Beveridge & Diamond

EPA Targets Articles Containing Action Plan Chemicals

Beveridge & Diamond, P.C., March 21, 2012

Article updated April 4, 2012

Under the Toxic Substances Control Act (TSCA), EPA has mostly given articles containing chemicals a free ride by exempting them from regulatory requirements otherwise applicable to those chemicals.  EPA took a sharply different direction in three proposed rules released on March 20, 2012, which would subject manufacturers and processors of articles containing the chemicals at issue to full obligations.  Some of the chemicals are used in consumer products.

Since announcing its Enhanced Chemicals Management Program in September 2009, EPA has issued ten chemical action plans.[1]  In the March 20 proposals, EPA tackled half of them.  It proposed significant new use rules (SNURs) for polybrominated diphenyl ethers (PBDEs),[2] hexabromocyclododecane (HBCD),[3] certain benzidine-based chemicals, a short-chain chlorinated paraffin (SCCP), and a phthalate, di-n-pentyl phthalate (DnPP).[4]   Those related to PBDEs, HBCD, and benzidine-based chemicals would apply to articles containing those chemicals, while those for the SCCP and DnPP would exempt articles.  In addition, EPA proposed a test rule for some PBDEs.  Together, these rulemakings are a significant step in EPA’s implementation of its action plans for those chemicals.  Comments are due within 60 days after publication of the proposals in the Federal Register.

1.        PBDEs

Of these actions, the most ambitious is that for polybrominated diphenyl ethers, a category of brominated flame retardants.  At least one PBDE, decabromodiphenyl ether (decaBDE), CAS No. 1163-19-5, is still widely used in many consumer and commercial products.  EPA expects the accompanying proposed test rule to pressure companies to drop their ongoing uses by the end of 2013, so that the SNUR could take effect as of that date (or earlier).

A SNUR only applies to a new use, which precludes application to an ongoing use.  DecaBDE continues to be imported into the United States as a neat chemical for compounding into articles, and articles made with decaBDE continue to be imported.  EPA usually makes a final SNUR effective as of the date of the proposal, exempting only those uses that were ongoing on the date of the proposal.  Since so many uses of decaBDE are now ongoing, however, that strategy would not work well.

EPA has taken a different approach by making the proposed significant new use be “manufacturing, importing, or processing for any use after December 31, 2013.”  EPA picked that date because it is the end date for the DecaBDE Phase-out Initiative, when the principal U.S. manufacturers and importer of decaBDE will cease their manufacture or import of decaBDE.[5]  The preamble states, “EPA believes that other manufacturers and importers of decaBDE will also cease their activities by that date.”  If EPA is correct that current uses of decaBDE will cease before the end of 2013, at that point they would not be ongoing, and the SNUR would apply broadly.

The proposal also addresses other PBDEs, including pentabromodiphenyl ether (pentaBDE), CAS No. 32534-81-9, and octabromodiphenyl ether (octaBDE), CAS No. 32536-52-0.  EPA adopted a SNUR for those PBDEs in 2006, declaring the significant new use to be any manufacture or import for any use after January 1, 2005.[6]  It did not apply to processing of those PBDEs, or to import of articles containing those PBDEs.  Also, it did not apply to decaBDE.  For the other PBDEs, the proposal would add as a significant new use “processing for any use after December 31, 2013.” 

The proposed SNUR would not ban the manufacture or processing of PBDEs, but it would trigger the need to notify EPA in advance of beginning that activity by submitting a significant new use notice (SNUN) under section 5(a) of TSCA (essentially a premanufacture notice).  EPA could then seek to use its authority under section 5(e) to restrict or ban the activity.

The proposed SNUR would apply to articles containing a PBDE.[7]  Most SNURs exempt chemicals in articles, so EPA is breaking with its usual practice.[8]  It is doing so because, according to EPA, “there is growing evidence that people and the environment are exposed to PBDEs contained in articles” such as sofas and electronics and in household dust from the aging and wearing of those products.

Why does EPA expect currently ongoing uses of PBDEs to cease before the end of 2013?  It is relying on more than marketplace pressures.  EPA has put forward what it considers to be a substantial incentive to drop ongoing uses of PBDEs by proposing a test rule that would apply to anyone manufacturing or processing commercial forms of pentaBDE, octaBDE, and decaBDE after December 31, 2013.[9] The proposed test rule also would apply to those who manufacture or process for export from the U.S.  The proposal would put importers of articles containing any of the listed PBDEs in Tier 1 (the primary category of persons responsible for testing), as opposed to processors or incidental manufacturers, who would be placed in Tier 2 and would be unlikely to have to conduct testing. 

The proposed testing would be onerous.  For commercial forms of pentaBDE and octaBDE, the proposal identifies eleven tests to be conducted, including chronic toxicity/carcinogenicity.  For commercial decaBDE, the proposal would not require chronic toxicity testing/carcinogenicity testing, but would require the other ten tests plus three others.

EPA may not actually adopt a test rule.  The preamble explains that “EPA’s focus in this rule is on the phase-out of the manufacture and import of PBDEs for all uses, including in articles.”  If EPA learns that manufacturing or processing will continue past 2013, it intends to finalize the test rule.  Alternatively, if manufacture and processing of PBDEs ceases before the end of 2013, EPA may not issue the test rule.  However, even in that situation, EPA may want to issue the test rule in case after 2013 some person wants to begin manufacturing or processing PBDEs.  If a test rule is then in place, that person would have to submit test rule data along with a significant new use notice, a formidable burden.[10]

The prospect of a test rule poses a dilemma for current article importers or processors of decaBDE who are working to eliminate it from their products, but for which adequate substitutes are not yet available.  The preamble solicits comments on this issue:

The Agency understands that some downstream users of decaBDE would like the manufacture and processing of decaBDE for some uses to continue after December 31, 2013.  The Agency understands that these downstream users believe that there will continue to be critical military and aeronautical uses of decaBDE (some examples are use in insulation, ducting, electronic components) after December 31, 2013.  The Agency seeks comments on the extent to which these uses will continue despite the phase-out in the manufacture and import of decaBDE and whether there are any other uses which will not be discontinued by December 31, 2013.  Persons who comment are asked to specify both the functional application of the article containing decaBDE, e.g., ductwork for aircraft, and the material to which the decaBDE is added, e.g., high impact polystyrene. Persons who comment should also include definitions of terms, where appropriate.

Many articles containing PBDEs are recycled, meaning that new products with recycled content may contain PBDEs as impurities.  The preamble explains:  “For example, persons who grind old plastic pallets containing decaBDE for the purpose of reusing the ground material in the fabrication of ‘new’ plastic pallets would be considered processors of decaBDE as an impurity, if the decaBDE is unintentionally present in the recycled product ….”  EPA would not subject such recycled products to the SNUR.[11]  (Of course, if PBDEs were deliberately added to the recycled product, they would be subject to the SNUR.)  The proposed test rule would place manufacturers and importers of PBDEs only as impurities into Tier 2, so they would be unlikely to be called on to conduct testing.  If EPA were to learn that the only persons that would be subject to the test rule would be persons that process (rather than manufacture) pentaBDE, octaBDE, or decaBDE as impurities contained in articles, it would not require testing “because EPA has not determined whether this activity alone may present an unreasonable risk of injury to health or the environment.” 

Persons who do not know or cannot reasonably ascertain that they manufacture or process commercial forms of pentaBDE, octaBDE, or decaBDE would not be subject to the test rule. 

EPA issued its PBDEs action plan on December 30, 2009.[12]  EPA sent its draft proposed PBDEs SNUR and test rule to the Office of Management and Budget (OMB) for review under Executive Order 12866 on December 17, 2010.  OMB released the proposals nearly 14 months later, on February 15, 2012.

2.        HBCD

Hexabromocyclododecane is a different category of brominated flame retardants than PBDEs.[13]  EPA has proposed a narrow SNUR, with the significant new use being “use in consumer textiles, other than for use in motor vehicles.”  Consumer textiles include upholstered household furniture, mattresses, and draperies, among other things.  EPA’s HBCD action plan identified decaBDE and chlorinated paraffins among the alternatives to HBCD for textile applications.

Other uses of HBCD would be unaffected by the proposed SNUR.  These include use in polystyrene foam insulation boards used in construction, and in high-impact polystyrene in electronic products.  Those uses are ongoing, so EPA could not classify them as “new” and subject them to a SNUR.  The HBCD action plan noted that the European Chemicals Agency has indicated that “there are currently no commercially or technically viable alternatives for HBCD as a flame retardant in polystyrene foam” since alternatives “impair the structure and properties of the foam, making it unsuitable for use.”  DecaBDE was identified as the most widely used flame retardant for high-impact polystyrene.

EPA is uncertain that any use of HBCD in consumer textiles is ongoing, although it does believe that HBCD is used in commercial textiles, such as firefighters’ suits.

Like the proposed SNUR for PBDEs, this proposed SNUR would not include the usual exemption for articles containing the SNUR chemical.

The proposed exemption for consumer textiles in automobiles is of note.  EPA knows that automobile manufacturers are currently using HBCD, but it believes that they are likely to phase out that use by 2015.  Under the European Union’s regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), HBCD will be banned after July 21, 2015 unless authorised for specific uses.[14]  Since automobile manufacturers are unlikely to use in the U.S. a chemical they could not use in the EU, EPA expects them to drop use of HBCD in the U.S. as well.  This is an early instance of EPA relying on EU actions under REACH to impact the use of chemicals in this country.

It is interesting that EPA considered this exemption to be necessary, since automobiles are not usually considered to be consumer products.  The definition of “consumer product” in the Consumer Product Safety Act specifically excludes motor vehicles and motor vehicle equipment.[15]  The corresponding definition in the SNUR regulations does not include such an exclusion, however.[16]  EPA may consider automobiles to be consumer products, which may be relevant to other SNURs which identify significant new uses as “use in a consumer product.”

EPA issued its action plan for HBCD on August 18, 2010.[17]  It submitted its draft proposed SNUR to OMB for review on September 20, 2011.  OMB released the proposed rule on February 14, 2012, less than five months later.

3.        Certain Benzidine-Based Chemicals

EPA has proposed to add nine benzidine-based chemicals to the current SNUR for 24 other benzidine-based chemicals, adopted in 1996.[18] 

The proposal would apply to articles containing any of the listed chemicals, meaning that the current exemption for articles containing any of the 24 previously-listed chemicals would be deleted.  EPA’s action plan for dyes derived from benzidine and its congeners noted the need to drop the articles exemption for benzidine-based azo dyes:  “Given than dye production has been shifting to Asia and importation of finished textiles has increased, it is possible that the risk of exposure to azo dyes in the U.S. would be more from dyes on imported finished textiles than from dyes manufactured or imported and used to finish textiles in the U.S.”

The significant new use for the nine newly-listed chemicals would be any use.  EPA does not believe than any of these chemicals is currently being manufactured or imported.

Four of the nine newly-listed chemicals were included in EPA’s action plan for dyes derived from benzidine and its congeners, which identified only chemicals on the public Inventory.  The other five chemicals are on the confidential Inventory.  EPA issued the action plan on August 18, 2010.[19]  It submitted the draft proposed SNUR to OMB for review on July 19, 2011.  OMB released the proposal on March 2, 2012.

4.        DnPP

Di-n-pentyl phthalate, CAS No. 131-18-0, is a phthalate ester.  EPA believes that DnPP is not generally used in the U.S.  The proposed significant new use is any use other than as a chemical standard in laboratories.  The proposed SNUR includes the usual exemption for articles containing the SNUR chemical.

DnPP was addressed in EPA’s action plan for phthalates issued December 30, 2009.  EPA recently issued a revised action plan in response to a request by the American Chemistry Council for a correction of the 2009 original plan under EPA’s Information Quality Guidelines.[20]  EPA submitted the draft proposed SNUR to OMB for review on July 19, 2011.  OMB released the proposal on March 2, 2012.

5.        Short-Chain Chlorinated Paraffin

EPA has proposed a SNUR for a specific short-chain chlorinated paraffin, alkanes, C12-13 chloro, CAS No. 71011-12-6.  The proposed significant new use is any use.  EPA has found no evidence that this SCCP has ever been used in the U.S.

This SCCP is on the TSCA Inventory, one of only four chlorinated paraffins on the Inventory as identified in the EPA action plan for SCCPs and other chlorinated paraffins.  Thus, this SCCP is not part of the recently-announced consent decree under TSCA against Dover Chemical Company, currently the only U.S. manufacturer of chlorinated paraffins.[21]  In that case Dover agreed to pay a $1.4 million penalty for manufacturing chlorinated paraffins not on the Inventory.  In that settlement, however, Dover agreed not to manufacture any SCCP. 

The proposed SNUR includes the usual exemption for articles containing the SNUR chemical.  The exemption might be surprising in light of EPA’s finding that exposure to SCCPs comes in part from “aging and wear of products like sofas and electronics.”  However, EPA notes that there is a “negative commercial and regulatory environment associated with this chemical internationally (including the EU and Canadian ban on marketing),” so it does not expect this SCCP to be a component of articles. 

EPA issued its chlorinated paraffins action plan on December 30, 2009.  It submitted a draft proposed SNUR for this SCCP to OMB for review on July 19, 2011.  OMB released the proposal on March 2, 2012.

6.        Implications for Import and Export of Proposed SNUR Chemicals

The publication of the proposed SNURs will trigger annual reporting of exports of the proposed SNUR chemicals under section 12(b).[22]  The export of SNUR chemicals in articles does not trigger export notification, however, even though the SNURs for PBDEs, HBCD, and certain benzidine-based chemicals apply to chemicals in articles. [23]  Similarly, the fact that those proposed SNURs apply to chemicals in articles does not impact the exclusion in the import notification requirements under section 13.[24] The proposed PBDEs SNUR preamble explains: “Eliminating article importers’ and article processors’ exemption from the requirement to submit a SNUN, as described in this proposed rule, would have no effect on article importers’ general exemption from import certification requirements, or on the articles exemption described at 40 CFR 707.60(b), respecting export notifications.”

For more information about TSCA developments, please contact Mark Duvall,, or Alexandra Wyatt,

For a printable PDF, please click here.

[1] See Beveridge & Diamond, P.C., TSCA Developments in Congress and at EPA (2011),

[2]Certain Plybrominated Diphenylethers; Significant New Use Rule and Test Rule; Proposed Rule, 77 Fed. Reg. 19862 (Apr. 2, 2012).

 [3] Significant New Use Rule for Hexabromocyclododecane and 1,2,5,6,9,10-Hexabromocyclododecane; Proposed Rule, 77 Fed. Reg. 17386 (Mar. 26, 2012)

[4] Benzidine-Based Chemical Substances; Di-n-pentyl phtalate (DnPP); and Alkanes, C12-13, Chloro; Proposed Significant New use Rules; Proposed Rule 77 Fed. Reg. 18752 (Mar. 28, 2012)

[5] See EPA, DecaBDE Phase-out Initiative,

[6] 40 C.F.R. § 721.10000.

[7] Under 40 C.F.R. § 721.45(f), a provision applicable to all SNURs unless specifically made inapplicable in a particular SNUR, a person who only imports or process the SNUR chemical in an article is exempt from the SNUR.  The proposed SNUR declares that “the provisions of § 721.45(f) do not apply to this section.  A person who imports or processes a chemical substance identified in this section as part of an article is not exempt from submitting a SNUN.”

[8] See Beveridge & Diamond, P.C., EPA Focusing on Chemicals in Articles With Expected PBDEs SNUR (2011),

[9] The proposed SNUR specifically would apply to those who manufacture or process any of those chemicals “for any use including in articles at any time after December 31, 2013, until the end of the data reimbursement period ….  For this section, importers of articles containing [any of those chemicals] are considered manufacturers and are subject to this section.” 

[10] Under section 5(b)(1)(A)(i) of TSCA, if a person is required to submit a SNUN for a chemical which is the subject of a test rule, the person must submit the data required under the test rule at the time it submits its SNUN.

[11] The proposed SNUR indicates that the provisions of 40 C.F.R. Part 721, Subpart A apply except for the articles exemption in 40 C.F.R. § 721.45(f).  This means that the exemption for manufacture and processing only as an impurity in 40 C.F.R. § 721.45(d) would apply to the SNUR.

[12] The action plan is available at

[13] The proposed SNUR would apply to two chemicals within the category, hexabromocyclododecane, CAS No. 25637-99-4, and 1,2,5,6,9,10-hexabromocyclododecane, CAS No. 3194-55-6.

[14] See European Chemicals Agency, Authorisation List,

[15] Consumer Product Safety Act § 3(a)(5), 15 U.S.C. § 2052(a)(5), excludes motor vehicles and motor vehicle equipment from the term “consumer product”:  “Consumer product means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; but such term does not include-- ... (C) motor vehicles or motor vehicle equipment (as defined by sections 102(3) and (4) of the National Traffic and Motor Vehicle Safety Act of 1966) ....”

[16] The SNUR regulations define “consumer product” in 40 C.F.R. § 721.3 to mean “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”

[17] The action plan is available at

[18] 40 C.F.R. § 721.1660.

[19] The action plan is available at

[20] The revised action plan, dated March 14, 2012, is available at

[21] Notice of the lodging of the consent decree appeared at 77 Fed. Reg. 11158 (Feb. 24, 2012), with a 30-day comment period.  The consent decree is available at

[22] See 40 C.F.R. Part 707, Subpart D.

[23] The export notification exemption requirement for chemicals in articles appears at 40 C.F.R. § 707.60(b).

[24] The import notification exemption requirement for chemicals in articles appears at 19 C.F.R. § 12.121(b).




Media Contact

Attorney Contacts
Attorney Contacts