EPA Proposes Significant New Use Rule for PBDEs

April 4, 2012

On Tuesday April 2, 2012, the U.S. Environmental Protection Agency (EPA) issued proposed rules under the Toxic Substance Control Act (TSCA) intended to limit or prohibit imports containing certain polybrominated diphenylethers (PBDEs). The EPA states that studies reveal harmful effects on humans and the environment by these chemical substances, which are typically found in plastics, textiles, furniture, polyurethane foam, and electronics. The rule would affect manufacturers, processors, and importers of the seven PBDEs listed.

The EPA proposed an amendment to TSCA section 5(a), or the Significant New Use Rule (SNUR). The proposed SNUR covers tetrabromodiphenyl ether (tetraBDE), pentabromodiphenyl ether (pentaBDE), hexabromodiphenyl ether (hexaBDE), heptabromodiphenyl ether (heptaBDE), octabromodiphenyl ether (octaBDE), nonabromodiphenyl ether (nonaBDE), and decabromodiphenyl ether (decaBDE). It requires those who plan to process or import any of the seven PBDEs, as part of an article for a significant new use, to submit for EPA review a significant new use notice (SNUN) at least 90 days before they engage in the new use. The proposed rule considers the processing of six of the PBDEs (tetraBDE, pentaBDE, hexaBDE, heptaBDE, octaBDE, and nonaBDE), or any combination of these chemical substances resulting from a chemical reaction, to qualify as a significant new use. The manufacturing, importing, or processing of decabromodiphenyl ether (decaBDE) specifically, for any use which is not ongoing after December 31, 2013, will also be considered a significant new use. Furthermore, the proposed rule designates the manufacture, import, or processing of any article to which these PBDEs have been added, as a significant new use subject to the new reporting regulations. However, any importing or processing of the seven chemicals that is already ongoing as of April 2, 2012, will be exempt from the SNUR. The new SNUR would give the EPA an opportunity to review and decide whether or not to restrict or prohibit new uses of PBDEs before they occur. The EPA suggests that submitters consult with the agency prior to submitting a SNUN.

The EPA also proposed a test rule under TSCA section 4(a)(1)(A). The proposed test rule describes a lack of data available to determine the neurotoxicity of PBDEs and evaluate the significance of exposures. If the rule is finalized, those who intend to manufacture, import or process any of three mixtures cited—commercial pentabromodiphenyl ether (c-pentaBDE), commercial octabromodiphenyl ether (c-octaBDE), or commercial decaBDE (c-decaBDE)—for any use after December 13, 2013 (the effective date of the test rule), will be required to test the health and environmental effects of the substances. This applies to both new and ongoing uses, as well as both domestic and imported products.

Public comments on both rules are due by June 1, 2012. Comments can address any aspect of the proposals, but the EPA particularly requests comments on whether there is ongoing processing of PBDEs.

For further information, please contact a Barnes/Richardson attorney.