On October 1, 2014, the U.S. Environmental Protection Agency (EPA) proposed a significant new use rule (SNUR) for 15 related chemical substances commonly known as nonylphenols (NP) and nonylphenol ethoxylates (NPE). These substances are recognized as persistent and toxic in the environment. This article discusses this important move.
The EPA proposes to designate any use of the 13 NPs and NPEs listed in Table 1 as a significant new use, and any use other than as an intermediate or an epoxy cure catalyst as a significant new use of the two additional NPs listed in Table 2.
The proposed SNUR would designate as significant new uses any not ongoing at this time.. The EPA requests comment on whether it has correctly identified the current and ongoing uses of the 15 NPs and NPEs covered by this proposed rule. Of the 13 linear NPs and NPEs listed in Table 1, the EPA states that 12 weren’t reported to the 2012 Chemical Data Reporting (CDR) Rule. One of the 13 substances was reported to the 2012 CDR, but, according to the EPA, “the available information indicates that the chemical substance is not currently being manufactured or is otherwise used or distributed in commerce.” The two branched NPs listed in Table 2 are not in use except as intermediates and epoxy cure catalysts. The EPA says, based on the “reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of these chemical substances,” it’s concerned that future manufacturing or processing could have the potential to increase significantly the magnitude and duration of environmental exposures.
What is curious about the proposal is the way the EPA relies exclusively upon a narrow data set, the 2012 CDR and two databases (Household Products Database and Consumer Products Information Database), as the basis for determining that the 13 chemicals are not in production. The EPA has proposed an “any use” SNUR for each identified chemical. Nothing in the record suggests the EPA conducted other Internet searches, e.g., using the CAS registry number to search for commercial availability information, material safety data sheets, or other information that might indicate continued commercial availability.
The notice includes no discussion of the 2012 CDR’s limitations (site-specific volume trigger with no reporting required if trigger isn’t met) and no background discussion of reporting under other earlier inventory update rule cycles. Additional reporting data points could provide potentially relevant information; the 2012 CDR only covered the year 2011.
In conducting such a limited investigation, EPA has shifted the entire burden onto industry to disprove its contentions. These deficits make it all the more important for interested companies to review the proposal carefully. It will be essential to consider their NPs’ or NPEs’ commercial status and comment on the proposal to ensure the EPA is aware of any ongoing production, processing or uses. Comments are due December 1, 2014.
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 conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).