By Pat Rizzuto
The Environmental Protection Agency proposed a complex regulatory package March 20 that would require chemical producers and other manufacturers to notify the agency before they make, import, or process a variety of chemicals, including certain flame retardants, in ways the agency would designate as new uses.
EPA's regulatory package consists of six elements:
Companies that import the seven PBDEs or nine benzidine-based dyes as part of “articles”—products such as furniture or electronics—would be covered by the SNURs addressing those chemicals. Article manufacturers often are exempted from SNURs.
The proposed regulations emerged from a series of action plans the agency has issued since December 2009 (33 CRR 1097, 11/9/09).
In an announcement of the regulatory package, Jim Jones, EPA's acting assistant administrator for chemical safety and pollution prevention, said: “Although a number of these chemicals are no longer manufactured or used in the U.S., they can still be imported in consumer goods or for use in products.
“Today's proposed actions will ensure that EPA has an opportunity to review new uses of the chemicals whether they are domestically produced or imported, and if warranted, take action to prohibit or limit the activity before human health or environmental effects can occur,” Jones continued.
The SNURs address chemicals that historically have been used in a range of consumer products and industrial applications, EPA's announcement said.
Because of health or environmental concerns, domestic manufacturers have already phased the chemicals out or appear to be in the process of doing so, EPA's proposals said.
The significant new use rules are designed to ensure that EPA would have the opportunity to review any new manufacture of a phased-out chemical or any new application of it.
Hence, any company that intends to make, import, or process any of the listed chemicals for a use EPA designates as new would be required to notify the agency 90 days before doing so. EPA could then evaluate the intended manufacture or use and take action to prohibit or restrict it if necessary to protect people or the environment.
EPA proposed to revise existing SNURs for polybrominated diphenyl ethers by:
EPA coupled its proposed SNURs with a proposed test rule for all seven PBDEs.
Under the proposal, if a company notifies EPA that it intends to make or use one of the PBDEs in a new way, it would be required to also provide the agency the results of health and ecological toxicity studies described in the regulatory action.
EPA proposed to add nine benzidine-based chemicals to existing SNURs it issued in 1996 for 24 other benzidine compounds.
The proposed rule said EPA information indicates that none of these nine chemicals are being made “within or outside the United States.”
The proposal would make companies that manufacture or import consumer or industrial products containing the benzidine compounds subject to the 90-day notification requirements that also apply to chemical manufacturers, importers, and processors.
EPA proposed a SNUR that would designate the use of hexabromocyclododecane, or HBCD, in consumer textiles other than those in motor vehicles as a significant new use requiring agency notification.
Companies that could be affected by the proposal include household furniture manufacturers, blind and shade manufacturers, drapery manufacturers, and furniture repair specialists, the proposed rule said.
EPA's proposed SNUR for di-n-pentyl phthalate (DnPP) excludes the chemical's use as a standard for laboratories. Chemical standards are used to evaluate laboratory test equipment and ensure the equipment is working properly.
U.S. production of the phthalate appears to be quite limited, the proposal said. The last year companies reported making or importing DnPP was 1990, the proposal said.
Finally, EPA proposed a SNUR for one type of short-chain chlorinated paraffin called alkanes, C12-13, chloro.
Companies have not reported making it in the United States or importing it since the early 1990s, and “EPA found no additional evidence of any importation or manufacturing of the chemical,” the proposed rule said.
EPA's primary concern about this and other short-chain chlorinated paraffins is ecotoxicity, the agency said, adding that they can be highly toxic to aquatic plants.
Lynn Bergeson, an attorney with Bergeson & Campbell P.C., told BNA, “these proposals represent a major step in EPA's realization of its enhanced chemical management plans.”
Some of the SNURs, such as those covering PBDEs, are precedent-setting because they include processing as a significant new use and because they did not exempt article manufacturers, which are typically exempt from these types of rules, Bergeson said.
The proposal also is noteworthy because EPA is aware of some ongoing uses of decaBDE but nonetheless has chosen not to exclude the uses from the proposed SNUR's coverage in the regulatory text, she said.
EPA places the burden where it belongs, on commenters, to explain “the extent to which these uses will continue … and whether there are any other uses which will not be discontinued by December 31, 2013,” Bergeson said quoting EPA's proposal.
Another interesting aspect of the PBDEs proposal is the extent to which recycling of products containing these flame retardants will be important after 2013, she added.
EPA's proposals are available at http://www.epa.gov/oppt/existingchemicals/pubs/enhanchems.html.
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