Skip to main content
Environmental Edge
September 15, 2021

EPA Announces First of Several Moves in Rethinking TSCA Section 6 “PBT” Rules

Environmental Edge: Climate Change & Regulatory Insights

The Agency has finally announced the basic details of its multi-step path forward for EPA’s ongoing efforts to reconsider five “expedited” TSCA regulations issued just prior to the transition in administrations. With little fanfare on the Friday afternoon before heading into the Labor Day weekend, EPA responded to the overwhelming concerns expressed earlier this year about the deadlines for complying with one of five final rules EPA issued in January for certain persistent, bioaccumulative, and toxic (PBT) substances. The regulation of greatest concern will generally prohibit use of a substance known as PIP (3:1) and initially established a deadline for compliance of March 2021.1 Because PIP (3:1) has had longstanding, but little known, use in various manufactured articles—including electronic devices such as cellular telephones, laptop computers, and even industrial and commercial equipment—the original compliance deadlines and broad prohibition created widespread concern among the makers, importers and users of such products. EPA’s much-anticipated pre-Labor Day announcement revealed the Agency had just signed a final rule extending the compliance deadlines in a manner that will permit the continued manufacture and distribution of commercial and consumer use products that contain PIP (3:1) until March 8, 2022. This action followed an emergency measure taken earlier this year which the Agency’s compliance office classified as a “No Action Assurance.” Collectively, these measures will ensure the supply chain of manufactured products (articles) containing PIP (3:1)—often imported to the US by overseas suppliers—would not be interrupted, at least until March of next year, allowing, for now, a very tentative sigh of relief in the regulated community.

Signaling that further regulatory relief on PIP (3:1) might be in sight, EPA simultaneously reported it will “soon” issue a notice of proposed rulemaking that, if finalized, would further extend the compliance dates for the PIP (3:1) rule. In a promising development, the Agency’s notice of proposed rulemaking has just made its way to the Office of Management and Budget (OMB) for review. According to EPA, the revised compliance dates expected in that proposal will align with comments received and the expected timing for the separate rulemaking discussed below that is planned for 2023 and that will address all 5 PBT chemicals. To avoid further regulatory “fire drills,” EPA will need to finalize any further extension for the PIP (3:1) compliance dates before March 8, 2022.

The Agency has described its efforts with respect to PIP (3:1) as being just an initial step among several related and presumably organized efforts first announced in March to “reconsider” all five PBT rules issued in January. The four additional PBT substances that will be addressed in the reconsideration exercise are: Decabromodiphenyl ether (DecaBDE); 2,4,6-Tris(tert-butyl)phenol (2,4,6-TTBP); Hexachlorobutadiene (HCBD); and Pentachlorothiophenol (PCTP). EPA is targeting 2023 for the release of a separate rulemaking containing the Agency’s proposals which potentially could revise the terms of the existing final PBT rules following EPA’s “reconsideration” efforts.  EPA will accept further public comments on the PBT rules at that time. While the current terms of the 5 PBT rules will remain in effect until further amendments can be proposed and finalized through notice-and-comment processes, EPA has signaled it is unlikely (without persuasive evidence) to extend the various

© 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). The rule was promulgated at 86 Fed. Reg. 894 (January 6, 2021).