A proposed rule would require prior Environmental Protection Agency approval under the Toxic Substances Control Act prior to the import of certain long-chain per- and polyfluoroalkyl substances chemicals.

On February 20, 2020, the U.S. Environmental Protection Agency ("EPA") used its authority under Section 5(a)(2) of the Toxic Substances Control Act ("TSCA") to issue a proposed supplemental significant new use rule ("SNUR") for more than 25 long-chain perfluoroalkyl carboxylate ("LCPFAC") chemical substances.

The proposed supplemental SNUR narrows the scope of a broader proposal released on January 21, 2015, as part of the proposed SNUR for long-chain perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemical substances ("PFAS"). That earlier proposal aimed, among other things, to designate as a "significant new use" the import of more than a dozen persistent PFAS chemicals, including long-chain perfluoroalkyl carboxylate ("LCPFAC") substances. A significant new use designation would require anyone seeking to import one of the listed substances to notify the EPA in advance, which would trigger an agency evaluation of the risks posed by the proposed use.

The use of these chemicals in many domestically made products has largely been phased out pursuant to a voluntary stewardship program. The purpose of this rule is to regulate the presence of these chemicals in imported products. The proposal is part of EPA's PFAS Action Plan that is intended to regulate "forever chemicals" under EPA's various regulatory authorities.

Congress passed amendments to TSCA in 2016 that require EPA to make an "affirmative finding" that the "reasonable potential for exposure to a chemical from an article or category of articles justifies notification" before it can impose such notification requirements.

Accordingly, the supplemental SNUR released this month narrows the category of substances to which the notification requirement applies, from all imported articles containing a listed LCPFAC substance to only those that contain such a substance in a surface coating. Surface coatings containing LCPFAC substances are sometimes used in furniture, automobile parts, electronics, and other household appliances.

The supplemental SNUR requires anyone seeking to import products containing LCPFAC substances in surface coatings to notify EPA at least 90 days before commencing import. This required notification would initiate EPA's evaluation of the conditions surrounding the intended significant new use. Importation could then be prohibited until EPA has conducted a review of the notice and made an appropriate determination as to whether it is necessary to implement additional restrictions addressing unreasonable risks posed by using the imported item.

Other aspects of the 2015 proposed SNUR remain unchanged, including the significant new use designation applied to the use of any covered LCPFAC substance that was no longer ongoing as of December 31, 2015, as well as a notification requirement on importing certain PFAS substances used in carpets.

EPA has said that it is continuing to assess comments offered on the 2015 proposed SNUR, and will continue to address them as it finalizes that rule for publication. Comments on the recently proposed rule will be due 45 days after it is published in the Federal Register.

Key Points:

  • The proposed rule is important to anyone who imports LCPFAC chemicals in surface coatings.
  • It would require prior EPA approval of imports.
  • Comments on proposed rule are anticipated to be due in April 2020.