EPA last week published a significant new use rule (“SNUR”) under the Toxic Substances Control Act (“TSCA”) that requires prior notification to EPA before a company may newly manufacture (including import) or process certain perfluorinated chemicals historically used in the manufacture and treatment of carpets. 78 Fed. Reg. 62443 (Oct. 22, 2013). These activities will be considered “new uses” and cannot be engaged in until the company first submits a significant new use notice (“SNUN”), which is similar to a pre-manufacture notification (“PMN”) for new chemicals. This SNUR, and similar ones for other chemicals that are still in the proposal stage (e.g., for brominated fire retardants), are part of EPA’s aggressive chemical regulation strategies aimed at a short list of targeted chemicals.
What is important about this SNUR is EPA’s departure from its general policy of exempting “articles” (e.g., products, components, etc.) from the scope of the SNUR. In the thousands of SNURs promulgated by EPA over the past decades, the focus has been on the chemical itself, not the “articles” that contained the chemical. Therefore, the manufacturing, importing or processing of articles containing the regulated chemical were typically not considered “new uses” that would trigger the SNUR’s requirements. However, this new SNUR not only applies to the perfluorinated chemicals, but also to the carpets or carpet pieces that may contain the chemicals. Thus, for example, a company cannot newly import carpet containing the perfluorinated chemicals unless it has first submitted a SNUN to EPA.