A centerpiece of EPA’s PFAS Action Plan, issued in February 2019, is finalizing a 2015 proposed rule under the Toxic Substances Control Act (TSCA) that would amend two significant new use rules (SNURs) on some 500 perfluoroalkyl sulfonates (PFA sulfonates) and long-chain perfluroalkyl carboxylates (LCPFACs). Both are categories of long-chain perfluroalkyl and polyfluoroalkyl substances (PFAS). In December 2019, Congress gave EPA a hard deadline for finalizing that proposed rule: June 22, 2020, the fourth anniversary of enactment of the Frank R. Lautenberg Chemical Safety for the 21^st Century Act (LCSA), which extensively amended TSCA. Before then, EPA must conduct another round of rulemaking to address the use of these PFAS in articles.

The PFA Sulfonates SNUR

One of the two most studied PFAS is perfluorooctane sulfonate (PFOS), CAS No. 1763-21-1. EPA adopted a final SNUR for 13 PFA sulfonates derived from PFOS in March 2002. 40 C.F.R. § 721. 9582. The significant new use for all was “manufacture or import for any use.” This effectively banned manufacture or import of these chemicals unless and until EPA completed its review of a significant new use notice (SNUN) for a requested use, which EPA could reject or restrict. Notably, however, this SNUR did not waive the standard SNUR exemption for listed chemicals in articles, 40 C.F.R. § 721.45(f). This allowed the continued importation and processing of articles containing these PFA sulfonates.

The term “article” means a manufactured item which is formed to a specific shape or design during manufacture; has end use functions dependent in whole or in part upon its shape or design during end use; and which has either no change of chemical composition during its end use or only those changes of composition which have no commercial purpose separate from that of the article. 40 C.F.R. § 720.3(c), incorporated at 40 C.F.R. § 721.3.

Later, EPA added more PFA sulfonates to that SNUR. In December 2002, it added 75 PFA sulfonates, including PFOS. It added 183 PFA sulfonates in 2007, and 7 more in 2013. The 2013 amendment also added processing for any use as a significant new use. Thus, with few exceptions, none of these 278 PFA sulfonates may be manufactured, imported, or processed for any use (short of completing the SNUN review process), except when imported or processed in articles.

The LCPFACs SNUR

That 2013 amendment also added a new SNUR for LCPFACs, 40 C.F.R. § 721.10538. Rather than identify CAS numbers and names for the affected chemicals, as with the PFA sulfonates SNUR, EPA described the chemical structure of the LCPFACs covered by the SNUR. A listing of 219 CAS numbers and other descriptors to which the SNUR applies appears in EPA’s list of chemicals subject to reporting under TSCA § 12(b). That list includes the other most-studied PFAS, perfluorooctanoic acid (PFOA), and salts of PFOA.

Another difference from the PFA sulfonates SNUR is the limited scope of the significant new use described in the LCPFACs SNUR: manufacture (including import) or processing for use in carpets (e.g., for use in the carpet aftercare market), with a few exceptions. Since carpets are articles, EPA waived the standard article exemption in § 721.45(f) for this SNUR, although only with respect to carpets. These 219 LCPFACs may be manufactured or processed for any use other than in carpets, including in other kinds of articles.

Why carpets in particular? EPA’s 2009 Long-Chain Perfluorinated Chemicals Action Plan identified the primary uses of fluorotelomers, with textiles and apparel accounting for about 50% of the uses, and carpet and carpet care products accounting for the next largest share of consumer product uses, with coatings being the third largest category. A 2009 EPA study found that “In typical American homes with carpeted floors, pre-treated carpet and commercial carpet-care liquids are likely the most significant PFCA [perfluorocarboxylic acid] sources among the 13 article categories studied.”

The 2015 Proposed SNUR

The 2009 Action Plan announced EPA’s plan to address long-chain PFAS under TSCA § 6, such as by restricting PFAS-containing articles. By 2015, however, EPA chose to address PFAS-containing articles through its SNUR authority under TSCA § 5(a)(2). It proposed to expand the scopes of the PFA sulfonates and LCPFACs SNURs to address their use in articles.

For PFA sulfonates, EPA proposed to extend the SNUR’s scope to importation as part of carpets, but not to other kinds of articles. EPA proposed to waive the article exemption for imports of carpets, but not for processing of carpets.

The proposal would expand the scope of the LCPFACs SNUR in two ways. First, it would revise the list of significant new uses.

• For most LCPFACs, the significant new uses would expand to manufacture (including import) for any use (other than in articles) as well as for use in carpets. The 2013 exemption for two LCPFACs would be deleted.
• For PFOA and its salts, the significant new use would include any use other than include import of fluoropolymer dispersions and emulsions, and import of fluoropolymers as part of articles.
• For 20 LCPFACs with then-recent or ongoing uses, the significant new use would be manufacture or processing for any use after December 31, 2015, by which time EPA expected the ongoing uses to be discontinued.

Second, the proposal would waive the articles exemption to some extent.

• For PFOA and the listed PFOA salts, EPA would waive the exemption for imports of articles, but not for processing a SNUR substance as part of an article.
• For the 20 LCPFACs with then-recent or ongoing uses, EPA would do the same.
• EPA did not propose to waive the article exemption for the other 193 LCPFACs except for import of carpets (which it had previously waived).

Thus, the proposed extension of these two SNURs to use in articles is limited. The preamble noted that EPA is continuing to assess PFA sulfonates and LPFACs to determine what other actions would be warranted.

Impact of the 2016 TSCA Amendments

The LCSA amended TSCA § 5 to provide that EPA could apply a SNUR to a chemical in an article or category of articles only if it makes an affirmative finding in a final SNUR that the reasonable potential for exposure to the chemical through the article or category of articles justifies notification (§ 5(a)(5)). EPA did not make such an affirmative finding in its 2015 proposed rule.

The February 2019 PFAS Action Plan stated that EPA is “considering” the comments received in response to the 2015 proposal, “as well as the new statutory requirements added by the [LCSA] as it works to issue a supplemental proposed SNUR for PFAS …, including as part of categories of certain articles ….” EPA sent a draft supplemental proposed SNUR to OMB for review on September 25, 2019.  More than three months later, OMB is continuing to review that draft. EPA’s Fall 2019 Regulatory Agenda predicted publication of the supplemental proposal by January 2020, with no date predicted for promulgation of the final SNUR amendments.

Congressional Action

Late in 2019, Congress enacted the National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92 (Dec. 20, 2019). Section 7352, part of the PFAS Act of 2019 (Title LXXIII), requires EPA to take final action on its 2015 proposed SNUR by June 22, 2020. That will be the fourth anniversary of enactment of the LCSA. (Section 7352 does not amend TSCA; rather, it is a freestanding provision).

This provision, like some others in the PFAS Act of 2019, reflects Congressional impatience with the slow pace of EPA actions to address PFAS. A related provision, section 7321, directs EPA to add to the Toxics Release Inventory (TRI) list of toxic chemicals (under section 313 of the Emergency Planning and Community Right-to-Know Act of 1986) all chemicals subject to the PFA sulfonates and LCPFACs SNURs. Those additions are effective as of the date of enactment (December 20, 2019). That section adds other PFAS to the TRI list as well. EPA had published an advance notice of proposed rulemaking to possibly add one or more PFAS to the TRI list on December 4, 2019.

EPA now faces a logistical challenge. Within six months or so, it must publish the supplemental proposal, take comments, and promulgate the final amendments. Since it had not predicted a date for the final rule in the Regulatory Agenda, EPA probably had planned to take considerably longer than June 2020 to adopt the final version of the 2015 proposed rule.

Stakeholders should be vigilant in watching for publication of the supplemental proposal in the Federal Register and noting the due date for comments. Given the Congressional deadline, EPA is unlikely to grant requests for extensions of the comment due date. Since the final rule will affect 497 PFAS, it is likely to be one of the most significant EPA actions under TSCA to address PFAS.

Beveridge & Diamond’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. We work with large and small chemical companies whose products and activities are subject to EPA’s broad chemical regulatory authority under TSCA and state chemical restrictions. For more information, please contact the authors.