Read the full article by Jeffrey Dintzer & Gregory Berlin (Bloomberg Law)
“State attorneys general are criticizing the EPA for not taking a stronger stance on review and regulation of new uses for PFAS ‘forever’ chemicals. Alston & Bird attorneys take a look at a letter from the attorneys general and their proposal to strengthen the agency’s supplemental proposal for a new rule under the Toxic Substance Control Act.
Eighteen state attorneys general, including California Attorney General Xavier Becerra (D), have filed a multistate comment letter urging the Environmental Protection Agency to strengthen its supplemental proposal to promulgate a significant new use rule for PFAS under the Toxic Substance Control Act (TSCA). The multistate coalition argues that the EPA’s supplemental proposal does not go far enough to broaden the EPA’s review and regulation of new uses for PFAS chemicals.
PFAS are a family of synthetic chemicals that have been used for decades to make commonly used products, including nonstick cookware, food packaging, water- and wrinkle-resistant fabrics, and firefighting foam. They are known as ‘forever chemicals’ because they resist degradation and are highly persistent in the environment. Many PFAS are linked to adverse health effects in humans and animals.
The TSCA provides the EPA with authority to require reporting, record-keeping, and testing, as well as rules to address unreasonable risks related to chemical substances and mixtures. The TSCA may apply to any person that manufactures, processes, distributes in commerce, uses, or disposes of a chemical substance.
TSCA Section 5(a) requires various entities to notify the EPA of any use of a substance that the EPA has determined is ‘a significant new use.’ A determination that a use is significant and new must be made by rule, known as a significant new use rule (SNUR).
The EPA generally exempts importers and processors of ‘articles’ (manufactured items that are formed to a specific shape or design during manufacture and whose end use depends on that shape or design) from this requirement. That exemption can be made inapplicable by EPA regulation pursuant to Section 5(a)(5). Under that provision, the EPA may require an importer or processor of an otherwise exempted article to submit a significant new use notification for the article before placing it into commerce.
Proposed Significant New Use Rule for PFAS
In 2015, the EPA proposed a SNUR that would require processors and importers of certain long-chain PFAS to submit significant new use notifications. The EPA never finalized the rule, so in the National Defense Authorization Act for fiscal year 2020, Congress stepped in and directed the EPA to take final action on its proposed 2015 PFAS SNUR. The supplemental proposal followed on March 3.
The EPA now proposes to limit the SNUR to certain long-chain PFAS—perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemical substances. The EPA also proposes to limit the SNUR to imported articles that contain certain long-chain PFAS as part of the article’s ‘surface coating,’ rather than PFAS found anywhere in the article.
Measures to Strengthen the Supplemental Proposal
In their April 2020 comment letter, the coalition of attorneys general urged the EPA to broaden and strengthen the review and regulation of PFAS under the supplemental proposal. The coalition recommended strengthening the rule by:
- Including the entire chemical family of long-chain PFAS rather than the subset of perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemicals in the Supplemental Proposal.
- In accordance with the EPA’s 2015 proposal, adopting a final rule that applies to articles containing long-chain PFAS anywhere in the article and not only to those articles where PFAS are contained within surface coatings.
- Applying the rule to the processing of articles and not just to the importing of them.
- Not allowing any carve-outs to the reporting requirements for minimal amounts of PFAS…”