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On 3 September 2021 the U.S. Environmental Protection Agency (EPA) announced a plan for a new rulemaking on persistent, bioaccumulative, and toxic (PBT) chemicals that are the subject of final risk management rules under the Toxic Substances Control Act (TSCA). In addition, the EPA extended the compliance dates for the prohibitions on processing, distribution, and record-keeping requirements of phenol, isopropylated phosphate (3:1) (PIP (3:1)), which is also a PBT chemical.
Verisk 3E Review
New Rulemaking on PBT Chemicals
The TSCA requires the EPA to take expedited action on certain PBT chemicals to reduce exposure and protect human health and the environment. Accordingly, under the previous Administration in January 2021, the EPA issued final risk management rules restricting the use of five PBT chemicals. These rules went into effect in February 2021.
In a March 2021 notice, the EPA announced it was reviewing these rules in light of Executive Orders and other guidance provided by the Biden Administration. The agency also opened a public comment period to collect information relevant to compliance dates, specifically requesting comment on the PIP (3:1) compliance dates for use in articles, and any aspect of the final PBT rules. After further review, the EPA is considering revising all five of the final rules. The agency plans to issue a proposal for a new separate rulemaking on all five PBT chemicals in the spring of 2023. The current provisions of the January 2021 risk management rules remain in effect while the EPA works on this new rulemaking effort, with the exception of PIP (3:1).
PIP (3:1) Compliance Date Extension
The EPA extended certain compliance dates for PIP (3:1) to 8 March 2022 in order to address the hardships inadvertently created by the original compliance dates in the January 2021 final rule and to ensure that consumer and commercial goods supply chains are not disrupted. The EPA also will issue a notice of proposed rulemaking soon. If finalized, this rule would further extend the compliance dates.
Following the release of the January 2021 rule, stakeholders informed the EPA that the prohibition on processing and distribution of PIP (3:1) could impact articles used in a wide variety of goods. They also noted that the complexity of international supply chains makes locating the presence of, and finding alternatives to, PIP (3:1) in components challenging.
Despite the EPA’s outreach efforts during development of the PBT rules, most stakeholders contacting the EPA after the rule was finalized did not comment on the proposal and do not appear to have previously surveyed their supply chains to determine if PIP (3:1) was being used. Consequentially, the EPA did not have a full understanding of the impact of the prohibition prior to issuing the January 2021 final rules. While some commenters on the 2019 proposed rule stated that PIP (3:1) may be present in articles, those comments did not point out specific uses or indicate specific concerns with the 8 March 2021 compliance date. Thus, in March 2021, the EPA issued a No Action Assurance to ensure that the supply chain of these important articles was not interrupted.
Further, the EPA issued a notice requesting additional comments and information from industry stakeholders on the impact of the compliance dates, including specific information about the articles for which the compliance dates would need to be extended and a timeline for removing PIP (3:1) from their supply chains. However, industry commenters indicated the need for varying time frames, and many did not provide specific information about their operations to support those assertions.
To ensure that supply chains continue to operate without interruption, the EPA has issued a final rule providing a short-term extension of the specified compliance dates for PIP (3:1) articles until 8 March 2022. The EPA will issue a notice of proposed rulemaking seeking comment on a further extension of the compliance date for PIP (3:1) articles soon.
As part of the separate rulemaking on all five PBT chemicals planned for 2023, the EPA intends to reevaluate the current rules for PIP (3:1) and the other PBTs, as well as provide a description of the specific kinds of information it will require to support any additional extensions to the compliance dates. The agency expects industry commenters to provide documentation of the specific uses of PIP (3:1) in articles throughout their supply chains, as well as documentation of concrete steps taken to identify, test, and qualify substitutes for those uses, specific certifications that would require updating, and an estimate of the time that would be required. Without this information, the EPA will be unlikely to extend the compliance dates again.
PIP (3:1)-containing articles covered by the short-term compliance date extension include those that might be used in cellular telephones, laptop computers, and other electronic devices. Articles that might be used in industrial and commercial equipment used in various sectors, including transportation, life sciences, and semiconductor production, as well as other consumer and commercial goods, are also included.
This final rule is effective upon publication.
Verisk 3E Analysis
In order to remain compliant, businesses that manufacture or import products containing decabromodiphenyl ether (decaBDE), PIP (3:1), 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP), hexachlorobutadiene (HCBD), or pentachlorothiophenol (PCTP) should note that the EPA plans to issue a proposal for a new separate rulemaking on all five of these PBT chemicals in the spring of 2023. Further, the agency will extend certain compliance dates for PIP (3:1) to 8 March 2022.
The EPA will accept public comments in Docket ID EPA-HQ-OPPT-2021-0598 at the Federal eRulemaking Portal for 60 days following the publication of that proposed rule. The EPA intends to finalize this proposed rulemaking, which would further extend certain compliance dates, before 8 March 2022.