The U.S. Environmental Protection Agency (EPA) continues to regulate “forever chemicals,” named such for their persistence and risk to the environment and health. On July 27, 2020, the EPA issued a long-awaited final rule amending significant new use rules (SNUR) issued earlier on such chemicals — one pertinent to certain perfluoroalkyl sulfonate chemical substances and the other on long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances. To some, the final rule reflects comments on the proposed rule issued five years ago; to others, the rule weakens to the public’s detriment a proposal the Obama Administration issued. This article discusses the rule and its implications.
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Background
Certain per- and poly-fluorinated (PFAS) chemicals are known to pose both human and environmental health risks. For years, the EPA and other agencies globally have regulated these chemicals to abate identified risks. In 2015, the Obama Administration proposed changes to two SNURs regulating certain perfluoroalkyl sulfonate and LCPFAC chemical substances. Frustrated with the delay in issuing the rules in final, Congress mandated in Section 7352 of the National Defense Authorization Act for Fiscal Year 2020 that EPA “take final action” on the 2015 proposed rule by June 22, 2020.
The EPA last amended the perfluoroalkyl sulfonates SNUR in 2013. The SNUR identified the manufacture (which includes import under the Toxic Substances Control Act (TSCA)) of the covered substances for “any use” as a “significant new use” for which commercial manufacture is impermissible, absent the submission of a significant new use notification (SNUN). However, the SNUR did not waive the article exemption and wouldn’t apply if the chemical were, for example, applied to carpet or otherwise found in an “article,” which is defined as a manufactured item formed to a specific shape or design. The EPA proposed to amend the SNUR in 2015 to disallow the article exemption for imported carpets only.
In 2013, the EPA issued the SNUR for LCPFACs. The final SNUR designated as a significant new use the manufacturing and processing of covered LCPFACs for use in carpets or to treat carpets. Imported carpets were not exempt under the article exemption. The import of articles other than carpet that contained covered LCPFACs was unaffected by the SNUR, meaning the article exemption was applicable.
The final SNUR issued in July 2020 adopts the changes proposed in 2015 for the perfluoroalkyl sulfonates and disallows the article exemption with regard to imported carpets. The final rule effectively closes the door on the import of carpets containing covered substances absent the submission and approval of a SNUN. The import of other articles containing the covered substances are not affected. The 2020 final rule similarly adopts the changes proposed in 2015 regarding the LCPFACs (as later revised earlier this year). The LCPFACs implicated include three separate groups of substances totaling over 200 substances.
The SNUR requires persons to notify the EPA at least 90 days before manufacturing or processing these chemical substances for the significant new uses described in the notice, which is “any use.” Manufacturing or processing for the significant new use is prohibited until the EPA has conducted a review of the notice, made a determination on it, and taken required actions. Ongoing uses can’t be subject to a SNUR, thus the final rule excludes them.
Discussion
The final issued SNURs have been a long time in the making. The need to meet TSCA Section 5(a)(5) requirements for including imported articles in SNURs contributed to the delay. While the EPA doesn’t plan at this time to use its authority under TSCA Section 6(a) to regulate PFAS, additional future regulation is likely, thus continuing the agency’s nearly two-decade effort to identify and manage the risks associated with this broad category of substances. Depending upon the November elections, change could come sooner rather than later.
The final SNURs will have a significant impact on entities importing carpets given the elimination of the article exemption. Three separate groups of LCPFACs were identified in the SNUR. Importers of carpet, automotive parts, furniture, and certain electronic components will need to be especially diligent and ensure their articles do not contain any listed chemical substance. Failure to be vigilant could result in enforcement action and imported products denied entry into the United States.
