EDF requests extension of illegally and unreasonably short comment period on proposed rule with incomplete docket

Richard Denison, Ph.D., is a Lead Senior Scientist.

Environmental Defense Fund (EDF) today submitted a request to the Environmental Protection Agency (EPA) to extend the mere 15-day period EPA has provided for public comments on a proposed modification to a Significant New Use Rule (SNUR).  The proposed SNUR modification was published in the Federal Register just last Thursday (February 8), and stated that comments must be received by February 23.[pullquote]EPA must comply with its own requirements and provide electronic access to a public file containing all relevant documents prior to commencing at a minimum a 30-day comment period on this proposed rule.[/pullquote]

EPA’s own regulations require EPA to provide the public with at least 30 days to comment on SNURs, see 40 CFR 721.160(c)(4) and 721.170(d)(4), making EPA’s 15-day comment period illegally short.

EDF requested that EPA provide at least 30 days for public comment – with that period to commence only after a complete public docket of relevant materials is made available by EPA.  As our request details, the docket EPA has provided for this proposed SNUR is woefully incomplete, missing even basic documents that preclude the public from being able to provide meaningful comments on the proposal.  

EPA’s proposed modification of the SNUR is based on its review of a Significant New Use Notification (SNUN) it received in 2017 pursuant to the original SNUR it had promulgated in 2012.  Among the many documents missing from the docket is that 2017 SNUN.  It also appears that more than one SNUN may have been received by EPA:  A consent order in the docket indicates the SNUN was received on January 13, 2017.  In contrast, the proposed modified SNUR indicates the SNUN was received on April 12, 2017.  All SNUNs or versions of the SNUN need to be added to the docket prior to commencement of the minimum 30-day comment period.

The modified SNUR apparently follows on the consent order EPA issued last October.  That consent order refers to numerous documents that are also missing from the docket – including health and safety studies that are not eligible for protection from disclosure under section 14(b)(2) of the Toxic Substances Control Act (TSCA).  Among these documents are:

  • an acute inhalation toxicity study; and
  • monitoring studies of formaldehyde release in specific industrial settings – which are studies clearly directly relevant to the basis for EPA’s proposal to modify the SNUR.

EDF’s request details numerous other documents missing from the docket.  EPA needs to provide these documents prior to initiating the minimum 30-day public comment period – and must ensure that any redactions in those documents of information claimed to be confidential business information (CBI) fully comply with all applicable requirements of TSCA section 14.  Among those requirements are that:

  • companies must have substantiated most CBI claims they asserted in documents submitted to EPA; and
  • EPA must have reviewed and reached determinations within 90 days on all such claims related to chemical identities, and at least 25% of all other types of claims.

As we have noted in earlier posts to this blog and in comments EDF recently submitted on changes EPA is making to its new chemicals review under TSCA, EPA’s regulations require that the agency make relevant documents available in a public file posted to an electronic docket posted at http://www.regulations.gov.

EDF’s request specifies that EPA must comply with these regulatory requirements and provide electronic access to a public file containing all relevant documents prior to commencing at a minimum a 30-day comment period for this proposed modification to a SNUR.


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