EPA Takes Steps to Limit the Use of Certain PFAS

January 10, 2024

Read the full article by Gregory A. Clark, David B. Fischer, and Elizabeth L. Nugent (The National Law Review)

"Tomorrow, January 11, 2024, the U.S. Environmental Protection Agency (EPA) will finalize a Toxic Substances Control Act (TSCA) Significant New Use Rule (SNUR) to require that companies notify EPA and seek approval before manufacturing, importing, or processing over 300 per- and polyfluoroalkyl substances (PFAS) listed on the TSCA Inventory but assumed not to be actively manufactured (including import) or processed because the substances are designated on the Inventory as “inactive.” Per- and Poly-Fluoroalkyl Chemical Substances Designated as Inactive on the TSCA Inventory; Significant New Use Rule. The final rule becomes effective 60 days after publication in the Federal Register, on March 11, 2024. A petition for judicial review of the final rule must be filed within 60 days of the rule’s promulgation date, by March 25, 2024. 15 U.S.C. § 2618.

Scope of the Final Rule

As in the proposed rule, EPA defines the category of PFAS that are included in the final rule as those that, at the time of the proposed rule, (1) were designated as inactive on the TSCA Inventory, (2) were not already subject to a SNUR, and (3) meet the working definition of PFAS used by EPA’s Office of Pollution Prevention and Toxics, in which the PFAS must contain at least one of the following three structures:

  • R-(CF2)-CF(R′)R″, where both the CF2 and CF moieties are saturated carbons;
  • R-CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons; or
  • CF3C(CF3)R′R″, where R′ and R″ can either be F or saturated carbons.

EPA has identified 329 chemicals that it believes meet these criteria. All are listed in the docket (HQ-OPPT-2022-0867), except for 30 for which both the specific identity and “fluor” in a generic name have been claimed as Confidential Business Information (CBI)."