October 20, 2021

Volume XI, Number 293

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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. 

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 251
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About this Author

 Thomas C. Berger, Keller Heckman, Environmental Protection lawyer, Product Liability Management Attorney
Partner

Tom Berger joined Keller and Heckman in 1993. Mr. Berger is a partner in Keller and Heckman's Washington DC office and heads Keller and Heckman's Indianapolis satellite office.

Mr. Berger has extensive experience in representing foreign and domestic companies, large and small, in a broad range of areas, including counseling, advocacy, and rulemaking in environmental law, occupational safety and health law, contracts, EPA enforcement proceedings, and chemical and product liability management. Mr. Berger assists clients in bringing new products to...

317.805.4770
Gregory A. Clark, Keller Heckman, EPA Contractor Lawyer, Environmental matters Attorney
Associate

Gregory Clark joined Keller and Heckman in 2010. He practices in the area of environmental law.

While in law school, Mr. Clark served as an articles editor for the Virginia Journal of Law and Technology. Prior to law school, Mr. Clark worked as an EPA contractor, primarily for the Water Security Division in the Office of Groundwater and Drinking Water. In this arena, Mr. Clark worked on validation of molecular biology and microbiology methods and on emergency preparedness. He led development of what is now EPA's Water Laboratory Alliance...

202-434-4302
Herbert Estreicher Ph.D., Keller Heckman, International Regulation Lawyer, Environmental law Attorney
Partner

Herbert Estreicher, Ph.D. joined Keller and Heckman in 2003. He has a broad practice in international environmental regulatory law.

Dr. Estreicher has an interdisciplinary approach combining law and science. He represents leading manufacturers of chemicals, pesticides, insect repellents, food additives, and consumer products before Federal and State regulatory agencies.

Dr. Estreicher provides advice on product liability risk control and assists clients with crisis management for embattled products, including...

202-434-4334
votaw, KH, portrait
Partner

James Votaw has an extensive practice focusing on environmental and health and safety regulation.Within that arena, he concentrates on the regulation of conventional and nanoscale chemicals, pesticides, consumer and industrial products, and industrial processes and wastes.

For his clients, Mr. Votaw obtains pre-market product approvals and exemptions, including the first U.S. approval of a nanoscale pesticide. He negotiates testing orders, defends enforcement actions, advises on restrictions and disclosures associated with the chemical content...

202-434-4227
Javaneh S. Tarter Environmental Attorney Keller and Heckman Washington, DC
Associate

Javaneh Tarter practices environmental, occupational health and safety, and administrative law. She primarily advises clients on Toxic Substances Control Act (TSCA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Occupational Safety and Health Act (OSH Act), and Proposition 65 compliance and represents clients in agency enforcement actions. Javaneh also assists clients in performing internal environmental health and safety audits, advises clients on employment law matters, and participates in appellate level litigation in cases challenging agency rulemakings.

Prior to...

202-434-4176
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