EPA Defers Compliance Date of PIP (3:1) Ban by Six Months, Announces Reopening of Five PBT Rulemakings

On September 3, 2021, the U.S. Environmental Protection Agency (EPA) announced, by rule, a further postponement - until March 8, 2022 - of its final rule to ban processing and distribution in commerce of certain uses of phenol, isopropylated phosphate (3:1) (PIP (3:1)) under the Toxic Substances Control Act (TSCA). EPA’s No Action Assurance (NAA) policy of the same date provided an effective emergency extension of the original March 8, 2021, compliance date, but that extension was set to expire September 5, 2021. EPA is now further extending the compliance date by an additional six months to provide companies time to comply with the rule by identifying and reformulating article components containing PIP (3:1) and by selling through existing stocks of articles that contain PIP (3:1). EPA granted the initial and subsequent compliance date extensions to address industry claims that an immediate ban was impracticable and would cause significant supply chain disruptions for a number of industries. During the extension period, those distributing PIP (3:1) in articles or for use in articles remain subject to the rule’s downstream notification requirements and the ban on releases to water. 

The March 8, 2022, compliance extension applies only to the processing and distribution of articles containing PIP (3:1) and other forms of PIP (3:1) to be used in such articles. With a few narrow exclusions, all other distribution and uses of PIP (3:1) have been banned since February 2021 and remain so. 

Companies that cannot practicably meet even the extended compliance date will have another opportunity to seek a further extension or exclusion. EPA announced that it will initiate a new rulemaking to consider whether to further extend the compliance date beyond March 2022 for individual uses and products. Interested companies or industry blocks will need to come forward with information demonstrating that a further extension is necessary. EPA anticipates this would include “documentation of the specific uses of PIP (3:1) in articles throughout their supply chains, documentation of concrete steps taken to identify, test, and qualify substitutes for those uses, documentation of specific certifications that would require updating and an estimate of the time that would be required.” EPA admonished that “[w]ithout this more specific information from suppliers, EPA will be unlikely to extend the compliance dates again.”

Companies also should be aware that EPA is considering revising all five TSCA persistent bioaccumulative toxic (PBT) rules (for PIP (3:1); DecaBDE; 2,4,6-TTBP; HCBD; and PCTP) in light of President Biden’s Executive Orders that address scientific integrity, environmental justice, and exposure reductions to the extent practicable. On March 16, 2021, EPA solicited additional comments on the final PBT rules and requested comment on the following issues:

• Whether further exposure reductions could be achieved (including for potentially exposed or susceptible subpopulations and the environment)

• Implementation issues

• Whether EPA should consider additional or alternative measures or approaches

EPA has now also announced that, after further review, it plans to issue a proposal for a new separate rulemaking on all PBT chemicals in the spring of 2023.