EPA Seeks Public Input on Draft Guidance for PFAS Significant New Use Rule

Aggressively addressing per- and polyfluoroalkyl substances (PFAS) in the environment continues to be an active and ongoing priority for the U.S. Environmental Protection Agency (EPA). As part of these efforts, EPA is asking for public input on new draft guidance that outlines which imported articles are covered by the agency’s July 2020 final rule that prohibits companies from manufacturing, importing, processing, or using certain long-chain PFAS without prior EPA review and approval. More specifically, this guidance provides additional clarity for stakeholders that are importers of articles that may contain long-chain PFAS as part of a surface coating.

Comment deadline is January 15, 2021.

The draft guidance:

  • Provides additional clarity on what is meant by a “surface coating.”
  • Identifies which entities are regulated.
  • Describes the activities that are required or prohibited.
  • Summarizes the notification requirements of the final rule.

Upon publication of the Federal Register notice, EPA will accept comments on the guidance for 30 days in docket EPA-HQ-OPPT-2020-0621 on www.regulations.gov. EPA will use feedback received from the public comment process to inform the final guidance.

The July 2020 final rule is part of EPA’s PFAS Action Plan issued in February 2019. The cross-agency plan is the most comprehensive effort ever to address an emerging chemical of concern. Through the plan, EPA has made significant progress to help states and local communities address PFAS and protect public health.

Find a link to the draft guidance and learn more about the PFAS final rule.

Background on Draft Guidance

In July 2020, EPA issued a final rule strengthening the regulation of PFAS by requiring notice and EPA review before the use of long-chain PFAS (LCPFAC) that have been phased out in the United States could begin again. Additionally, products containing certain long-chain PFAS as a surface coating and carpet containing perfluoroalkyl sulfonate chemical substances can no longer be imported into the United States without EPA review.

This action means that articles like textiles, carpet, furniture, electronics, and household appliances that could contain certain PFAS chemicals cannot be imported into the United States unless EPA reviews and approves the use or puts in place the necessary restrictions to address any unreasonable risks.

For more information on the final rule: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-and-polyfluoroalkyl-substances-pfas

Background on PFAS Action Plan

EPA continues to make progress under its PFAS Action Plan to protect the environment and human health, including:

Drinking Water

  • In December 2019, EPA accomplished a key milestone in the PFAS Action Plan by publishing a new validated method to accurately test for 11 additional PFAS in drinking water. Method 533 complements EPA Method 537.1, and the agency can now measure 29 chemicals.
  • In February 2020, EPA took an important step in implementing the agency’s PFAS Action Plan by proposing to regulate PFOA and PFOS drinking water.
  • EPA also asked for information and data on other PFAS substances, as well as sought comment on potential monitoring requirements and regulatory approaches.
  • In November 2020, EPA issued a memo detailing an interim National Pollutant Discharge Elimination (NPDES) permitting strategy for PFAS. The agency also released information on progress in developing new analytical methods to test for PFAS compounds in wastewater and other environmental media.

Cleanup

  • In December 2019, EPA issued Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS, which provides guidance for federal cleanup programs (e.g., CERCLA and RCRA) that will also be helpful to states and tribes.
    • The recommendations provide a starting point for making site-specific cleanup decisions and will help protect drinking water resources in communities across the country.
  • In July 2020, EPA submitted the Interim Guidance on the Destruction and Disposal of PFAS and Materials Containing PFAS to OMB for interagency review. The guidance would:
    • Provide information on technologies that may be feasible and appropriate for the destruction or disposal of PFAS and PFAS-containing materials.
    • Identify ongoing research and development activities related to destruction and disposal technologies, which may inform future guidance.
  • EPA is working on the proposed rule to designate PFOA and PFOS as hazardous substances under CERCLA. In the absence of the rule, EPA has used its existing authorities to compel cleanups.

Monitoring

  • In July 2020, EPA transmitted the Unregulated Contaminant Monitoring Rule 5 (UCMR 5) proposal to the Office of Management and Budget (OMB) for interagency review. EPA anticipates proposing nationwide drinking water monitoring for PFAS that uses new methods that can detect PFAS at lower concentrations than previously possible.

Toxics

  • In September 2019, EPA issued an advanced notice of proposed rulemaking that would allow the public to provide input on adding PFAS to the Toxics Release Inventory toxic chemical list.
  • In June 2020, EPA issued a final regulation that added a list of 172 PFAS chemicals to Toxics Release Inventory reporting as required by the National Defense Authorization Act for Fiscal Year 2020.
  • In July 2020, EPA issued a final regulation that can stop products containing PFAS from entering or reentering the marketplace without EPA’s explicit permission.

Scientific Leadership

  • EPA continues to compile and assess human and ecological toxicity information on PFAS to support risk management decisions.
  • EPA continues to develop new methods to test for additional PFAS in drinking water.
  • The agency is also validating analytical methods for surface water, groundwater, wastewater, soils, sediments and biosolids; developing new methods to test for PFAS in air and emissions; and improving laboratory methods to discover unknown PFAS.
  • EPA is developing exposure models to understand how PFAS moves through the environment to impact people and ecosystems.
  • EPA is working to develop tools to assist officials with the cleanup of contaminated sites.
  • In July 2020, EPA added new treatment information for removing PFAS from drinking water.

Technical Assistance

  • Just as important as the progress on PFAS at the federal level are EPA efforts to form partnerships with states, tribes, and local communities across the country.
  • EPA has provided assistance to more than 30 states to help address PFAS, and the agency is continuing to build on this support.
  • These joint projects allow EPA to take the knowledge of its world-class scientists and apply it in a collaborative fashion where it counts most.

Enforcement

  • EPA continues to use enforcement tools, when appropriate, to address PFAS exposure in the environment and assist states in enforcement activities.
  • EPA has already taken actions to address PFAS, including issuing Safe Drinking Water Act orders and providing support to states. See examples in the PFAS Action Plan.
  • To date, across the nation, EPA has addressed PFAS in 15 cases using a variety of enforcement tools under SDWA, TSCA, RCRA, and CERCLA (where appropriate), and will continue to do so to protect public health and the environment.

Grants and Funding

  • Under this Administration, EPA’s Office of Research and Development has awarded over $15 million through dozens of grants for PFAS research.
  • In May 2019, EPA awarded approximately $3.9 million through two grants for research that will improve the agency’s understanding of human and ecological exposure to PFAS in the environment. This research will also promote a greater awareness of how to restore water quality in PFAS-impacted communities.
  • In September 2019, EPA awarded nearly $6 million to fund research by eight organizations to expand the agency’s understanding of the environmental risks posed by PFAS in waste streams and to identify practical approaches to manage potential impacts as PFAS enters the environment.
  • In August 2020, EPA awarded $4.8 million in funding for federal research to help identify potential impacts of PFAS to farms, ranches, and rural communities.

Highlighted Action: Risk Communications

  • EPA is working collaboratively to develop a risk communication toolbox that includes multimedia materials and messaging for federal, state, tribal, and local partners to use with the public.

Additional information about PFAS can be found at: www.epa.gov/pfas

Canada Publishes Final Decision after Phthalate Substance Screening Assessment

Summary of screening assessment of the Phthalate Substance Grouping

Pursuant to sections 68 and 74 of the Canadian Environmental Protection Act, 1999 (CEPA), the Minister of the Environment and the Minister of Health have conducted a screening assessment of 14 phthalate esters (phthalates), known collectively as the Phthalate Substance Grouping.

Substances in this grouping were identified as priorities for assessment as they met categorization criteria under subsection 73(1) of CEPA or were considered a priority on the basis of other human health concerns. This screening assessment follows the August 2015 publication of four state of the science (SOS) reports and an approach document for cumulative risk assessment (CRA) of phthalates, and it presents information relevant to concluding on the substances in this grouping under section 64 of CEPA.

The Chemical Abstracts Service Registry Numbers, Domestic Substances List (DSL) names and acronyms for phthalates in the Phthalate Substance Grouping screening assessment are listed in the table below.

Substances in the Phthalate Substance Grouping

CAS 131-11-3: 1,2-Benzenedicarboxylic acid, dimethyl ester

CAS 84-69-5:  1,2-Benzenedicarboxylic acid, bis(2-methylpropyl) ester

CAS 5334-09-8:  1,2-Benzenedicarboxylic acid, cyclohexyl 2-methylpropyl ester

CAS 84-64-0:    1,2-Benzenedicarboxylic acid, butyl cyclohexyl ester

CAS 84-61-7: 1,2-Benzenedicarboxylic acid, dicyclohexyl ester

CAS 523-31-9:  1,2-Benzenedicarboxylic acid, bis(phenylmethyl) ester

CAS 68515-40-2: 1,2-Benzenedicarboxylic acid, benzyl C7-9-branched and linear alkyl esters

CAS 27987-25-3: 1,2-Benzenedicarboxylic acid, bis(methylcyclohexyl) ester

CAS 71888-89-6: 1,,2-Benzenedicarboxylic acid, di-C6-8-branched alkyl esters, C7-rich

CAS 27215-22-1: 1,2-Benzenedicarboxylic acid, isooctyl phenylmethyl ester

CAS 16883-83-3: 1,2-Benzenedicarboxylic acid, 2,2-dimethyl-1-(1-methylethyl)-3-(2-methyl-1-oxopropoxy)propyl phenylmethyl ester

CAS 68515-48-0/ 28553-12-0:  1,2-Benzenedicarboxylic acid, di-C8-10-branched alkyl esters, C9-rich; 1,2-Benzenedicarboxylic acid, diisononyl ester

CAS 26761-40-0 / 68515-49-1: 1,2-Benzenedicarboxylic acid, diisodecyl ester; 1,2-Benzenedicarboxylic acid, di-C9-11-branched alkyl esters, C10-rich

CAS 3648-20-2:   1,2-Benzenedicarboxylic acid, diundecyl ester.

Fourteen additional phthalates on the DSL were included within the scope of the screening assessment in the context of their potential to contribute to cumulative risk from combined exposure to phthalates.

On the basis of the information presented in this screening assessment, it is concluded that all 14 phthalates in the Phthalate Substance Grouping do not meet the criteria under paragraph 64(c) of CEPA as they are not entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger in Canada to human life or health. Also, the previous conclusion made in the 1994 PSL assessment of DEHP, that it meets the criteria under paragraph 64(c) of CEPA, remains valid.

Overall conclusion

It is concluded that DEHP meets one or more of the criteria set out in section 64 of CEPA, and that the other 14 substances in the phthalate substance grouping do not meet any of the criteria set out in section 64 of CEPA.

DEHP has been determined to not meet the persistence and bioaccumulation criteria as set out in the Persistence and Bioaccumulation Regulations of CEPA.

Public comment period on the risk management approach

Any person may, within 60 days after publication of the proposed risk management approach document, file with the Minister of the Environment written comments on the proposed risk management approach document. More information regarding the scientific considerations may be obtained from the Canada.ca (Chemical Substances) website. All comments must cite the Canada Gazette, Part I, and the date of publication of this notice and be addressed to the Executive Director, Program Development and Engagement Division, Department of the Environment, Gatineau, Quebec K1A 0H3, by fax to 819‑938‑5212, by email to eccc.substances.eccc@canada.ca, or by using the online reporting system available through Environment and Climate Change Canada’s Single Window.”

Canada: Environmental Protection Act, c.33 1999, Reporting Requirements for Perfluorohexane Sulfonic Acids (PFHxS)

On 10 October 2020, the Canadian Minister of the Environment issued a Notice requiring that any person involved in the manufacture, use, export or import of perfluorohexane sulfonic acid, its salts and its precursors (PFHxS) submit certain information no later than 20 November 2020. The objective is to assess whether the 33 substances listed in Schedule 1 of this Notice shall be subject to control and if so, determine the manner in which such a control shall be implemented.

This notice applies to any person, or class of persons designated the successor or assign of a person, who, during the 2019 calendar year:

  • manufactured a total quantity of greater than 1 000 g of any substance [listed on Schedule 1 to this Notice];
  • imported a total quantity greater than 10 g of any substance, whether the substance was alone or at a concentration equal to or above 1 ppm in a mixture, in a product or in a manufactured item;
  • used a total quantity greater than 10 g of any substance, whether the substance was alone or at a concentration equal to or above 1 ppm in a mixture or in a product, in the manufacture of a mixture, a product or a manufactured item; and
  • exported a total quantity greater than 10 g of any substance, whether the substance was alone or at a concentration equal to or above 1 ppm in a mixture, in a product or in a manufactured item.

It does not apply to a substance [listed on Schedule 1 to this Notice], whether alone, in a mixture, in a product or in a manufactured item that:

  • is imported or exported for use in a laboratory for analysis, in scientific research or as a laboratory standard;
  • is, or is contained in, a hazardous waste or hazardous recyclable material within the meaning of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and was exported or imported pursuant to a permit issued under these Regulations; and
  • is, or is contained in, a pest control product registered under the Pest Control Products Act.

According to this notice, the persons identified shall provide the following information:

  1. the name of the person reporting;
  2. the address;
  3. the federal business number;
  4. the name of an individual authorized to act on behalf of the person, email and phone number; and
  5. a declaration that the information is accurate and complete.

For each substance [listed on Schedule 1 of this Notice] that a person manufactured or imported, whether alone, in a mixture, in a product or in a manufactured item, during the 2019 calendar year, the following information shall also be provided:

  1. the CAS RN of the substance;
  2. whether the person manufactured or imported the substance by indicating “yes” or “no”;
  3. the total quantity of the substance that the person manufactured or imported, reported in grams;
  4. each substance function code set out in Schedule 2 that applies to the substance;
  5. each application code set out in Schedule 3 that applies to the substance; and
  6. for each application code provided, the description and the common or generic name of the known or anticipated final goods containing the substance.

Where code U999 is provided, a written description of the function associated with the substance must be provided.

Where code C999 is provided, a written description of the application associated with the substance must be provided.

Slightly different information is required from persons who, during the 2019 calendar year, used or exported the targeted substances (whether alone, in a mixture, in a product or in a manufactured item) in accordance with sections 9 and 10 of the Notice.

Responses to this notice can be submitted to the Minister of the Environment, using the online reporting system available through Environment and Climate Change Canada’s Single Window.  Claims for confidentiality will be approved if the information submitted is found to be confidential under Canadian law and the Act. Requests to extend the deadline to submit the above information may be submitted to the Minister at the following email address: eccc.substances.eccc@canada.ca.

EU REACH – ECHA’s committees back restricting over 1000 skin sensitizing chemicals used in clothing and other articles

The Committee for Socio-economic Analysis (SEAC) supports France and Sweden’s proposal to restrict the use of skin sensitizing substances in clothing, footwear and other articles with similar skin contact. If adopted, the restriction will prevent many people from developing new skin allergies while also relieving the symptoms of many of those who already have them. This is expected to result in health benefits equivalent to at least €708 million per year.

SEAC adopted its final opinion on France and Sweden’s proposal to restrict skin sensitizing substances in textile, leather, synthetic leather, hide and fur articles, that are placed on the market for the first time. This follows an earlier opinion by the Committee for Risk Assessment (RAC) in March 2020. Both committees concluded that an EU-wide restriction is the most appropriate means to address the risks to EU citizens. In addition, SEAC concluded that the expected benefits and costs to society of the proposal mean that it is likely to be proportionate.

Skin sensitization is a health effect that leads to a lifelong sensitivity to a specific allergen. Currently, there is a growing concern about skin sensitization from exposure to chemicals in textile and leather products: it is estimated that up to 5 million people in the European Economic Area are already sensitized and up to 180 000 new cases occur each year.

The proposed restriction covers substances that have a harmonized classification as skin sensitizers under the Classification, Labelling and Packaging (CLP) Regulation such as chromium VI, nickel and cobalt compounds. It also proposes to restrict some dyes that are considered to have skin sensitizing properties, but which do not have a harmonized classification. The proposal introduces a link with the CLP Regulation meaning that any substance that is classified as a skin sensitizer in the future under CLP would automatically be covered by the restriction. When substances are automatically added to the restriction, SEAC recommends a transitional period of three years between classification and the conditions of the restriction taking effect to allow manufacturers to adapt.

If adopted by the European Commission, the restriction will prevent many new skin allergies while also relieving the symptoms of many people who already have them. This is expected to save European society at least €708 million a year in reduced healthcare costs, productivity losses (e.g. due to sick leaves) and welfare losses (in terms of reduced quality of life due to the allergy). The raw material costs for industry to replace the chemicals are estimated to be up to €23.8 million per year. There will also be costs related to reformulation, testing and enforcement.

Following SEAC’s adoption, the opinions of both RAC and SEAC as well as the proposal of France and Sweden will be sent to the European Commission, which will take the decision together with the EU Member States.

USA: Significant New Use of Certain Chemical Substances, 40 CFR Parts 9 and 721 – Amendment – (on six (6) chemical substances, Batch 19-5.B), August 2020

EPA is issuing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances which are the subject of pre manufacture notices (PMNs). This action requires persons to notify EPA at least 90 days before commencing manufacture (defined by statute to include import) or processing of any of these chemical substances for an activity that is designated as a significant new use by this rule. The required notification initiates EPA’s evaluation of the chemical under the conditions of use within the applicable review period. Persons may not commence manufacture or processing for the significant new use until EPA has conducted a review of the Significant New Use Notice (SNUN), made an appropriate determination on the SNUN, and has taken such actions as are required as a result of that determination.

List:

  • 1H-imidazole-1-propanenitrile,2-ethylar-methyl- (CAS No. 568591–00–4)
  • 2,4-hexadien-1-ol, 1-acetate, (2E,4E)- (PMN P–17–324, (CAS No. 57006–69–6)
  • 2-Alkenoic acid, 2-alkyl-, alkyl ester, polymer with 2-(dialkylamino)alkyl 2- alkyl-2-alkenoate, alkyl 2-alkyl-2-alkenoate and a-(2-alkyl-1-oxo-2-alken-1-yl)-oalkoxypoly(oxy-1,2-alkanediyl), [(1-alkoxy-2- alkyl-1-alken-1-yl)oxy]trialkylsilane-initiated (generic).
  • Benzenesulfonamide, N-[2- [[(phenylamino)carbonyl] amino]phenyl]- (CAS No. 215917–77–4)
  • Lithium, isotope of mass 6 (CAS No. 14258–72–1)
  • Silsesquioxanes, 3- (dimethyloctadecylammonio)propyl Me Pr, polymers with silicic acid (H4SiO4) tetra-Et ester, (2-hydroxyethoxy)- and methoxy-terminated, chlorides (CAS No. 35501–23–6)

EU REACH – Endocrine Disrupting Chemicals – EU Classification

By Paul Goodman, RINA

Substances that are classified as endocrine disruptors are believed to be some of the most harmful to human health or the environment, however it is notoriously difficult to determine whether a substance should be classified as an endocrine disruptor. In 2016, the EU announced that it would consider about 600 substances regarding their endocrine disrupting properties, but at present there are only 16 substances that are classified as endocrine disruptors under the REACH Regulation and only two as biocides. All of the REACH endocrine disrupting chemicals have been added to the Candidate List with 14 of the 16 being classified as environmental endocrine disruptors and 6 as human endocrine disruptors.

One of the main approaches used by the EU to assess chemicals is via the Community Rolling Action Plan (CoRAP). This currently lists about 289 substances of which 87 are being considered for endocrine disrupting properties. Of the potential endocrine disruptors listed; 16 have not yet started investigation, 19 have concluded assessment and 25 assessments are on-going. The list on the ECHA website is out of date, however, as several of the substances listed as “on-going” have now been confirmed to be endocrine disruptors and have been added to the REACH Candidate List. Being included in the CoRAP list by no means guarantees that a substance will be confirmed to be an endocrine disruptor and in fact many are determined to not meet the criteria or at least there is insufficient evidence to classify them as endocrine disruptors.

The CoRAP list is useful as it alerts industry of the types of substances that are being considered by the EU, however it should not be regarded as a “black list” as many of the assessments conclude that the substances do not meet the hazard classification criteria that are being assessed. However, if a substance is confirmed to be a CMR, PBT/vPvB or an endocrine disruptor, regulation in some form is likely to be considered.

For more information about EPA’s efforts under the PFAS Action Plan: https://www.epa.gov/pfas

USA: EPA Takes Next Step to Implement PFAS Legislation – Certain PFAS to be added into the Code of Federal Regulations for the Toxics Release Inventory

13 May, 2020

The U.S. Environmental Protection Agency (EPA) took the next step to implement an important per- and polyfluoroalkyl substances (PFAS) requirement of the National Defense Authorization Act (NDAA). The NDAA added 172 PFAS to the list of chemicals required to be reported to the Toxics Release Inventory (TRI) and established a 100-pound reporting threshold for these substances. The agency is publishing a final rule that officially incorporates these requirements into the Code of Federal Regulations for TRI.

“EPA continues to prioritize and make progress to protect the health and well-being of communities across the country that are working to address PFAS,” said EPA Administrator Andrew Wheeler. “The inclusion of these 172 PFAS on the TRI list will provide EPA and the public with important information on these emerging chemicals of concern.”
As this action is being taken to conform the regulations to a Congressional legislative mandate, this rule is effective immediately. Per the NDAA requirements, the PFAS additions became effective as of January 1, 2020. Reporting forms for these PFAS will be due to EPA by July 1, 2021, for calendar year 2020 data. EPA expects to release the 2020 TRI data by July 31, 2021.

To provide clear information on which chemicals fall under the NDAA requirement, in February 2020, EPA released a list of 172 PFAS chemicals that are subject to TRI reporting. Facilities in TRI-covered industry sectors should track and collect data on these PFAS during 2020. All TRI reporting requirements apply to these PFAS (e.g., supplier notification) and TRI reporting exemptions, if applicable, are available for these PFAS. Note that TRI reporting requirements state that a facility should use readily available data collected pursuant to other provisions of law or, where such data are not readily available, reasonable estimates of the amounts involved.
EPA’s TRI is an important tool that provides the public with information about the use of certain chemicals by tracking their management and associated activities. U.S. facilities in different industry sectors must report annually how much of each chemical is released to the environment and/or managed through recycling, energy recovery, and treatment. TRI helps support informed decision-making by companies, government agencies, non-governmental organizations, and the public.

To view the final rule, visit: https://www.epa.gov/toxics-release-inventory-tri-program/implementing-statutory-addition-certain-an…

Learn more about the addition of PFAS chemicals to TRI, including a list of the 172 PFAS subject to TRI reporting: https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense…

EU: Chemicals Strategy for Sustainability Roadmap, May 2020

The Chemicals Strategy for Sustainability will both help to protect citizens and the environment better against hazardous chemicals and encourage innovation for the development of safe and sustainable alternatives It will set a vision and a comprehensive framework for action where all parties – including industry – should work together to combine better health and environmental protection and increased global competitiveness.

This can be achieved by simplifying and strengthening the legal framework. The Commission will review how to better use the EU’s agencies and scientific bodies to move towards a process of ‘one substance – one assessment’ and to provide greater transparency when prioritizing action to deal with chemicals. In parallel, the regulatory framework will need to rapidly reflect scientific evidence on the risk posed by endocrine disruptors, hazardous chemicals in products including imports, combination effects of different chemicals and very persistent chemicals.

The Strategy will also support the EU’s strategic autonomy in the production of essential chemicals across key sectors and promote research and development for the sustainable transformation of the chemical industry and the creation of green and sustainable manufacturing capacity in Europe.

This Strategy is delivered within the framework of the European Green Deal, as a first step to move towards a zero pollution ambition for a toxic-free environment, in synergy with the Zero Pollution Action Plan (planned in 2021). The zero pollution ambition complements initiatives foreseen under the European Green Deal to protect biodiversity and to move towards a climate-neutral and circular economy. The Chemicals Strategy for Sustainability will also support other priorities of the European Commission, in particular the digital transition, strengthening the EU’s competitiveness as well as its industrial and strategic autonomy, fighting cancer, ensuring Europe’s manufacturing and supply of safe and affordable medicines, developing markets for innovative companies, exploiting digitization for societal solutions, ensuring strict enforcement of EU’s legislation and promoting the highest standards of environmental and health protection globally to also ensure safety and sustainability of chemicals and products imported into the EU.

EU REACH – Authorizations granted for various uses of five substances

By European Chemicals Agency (ECHA)

The European Commission has granted authorizations (review period expiry dates in brackets) for:

  • two uses of potassium dichromate(EC 231-906-6, CAS 7778-50-9) by Gentrochema BV (21 September 2024);
  • three uses of sodium dichromate(EC 234-190-3, CAS 10588-01-9) by Gentrochema BV (21 September 2024 (for uses 1 and 2) and 14 April 2024 (for use 3));
  • three uses of sodium dichromate(EC 234-190-3, CAS 10588-01-9) by Brenntag UK Ltd; Henkel AG & Co. KGaA and AD International BV (21 September 2024 (for uses 1 and 2) and 14 April 2024 (for use 3));
  • two uses of dichromium tris(chromate)(EC 246-356-2, CAS 24613-89-6) by Henkel AG & Co. KGaA and Henkel Global Supply Chain B.V. (22 January 2026);
  • two uses of potassium hydroxyoctaoxo-dizincate dichromate(EC 234-329-8, CAS 11103-86-9) by PPG Industries (UK) Ltd., Finalin GmbH, PPG Europe B.V., PPG Coatings SA, Boeing Distribution, Inc. (22 January 2026);
  • two uses of strontium chromate (EC 232-142-6, CAS 7789-06-2) by Akzo Nobel Car Refinishes B.V; Habich GmbH; Henkel Global Supply Chain B.V.; Indestructible Paint Ltd.; Finalin GmbH; Mapaero; PPG Europe B.V.; PPG Industries (UK) Ltd., PPG Coatings SA and Boeing Distribution, Inc. (22 January 2026)

BSEF requests Court of Justice annulment of Regulation (EU) 2019/2021 laying down ecodesign requirements for electronic displays

Authored by Joyce Costello, Compliance & Risks

In an action brought on 20 February 2020, Case T-113/20, the Bromine Science Environmental Forum (BSEF) lodged an application for an order of annulment of Commission Regulation (EU) 2019/2021 of 1 October 2019 laying down ecodesign requirements for electronic displays pursuant to Directive 2009/125/EC of the European Parliament and of the Council, insofar as it bans halogenated flame retardants.

The applicant, global representative of the bromine flame retardant industry, has presented 7 pleas of law in a bid to overturn the Regulation’s ‘unprecedented’ and ‘unwarranted’ restriction on halogenated flame retardants (HFRs) for electronic display enclosures.

In essence, BSEF contends that this ban is unlawful, and that the Commission exceeded the limits of its competence under the EU Ecodesign Directive by imposing restrictions on an entire class of substances that are within the scope of and controlled by other specific EU legislations (such as the EU RoHS Directive 2011/65/EU).

Pleas set out by BSEF in its application:

  1. The Commission breached Article 1(4) and Article 15(2)(c)(i) of the Ecodesign Directive, acted ultra vires and exceeded the limits of its competence, as well as prevented the effet utileof other EU law measures.
  2. The Commission breached the applicant’s rights of defence by banning the halogenated flame retardants for use in electronic displays through the Contested Regulation.
  3. The Commission manifestly erred in its assessment and failed to take all information into account, breached Article 15(1) of the Ecodesign Directive and failed in its duty to undertake an appropriate impact assessment when banning the substances
  4. Regulation (EU) 2019/2021 breaches the principle of legal certainty in that the applicant is placed in a position of unacceptable legal uncertainty.
  5. Regulation breaches the principle of proportionality.The ban  exceeds the limits of what is appropriate, is not necessary to achieve the objectives pursued and is not the least onerous measure to which the Commission could have had recourse.
  6. Regulation breaches the principle of equal treatment – the ban is discriminatory vis-à-vis other categories of products and vis-à-vis other substances.
  7. The Commission breached Article 15(1) of the Ecodesign Directive and Article 5a(1) to (4) and Article 7 and 8 of Decision 1999/468/EC and acted ultra vires.

The contested ban is scheduled to come into force in March 2021. 

Case T-113/20 may be tracked at http://curia.europa.eu/juris/fiche.jsf;jsessionid=C0176D2121C8E0C9CAAD8834C0C02221?id=T%3B113%3B20%