirements.
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Background
Under the Toxic Substances Control Act (TSCA), the EPA is authorized to determine whether use of a chemical is a “significant new use.” If the EPA makes that determination, entities are required to submit a significant new use notice as a predicate to commercial manufacture or processing of the chemical.
Last year, the EPA proposed a SNUR for so-called long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances that designates as a “new use” manufacturing and processing for use as part of, or treatment of, carpets. The final rule issued in October amends an earlier SNUR by adding PFAS chemical substances that have completed the TSCA new chemical review process, but haven’t yet commenced production or import, and designates “processing” as a significant new use. The EPA also made the article exemption inapplicable to importers of LCPFAC chemical substances as part of carpets. Effective December 23, 2013, companies subject to these SNURs must notify the EPA at least 90 days before commencing any significant new use.
The EPA states that while the U.S. chemical industry has largely voluntarily phased out this category of chemicals, these substances could still be imported in carpets. The final rule ensures that the EPA “has the opportunity to take action to restrict or limit the intended use, if warranted, for any new domestic uses or imports.” In addition, according to the EPA, the final rule will “provide a level playing field for those companies who stepped up to cease the use of these chemicals in this country, while at the same time protecting the American public from exposure to these chemicals in imported carpet products.”
Discussion
The application of SNURs to articles has been a hotly debated topic. EPA notes it’s making the article exemption inapplicable to importers of LCPFAC chemical substances as part of carpets. EPA states that because the exemption “is based on an assumption that people and the environment will generally not be exposed to chemical substances in articles,” such exposure could occur both during the carpet manufacture process and during the lifetime of the finished carpet, thus suggesting the article exemption should be disallowed. The article exemption remains in effect for importers of LCPFAC chemical substances as part of other types of articles. It also continues to apply for processing of LCPFAC chemical substances as part of an article (i.e., carpet) because the EPA is aware that existing stocks of carpets may still contain LCPFAC substances. The EPA notes that the final rule doesn’t affect the article exemption for PFAS chemical substances, which remains in effect for importers or manufacturers of these chemical substances as articles.
Response to the final rule has been favorable in large part because the scope of the application to articles is carefully and narrowly drawn. It covers manufacturing and importing of carpets containing LCPFAC, but the exemption continues to apply to processors of the chemical substance as part of an article, which would include activities such as recycling or waste management. In other EPA actions seeking to limit the articles exemption from SNURs with regard to polybrominated diphenyl ether flame retardants and hexabromocyclododecane, EPA has — according to some — failed to define precisely the scope of the application of the SNUR to articles. This failure, critics allege, would invite unintended consequences, unnecessary costs and needless commercial disruption. The new rule would appear to address these concerns as to LCPFAC-containing articles.
EPA has stated it intends to issue an additional SNUR on other perfluorinated chemicals in 2014 and SNURs on other chemicals will include imported articles. For entities importing articles with chemicals on which the EPA is focusing, careful review of the Federal Register is urged.
