Last Friday, April 17, the attorneys general of New York, Pennsylvania, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Virginia, Washington, and Wisconsin filed a comment letter with the U.S. Environmental Protection Agency (EPA) urging the agency to take more comprehensive actions regarding per-fluoroalkyl and poly-fluoroalkyl substances (collectively, “PFAS”), stating “the final rule should be broadened to more effectively serve the goals and mandates of the Toxic Substance Control Act (TSCA) to prevent exposures to harmful substances before they are introduced into the marketplace.” Specifically, the attorneys general urge EPA to strengthen the supplemental proposal by: (1) including the entire chemical family of long-chain PFAS rather than the subset of these chemicals proposed in the Supplemental Proposal; (2) in accordance with its initial proposal, adopting a final rule that applies to articles containing long-chain PFAS anywhere in the article and not only to those articles in which PFAS are contained within the surface coatings; (3) applying the rule to the processing of articles and not just to the importing of them; and (4) disallowing any carve outs to the requirement to notify EPA for de minimis amounts of PFAS covered by the rule.
As we have discussed before, PFAS are a class of about 7,000 chemicals that can be found in consumer products including nonstick cookware and waterproof clothing. The chemicals were also used in firefighting foam on military bases and airports. The letter refers to EPA’s revised “significant new use rule” that updates but significantly narrows the scope of a 2015 proposed regulation by EPA.
The significant new use rule proposal would allow the agency to oversee imports of certain older PFAS chemicals if those compounds are part of surface coatings on manufactured goods such as furniture, outdoor apparel or equipment, automobile and airplane parts, electronics, and household appliances.
By contrast, the 2015 proposal applied to nearly any product made with the chemicals. The EPA put that 2015 proposal on hold during the Obama administration after semiconductor, automobile, and other companies said they still used and needed products manufactured with the older, or “long-chain,” PFAS.
The significant new use rule proposal doesn’t ban companies from using the chemicals per se. Instead the companies would have to give the agency 90 days’ notice before importing products coated with the 26 PFAS named in the significant new use proposal.
Provisions in the last National Defense Authorization Act for fiscal 2020 require the EPA to finalize the significant new use rule proposal by June 22, 2020.