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October 2, 2013

EPA Announces Final Rule Concerning Perfluoroalkyl Sulfonates and Long-Chain Perfluoroalkyl Carboxylate Chemical Substances

Bergeson & Campbell, P.C.

The U.S. Environmental Protection Agency (EPA) signed on September 30, 2013, a final rule amending a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances. The amendment adds PFAS chemical substances that have completed the Toxic Substances Control Act (TSCA) new chemical review process, but have not yet commenced production or import, and designates (for all listed PFAS chemical substances) “processing” as a significant new use. The final rule also includes a final SNUR for long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances that designates manufacturing (including importing) and processing for use as part of carpets or for treating carpet (e.g., for use in the carpet aftercare market) as a significant new use, except for use of two chemical substances as a surfactant in carpet cleaning products. For the LCPFAC SNUR, EPA is also making the article exemption at 40 C.F.R. Section 721.45(f) inapplicable to persons who import LCPFAC chemical substances as part of carpets. Persons subject to these SNURs will be required to notify EPA at least 90 days before commencing any significant new use. The required notifications will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. The final rule will be effective 60 days after publication in the Federal Register. The signed, pre-publication version of the rule is available online.

EPA’s press release states that while the U.S. chemical industry has largely voluntarily phased out this category of chemicals, these substances could nonetheless still be imported in carpets. EPA intends the final rule to ensure that it “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 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.”

In the final rule, EPA notes that it is making the article exemption at 40 C.F.R. Section 721.45(f) inapplicable to persons who import LCPFAC chemical substances as part of carpets. EPA states that the exemption “is based on an assumption that people and the environment will generally not be exposed to chemical substances in articles.” According to EPA, exposure to LCPFAC chemical substances may occur both during the carpet manufacture process and during the lifetime of the finished carpet. Exposure would therefore increase if in the future LCPFAC chemical substances are incorporated in carpets and then imported.

The article exemption remains in effect, however, for persons who import LCPFAC chemical substances as part of other types of articles. EPA states that it also remains in effect for processing of LCPFAC chemical substances as part of an article (i.e., carpet) since EPA is aware that existing stocks of carpets may still contain LCPFAC substances. EPA notes that the final rule does not affect the article exemption for PFAS chemical substances, which remains in effect for persons who import or process these chemical substances as articles.

EPA states that the final rule is among several actions it has taken to protect the public from perfluorinated chemicals. In 2006, the eight major U.S. companies producing LCPFAC chemicals committed to EPA’s voluntary PFOA Stewardship Program, pledging to reduce global emissions and product content of LCPFAC chemicals by the end of 2015. Under the Program, the industry stopped using LCPFAC chemicals on carpets and aftercare treatment products. EPA states that it also issued other SNURs to require EPA review prior to the reintroduction of other perfluorinated chemicals. According to the press release, “EPA anticipates another Significant New Rule on additional perfluorinated chemicals in early 2014 as well as Significant New Use Rules on other chemicals that will include imported products.”