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Environmental Edge
April 5, 2021

Biden-Harris Team Takes First Plunge into TSCA with Temporary Regulatory Relief and Broad Review of Trump-Era TSCA Rules

Environmental Edge: Climate Change & Regulatory Insights

Two simultaneous actions taken by the US Environmental Protection Agency (EPA or the Agency) in early March under the Toxic Substances Control Act (TSCA) offer some insight on how EPA will approach implementation of TSCA's mandates.

First, EPA issued a narrowly tailored No Action Assurance (NAA) letter to provide temporary relief from a prohibition on the processing and distribution of the chemical substance known as "PIP (3:1)" and any products or articles containing PIP (3:1). The prohibition was included in one of five PBT risk management rules issued by the Trump administration in January. PIP (3:1) functions as a flame retardant and plasticizer and is used across many sectors in countless products—"articles" in TSCA parlance—such as electronics, home appliances, manufacturing equipment, and medical devices. The NAA likely kept critical supply chains for a multitude of industrial, commercial, and consumer products from breaking down.

At the same time it announced the NAA, EPA issued a notice for publication in the Federal Register seeking comments more broadly on the risk management rules for all five PBT chemicals. EPA will accept comments until May 17, 2021.

What do these two actions indicate about the Agency's TSCA implementation?

  • EPA was somewhat receptive to concerns about TSCA regulations' potentially disruptive impacts. Although EPA identified PIP (3:1) as a PBT chemical substance several years ago, PIP (3:1) has not been subject to regulatory restrictions outside the US. In addition, the January rule's prohibition applies to types of products that historically have not been targeted by TSCA. A number of entities not accustomed to regulation under TSCA were therefore caught by surprise. After publication of the final PBT rules, some stakeholders notified EPA, for the first time, of potential significant commercial disruptions they would experience due to the March 8 prohibition on the processing and distribution of PIP (3:1)-containing articles.
  • Based on information provided by various stakeholders, including during a last-minute meeting convened March 1 by the incoming Biden appointee in the responsible EPA office, the Agency concluded that a compliance deadline extension was in the public interest to avoid significant supply chain disruptions. EPA therefore issued the eleventh-hour NAA announcing that EPA will not pursue enforcement actions for up to 180 days for violations of the prohibition on processing and distribution in commerce of PIP (3:1) for use in articles, including in PIP (3:1)-containing articles, or for ancillary recordkeeping violations.1

  • EPA expects stakeholders to back up the claims about disruptive impacts and will expect deeper engagement by stakeholders in the future. In EPA's notice seeking comments on the five PBT rules, EPA states that "[i]t was clearly not EPA's intent" during development of the PIP (3:1) rule "to have such a broad disruptive impact," but the notice also sets forth EPA's expectation that stakeholders will not only identify specific articles that require alternative compliance deadlines but also provide a basis for the necessity for EPA to consider further delays and alternative deadlines. In remarks at a conference on March 25, the acting assistant administrator noted that EPA had heard about industry concerns "far too late" and "strongly" encouraged future engagement early in the process "to avoid a repeat occurrence."
  • EPA is taking advantage of the PIP (3:1) implementation issue to initiate its broader review of the PBT rules. The Agency issued its notice seeking comment pursuant to President Biden's Executive Order 13990 on "Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis." EPA indicated that it would consider revising the final PBT rules "with an eye towards reducing exposure to the extent practicable, environmental justice, scientific integrity, and EPA's mission of protecting human health and the environment." EPA will be considering whether the five rules could be revised to achieve further exposure reductions, including for potentially exposed or susceptible subpopulations and the environment, and whether EPA should consider additional or alternative measures. In other words, EPA could potentially tighten restrictions on the five PBT chemicals (PIP (3:1), decaBDE, 2,4,6-TTBP, PCTP, and HCBD), but it appears that the Agency will also be looking to understand feasible implementation timeframes for transitions to alternative chemicals.

*Margaret Barry also contributed to this post.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. The NAA does not apply to violations of the January rule's prohibition on releases of the substance to water, or to violations of other recordkeeping requirements, or to failures to abide by certain downstream notification requirements that apply after July 6, 2021.