PFAS Observer
On June 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) for 18 chemicals derived from the recycling of plastic wastes. 88 Fed. Reg. 39804 (2023). The chemicals were the subjects of premanufacture notifications (PMNs) submitted in 2015 and 2019 and of subsequent consent orders issued by the EPA under the authority of TSCA 5(e) and effective on August 25, 2022. The chemicals include naphtha blends and other pyrolysis oils.
In the context of PFAS, the most interesting requirement that the proposed SNURs would impose is the designation, as a significant new use, of the manufacture, import, or processing of any of the chemicals if they were made using plastic waste containing any amount of the following:
heavy metals (arsenic, cadmium, chromium VI, lead, mercury), dioxins, phthalates, per- and polyfluoroalkyl substances (PFAS), polybrominated diphenyl ethers (PBDEs), alkylphenols, perchlorates, benzophenone, bisphenol A (BPA), organochlorine pesticides (OCPs), ethyl glycol, methyl glycol, or N-methyl-2-pyrrolidone (NMP).
Insistence on pristine plastic-waste feedstocks, without any sort of acceptable de minimis amount, stands to create a substantial obstacle for any entity seeking to piggyback off the prospective Inventory listings of the 18 chemicals through pyrolysis or other advanced recycling technologies, even if the entity intends to implement the same process and engage in the same uses as are specified in the PMN (i.e., use as fuel, fuel ingredients, and feedstock). Such entities will have to submit a Significant New Use Notification (SNUN) to the EPA for review and approval. This administrative barrier is accentuated by the EPA’s use of a broad definition of PFAS in the proposed SNURs. For purposes of the proposed SNURs, PFAS are defined to mean a chemical substance that contains at least one of these 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.
This definition stands to capture many thousands of substances above and beyond those for which the EPA has developed or endorsed analytical methods.
The proposed SNURs underscore a regulatory approach grounded in the EPA’s recently articulated concerns regarding the perpetuation of PFAS and other persistent contaminants in a circular economy for plastics. The EPA’s concerns in this regard represent a bit of a break from Agency statements made over the past two years expressing interest in the role that advanced recycling might play in mitigating plastic wastes. In contrast to statements in the EPA’s 2022 National Recycling Strategy indicating the agency’s willingness to consider the benefits of advanced recycling, the Agency’s April 2023 draft National Strategy to Prevent Plastic Pollution (p. 15) reaffirmed a controversial earlier position that pyrolytic waste-to-fuel conversions do not constitute recycling. This reaffirmation is partially grounded in EPA “concerns about the potential health and environmental risks posed by impurities that may be present in pyrolysis oils generated from plastic waste.” Elsewhere (p. 19), the National Strategy emphasizes the need to develop methods and standards for the determination of chemicals of concern, including PFAS, … for recycled content to ensure protection of human health and the environment.
It appears the EPA is adopting a position of, at best, skepticism of advanced recycling and plastic-to-fuels technologies. To the extent that the proposed SNURs constitute a referendum on the weight of EPA concerns regarding PFAS versus the need to establish a circular economy for plastics, for now, anyway, the EPA seems more interested in eliminating the impacts of PFAS and other potential pollutants than supporting advanced recycling solutions.
Comments on the EPA’s proposed SNURs were originally due on July 20, 2023, but were extended to August 19, 2023. Interested businesses may wish to consider the potential benefits of submitting comments.