August 2, 2022
Over a year after it withdrew a controversial Trump-era compliance guide for the significant new use rule (SNUR) governing several per- and polyfluoroalkyl substances (PFAS), EPA says it has no plans to issue new guidance or alter the rule itself, though one industry lawyer says questions linger on the issues the guide addressed.
“The agency was sufficiently clear in the rule and has provided information on its web site about chemicals subject to the [long-chain perfluoroalkyl carboxylate (LCPFAC)] SNUR. EPA is not considering amending the final SNUR,” an EPA spokesperson said in a July 29 statement to Inside TSCA.
The agency added, “Generally, stakeholders have not expressed confusion about the uses covered by the LCPFAC SNUR.”
Under the Toxic Substances Control Act (TSCA), EPA uses SNURs to limit its approvals of new chemicals by setting out conditions of use that require additional review by the toxics office. The LCPFAC rule aims to broadly restrict new or resumed uses of some 500 PFAS that have been phased out of most domestic uses, with only a short list of exemptions.
However, Larry Culleen, a former EPA official and now an attorney with Arnold & Porter who represents downstream chemical users, says that there are aspects of the SNUR which he believes “would be good to address,” even though he acknowledged it is unlikely EPA will either issue another guidance document or amend the SNUR itself.
“In my view, the optics are such that it might be difficult for them to release anything, unless it were cleaned up to look more like the documents that were sent to [Office of Management and Budget (OMB)] originally looked — that would be my guess, having not spoken to the program,” Culleen tells Inside TSCA.
The SNUR that EPA enacted in July 2020 included significant changes from the version approved by OMB and signed by then-Administrator Andrew Wheeler a month earlier — a process that the agency’s Office of Inspector General (OIG) found in a recent report “was not transparent” in part because the changes were initiated by a White House official the watchdog was unable to identify.
Post-signing revisions to the SNUR included removal of “language that described what constitutes a surface coating for imported articles,” a key question since the rule bans imports of products that include surface coatings made with LCPFAC chemicals. That provision was replaced with a plan for EPA to release a future guidance on that subject, OIG said in its report.
But the guide was itself fraught with controversy, in part because the agency finalized it on the last day of the Trump administration and just one business day after the close of public comments on a draft version. The Biden EPA rescinded it in 2021, and the spokesperson now says it has decided not to craft a replacement.
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