Between the late 1990s and early 2000s, the EPA identified potential issues presented by PFOS, a perfluorinated acid. Data showed PFOS to be present in low levels in humans and wildlife worldwide, and that PFOS appeared to be highly persistent. At the time, PFOS was used in industrial and consumer applications, including soil and stain repellant sprays, fire-fighting foams and semiconductor manufacture. Between 2000 and 2002, 3M Company, the principal domestic manufacturer of PFOS, voluntarily phased the chemical out of production. Working with industry, the EPA followed this action with a series of SNURs that were effectively intended to limit uses for which alternatives were not available. Several years later, similar concerns were raised with regard to PFOA, other LCPFACs, and other chemicals known as fluorinated telomers that potentially could degrade to PFOA in the environment. The EPA worked with the manufacturers and users of these chemicals to understand the risks and encourage development of alternatives. These efforts yielded the 2010/2015 PFOA Stewardship Program through which industry made and delivered on a series of commitments that, over time, made the current proposed SNUR possible.
The EPA proposes amending the SNUR for LCPFAC chemicals by designating as a significant new use manufacturing, including importing, or processing of certain LCPFAC chemical substances for any use that will not be ongoing after Dec. 31, 2015, and all other LCPFAC chemical substances for which there are currently no ongoing uses. The EPA also proposes to make inapplicable the exemption for importers of LCPFAC chemicals as part of articles, as well as to amend a SNUR for perfluoroalkyl sulfonate (PFAS) chemical substances that would make the article exemption inapplicable for import of PFAS chemicals as part of carpets (although EPA makes clear that the proposed SNUR would not apply to processing of these chemicals as part of an article). Persons subject to these SNURs would be required to notify the EPA at least 90 days before commencing manufacturing or processing.
The EPA also notes in the proposal that the SNUR doesn't apply to certain perfluorinated chemicals, including fluoropolymers, LCPFACs with more than 20 perfluorinated carbons, and “import of fluoropolymer dispersions and emulsions, as well as fluoropolymers as part of articles, containing PFOA or its salts.” EPA states: “However, import of fluoropolymer dispersions and emulsions, and fluoropolymers as part of articles, containing PFOA or its salts was not determined to be a significant new use because this use is currently ongoing and EPA is not making inapplicable any of the standard exemptions at 40 CFR 721.45 for PFOA.”
This rule is significant as it caps a multi-year collaborative effort between industry and the EPA. The significance of this effort can be seen in the results of the human biomonitoring done by the Centers for Disease Control and Prevention, which, as reported in the EPA’s press statement, shows a “41% reduction in human blood-levels” of serum levels of perfluorinated chemicals over time. In proposing to make the article exemption inapplicable to LCPFACs, the EPA relied on data indicating that perfluorinated chemicals can be released from articles of commerce, thus justifying its decision to remove the exemption for imported articles in the proposed SNUR. The EPA’s efforts to explain and offer data in support of its decision to remove the article exemption may be a harbinger of future data-based explanations in connection with other SNURs that would affect the article exemption.