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Congress Puts PFAS SNURs on an Accelerated Timetable

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 21st 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.

© 2020 Beveridge & Diamond PC

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About this Author

Mark Duvali, Environmental Attorney, Beveridge Diamond PC
Principal

Mark Duvall has over two decades of experience working in-house at large chemical companies.  His focus at Beveridge & Diamond, P.C. has been on product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.  He co-chairs the Firm's Chemicals, Products, and Nanotechnology practice group. 

He heads the Firm’s Toxic and Harmful Substances/Toxic Substances Control Act practice.  His experience under TSCA includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions.  He chairs the...

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Nessa Coppinger Environmental Attorney
Principal

Nessa focuses her practice on complex environmental litigation, including multi-district litigation and multi-party product liability.

Clients rely on Nessa to help them solve their most complicated, expensive, and intractable problems. She has led significant trial court and appellate matters, including federal appeals, to successful conclusion. She has experience with a range of high-stakes litigation, including mass environmental claims, coordinated litigation with federal government entities, class action, and single-party litigation. Nessa also counsels on and litigates matters involving the National Environmental Policy Act (NEPA). In addition, Nessa counsels clients on compliance with regulations related to lead-based paint in housing. She has achieved favorable results for FORTUNE® 100 companies, states, and counties in federal and state courts throughout the country. She litigates federal and state statutory claims, as well as common law tort claims, with particular experience in product liability and nuisance claims. Nessa has played a leading role in large joint defense groups and in coordinated litigation with federal and state governments, as well as in smaller single-party litigation matters.

Examples of Nessa's experience include:

  • Oral argument and unanimous decision from the D.C. Circuit in a precedent-setting case regarding modification of an injunction under the National Environmental Policy Act (NEPA).

  • Securing summary judgment in the U.S. District Court for the District of Columbia defending the Bureau of Reclamation’s NEPA review of a $250 million water infrastructure project on behalf of the State of North Dakota.

  • Serving as one of the lead lawyers on a team defending numerous products liability and toxic tort cases related to alleged groundwater contamination involving a gasoline additive in both federal and state courts. In the course of one of these cases, Ms. Coppinger briefed novel issues regarding the scope of a state’s authority to bring claims on behalf of its citizens for the New Hampshire State Supreme Court.

  • Successfully defeating class certification on behalf of an oil refiner client in a proposed statewide class action in federal court against numerous refiners involving alleged damage to boats from certain fuels.

  • Representing a coke plant in a lawsuit alleging Clean Air Act and Resource Conservation and Recovery Act citizen suit claims as well as state common law tort claims.

  • Advising developers of water infrastructure on the NEPA process and issues arising under NEPA (including invasive species), including the preparation of a full Environmental Impact Statement.

Nessa chairs the firm’s Diversity and Inclusion Committee. She serves as the Book Editor for the American Bar Association’s Environmental Litigation Committee, and she also served several terms as the co-chair of the Environmental Law Forum of the Women’s Bar Association of Washington, DC.

Education

  • Emory University  (B.A., magna cum laude, 1998)
    • History, Political Science, and Human and Natural Ecology
  • University of Virginia  (J.D., 2003)

Bar Admissions

  • Colorado
  • District of Columbia
  • Virginia
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Ryan J. Carra, Environmental Attorney, Beveridge & Diamond Law Firm
Principal

Ryan Carra utilizes his extensive technical background to assist in counseling clients in the electronics, chemicals, and energy sectors regarding a variety of environmental regulatory issues.  Ryan has advised on questions relating to waste classification, chemical hazard classification, chemical notification requirements, and requirements relating to radiation-emitting equipment both domestically and abroad.  Specifically, Ryan is well versed in international agreements relating to materials restrictions and waste, such as the Basel and Minamata Conventions.

Ryan has reviewed...

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