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.
Anticipated Challenges to the Significant New Use Rule
The state coalition has signaled that it may sue the EPA under the Administrative Procedure Act if it finalizes the supplemental proposal without making the requested changes. For instance, the coalition has argued that the EPA has not provided any scientific information or rationale to justify limiting the SNUR to only certain long-chain PFAS. According to the coalition, other long-chain PFAS should be included in the SNUR because they can cause pollution, contaminate drinking-water resources, and result in loss of species diversity.
The coalition has further argued that the EPA’s failure to include all articles within the scope of the proposed rule is arbitrary and capricious. For instance, disposal of articles containing PFAS in landfills, whether the PFAS are surface coated onto or incorporated within the articles, is a common source of PFAS contamination. According to the coalition, given the nature of these substances and the alleged likelihood of exposure related to disposal, the EPA should include all articles within the scope of the proposed rule.
The states’ insistence that the EPA include all articles within the scope of the proposed rulemaking, however, is potentially questionable, since the sampling and analyses they rely on appear to have been sponsored by states and not peer-reviewed. Thus, when finalizing the SNUR, the EPA must ensure that the record before the agency is grounded in peer-reviewed studies generated by unbiased observers.
Coordinated Efforts by States on PFAS
The multistate comment letter is part of a larger coordinated effort among states that want to see the federal government take aggressive action on PFAS. In July 2019, a coalition of 22 attorneys general filed a comment letter in support of Congress’s efforts to pass legislation addressing PFAS. On Feb. 3, 18 attorneys general filed a comment letter urging the EPA to list PFAS chemicals on the EPA’s Toxic Release Inventory under the federal Emergency Planning and Community Right-to-Know Act. Expect to see this sort of continued pressure from the states as PFAS regulation at the federal level slowly evolves.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jeffrey Dintzer is a partner with Alston & Bird and has over 30 years of experience representing companies in the energy, manufacturing, and defense industries in high-stakes administrative proceedings and civil litigation involving the environment, land use entitlements, and oil and gas.
Gregory Berlin is an associate with Alston & Bird’s Environment, Land Use & Natural Resources Group. He has particular experience litigating issues related to land use, development, energy, water quality, and endangered species.