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Environmental Edge
August 24, 2021

EPA Making Further Moves on TSCA Section 6 Rule Prohibiting PIP (3:1)

Environmental Edge: Climate Change & Regulatory Insights

In the wake of an onslaught of public comments and concerns raised earlier this year by companies and trade associations representing scores of industries apparently surprised by EPA’s final TSCA rule generally prohibiting the use of a substance known as PIP (3:1),1 EPA is finally making moves that the regulated community hopes will address their concerns. EPA has just submitted to the Office of Management and Budget for expedited review, what is expected to emerge as an Interim Final Rule that will amend the regulatory deadlines in the final PIP (3:1) rule. If EPA’s impending action is issued in a timely way, and provides a far more substantial length of time for the makers, importers, and distributors of manufactured products to phase out their use of PIP (3:1)-containing parts, these industries might yet avoid the prospect of otherwise needing to halt import shipments and US distribution of previously manufactured products that could contain PIP (3:1) in countless components and replacement parts.

In January, just prior to the transition in Administrations, EPA issued a final TSCA regulation prohibiting the use and distribution of five different persistent, bioaccumulative and toxic (PBT) chemical substances using certain “expedited” rulemaking authorities under the 2016 amendments to TSCA. One of the five rules would have largely prohibited the use of PIP (3:1) and the further distribution of many previously manufactured products containing the substance.2 PIP (3:1) has been widely used as a component in plastics; hence it has been, and likely remains present in, wiring, housing, and insulating components in electronic products and mechanical equipment. In response to the outcry from affected industries, that only after the rule emerged had become fully aware of its potential impact on their products, in March of this year, EPA hastily issued a narrowly tailored No Action Assurance (NAA) letter announcing that EPA would not pursue enforcement actions for up to 180 days for violations of a prohibition on processing and distribution in commerce of PIP (3:1) for use in articles. Without the NAA, EPA correctly reasoned, the March compliance deadline would have created significant supply chain disruptions, especially in the electronics and related manufacturing sectors. Simultaneously, EPA issued a Federal Register notice in March seeking public comment on the PIP (3:1) rule, and the other four PBT rules, to allow EPA to gather information to ascertain further facts and to undertake a broader review of the PBT rules pursuant to President Biden’s Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.”

Information appearing this week on OMB’s website clarifies that EPA has completed its draft of an Interim Final Rule which is expected to receive expedited review by OMB. Assuming no major concerns with the draft are raised by OMB, the Agency hopes to be in a position to make public the Interim Final Rule on or before the September 4 date when the NAA is set to expire. The Interim Final Rule is expected to address only the compliance deadlines for PIP (3:1) as noted in the Spring Regulatory Agenda. It is also likely that EPA will advise the public that EPA will be continuing its reassessment of the five PBT rules and their terms and could issue other amendments in the future. In the absence of timely changes to the PIP (3:1) rule deadlines, makers, importers, and distributors of PIP (3:1) containing products could be facing stiff penalties under TSCA, which authorizes civil fines in excess of $40,000 per day, per violation.  Even with additional time to do so, the affected industries will need to arrive at practical methods to assess which products contain PIP (3:1) and swiftly find alternatives for the substance, or for the parts containing PIP (3:1).

© 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 specific chemical name for PIP (3:1) is phenol, isopropylated phosphate (3:1) (CASRN 68937–41–7).

  2. The PIP (3:1) rule is codified at 40 CFR 751.407.