The U.S. Environmental Protection Agency (EPA) released on March 20, 2012, proposed significant new use rules (SNUR) that would require companies to report all new uses of five groups of chemicals, including domestic and imported products and articles. This would give EPA the opportunity, if warranted, to prohibit or limit the activity. The chemicals, which were part of the EPA's Chemical Action Plans from 2009 through 2011, are polybrominated diphenylethers (PBDE), hexabromocyclododecane (HBCD), benzidine dyes, short-chain chlorinated paraffins (SCCP), and di-n-pentyl phthalate (DnPP). This column summarizes key points in the proposals.
New Rules for PBDEs
EPA would amend the PBDE SNUR to designate processing of any combination of the six PBDE congeners contained in commercial pentabromodiphenyl ether (c-pentaBDE) or commercial octabromodiphenyl ether (c-octaBDE) for any use that's not ongoing as a significant new use. The proposed rule would designate manufacturing, importing or processing of decaBDE for any use that's not ongoing after December 31, 2013, as a significant new use, and manufacturing, importing or processing of any article to which PBDEs had been added as a significant new use. A PBDE imported as part of an article for a significant new use must be reported. Ongoing uses would be excluded from the SNUR.
A proposed TSCA Section 4 test rule for c-pentaBDE, c-octaBDE, and commercial decabromodiphenyl ether (c-decaBDE) would require developing information EPA believes necessary to determine the effects of manufacturing, processing or other activities involving these c-PBDEs on human health or the environment. EPA intends to promulgate the test rule if it determines that manufacture, import or processing of c-PBDEs, including in articles, hasn't ceased by December 31, 2013.
New Rules for HBCD
The proposed SNUR for HBCD would designate "use in consumer textiles, other than for use in motor vehicles" as a significant new use. Prospective manufacturers, importers or processors of HBCD for use in covered consumer textiles would be required to notify EPA at least 90 days before commencing that activity. For this proposed rule, EPA states that the general SNUR article exemption for persons who import or process chemical substances as part of an article wouldn't apply.
Benzidine Dyes, DnPP and SCCPs Rules
The proposed rule would add nine benzidine-based chemical substances to the SNUR at 40 C.F.R. Section 721.1660 on benzidine-based chemical substances; create a SNUR for DnPP and one for alkanes, C12-13, chloro. In the case of the benzidine-based chemical substances, EPA is also proposing to make inapplicable the exemption at 40 C.F.R. Section 721.45(f) relating to persons that import or process substances as part of an article. Loss of this exemption would require persons who intend to import or process all listed benzidine-based chemical substances, i.e., the newly proposed nine benzidine-based chemical substances, as well as the currently listed benzidine-based chemical substances, as part of an article to notify EPA at least 90 days before commencing that activity.
EPA's Action Plan
These proposals represent important steps by EPA to act on a number of its action plan commitments. Several of the SNURs are groundbreaking in their inclusion of processing as a significant new use (e.g., the PBDEs) and their inclusion of manufactured articles. These proposed rules represent an important body of work that will need close scrutiny by affected entities.
For the PBDE test rule, EPA is relying on the "may present" finding. This means EPA could proceed with the testing requirements even if the production volume doesn't meet the exposure-based policy's trigger of one million pounds. This approach may increase the likelihood that a test rule action may be issued in final, depending on the ongoing production and processing of the PBDEs, particularly decaBDE. In this regard, it's important to note that in preparing the final proposal, EPA would still have to consider the economic affordability of the required testing.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at firstname.lastname@example.org.
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. The views expressed herein are solely those of the author.