Carper Requests EPA IG Open an Investigation into EPA’s PFAS Significant New Use Rule

WASHINGTON, D.C. – Today, U.S. Senator Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works Committee, requested that the Environmental Protection Agency (EPA) Inspector General (IG) commence an investigation into potential irregularities associated with the finalization of a Significant New Use Rule (SNUR) that is designed to restrict the use of certain long-chain PFAS chemicals (including PFOA and PFOS) in consumer products.

Per- and Polyfluoroalkyl Substances, most commonly known as PFAS, are a class of man-made, highly persistent chemicals that have become ubiquitous in our environment and linked to adverse health impacts like cancer, liver damage, thyroid disease, decreased fertility and hormone suppression.

In April 2020, Senator Carper wrote to EPA Administrator Andrew Wheeler after his office received documents indicating that Dr. Nancy Beck, a White House official who is also the nominee to chair the Consumer Product Safety Commission (CPSC), had spent years trying to delay and weaken the PFAS SNUR both in her current White House capacity as well as in her previous role at EPA.

After documents and other information obtained by Senator Carper’s office and sent to EPA indicated that Dr. Beck sought to make it more difficult for EPA to use its authority under the Toxic Substances Control Act (TSCA) to protect Americans from PFAS, on June 22, 2020, Andrew Wheeler signed the final PFAS SNUR. The final rule did not include a number of the weakening changes that Senator Carper had raised in his April letter to EPA. “However, in recent weeks, my office learned that Dr. Beck continued to push for changes to the rule even after it was signed,” Senator Carper said. “On July 27, 2020, the rule was published in the Federal Register. Remarkably, it includes significant changes that my office was informed were directed to be included by Dr. Beck.”

Although the published version of EPA’s final PFAS SNUR included significant changes, there was no public notice was given that significant alterations were being made.

“It is not unusual for some minor technical or typographical corrections to be made to a rule after it has been signed but before it is published in the Federal Register,” Senator Carper continued. “However, typically, when more significant errors are found to have been made in a final rule, a new notice and comment technical corrections rulemaking process is required to remedy the errors while making the public aware that they are being made.”

“I request that you investigate the manner in which the PFAS SNUR was re-proposed and finalized, including the basis for the reversal of EPA’s apparent decision that its process did not require inter-agency and White House review, and whether the process used to significantly alter the rule after it was signed but before it was published in the Federal Register was appropriate and legal,” Senator Carper wrote.

A full copy of the letter can be found here and below.

July 28, 2020

The Honorable Sean O’Donnell

Inspector General

U.S. Environmental Protection Agency

1301 Constitution Ave. NW, Room 3102

Washington, DC 20460

Dear Inspector General O’Donnell:

I write to ask that the Office of the Environmental Protection Agency (EPA) Inspector General (IG) commence an investigation into potential irregularities associated with the finalization of a Significant New Use Rule (SNUR) that is designed to restrict the use of certain long-chain PFAS chemicals (including PFOA and PFOS) in consumer products. As with investigations I have requested into similar[1] irregularities[2] associated with the Strengthening Transparency in Regulatory Science Rule (the so-called Secret Science rule) and the Safer Affordable Fuel-Efficient (SAFE) Vehicles 2 Rule, EPA appears to have once again deviated from standard processes used by previous administrations to finalize rules. My office has been informed by more than one source that these deviations were initiated and insisted upon by Dr. Nancy Beck, a White House official who is also the nominee to chair the Consumer Product Safety Commission (CPSC).

In January, 2015, EPA first proposed what amounted to a de facto ban on certain long-chain PFAS (including but not limited to PFOA and PFOS) for which there were no ongoing uses, as well as a de facto ban on the resumption of all abandoned uses of certain long-chain PFAS substances that had previously been allowed. Additionally, the rule proposed to remove the exemption in the Toxic Substances Control Act (TSCA) that allows entities to import these chemicals as part of articles, such as surface coatings or other consumer products. Following the 2016 re-authorization of TSCA, EPA concluded that a supplemental proposed rule would be needed in order to consider and reflect the changes Congress made.

I wrote[3] to EPA Administrator Andrew Wheeler on April 17, 2020 after my office received documents indicating that Dr. Beck had spent years trying to delay and weaken the PFAS SNUR both in her current White House capacity as well as in her previous role at EPA.  For example, a) Dr. Beck sought to have the rule include time-consuming analytic barriers to the regulation of toxic chemicals in consumer products that Congress did not require when it re-authorized TSCA in 2016, b) she directed the reversal of the White House’s repeated conclusions that this proposed rule did not require White House or inter-agency review, presumably in order to assure her continued involvement with it once she left EPA, and c) she sought for months to have the final rule include a ‘safe harbor’ from enforcement, the exemption of some PFAS-containing products from being subject to the rule, and the exclusion of data that describe the risk of exposure.

On June 22, 2020, Andrew Wheeler signed the final PFAS SNUR (Attachment A).  The final rule did not include a number of the weakening changes that the documents I obtained indicated Dr. Beck sought. However, in recent weeks, my office learned that Dr. Beck continued to push for changes to the rule even after it was signed. On July 27, 2020, the rule was published in the Federal Register.[4]  Remarkably, it includes significant changes that my office was informed were directed to be included by Dr. Beck:

• The published version of the rule deleted EPA’s accurate description of Congress’s intent that a time-consuming analytic barrier to the regulation of toxic chemicals in consumer products was not required under TSCA.

• The published version of the rule deleted EPA’s statement that any portion of a product that was coated with PFAS would be subject to the rule, even if the coated portion was on an interior-facing surface of the product (because of the potential for exposure to the PFAS during disposal of the product). The published version also added a statement indicating that EPA would be issuing guidance on which coatings would be covered by the rule later, raising questions about whether that guidance would ultimately make fewer products coated with PFAS subject to the rule.

It is not unusual for some minor technical or typographical corrections to be made to a rule after it has been signed but before it is published in the Federal Register. However, typically, when more significant errors are found to have been made in a final rule, a new notice and comment technical corrections rulemaking process is required to remedy the errors while making the public aware that they are being made. For example, an error in the way the 2012 Obama Administration vehicle greenhouse gas emissions rules calculated electric vehicle and other compliance credits was remedied only after a public rulemaking first proposed in 2018[5] and finalized in March 2020. 

The federal government’s “Document Drafting Handbook”[6], which sets forth the process for federal agencies preparing materials for publication in the Federal Register, states that when ‘minor changes’ are requested to a document before it is published, a letter from the head of the Agency must accompany the request. In this case, the changes to the PFAS rule were not minor, and nor does any Agency letter appear in the rulemaking docket. Moreover, after failing for some weeks to respond to several requests from my office for more information, yesterday EPA responded and stated that none of the changes made “required a change request letter be sent.”

I request that you investigate the manner in which the PFAS SNUR was re-proposed and finalized, including the basis for the reversal of EPA’s apparent decision that its process did not require inter-agency and White House review, and whether the process used to significantly alter the rule after it was signed but before it was published in the Federal Register was appropriate and legal.

Thank you for your attention to this important matter. If you have any questions or concerns, please ask your staff to contact Michal Freedhoff (Michal_Freedhoff@epw.senate.gov) of the Environment and Public Works Committee staff. I look forward to your prompt response.

Sincerely,

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