May 27, 2023

Volume XIII, Number 147


May 26, 2023

Subscribe to Latest Legal News and Analysis

May 25, 2023

Subscribe to Latest Legal News and Analysis

EPA Further Postpones TSCA Compliance Date for Articles Containing PIP

On March 8, 2022, the U.S. Environmental Protection Agency (EPA or Agency) published a final rule that extends the phase-in for the Toxic Substances Control Act (TSCA) ban on most articles containing phenol, isopropylated phosphate (3:1) (PIP (3:1)) through October 31, 2024. This extension comes just as the postponement announced by EPA in September of 2021 was set to expire. 

Specifically, the extension further postpones to November 1, 2024, the prohibition on processing and distribution in commerce of: (1) PIP (3:1)-containing articles, (2) PIP (3:1) used to make such articles, and (3) the associated recordkeeping requirements for manufacturers, processors, and distributors of PIP (3:1)-containing articles. However, the extended compliance date does not apply to the downstream notification requirements at 40 C.F.R. § 751.407(e) that apply to those who distribute PIP (3:1) as a neat substance or in a mixture but not as part of an article. The preamble to this final rule confirms that the downstream notification requirements are not applicable to distribution of articles containing PIP (3:1).

Acknowledging that public comments on extending the compliance date until October 2024 indicated that the extension would be insufficient for about two-thirds of affected industries, EPA stated that in the Spring of 2023 industries that believe that they will need more time will have another opportunity to demonstrate that the October 2024 compliance date is impracticable. EPA confirmed its intent to issue at that time proposed modifications to the current full and partial exclusions from bans on, respectively, PIP (3:1) and the other four persistent, bioaccumulative, and toxic (PBT) chemicals regulated under TSCA section 6(h). Changes to the current exclusions will be proposed in light of Executive orders, and other guidance issued by the Biden-Harris Administration on environmental justice, and on a review of the justifications for those exclusions adopted by EPA under the Trump Administration.

At that time, EPA also will consider any additional information regarding the need for further extensions of the PIP (3:1) compliance date, measuring compliance by the “manufactured-by” date, practicable sell-through periods in different industries, the applicability of the rule to replacement parts, and de minimis concentration thresholds.  In the meantime, industry is expected to further investigate supply chains and options for substitution to either complete the transition out of PIP (3:1) by the new deadline or develop detailed information supporting a later practicable compliance date.

© 2023 Keller and Heckman LLPNational Law Review, Volume XII, Number 67

About this Author

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

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...

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

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...

Herbert Estreicher Ph.D., Keller Heckman, International Regulation Lawyer, Environmental law Attorney

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...

votaw, KH, portrait

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...

Alexis Pecht DC Attorney Keller Heckman Environmental Law

Alexa Pecht practices primarily in the area of environmental law, where she counsels clients on regulatory compliance and enforcement matters under the Resource Conservation and Recovery Act, the Clean Air Act and other U.S. Federal and state environ statutes.

Prior to joining the firm, Ms. Pecht served as a law clerk in EPA’s Office of Enforcement and Compliance Assurance, Waste and Chemical Enforcement Division where she worked on civil litigation and enforcement matters concerning the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

While in law school, Ms....